Is the Common Law Medical Necessity Defense Still Available for Marijuana Charges?

medical mj

State v. Kurtz, No. 87978-1, (Sept. 19, 2013)

Now that WA has a comprehensive statutory scheme for medical marijuana, does it abrogate the common law defense of medical necessity?  The WA Supreme Court said no in a 5-4 decision last week.

When Kurtz was charged with manufacturing and possession of marijuana he tried to present a medical necessity defense at trial, but the court prohibited it and Kurtz was convicted.  The WA Supreme Court started out with a brief history of the common law defense then corrected a misinterpretation by the court of appeals.

In Seeley v. State, 132 Wn.2d 776 (1997), the court of appeals held that the statute designating marijuana as a schedule I controlled substance did not violate the WA Constitution.  Relying on this holding, the court of appeals held that to raise a medical necessity defense, a defendant would have to show marijuana has an accepted medical use.  Whether it has any accepted medical is within the discretion of the legislature.   When it classified marijuana as a schedule I substance, the legislature implied there was no accepted medical use.  State v. Williams, 93 Wn. App. 340 (1998).

The WA Supreme Court rejected that interpretation.  Instead, it held that where there is no statement in the statute expressing such intent, and no inconsistencies between the two, the common law defense of medical necessity continues to be an available defense if there is evidence to support it.

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