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Describes The Right To Use a Medical 
Marijuana Necessity Defense


                      Return To OnlinePot’s Legal Section Main Page       

A Medical Marijuana Necessity Defense

    The following discussion of the medical necessity defense is intended for general
 information purposes only. It does not constitute legal advice for any specific case.
 The applicable law of necessity varies from jurisdiction to jurisdiction. Persons
 with specific cases or questions are advised to seek the advice of experienced
 attorneys and physicians.

    Although an increasing number of states are enacting statutes permitting seriously ill people to use marijuana legally for medicinal purposes, the majority of states still provide no prospective access to marijuana for medical use. In states where affirmative rights to use marijuana for medicinal purposes have not been enacted, individuals may still be prosecuted for possessing or using marijuana for treatment of their medical condition. When these prosecutions occur, raising the medical necessity defense may provide a means of avoiding a criminal conviction.

    The "medical necessity defense" is usually grounded in either a state’s common law or general necessity defense statute. Regardless of its origin, the basis of the necessity defense is that society is sometimes willing to excuse or even justify what would otherwise be illegal conduct that was done to avoid an even worse or greater evil. In doing so, the defense reflects society’s understanding that sometimes forces beyond a person’s control place the person in an emergency situation where he or she must choose between the harm or "evil" of breaking the criminal code or complying with the code and allowing an even greater harm or "evil" to occur. In these situations, if a person violates the law in order to avoid the greater harm, the defense of necessity excuses the person from being guilty of what would otherwise be a crime.

    "The pressure of natural physical forces sometimes confronts a person in an emergency with a choice of two evils: either he may violate the literal terms of the criminal law and thus produce a harmful result, or he may comply with those terms and thus produce a greater or equal or lesser amount of harm. For reasons of social policy, if the harm which will result from compliance with the law is greater than that which will result from [violating] it, he is by virtue of the defense of necessity justified in violating it." The logic behind the defense is similar to the logic prohibiting the imposition of civil liability in situations where a person or property is harmed to avoid a greater harm. Stated differently, the defense applies where the individual actor determines that any reasonable person in his or her situation would find the personal consequences of violating the law less severe than the consequences of compliance. "While the act itself is voluntary in the sense that the actor consciously decides to do it, the decision is dictated by the absence of an acceptable alternative."

    "Traditionally, the defense of necessity has been characterized as being either a justification of or an excuse for criminal activity." While the differences between the two exist,7 they share the common result of negating criminal liability. Whether applied as a justification or excuse, the defense furthers the belief that people should not be punished for actions taken which were not of their own free will.

    "Penalizing one who acted rationally to avoid a greater harm will serve neither to rehabilitate the offender nor to deter others from acting similarly when presented with similar circumstances." Rather than discussed in terms of necessity, "[t]he matter is often expressed in terms of choice of evils: When the pressure of circumstances presents one with a choice of evils, the law prefers that he avoid the greater evil by bringing about the lesser evil." For similar reasons, necessity defenses are sometimes labeled "competing harms." Under such circumstances, the evil brought about from violating the law is deemed to be less than the evil which would have resulted from literal compliance with the law.

    For example, suppose Tom sees a little girl drowning in a backyard pool as he walks down his neighborhood sidewalk. Suppose further that Tom sees a sign between himself and the little girl which says, "No Trespassing Violators Will Be Prosecuted." Tom is now confronted with a choice. He can comply with the law and the little girl will drown, or he can break the law of trespass and avoid the greater evil of a little girl senselessly dying. If Tom were to be charged with trespass after choosing to save the little girl, he could raise the defense of necessity in order to avoid what would otherwise be a crime because the harm which Tom sought to avoid, the little girl’s death, was greater than the harm resulting from violating the law against trespassing.

