Defendant has an illness in which experts have indicated cannot be treated with medical drugs or surgery. Defendant began smoking marijuana to alleviate his illness. Experts indicate the inhalation of marijuana is actually beneficial to his illness. Defendant is arrested with possession of marijuana and asserts necessity as a defense to his prosecution.
A defendant may assert the defense of necessity by proving (1) the defendant does not bring about the duress or circumstances,Â (2) the same objective can be accomplished in an alternative manner, and (3) â€œthe evil sought to be averted was less heinous than that performed to avoid it.â€
Defendant testified that he began to have visual difficulties in the later 1960s. As a result, Dr. Benjamin Fine diagnosed Defendant with glaucoma, distorted vision, and blindness. Dr. Fine began to treat Defendant with multiple medications, but Defendant’s tolerance to the drugs increased, causing the drugs to be ineffective. By 1974, the drugs were completely ineffective and Defendant suffered a complete loss of eye sight in his right eye and a substantial impairment of his vision in the left eye. During this period, Defendant would attain some relief through the inhalation of marijuana smoke. Defendant did not inform Dr. Fine because he feared the legal consequences. Later, Defendant was arrested for simple possession of marijuana. After his arrest, Defendant participated in an experimental program with Dr. Robert Hepler, who worked for the United States Government. Dr. Helper testified that Defendant medication was ineffective to Defendant’s condition and surgery may result in risk of immediate blindness. The result of the program indicated that the marijuana smoke had a beneficial effect on Defendant’s condition, which lessened his visual distortions. Defendant contents that he inhales the marijuana smoke due to a necessity for his health. The Court does not dispute that Defendant has meet the elements required for the necessity defense.
Whether Defendant is barred from asserting the necessity defense.
No, Defendant is not barred from asserting the necessity defense to his charge of possession of marijuana.
The necessity defense applies when (1) the actor does not bring about the duress or circumstances,Â (2) the same objective can be accomplished in an alternative manner, and (3) â€œthe evil sought to be averted was less heinous than that performed to avoid it.â€ The court finds that the Defendant did not create his eye condition himself. Likewise, the same objective, healing his illness, cannot be accomplished in an alternative manner, as shown by the experts. However, the court conducts a balancing test to determine if the third element is met. The court concludes that the evil Defendant seeks to avert, his blindness, is greater than the evil of violating the law by growing marijuana in his residence.