Medical Necessity Defense Could Carry Weight

The medical necessity defense could be a way forward for those facing marijuana charges. This post is not intended to replace individualized legal advice but to educate generally.


Our Los Angeles marijuana lawyers know that there can be many different options and avenues for defending against marijuana charges. The medical necessity defense may be an option depending on the jurisdiction and specific facts of the case.

While states throughout America enact laws which allow the use of marijuana for seriously ill individuals, a majority of states have not enacted such statutes and all marijuana use is still illegal under federal law.

This means that individuals could be prosecuted federally or in certain states for using marijuana to treat their medical conditions, possessing marijuana, or growing marijuana.

The legal concept behind the medical necessity defense is a general necessity statute or the common law. The policy consideration behind a necessity defense is that sometimes society is willing, and in fact should, justify otherwise illegal conduct if the conduct was done to avoid or prevent an even greater or worse evil.

This theory is really grounded in the idea that sometimes forces out of a person’s control place that individual in a situation where they must choose between breaking the criminal code or allowing worse evil or harm to occur.

If a medical necessity defense is successful the individual is excused from violating the law. The requirements to show necessity will be different depending on the applicable laws (federal and different states).

Typically a state necessity defense involves the following:

• Defendant did not create the circumstance which led to the unlawful conduct.
• Defendant could not accomplish the same objective using a more legal method.
• Defendant would suffer an evil more heinous than the illegal act conducted to avoid it.

Under federal law the requirements are similar and include:

• Defendant was faced with a choice between two separate forms of “evil” or harm.
• The harm to the defendant was imminent.
• Defendant reasonably anticipated the relationship between the harm to be avoided and his conduct.
• The defendant had no alternatives besides violating the law.

In the context of a medical necessity defense a court must balance the government’s interest in upholding criminal law against the individual’s desire and need to protect his or her heath.

A defendant would likely be required to convince the court that his or her health was threatened to a degree that engaging in criminal activity is justifiable and warranted. When it comes to medicinal marijuana a patient would have to show that they acted under a reasonable belief that pot was necessary to avoid a very serious medical harm.

It is important to note that these legal requirements can only be applied appropriately by an attorney. If you think you have a medical necessity defense you should consult an attorney before proceeding.

The Los Angeles CANNABIS LAW Group represents patients, collectives, dispensaries, and growers and individuals who are facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

United States v Aguilar, 883 F.2d (1989), Ninth Circuit case regarding federal necessity defense.

More Blog Entries:

Live Oak ban on marijuana upheld by Appeals Court, December 31, 2013, Los Angeles Marijuana Lawyer Blog
Budding Industry for Labs Testing Marijuana, December 27, 2013, Los Angeles Marijuana Lawyer Blog

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