WEATHERFORD, TEXAS - On September 30, 2010 detectives from Weatherford Police Department appeared at the residence of a 52-year-old Weatherford man who smokes marijuana to alleviate his suffering from diabetic neuropathy with severe symptoms including chronic pain and insomnia. He has done so with the full knowledge and support of his physicians claiming they could not provide him with the synthetic substitute Marinol because it was heavily regulated and reserved for Cancer and HIV patients. The detectives told the man they had received “a tip” that he was growing marijuana on the premises. Once inside they found one cannabis plant growing and approximate 1.5 ounces of cannabis already harvested. Whether this case will be prosecuted as a misdemeanor or a felony is yet to be determined depending on the dried weight of the cannabis seized.
Fort Worth Attorney David Sloane says he intends to raise the defense of necessity as well as other procedural and constitutional grounds in defending this case. Sloane is a legislative committee member for the National Organization of Reform of Marijuana Laws (NORML) and an officer of the local DFW NORML chapter. Sloane says fifteen states now recognize the medical need and necessity of lawful marijuana use. A 2009 Texas bill that would have allowed seriously ill patients to raise a medical necessity defense to the specific offense of marijuana possession died in committee. Sloane said he sees no problem proceeding without this legislation under these circumstances. Texas penal law already provides for a justification of necessity for all criminal law violations “if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm” and “the desirability and urgency of avoiding the harm clearly outweighs…the harm sought to be prevented by the law proscribing the conduct. “ Had the 2009 bill passed it might have curtailed number of needless arrest of medical patients here in Texas but that doesn’t mean the common and statutory defenses and justifications for all offenses aren’t still available to us in the courts.
I must admit I was a little intimidated in trying this even though my repeated application of the facts to the law in this case told me this is what I should do. I had never even heard of anyone else trying it here Sloane said. But then I found a case from Amarillo with substantially similar facts where it took the jury eleven-minutes to find a marijuana patient not guilty when they were given the opportunity to consider his medical necessity. I have gone from believing it would be a long-shot to believing it would be malpractice not to raise it in defending a medical marijuana patient with what appears to be a genuine need. Sloane said if the Texas legislature wants to continue dragging their heels by ignoring the medical needs of their citizens that’s fine I guess. But I’m going to do my job. And I’m hoping these judges and juries will do theirs.