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Pot Shot: No Medical Necessity Defense for Marijuana

By Robyn Hagan Cain on March 12, 2012 | Last updated on March 21, 2019

Growing marijuana is illegal, even when it’s cultivated for personal, medicinal use.

According to the Fourth Circuit Court of Appeals, that means a trial court can exclude evidence of a defendant’s medicinal marijuana use during a trial for marijuana possession and manufacturing.

West Virginia State Police received information in September 2003 that Kimberley and Edgar Henry were growing large amounts of marijuana at their home. After a lengthy investigation, the Henrys were indicted on charges of possession and cultivation of marijuana with intent to distribute.

The Henrys wanted to testify in their own defense that they had no intent to distribute the marijuana because Edgar used the marijuana crop for medicinal purposes. The purported purpose of this testimony was to show that the Henrys lacked any intent to distribute the marijuana being grown on their property.

The government responded with a motion in limine to stop the Henrys from offering testimony that Edgar personally consumed their pot to alleviate symptoms relating to his medical illnesses. The district court granted the government's motion in limine, finding that Supreme Court precedent precluded the Henry's medical necessity defense. The court, however, allowed the Henrys to testify that they grew strictly for personal use.

In United States v. Oakland Cannabis Buyers' Cooperative, the Supreme Court reasoned that a federal court was not permitted to consider a medical necessity defense related to a marijuana charge, because medical necessity is not a defense to the conduct prohibited by the Controlled Substances Act. The same reasoning applied to the Henrys' defense.

Furthermore, the Henrys were not seeking to defend their acts of distribution of marijuana on the basis that marijuana provided some medical benefit; rather, they were trying to bolster their defense of personal use of marijuana by explaining their belief that marijuana had a beneficial impact on Edgar's health.

If you're hoping to help your client avoid a sentence for intent to distribute, you'll have to get more creative than the medical necessity defense. The Supreme Court -- and the Fourth Circuit Court of Appeals -- will not recognize medical necessity as an affirmative defense to pot possession.

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