    In the medical necessity context, courts are required to balance the interest of an individual in his or her health and welfare against the government’s interest in upholding the criminal law. When the medicinal use of marijuana is in question, "… the court must balance the defendant’s interest in preserving his health against the State’s interest in regulating the drug involved." In order to successfully present the defense in this context, the defendant will typically be required to convince the court that their health is threatened to the degree that engaging in otherwise criminal activity is warranted. Although the specific requirements vary from state to state, this usually requires a person using marijuana for medicinal purposes to show that they acted under the reasonable belief that their marijuana use was necessary to avoid serious medical harm. Medical testimony and evidence from a treating physician or medical expert is almost, if not always required to support the claim. In at least one case, the absence of medical testimony prohibited the defense from being presented.

    The harm sought to be avoided must be more serious or greater than the harm or "evil" of breaking the applicable marijuana law. This aspect of the defense requires the judge or jury to evaluate the severity of the harm that would result without marijuana use as compared to the harm of violating the marijuana law. While it is difficult to anticipate what judges or juries will decide in a given case, the more severe the personal harm an individual is seeking to avoid, the greater the chance a judge or jury will decide the individual’s efforts to avoid it where appropriate. Most importantly, the defense affords individuals the opportunity to present evidence of marijuana’s ability to minimize the effects of their disease or illness. For example, in Washington v. Diana "[t]he defendant, a victim of multiple sclerosis, testified as to his belief that marijuana was a ‘primary sedative’ for the ‘frustrations’ caused by multiple sclerosis. While no argument was presented to the trial court concerning a medical necessity defense, the appellate court, in the ‘interests of justice,’ remanded the matter so that the issue could be fully determined. The court was cognizant that a necessity defense is generally available only when the physical forces of nature cause the accused to take unlawful action to avoid harm which social policy deems greater than that which results from a violation of the law. It determined nonetheless that the defendant should be afforded the opportunity to demonstrate the potential beneficial effects of marijuana on the symptoms of multiple sclerosis."

    Many jurisdictions also require that there be no other available options for the individual to avoid the harm. For example, in Idaho, the defense is not applicable where the compelling circumstances have been brought about by the accused or where a legal alternative is available to the accused. In other words, if a viable, legal alternative treatment to marijuana exists, the individual cannot claim necessity as a defense. The reasoning behind this result is that because a legal means of avoiding the harm exists, violating the law is not necessary.

    Technically, the defense is only applicable when there are no legal means of avoiding the harm. However one court accepted the viability of the medical necessity defense to marijuana possession in a glaucoma case where surgery, though risky, was nonetheless a possible alternative course of treatment. Where the element is strictly required, it is likely to be contested. The prosecution and the individual frequently disagree about whether a legal alternative exits. Medical experts are used by both sides and the question is left for the judge or jury to decide. As one court reasoned, for medical conditions "[o]bjective standards of proof can be developed without undue hardship, since the existence of a disease and its response to the drug can be demonstrated scientifically."

    Although the current law of necessity in some states technically limits marijuana’s medicinal use to situations where individuals have no other alternative, the law is usually applied in a more compassionate manner. NORML believes that marijuana laws should reflect the inherent rights of individuals to choose their own course of treatment as is reflected in other legal contexts. This reasoning was used by the court in applying the medical necessity defense to marijuana possession in United States v. Randall and further suggests that medical decisions be left to individuals entirely. For example, the abortion cases of Roe v. Wade and Doe v. Bolton stress the fundamental nature of an individual’s right to preserve and control their own bodies. These decisions allow a woman to terminate a pregnancy at any stage in which the mothers own existence is threatened. The importance of these cases in the medical necessity context is their demonstration of just how "far-reaching is the right of an individual to preserve their health and bodily integrity." According to the court in Randall, justification for using marijuana is even more easily arrived at because, unlike the situations in Doe and Roe, "… no direct harm will be visited upon innocent third parties; any major ill effects from the inhalation of marijuana smoke will occur to the defendant alone." The Randall court went on to state that individuals growing marijuana for their own personal consumption do not contribute to the illegal trafficking of the drug and therefore are not injuring innocent members of the public.

    The Randall court also considered the reasoning of Stowe v. United States, an unreported civil case. In Stowe, the plaintiffs sought to enjoin the FDA from preventing their cancer suffering spouses from receiving laetrile, a drug banned by the FDA because whether it was an effective cancer treating drug as unresolved. The district court enjoined the defendants because "… the plaintiff’s right to medical treatment with a substance which had demonstrably favorable effects on their cancers superseded any interest of the government in protecting the general public from a drug whose properties were not conclusively proven." This right to medical treatment was the basis for the district court enjoining the FDA from preventing the plaintiffs from importing laetrile for their own use.

