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California | People v. Trippet, 56 Cal. App. 4th 1532, review denied (1997) |
Florida | Jenks v. Florida, 582 So. 2d 676 (Ct. App. 1st Dist., Fl. 1991) |
Florida | Sowell v. State, 738 So. 2d 333 (Ct. App. 1st Dist., Fl. 1998) |
Hawaii | State v. Bachman, 595 P. 2d 287 (Haw. 1979) |
Idaho | Idaho v. Hastings, 801 P. 2d 563 (Sup. Ct. Idaho 1990) |
Washington | Washington v. Diana, 604 P.2d 1312 (Ct. App. Wash. 1979) |
Washington v. Cole, 874 P. 2d 878 (Ct. App. Wash. 1994) | |
Washington, D.C. | United States v. Randall, 104 Wash. Daily L. Rep. 2249 (D.C. Super. Ct. 1976) |
It is also possible for a judge to allow an individual to raise a medical necessity defense based on the state having a symbolic medical marijuana law. For example, an Iowa judge ruled (in Iowa v. Allen Douglas Helmers) that a medical marijuana user’s probation could not be revoked for using marijuana because the Iowa legislature has defined marijuana as a Schedule II drug with a "currently accepted medical use." There is presently no way for patients to obtain a legal prescription for marijuana in Iowa, however, because of federal law. Nevertheless, the Iowa judge ruled that the legislature’s recognition of marijuana’s medical value protects Allen Helmers from being sent to prison for a probation violation for using marijuana.
Of note, Iowa moved marijuana into Schedule II in 1979, when it enacted a therapeutic research program. The research program expired in 1981, but the schedule remains in place.
A different judge could have ruled that the legislature intended for marijuana to be used solely in connection with the research program and, without the program, the medical necessity defense should not be available. In fact, some state courts — Minnesota and Alabama, for example — have made similar interpretations and have refused to allow this defense.
Alabama | Kauffman v. Alabama, 620 So. 2d 90 (1993) |
The state Court of Appeals refused to allow a patient to use the medical necessity defense because the legislature had already expressed its intent by placing marijuana in Schedule I — and by establishing a therapeutic research program, thereby directly establishing the very limited circumstances under which marijuana may be used. |
Georgia | Spillers v. Georgia, 245 S.E. 2d 54, 55 (1978) |
The state Court of Appeals ruled that the lack of any medical marijuana recognition by the state legislature precluded the court from allowing the medical necessity defense. |
Massachusetts | Massachusetts v. Hutchins, 575 N.E. 2d 741, 742 (1991) |
The state Supreme Judicial Court ruled that the societal harm of allowing the medical necessity defense would be greater than the harm done to a patient denied the opportunity to offer the medical necessity defense. |
Minnesota | Minnesota v. Hanson, 468 N.W. 2d 77, 78 (1991) |
The state Court of Appeals refused to allow a patient to use the medical necessity defense because the legislature had already expressed its intent by placing marijuana in Schedule I — and by establishing a therapeutic research program, thereby directly establishing the very limited circumstances under which marijuana may be used. |
New Jersey | New Jersey v. Tate, 505 A. 2d 941 (1986) |
The state Supreme Court ruled that the state legislature — by placing marijuana in Schedule I — had already indicated its legislative intent to prohibit the medical use of marijuana. In addition, the court claimed that the criteria of "necessity" could not be met because there were research program options that could have been pursued instead. |
These cases demonstrate that — although it is up to the courts to decide whether to allow the medical necessity defense — the activities of a state legislature may significantly impact this decision.
Some states have statutes that authorize a "necessity defense" generally and have specified elements of proof needed to succeed. But this does not guarantee that the courts will recognize a medical necessity defense for marijuana. It depends on how the courts interpret the legislature’s intent. If the defense is not recognized, the case proceeds as if the defendant possessed marijuana for recreational purposes or distribution. If found guilty, the offender is subject to prison time in most states.
The medical necessity defense is a very limited measure. Though a legislature may codify the defense into law, this is typically not the best course of action for a state legislature to pursue.
Preferably, a state would have a law that (1) exempts from prosecution qualified patients who cultivate and/or possess medical marijuana, and (2) allows patients to use a simple defense or an affirmative defense if they are arrested and prosecuted anyway. An ideal statute would allow the defense for personal-use cultivation, as well as possession.
MPP has identified only three states where legislators have passed bills to establish the medical necessity defense for medical marijuana offenses — Maine, Massachusetts, and Ohio. Ultimately, the efforts were short-lived, if not unsuccessful.
Maine’s legislature passed a bill in 1992, but it was vetoed by the governor. An Ohio bill that included a medical necessity defense provision became law in 1996, only to be repealed a year later. Massachusetts enacted a law in 1996 to allow patients to use the defense, but only if they are "certified to participate" in the state’s therapeutic research program. Unfortunately, the state has never opened its research program. As a result, Massachusetts patients are likely to be denied the necessity defense, similar to patients in Minnesota and Alabama, as noted above.
The U.S. Supreme Court has not yet recognized the necessity defense for medical marijuana.