Defendant was convicted for possession of marihuana and sentenced to 30 days in jail, with a $250 fine. Defendant appealed, claiming that the marihuana was the only effective treatment for defendant's debilitating migraine headaches and that he should be entitled to an necessity defense. Virginia allows the necessity defense, but only in limited circumstances. It cannot be used
where it is apparent that the legislature has made a value judgment with respect to certain behavior, it follows that the legislature intended to abrogate, to that extent, the common law defense of necessity which, if not abrogated, would, within limits, allow individuals to make their own value judgments with respect to that behavior.
The court then inquired into whether the legislature specifically prohibited the use of marihuana for plaintiff's condition. Virginia first criminalized the possession of marihuana in 1936. This statute allowed physicians to continue to prescribe marihuana for medical purposes, with no limitation on the conditions. However, the legislature subsequently narrowed the permissible use of marihuana to patients with cancer or glaucoma. The court found that this narrowing, which excluded plaintiff's migraine headaches, showed a legislative determination that such use was improper and thus plaintiff's necessity defense could not be allowed.
The Climate Change and Public Health Law Site
The Best on the WWW Since 1995!
Copyright as to non-public domain materials
See DR-KATE.COM for home hurricane and disaster preparation
See WWW.EPR-ART.COM for photography of southern Louisiana and Hurricane Katrina
Professor Edward P. Richards, III, JD, MPH - Webmaster
Provide Website Feedback - https://www.lsu.edu/feedback
Privacy Statement - https://www.lsu.edu/privacy
Accessibility Statement - https://www.lsu.edu/accessibility