    NORML believes these cases support the right of an individual to choose their own medicine. In fact, there is a trend in that direction. Proposition 215, the current law in California, is the most widely publicized example. NORML encourages other states to take similar steps, but where states fail to do so, the medical necessity defense often times provides individuals with hope for avoiding criminal liability for possessing the medicine they desperately need.

    The requirement that no legal alternative be available may mean that the defense is no longer available in states where marijuana can be legally obtained for medical purposes. If marijuana is needed, the appropriate statute must be complied with in order to possess the substance. Individuals who illegally obtain marijuana will have considerable difficulty showing that illegal possession is necessary when a legal method is readily available. Another requirement for the defense is that the state legislature has not precluded the necessity defense’s applicability to a given set of circumstances. As the number of medical marihuana cases increases, the possibility exists that a state legislature could amend their necessity defense statute to exclude the medical use or medical marijuana use defense. NORML intends to vigorously discourage any such attempt and to continue advocating the implementation of procedures for prospective access to marijuana for medicinal purposes.

    Regrettably, a small number of state courts have ruled that the defense is not applicable in their state. Insufficient testimony regarding the medical need of the defendant and an unwillingness to meddle with the authority of the legislature were the most often articulated reasons for refusing to apply the defense.

    For example, a Georgia court ruled there are no affirmative defenses to the possession or dissemination of marijuana for medical, health, or therapeutic purposes. The court cited concerns that the benefits of marijuana treatment or therapy had not been medically or scientifically recognized and expressed concerns about infringing upon the role of the legislature. According to the Court, the question of whether the use of marijuana for medical purposes constitutes a defense must be answered by the legislature. "These are issues involving safety, health and community morals within the police power of the state posing questions for resolution by the General Assembly rather than by the courts. For us to rule otherwise would be a usurpation of a legislative prerogative." While this result is disappointing, the fact that reliable scientific evidence continues to mount suggests that even in Georgia, if courts will not take action, perhaps the General Assembly will.

    Even where the defense does apply, it is subject to change because medical research continues to find new medicinal uses for marijuana. As is true with any medication or course of treatment, whether marijuana is an appropriate means of treatment is a decision which should be thoughtfully made with the consultation of a physician.

    The NORML Foundation’s Legal Department is committed to educating both the legal community and the public about this important issue. Until every jurisdiction allows patients access to the medicinal marijuana they need, NORML is committed to assisting and promoting the medical necessity defense for those patients charged with a criminal offense. Tom Dean, Esq., the Foundation’s Director of Litigation, is available to answer general questions about the defense and to assist legal counsel in various aspects of preparing the defense, including briefing, legal research, and locating expert witnesses. Attorneys and the public are encouraged to call 202-483-8751 for further information.


{1} See Wayne R. LaFave, Substantive Criminal Law S 5.4

{2} Id.

{3} Randall at 2249; citing C. Kenny, Outlines of Criminal Law 68-70 (1907).

{4} Randall at 2249, 2251.

{5} Id.

{6} Randall at 2251; See also the discussion of justification and excuse in Note, Justification: The Impact of the Model Penal Code on Statutory Reform, 75 Colum. L. Rev. 914 (1975).

{7} Where the defense is considered a justification, the criminal nature of the prohibited activity is negated. Randall at 2251. This conclusion is based upon the concept that criminality is derived from combining a prohibited act with an evil mind. Id. "Where the criminal act was compelled by outside circumstances rather than through the exercise of the actor’s free will, the requisite criminal intent is considered to be lacking." Id. The absence of free will renders the crime incomplete because the actor did not have an evil mind while committing the act. Id. Because the requisite mental element is missing, the actor is relieved of criminal responsibility. Further, because anyone similarly situated would be equally without evil intent, the justification applies to all those so situated. Id.

