4. Are you a person who uses marijuana for medicinal purposes facing state charges in one of the other 37 states (or the District of Columbia) that have not yet fully accepted marijuana as medicine?
Unfortunately, 37 states and the District of Columbia have yet to fully recognize medical marijuana as legal under state law, and patients using marijuana for medicinal purposes are at risk of facing criminal penalties in most of these states.
However, there is some good news. At least 24 of these states have taken some type of action on medical marijuana in the past, either legislatively (e.g., MD-reduced, but did not eliminate all criminal penalties for medical marijuana; CT-passed medical marijuana bill in 2007, which was vetoed by the Governor; LA-allowed an affirmative defense for specific criminal offenses where defendant possessed an "order"), by initiative (e.g., AZ-passed non-functional legislation allowing medical marijuana with a "prescription"; DC-passed medical marijuana legislation but was blocked from pursuing implementation by Congress), or by judicially-created caselaw regarding a medical necessity defense (e.g., FL, ID, DC). It is important for residents of these states to be aware of the relevant laws and to continue to build political capital and organize to pass legislation and initiatives in the future. For more information about how to get involved in your area, check out ASA's Activist Corner.
More practically, if you have you been arrested for a marijuana offense in one of these states, and you use marijuana for medical purposes, the first thing you should do is to try to get an appointment with and then a recommendation from a doctor in good standing in that state. This applies even if you already have an out-of-state recommendation, as such a recommendation might be helpful, but will probably be insufficient in asserting a successful medical necessity defense in a non-medical marijuana state. Here are several strategies you may employ:
In educating your physician, you should use these materials:
Using your recommendation (if a doctor deems that it is appropriate to issue you one), you should try to assert the medical necessity defense (a specific type of necessity affirmative defense) against your marijuana-related charges. Also make sure that your Public Defender looks for challenges that he or she can make in court to the other parts of the arrest, particularly regarding search and seizure issues (no probable cause to search, coerced consent to search, faulty warrant, etc.). And keep Americans for Safe Access' Legal Services Coordinator apprised of the progress of your case, and, if necessary, ASA legal staff can try to set up a consultation with your attorney before trial. For the future, you may also want to look into getting a prescription for Marinol, which is legal to prescribe in every state, if you think it will help with your condition. For more information on Marinol, please see Section I.E. of this Civil FAQ.
Here is a list of information on the medical necessity defense and other relevant law in each state for you and your lawyer. Special thanks for most of this information to this extensive and educational NORML page compiled by Cynthia Christiani:
A-LM-ZYou will face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.
According to NORML's page on state-by-state medical necessity defenses (last updated 2004):
Defense of necessity adopted by common law, however the legislature precluded assertions of medical necessity defense when it enacted the Controlled Substances Therapeutic Research Act.
You and your lawyer should continue to research whether there is any new caselaw in your state regarding the medical necessity defense.
You will face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.
According to NORML's page on state-by-state medical necessity defenses (last updated 2004):
Medical necessity defense NOT available unless patient has a "prescription" from a physician in compliance with ARS 13-901.01, which is currently impossible since doctors are prohibited, federally, from writing "prescriptions" for medical marijuana, as it is not yet an FDA-approved medication. Necessity defense requires that no reasonable alternative was available. Non-medical necessity defense NOT allowed in marijuana possession prosecution.
-However, ASA has received some reports from patients that criminal charges for possession of very small amounts of marijuana have been dismissed in the interests of justice.
You and your lawyer should continue to research whether there is any new caselaw in your state regarding the medical necessity defense.
You will face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.orgto discuss trial strategy.
According to NORML's page on state-by-state medical necessity defenses (last updated 2004):
Medical necessity defense would probably not be accepted because legislature considered and rejected allowing the affirmative defense. Arkansas does have a "Choice of Evils" law on the books. In Arkansas, marijuana is a Schedule VI drug - no currently accepted medical use
You and your lawyer should continue to research whether there is any new caselaw in your state regarding the medical necessity defense.
You will face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.orgto discuss trial strategy.
According to NORML's page on state-by-state medical necessity defenses (last updated 2004):
Affirmative defense of medical necessity would probably not be allowed because the legislature specifically rejected it in 2003 (Substitute House Bill No. 5100). There has been a medical marijuana law on books in CT since 1981 (Conn. Gen. Stat. § 21a-253, Conn. Gen. Stat. § 21a-246), but it is unworkable and not a single prescription has been issued since the law was approved because of federal law. Necessity defense adopted by common law (not codified).
-However, in 2007, medical marijuana legislation passed both houses of the legislature. After five legislative committees and the full House and Senate passed H.B. 6715, Gov. M. Jodi Rell (R) vetoed it. This bill would have allowed sick and dying patients to use medical marijuana with their doctors' recommendations. Although more than 60% of Connecticut's legislators voted in favor of the bill, two-thirds of each chamber is necessary to override a veto and a veto-override vote didn't even occur.
