Marijuana Legal Defenses Afforded By Effective State Cannabis Marijuana Laws

i.  Exemption from Prosecution

     State governments are not required to enforce federal laws. A state may establish that it is no longer a state-level crime for patients to possess or cultivate marijuana for medicinal purposes. Federal laws would be broken by individual patients, but an "exemption from prosecution" prevents the state from prosecuting qualified patients. Most exemptions are tied to a state registry program, which allows patients’ credentials to be easily verified.

ii.  Simple Defense

     With a simple defense to a charge of marijuana cultivation or possession, the defendant need only produce a relatively small amount of evidence at trial in support of the defense that the cultivation or possession was solely for a legitimate medical purpose. In order to win a conviction, the state must disprove the existence of facts establishing the defense beyond a reasonable doubt. Maine is the only state where unregistered patients are afforded a simple defense at trial.

     In contrast to the affirmative defense, which places the burden on defendants to prove that their marijuana use or possession is medically necessary, a simple defense places the burden on prosecutors to prove that marijuana use or possession is not medically necessary for the defendant. As a result, it is difficult for prosecutors to win a conviction against legitimate patients afforded a simple defense in medical marijuana cases.

iii.  Affirmative Defense

     Several state medical marijuana laws allow individuals to assert an affirmative defense to charges of unlawful marijuana cultivation or possession. To establish the affirmative defense, individuals must prove at trial — by a preponderance of the evidence — that they are in compliance with the medical marijuana statute. The affirmative defense is the only defense afforded individuals by the medical marijuana law in Alaska. Although this defense does not prevent patients from being arrested, as a matter of practice, individuals who are clearly in compliance with the law are typically not arrested. Two states, Colorado and Oregon, allow individuals to use an affirmative defense to argue that an amount of marijuana in excess of the specified legal limit is medically necessary.

iv.  "Choice of Evils" Defense

     In addition to providing one or more of the above specific defenses (exemption from prosecution, simple defense, or affirmative defense), the enactment of a medical marijuana law may allow defendants to raise a medical necessity defense, often referred to as a "choice of evils" defense. This defense is long recognized in common law and may be applied in states where a law or court decision defines or indicates circumstances where medical marijuana cultivation, possession, and use are permitted. 

 Medical necessity defense

     The necessity defense, long recognized in common law, gives a defendant the chance to prove in court that his or her violation of the law was necessary to avert a greater evil. It is often referred to as the "defense of choice of evils."

     If allowed in a medical marijuana case, the medical necessity defense may lead to an acquittal, even if the evidence proves that the patient did indeed possess or cultivate marijuana. This defense generally holds that the act committed (marijuana cultivation or possession, in this case) was an emergency measure to avoid an imminent harm. The threatened harm is so great that ordinary standards of intelligence and morality consider the desirability of avoiding the harm to be greater than the harm that is caused by violating the marijuana laws. Hence, it is the selection of the lesser harm.

     Unlike "exemption from prosecution," a patient is still arrested and prosecuted for the crime; given that the judge and/or jury may decide that the evidence was insufficient to establish medical necessity.

     The necessity defense is not allowed as a defense to any and all charges. Typically, courts look to prior court decisions or legislative actions that indicate circumstances where a necessity defense may be applicable. Regarding medical marijuana and the necessity defense, for example, a court’s decision on whether to permit the defense may depend on whether the legislature has enacted a law that recognizes marijuana’s medical benefits.

     This defense is typically established by decisions in state courts of appeals. Additionally, a state legislature may codify a medical necessity defense into law. Oregon’s medical marijuana law permits this defense (in addition to allowing an affirmative defense for unregistered but documented patients and an exemption for registered patients).

     The first successful use of the medical necessity defense in a marijuana cultivation case led to the 1976 acquittal of Robert Randall, a glaucoma patient in Washington, D.C.

     In the Randall case, the court determined that the defense was available if (1) the defendant did not cause the compelling circumstances leading to the violation of the law, (2) a less offensive alternative was not available, and (3) the harm avoided was more serious than the conduct to avoid it, i.e., cultivating marijuana.

     In addition to Washington, D.C., courts in at least five states have allowed the medical necessity defense in medical marijuana cases, and in some cases those decisions have been reaffirmed.

     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.

     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.