Necessity has also been applied in the form of an excuse. Id. "Under this view, criminal responsibility arises upon the performance of every willed action, regardless of the underlying reason for the choice. The actor may be excused from punishment for public policy reasons but not because he was without blame. Here, unlike jurisdictions applying the defense as a justification, all of the elements of the crime are present. But although guilt is established punishment is not required because of extenuating circumstances which mitigate the seriousness of the offense. Under this theory, the necessity defense must be applied on a case by case basis rather than by reason of a general rule." Id.

{8} Id.

{9} Id.

{10} Id.

{11} For example, see New Hampshire Criminal Code S 627:1; 17-A M.R.S.A. S 103.

{12} It is important to note that the necessity defense does not apply in non-medical drug possession cases. "The courts have consistently refused to acknowledge a nonmedical necessity (or "choice of evils") defense in a state narcotics prosecution. Most often, the theory is rejected on the grounds that the defendant could have avoided the "emergency" at issue by taking advance precautions, or could have utilized a legal alternative to committing the subject crime. "Economic" necessity does not act as a defense to a state narcotics action, either, or will "nonphysical" forces create a "choice of evils situation." 1 A.L.R.5th 938 (1992).

{13} See Randall at 2252.

{14} State v. Diana, 604 P.2d 1312, 1317 (Wash.App.Ct, 1979).

{15} For example, under New York Law the medical necessity defense requires the defendant to show: "1) the defendant acted under a reasonable belief, supported by medical evidence, that his or her action was necessary as an emergency measure to avert an imminent public or private injury; 2) the defendant’s actions did not create the crisis; 3) it is clearly more desirable to avoid the public or private injury caused by violating the statute; 4) there are no available options; and 5) prior legislative action does not preclude the defense and defendant’s actions are not based only upon considerations of the morality and advisability of the statute violated. People v. Bordowitz, 588 N.Y.S.2d 507, 511 (Criminal Court of the City of New York, New York County, Jury 5, 1991). Other jurisdictions require less in order to make a prima facie showing of the defense’s applicability. Washington state allows a medical necessity defense where the court finds: "the defendant reasonably believed his use of marijuana was necessary to minimize the effects of [a medical condition]; 2) the benefits derived from its use are greater than the harm sought to be prevented by the controlled substances law; and 3) no drug is as effective in minimizing the effects of the disease. State v. Diana, 604 P.2d 1312, 1317 (Ct. App. Wash. 1979). Washington also requires medical testimony to corroborate the defendant’s assertion that he or she reasonably believed their actions were necessary to protect their health. State v. Diana, 604 P.2d 1312, 1317 (Court of Appeals of Washington 1979). It is worth mentioning that while articulating these general requirements, the court also emphasized that the defense "… exists only under very limited circumstances not present in the routine case involving controlled substances." State v. Diana, 604 P.2d 1312, 1317 (Court of Appeals of Washington 1979).

A similar approach was taken in State v. Hastings, 801 P.2d 563 (Idaho 1990) where the court allowed a defendant charged with felony possession of marijuana was entitled to assert a defense of necessity under Idaho Code 733-116. "The defendant argued that the marijuana plants found growing in her basement during a police search were medically necessary to control pain caused by her rheumatoid arthritic condition. While the court refused to create a special defense of ‘medical necessity,’ it ruled that the defendant, upon remand to the trial court, was entitled to introduce evidence related to the common law defense of necessity. 1 A.L.R.5th 938 (1992), State v. Hastings, 801 P.2d 563 (Idaho 1990). The elements of the defense were: (1) a specific threat of immediate harm; (2) that the same objective could not have been accomplished by less offensive alternatives; and (3) that the harm caused was not disproportionate to the harm avoided. State v. Hastings, 801 P.2d 563 (Idaho 1990).

