4 Aspects Of The "Medical Necessity" Defense To Understand If Charged With Possession Of Marijuana

Posted on: 18 July 2016

Marijuana is one of the only medications that works to help relieve pain, nausea and other symptoms all at the same time. However, medical marijuana is only legally available in a handful of states and there are sometimes other state regulations regarding marijuana that it is important to take into consideration. If you live outside of one of these states, it may be difficult to access medical marijuana, and even if you are in a state where medical usage is allowed, you may still be charged with criminal charges if you fail to get a valid prescription or break another law related to marijuana. 

If you need medical marijuana, here are four things you should understand about the medical necessity defense as it relates to marijuana possession. 

You Will Need Medical Testimony From a Treating Doctor 

In almost every case related to medical usage of marijuana, you will need a doctor to testify on your behalf regarding the extent of your illness and how/why medical marijuana can help you. If you self-medicate because you cannot afford to go to a doctor or cannot find a local doctor to discuss the benefits of medical marijuana with you, then it will be difficult to prove medical necessity. However, if you can show a long history of a chronic disease, it may be possible to use the medical necessity defense even if a doctor has not suggested marijuana as a treatment. 

It Will Not Cover DUIs or Harm That Was Caused While You Were Using Marijuana

Medical necessity may cover the possession and cultivation of marijuana. However, if you are caught selling or distributing marijuana, driving while under the influence, or involved in an accident while you are on marijuana, then the medical necessity defense will likely not help you, even if you had the marijuana for medical reasons. This is because the medical necessity defense relies on the idea that you break a law to prevent further harm to yourself or the public. If your actions actually puts the public at risk, as determined by the current law, then you cannot use the medical necessity defense. 

You May Have to Show That You Have Tried Several Other Medications

In order to use the medical necessity defense, you will likely have to show that you have tried other medications that were available legally and they did not work for you. In states where CBD is legal and/or medically available, you may have to opt for CBD treatment or show that you have tried it before you progressed to medical marijuana. This is because you will need to show that you have tried all less-risky avenues for treatment that were reasonably available to you and/or recommended by your doctor. 

Medical Marijuana Use May Still Be Used Against You In CPS Cases 

Even if you have a medical marijuana prescription, possessing marijuana or cultivating it in a home with children could put you under scrutiny of child protective services. While it is likely that you could get any criminal charges dropped if you prove medical necessity, CPS may still complete a thorough investigation of your home and find that the marijuana in the home is a hazard to your children. It is a good idea to take extra precautions while you are using medical marijuana if there are minors living in your home. 

If medical marijuana is legal in your state, it is important that you obtain it through proper channels. In other states, where proper channels are not available, the medical necessity defense may protect you from legal repercussions. Contact a local attorney, such as Russ Jones Attorney At Law, for more information on your own state laws regarding marijuana. 

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