Medical Necessity Defense Against Marijuana Cultivation Charge
Medical necessity has apparently been recognized by some courts and by some authority. See United States v. Burton, 894 F.2d 188, 191 (6th Cir. 1990).
In Burton, the Sixth Circuit held that a medical necessity defense was not available to a defendant in Kentucky who was convicted of three counts of possession of marijuana but who claimed that he grew and used marijuana to relieve the symptoms of glaucoma.
The court stated that the requirements for raising the defense included that the danger must be imminent and that no reasonable legal alternative to violating the law is available.
In order for the choice of evils defense to be available, "it must be shown that defendant's conduct was necessitated by a specific and imminent threat of injury to his person under circumstances which left him no reasonable and viable alternative, other than the violation of the law for which he stands charged." Senay v. Commonwealth, Ky., 650 S.W.2d 259, 260 (1983).
The court in Senay further stated that "the danger presented to the defendant must be compelling and imminent, constituting a set of circumstances which affords him little or no alternative other than the commission of the act which otherwise would be unlawful." Id.
"Where a defendant fails to produce evidence which would support him in choosing the commission of an otherwise unlawful act over other lawful means of protecting himself, the trial court is not required to instruct the jury on the choice of evils defense." Id. at 260-61.