While unwilling to create a special medical necessity defense, other courts hold that the medical use of marijuana is covered under the common law necessity defense. See State v. Hastings, 801 P.2d 563, 364 (Idaho 1990). The elements of the common law defense are: 1) A specific threat of immediate harm; 2) The circumstances which necessitate the illegal act must not have been brought about by the defendant; 3) The same objective could not have been accomplished by a less offensive alternative available to the actor; 4) The harm caused was not disproportionate to the harm avoided. State v. Hastings, 801 P.2d 563, 364 (Idaho 1990); see also E. Arnolds & N. Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.Law & Criminology 289, 294 (1974); C. Kenny, Outlines of Criminal Law, 68-70 (1907); United States v. Moore, 486 F.2d 1139 (D.C.Cir. 1978)

Perhaps the broadest application of the defense occurred in People v. Bordowitz, 588 N.Y.S.2d 507 (1991 City Crim Ct). "Defendants in prosecution for criminal possession of hypodermic instrument were not guilty where their defense that they were engaged in needle exchange program justified by exigencies created by AIDS epidemic fell within medical necessity defense. Defendants did not create AIDS crisis; harm defendants sought to avoid– spread of AIDS virus– was greater than harm of violating the statute; there were no meaningful available options since there were insufficient drug treatment programs in city and no reason to believe that more treatment slots would come into existence in the near future; no legislative or executive action precluded necessity defense in this case; and medical evidence indicated that use of clean needle by addicts prevents the spread of HIV infection. 1 A.L.R.5th 938 (1992), People v. Bordowitz, 588 N.Y.S.2d 507 (1991 City Crim Ct). In more general terms, Section 3.02 of the Model Penal Code provides: Justification Generally: Choice of Evils.

1) Conduct to which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:

a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and

b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity of his conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence , as the case may be, suffices to establish culpability.

{16} Although the underlying rationale for the rule is largely uniform, the actual elements of the defense vary among jurisdictions. Consequently, practitioners are strongly advised to consult the case law of the particular jurisdiction in preparing to present the defense.

{17} For example, Washington requires medical testimony to corroborate the defendant’s assertion that he or she reasonably believed their actions were necessary to protect their health. Washington v. Diana, 604 P.2d 1312, 1317 (Wash.App.Ct. 1979)

{18} See State v. Bachman, 595 P.2d 287 (Hawaii, 1979). "While the court considered it ‘entirely possible’ that medical necessity could be asserted as a defense to a marijuana possession charge in a ‘proper case’ (pursuant to HRS 703-302), such a defense would require proof of the beneficial effects of marijuana use on the defendant’s condition by competent medical testimony, as well as the absence or ineffectiveness of more conventional medical alternatives. The court emphasized that relief from ‘simple discomfort’ would not suffice. Instead, the court said, the harm to which defendant is exposed must be ‘serious’ and ‘imminent.’ The court noted, as well, that a statutory vehicle existed in the jurisdiction whereby marijuana was available through prescription by a licensed medical practitioner." 1 A.L.R.5th 938 (1992).

{19} 604 P.2d 1312, 1317 (App.Ct. 1979).

{20} 1 A.L.R.5th 938 (1992).

{21} State v. Diana, 604 P.2d 1312, 1316 (Court of Appeals of Washington 1979); citing W. LaFave & A. Scott, Handbook on Criminal Law, 381-83, 386 (1972).

{22} See United States v. Randall, 104 Washington Daily Law Reporter Num. 250; 2249 (D.C. Sup. Ct. 1976).

{23} United States v. Randall, 104 Wash. Law Rep. (Number 250) 2249, 2254 (December 28, 1976).

{24} 410 U.S. 113 (1973).

{25} 410 U.S. 179 (1973).

{26} See Randall at 2253.

{27} Id.

{28} Id.

{29} Id.

{30} Id.

{31} Civil No. 75-0218-B (W.D. Okla., 1975).

{32} Randall at 2253.

{33} Id.

{34} Id.; See also Keene v. United States, Civil No. 76-0249-H (S.D. W.Va., 1976).

{35} Spillers v. State, 245 S.E.2d 54, 55 (Ga.App. 1978); See also State v. Tate, 505 A.2d 941 (N.J. 1986); State v. Pillard, 293 S.E.2d 278 (N.C. 1982), app.dismd 294 S.E.2d 374 (N.C. 1982); 1 A.L.R.5th 928 (1992).