Arizona has had a troubled past in the area of medical marijuana.  Back in 1980, Arizona passed a marijuana research provision – never operational –for cancer and glaucoma.  In order to conduct the study and trials, the University of Arizona was supposed to obtain marijuana from the federal governments NIDA program.  The whole thing expired without notice in 1985.

Ten years later, the people of Arizona passed Proposition 200 in 1996, authorizing doctors to prescribe marijuana as medicine.  The Arizona government, however, refused to implement the measure.  Desparate to avoid the explicit and unambiguous will of the people, the government referred to technical language problems as a rationalization for their refusal to honor its constitutional obligation to enact the law.  In short, the government used semantics to please interest groups and contributors, by claiming that the term “prescribe” was in conflict with FDA regulations.  Instead of following California’s example and change the word“prescribe” to “recommend”, Arizona representatives simply threw their hands up in feigned frustration; “Oh well….we wish we could help you, but our hands are tied.”

That is not the end of the story, thankfully, and there is a new medical marijuana proposition that is expected to appear on the 2010 ballot.  For detailed information about this initiative, please visit the
Arizona Medical Marijuana Policy Project.  For a state by state comparison of medical marijuana laws, go here.

Even though there is currently no medical marijuana provision under Arizona law; that does not mean that an individual cannot use marijuana for medical reasons in the state.  In order to do this, a person must be charged with a marijuana offense and then successfully argue a Medical Marijuana Necessity Defense at trial and obtain a not-guilty verdict.

The basis of the necessity defense is that society is sometimes willing to excuse or even justify conduct that would otherwise be illegal if that conduct was done to avoid an even worse or greater evil. This defense theory reflects society’s understanding that external forces beyond a person’s control sometimes place that person in an emergency situation where he or she must choose between the harm or “evil” of breaking the criminal code or complying with the code and allowing an even greater harm or “evil” to occur. In these situations, if a person violates the law in order to avoid the greater harm, the defense of necessity excuses the person from being guilty of what would otherwise be a crime.

The elements of a necessity defense vary from state-to-state, and from the federal standard. Generally, the defense must show 1) that the defendant did not intentionally bring about the circumstance which caused the unlawful act; 2) that the defendant could not accomplish the same objective using a less offensive (i.e. “more legal”) alternative available to the defendant; and 3) that the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it. Under federal law, a defendant must establish the existence of four elements to be entitled to a necessity defense: 1) that he was faced with a choice of evils and chose the lesser evil; 2) that he acted to prevent imminent harm; 3) that he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and 4) that there were no other legal alternatives to violating the law. See , e.g., United States v. Aguilar, 883 F.2d 662, 693 (9th Cir. 1989).

Tom Dean has been involved in this area of law since its inception in the 90’s.  He helped to consolidate arguments for Medical Marijuana Necessity Defense law into a comprehensive trial brief for use in any state while serving as Litigation Director at NORML.  For more information about medical marijuana, please visit NORML’s website.