Drug Regulation

No medical necessity defense for using marihuana in Virginia. - Murphy v. Commonwealth, 31 Va.App. 70, 521 S.E.2d 301 (Va.App. 1999)

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.