We have a jury trial going on in which the defense is arguing necessity for a possession of marijuana charge. The defendant was found w/ marijuana (3 grams) on him and the defense is arguing due to the defendant's health condition, he had to have the marijuana to control his vomitting. Has anyone ever dealt w/ this or heard anything about this? Haven't had much luck finding case law on this particular issue (go figure) outside of Stefanoff v. State 78 S.W.3d 496.

The government has already decided, as a matter of law, that the drug is not available for such a purpose. No defense permitted.

Besides arguing that marijuana / medicinal marijuana is illegal in general, any suggestions on how to argue that necessity doesn't apply to someone who claims that he had severe vomitting and was about to die if he had not smoked the marijuana.

Why didnt he get Nabilone or Marinol from his doctor?

They are synthetic marijuana approved by the FDA for just this sort of illness.

Here are some helpful links from the Food and Drug Administration:

http://www.fda.gov/medwatch/safety/2006/Jun_PIs/Marinol_PI.pdf

http://www.fda.gov/medwatch/SAFETY/2006/May_PIs/Cesamet_PI.pdf

http://www.fda.gov/bbs/topics/ANSWERS/ANS00457.html

Regarding the synthetic marijuana drugs...his argument was that he wasn't able to get them prescribed to him and the marijuana has a quicker effect vs. any pills

Well cocaine will cure your toothache faster and better than anything you can buy at the supermarket.



Just because he says dope is "better" doesn't mean he shouldnt have got the real medicine from the doctor. No doctor is going to just let him die from vomit... why not seek a better doctor?

Also he was really so sick that he couldnt keep from vomiting the pills then he could just as well smoke them in a pipe or bong.

That is just so ridiculous! Did he bring ANY medical records of this condition? Any doctors? or just his stoner buddies? If he was that bad off, they have a special place called an EMERGENCY ROOM. And 3 grams is not going to help all that much...ofcourse he's admitting to having more weed, just smoking it all before the police got to him.

Was this weed found in a traffic stop? If he's vomiting so much, why is he driving? I bet you a dollar it's a traffic stop!

If you do a federal/state Lexis search under "marihuana necessity defense" you will find cases from California (yes, California) to Iowa that show there is no necessity defense for marihuana when the legislature has already decided that marihuana is to be illegal with no exceptions. Also tell the Judge this is outrageous!

What if the 'necessity' is to get high? And he's got an 'urgent' need to do it? Yeah, that's the ticket!!

Here's the final outcome...The Judge allowed a necessity charge in the jury instructions and the jury walked the defendant.

WOW you have to be kidding....

I feel like I'm going to vomit.

Let's see - Stacey wants to protect 93 year men from "sex for sale"; and David feels nauseous because a man who uses marij as a medical treatment to keep from vomitting. Maybe the two cases could be combined: 93 year old man needs sex to keep himself from vomiting (all of the old age medicine) and because only prostitutes will give it up to a 93 year old man, he has to go to them. I wish you two guys were back in the office so we could discuss this further. FRED

J,

Call me I want to hear this story.

Who was on the jury? Cheech and/or Chong? Unbelievable! Let's hear the story, please~~

Don't feel too bad...I just got off the phone with a Trooper who testified in a DWI trial with a visiting judge who instructed the jury--over the prosecutor's strenuous objections--that the Trooper had to have witnessed the defendant committing an offense before he could conduct his investigation. The defendant drove up to his location as he was investigating her friend for DWI. When he spoke to the defendant, she was exuding a very strong odor of alcohol, had slurred speech, the whole works. So he proceeded to also investigate her. She did so badly on FSTs (on video) that she was walking in circles on the walk and turn. SHe also blew well over .08 on the breath test. BUT, the jury acquitted her because "the judge told us that you had to see her commit a criminal offense before you could investigate her and you testified that she didn't commit a traffic offense when she pulled up and parked." (paraphrased). The Trooper and the prosecutor are still trying to recover!

Janette A

I think I've practiced in front of that judge before... FWIW, I had the pleasure of filing a state's appeal against a judge like that and won on a pretrial supression. Score one for the good guys.

The Trooper told me he is pretty sure the judge nodded off at points during the trial, and is somewhat deaf. Apparently the judge is retired and was filling in for another judge at the last minute. Unfortunately in this case, there is no chance by appeal. The Trooper was philosophical--he's a veteran and has testified in a lot of trials and seen just about everything. It takes a lot to surprise him.

Janette A