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 VOLUME 7 - CHAPTER 88
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88.2 Drugs, Control Substances: Medical Necessity as Defense Theory

    88.2.1 Medical Necessity Defense To Marijuana Charges: Elements Of The Defense
    88.2.2 Medical Necessity Defense To Marijuana Charges: Requirement That Alternative Legal Drug Is Not Available
    88.2.3 Medical Necessity Defense To Marijuana Charges: Applies to Transportation
    88.2.4 Medical Necessity Defense To Marijuana Charges As Mitigation At Sentencing

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 VOLUME 7 - CHAPTER 88

    88.2.1    Drugs, Controlled Substances: Medical Necessity Defense To Marijuana Charges -- Elements Of The Defense

PRACTICE NOTE: A defendant charged with felony possession of a controlled substance, i.e., marijuana, may be entitled to present evidence relating to the common-law defense of necessity. (See Jenks v. State (FL 1991) 582 So2d 676, 679 [elements of medical necessity defense to use of controlled substance are: that defendant did not intentionally bring about circumstances which precipitated unlawful act; that defendant could not accomplish same objective using less offensive alternative available to defendant; and that evil sought to be avoided was more heinous than unlawful act perpetrated to avoid it; defendants charged with cultivating cannabis and possession of drug paraphernalia established medical necessity defense; medical expert and physician testified that no other drug or treatment was available that would effectively eliminate or diminish nausea suffered by defendants, who had contracted acquired immune deficiency syndrome (AIDS), and defendants established that if their nausea was not controlled, their lives were in danger]; see also State v. Hastings (ID 1990) 801 P2d 563 [defendant claimed to suffer from rheumatoid arthritis and used marijuana to control pain and muscle spasms associated with that disease]; State v. Hanson (MN 1991) 468 NW2d 77; State v. Tate (NJ 1984) 477 A2d 462, 468-69 [defendant, a quadriplegic who allegedly used marijuana because it eased pain of spastic contractions to which his body was regularly subject, was entitled to raise defense of medical necessity for possession and use of marijuana, provided he was able to demonstrate, by competent evidence, his condition, that it was sense-threatening, that physiological relief did occur, and that there was no other licit substance which could be prescribed affording same benefits but without other deleterious side effects]; but see State v. Bachman (HI 1979) 595 P2d 287 [absence of medical testimony in marijuana possession case rendered ineffective defendant's asserted defense of medical necessity]; State v. Pittman (WA 1997) 943 P2d 713, 717 [defendant required to show that there was no equally effective legal medical alternative].)

    In California, the Medical Marijuana Voter Initiative establishes that the defense of necessity could apply to the medical use of marijuana provided the requisite elements of the necessity defense were established. These elements are: (1) the possession, cultivation or transportation was to prevent a significant evil; (2) there was no adequate alternative; (3) the harm resulting from possessing, cultivating or transporting marijuana was not greater than the harm avoided; (4) the defendant believed his or her actions were necessary to prevent greater harm; (5) the defendant's belief was objectively reasonable; and (6) the defendant did not substantially contribute to the creation of the emergency. (See People v. Trippet (CA 1997) 56 CA4th 1532, 1538 [66 CR2d 559]; People v. Rigo (CA 1999) 69 CA4th 409, 415 [81 CR2d 624] [medical marijuana defense based on compassionate use not available where defendant had no prior consultation with doctor regarding the medical use of marijuana].)

See MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 20.12 [Controlled Substance Crime In The Second Degree- Sale/Schools/Parks/Public Housing/Drug Treatment Facility- Elements] (West, 4th ed. 1999).

See also generally, FORECITE National™ 305.4.9 [Drug Offenses].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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 VOLUME 7 - CHAPTER 88

    88.2.2    Medical Necessity Defense To Marijuana Charges: Requirement That Alternative Legal Drug Is Not Available

PRACTICE NOTE: In People v. Trippet (CA 1997) 56 CA4th 1532, 1539 [66 CR2d 559] the defense of necessity was not available because the defendant did not establish that the taking of another drug, which was legal, would not have been an alternative for her medical problem. (See also State v. Tate (NJ 1984) 477 A2d 462, 468-69 [defendant, a quadriplegic who allegedly used marijuana because it eased pain of spastic contractions to which his body was regularly subject, was entitled to raise defense of medical necessity for possession and use of marijuana, provided he was able to demonstrate, by competent evidence, his condition, that it was sense-threatening, that physiological relief did occur, and that there was no other licit substance which could be prescribed affording same benefits but without other deleterious side effects]; State v. Pittman (WA 1997) 943 P2d 713, 716 [defendant required to show that there was no equally effective legal medical alternative]; compare Jenks v. State (FL 1991) 582 So2d 676, 679-80 [defendants charged with cultivating cannabis and possession of drug paraphernalia established medical necessity defense; medical expert and physician testified that no other drug or treatment was available that would effectively eliminate or diminish nausea suffered by defendants, who had contracted AIDS, and defendants established that if their nausea was not controlled, their lives were in danger].)

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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 VOLUME 7 - CHAPTER 88

    88.2.3    Medical Necessity Defense To Marijuana Charges: Applies To Transportation

PRACTICE NOTE: People v. Trippet (CA 1997) 56 CA4th 1532, 1549-51 [66 CR2d 559] held that transportation may also be noncriminal under the California Medical Marijuana Initiative if the quantity transported, the method, the timing and the distance of the transportation are reasonably related to the patient's current medical needs.

    See also FORECITE National™ 88.2.1 [Medical Necessity Defense To Marijuana Charges: Elements Of The Defense].

    See also FORECITE National™ 88.2.2 [Medical Necessity Defense To Marijuana Charges: Requirement That Alternative Legal Drug Is Not Available].

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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 VOLUME 7 - CHAPTER 88

    88.2.4    Medical Necessity Defense To Marijuana Charges As Mitigation At Sentencing

PRACTICE NOTE: Medical considerations may be a mitigating factor at sentencing. (See e.g., People v. Trippet (97) 56 CA4th 1532, 1551 [66 CR2d 559].)

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].