You and your lawyer should continue to research whether there is any new caselaw in your state regarding the medical necessity defense.
You will face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.
According to NORML's page on state-by-state medical necessity defenses (last updated 2004):
Medical necessity defense might be able to be raised (see Choice of Evils statute, Del. Crim. Code, Title 11, Part 1, Chapter 4, § 463), but may be rejected because of Delaware's classification of marijuana as a Schedule I drug (Del. ST TI 16 § 4713). See Mills v. State, Bodner v. State, & Alexander v. Cahill for justification/choice of evils defense caselaw.
You and your lawyer should continue to research whether there is any new caselaw in your state regarding the medical necessity defense.
You will face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.
According to NORML's page on state-by-state medical necessity defenses (last updated 2004):
Washington D.C. has a medical necessity defense (United States v. Randall)! In 1998, 69% of Washington, D.C. voters approved a medical marijuana initiative, but then Congress blocked the law from being implemented with the Barr Amendment. Marijuana is a Schedule III drug in D.C.
You and your lawyer should continue to research whether there is any new caselaw in your state regarding the medical necessity defense.
You will face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.
According to NORML's page on state-by-state medical necessity defenses (last updated 2004):
Florida has a medical necessity defense, in limited circumstances (Jenks v. State, upheld in Sowell v. State)!
You and your lawyer should continue to research whether there is any new caselaw in your state regarding the medical necessity defense.
You will face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.
According to NORML's page on state-by-state medical necessity defenses (last updated 2004):
No affirmative defenses available for a patient who is charged with possession or dissemination of marijuana for medical, health or therapeutic purposes unless the patient is in the Georgia Therapeutic Research Program (see Carlson v. State, Ga. Code Ann. § 43-34-120 to-126). However, Georgia does have codified justification defense (Ga. Code Ann. § 16-3-20).
You and your lawyer should continue to research whether there is any new caselaw in your state regarding the medical necessity defense.
You will face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.
According to NORML's page on state-by-state medical necessity defenses (last updated 2004):
Idaho has a medical necessity defense, although it can only be argued under the common law defense of necessity, and only used for simple possession (State v. Hastings, confirmed in State v. Tadlock)!
You and your lawyer should continue to research whether there is any new caselaw in your state regarding the medical necessity defense.
You will face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.
According to NORML's page on state-by-state medical necessity defenses (last updated 2004):
Illinois has a Therapeutic Research Program in effect (IL ST CH 720 § 550/11). This program would most likely prevent the medical necessity defense, if raised, from being used successfully because courts typically say that this program's existence creates a reasonable alternative the defendant could have used. However, Illinois does have codified necessity defense (IL ST CH 720 § 5/7-13). Additionally, medical necessity defense failed in 2003 Kratovil case.
You and your lawyer should continue to research whether there is any new caselaw in your state regarding the medical necessity defense.
You will face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.
According to NORML's page on state-by-state medical necessity defenses (last updated 2004):
Indiana has retained common law defense of necessity (See Toops v. State, Judge v. State). There is also some statutory language suggesting the possibility of an affirmative defense if the defendant can prove there was a valid "order" (IC § 35-48-4-7).
You and your lawyer should continue to research whether there is any new caselaw in your state regarding the medical necessity defense.
You will face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.
According to NORML's page on state-by-state medical necessity defenses (last updated 2004):
Iowa has some language in the Iowa Controlled Substances Act suggesting that a defendant may raise a defense by presenting an "order" from a physician (Iowa Code § 124.401). Use of medical marijuana may not be considered to be a probation violation. Iowa has a common law (not codified) necessity defense, but it is generally not available to excuse criminal activity by those who disagree with the policies of the government (Planned Parenthood of Mid-Iowa v. Maki). Iowa also has a justification defense (State v. Jeffries). Marijuana is a Schedule II drug in Iowa "when used for medicinal purposes pursuant to rules of the board of pharmacy examiners." (Iowa Code § 124.206).
You and your lawyer should continue to research whether there is any new caselaw in your state regarding the medical necessity defense.
You will face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.
According to NORML's page on state-by-state medical necessity defenses (last updated 2004):
Kansas has codified defense of compulsion (K.S.A. § 21-3209). Justification by necessity defense, except as codified in statutes such as those relating to self-defense and compulsion, has seemingly not been adopted in Kansas (City of Wichita v. Tilson). If recognized as defense in criminal case, justification by necessity defense only applies when harm or evil which defendant seeks to prevent by his or her own criminal conduct is legal harm or evil as opposed to moral or ethical belief of individual defendant.
You and your lawyer should continue to research whether there is any new caselaw in your state regarding the medical necessity defense.
You will face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.
According to NORML's page on state-by-state medical necessity defenses (last updated 2004):
Medical necessity defense (and general necessity defense) not recognized in Kentucky as a defense to a criminal charge if there is no danger of imminent physical injury (Peak v. Commonwealth, Greer v. Commonwealth). Choice of evils defense is codified but must demonstrate all elements (KY ST § 503.030).
You and your lawyer should continue to research whether there is any new caselaw in your state regarding the medical necessity defense.
You will face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.
According to NORML's page on state-by-state medical necessity defenses (last updated 2004):
The Court of Appeal (in State v. Webb) said defendant can raise medical marijuana defense in order to negate the intent element of a possession with intent to distribute offense. Also, there is some statutory language suggesting that a defendant may raise a defense by presenting an "order" from a physician. Louisiana has a Therapeutic Research Program (RS § 40:1046).
-Also, Louisiana statutes seem to provide a medical marijuana defense to the offense of simple possession, if the defendant can provide a valid "order" from a practitioner.
RS § 40:966(C)(3). Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule I unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner or as provided in R.S. 40:978, while acting in the course of his professional practice, or except as otherwise authorized by this Part. Any person who violates this Subsection with respect to any other controlled dangerous substance classified in Schedule I, shall be imprisoned at hard labor for not more than ten years, and may in addition, be required to pay a fine of not more than five thousand dollars.
-A patient might also possibly utilize this clause in his/her defense.
RS § 40:1024. Exceptions; defenses.
-In the summer of 2008, Matthew Zugsberger was arrested on marijuana charges, and is testing a patient's ability to raise a medical necessity defense in Lousiana.
"Marijuana defendant vows to fight drug charges", (News Article), Colin Campo, Houma Today, (June 24, 2008).
"There was never any intent to break the law, Matthew Zugsberger says. Matthew Zugsberger, arrested last week in Thibodaux on marijuana charges, displays the California identification card that authorizes him to possess marijuana for medical purposes.
Louisiana does not make the same allowances for medical marijuana use as his home state of California. But the former oilfield diver was certain his privilege of possession would be honored here. That was until Friday, when a team of state troopers, aided by Thibodaux police, raided his St. Bernard Road apartment, allegedly seizing a little over two pounds of marijuana, some hashish oil and $4,640 in cash. Now the 32-year-old faces multiple drug charges.
He expresses no hard feelings toward law enforcement and harbors hopes that his case will, in the long run, make life easier for people like himself. "They didn't mistreat me at all. In fact they were very nice," he said of the officers. "I don't want to fight the system. I want to help refine it."
It all began Wednesday when Troop C officers were contacted by authorities in Mendocino, Calif., who said a "large amount of marijuana" was en route to the bayou state via a private delivery service to 2316 St. Bernard Road, Apt. E.
The package, said Troop C spokesman Gilbert Dardar, was addressed to Zugsberger and "contained three large bags of marijuana." Troopers agreed to take delivery of the marijuana in an attempt to further the investigation, Dardar said. The shipment was intercepted and a search of Zugsberger's apartment commenced Friday. Zugsberger, Dardar said, admitted to officers that he paid $6,000 per pound for the marijuana, which "appeared to be very high quality with a much higher THC content."
THC is the active ingredient in marijuana that causes intoxication. According to Zugsberger, the high price is one indication of his argument that he is not involved in distribution. There would be no way, he said, to make a profit selling marijuana after paying that much for it. The need for the drug, Zugsberger said, arose after a 2005 work mishap. Debris fell on him during a dive, he said, collapsing his spine.
Prescriptions for traditional painkillers didn't do the trick, he said, because of medical complications with his stomach. Zugsberger has a California license allowing him to posses up to 8 ounces of medicinal cannabis at any time.
The apartment where police made the seizure is leased to his wife, Teryn Richardson, an educator taking part in a New York internship. The plan was for Zugsberger to live in the Thibodaux apartment as a housesitter. Richardson, who flew home from New York after learning of Zugsberger's arrest, has a less charitable view of the police action. She complains of damaged paintings, clothes strewn on the floor and money seized in the raid that belongs to her and has nothing to do with the case. "They made it look criminal," Richardson said. Zugsberger said he and Richardson are suffering dire consequences. He points to a near-empty refrigerator, explaining that they cannot buy food without money. Normally, in his work as a freelance rock hound and gold-panner in California, he is able to afford whatever he wants, including the marijuana that eases his pain enough to allow the work.
The biggest consequence of the seizure, Zugsberger said, is the pain that continues unabated. And he cannot leave Louisiana before his July 18 court date. "I just have to suffer because I can't go home for treatment," he said. Louisiana law permits some limited use of marijuana if prescribed by a doctor in the state, including treatments for glaucoma and side effects of cancer therapy. Zugsberger glibly spouts section numbers of various laws here and in California, certain that his situation falls into a loophole somewhere. He hopes -- whether through a trial or pre-trial discussions -- to convince a judge to change Louisiana's stance on medical marijuana. Asked if he sees himself as a crusader, Zugsberger said no. "But given the circumstances laid at my feet with this, I will not back down," Zugsberger said. "I'll take this to the Supreme Court.""
Zugsberger later got his case dismissed.
You and your lawyer should continue to research whether there is any new caselaw in your state regarding the medical necessity defense.
