Medical Marijuana Defenses

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Is medical marijuana legal?

Sometimes. Medical marijuana, or medical cannabis, is legal within the limits of Minnesota Statutes, administered by the Minnesota Office of Cannabis Management. And some is available like any prescription at a pharmacy (Epidiolex, Marinol).

Otherwise, marijuana still may be a crime, depending upon quantity, even if used for medical treatment.

Medical marijuana, or medical cannabis, includes the plant, active cannabinoids THC and CBD, and concentrates made from the marijuana plant. And though CBD can be sourced from industrial hemp, the marijuana plant is a better source.

But hemp is another category of cannabis that is now legal.

The information here may help you avoid a problem, or solve one.

Criminalization of Medical Marijuana

In the United States, the idea of making a “drug” or plant a crime is recent. The idea was born of racism. Alcohol – a lethal, and addictive drug – is no longer a crime to possess.

But the government sometimes defines marijuana – a non-lethal, non-addictive drug – as a crime to possess. And making it a crime subjects a person to labeling as a criminal, and incarceration; among other injustices.

Before the 20th Century, drug possession was not a crime. At common law, there was no such thing as “criminal drug possession.” In fact, a person could go to a herbalist or pharmacist to get medicine. And you did not need a medical doctor’s recommendation (“Rx”).

So, what does this have to do with medical cannabis? Opiates and other potentially lethal drugs are legal for medical treatment use in Minnesota. And yet Minnesota still prosecutes the dying and seriously ill for illegal marijuana possession and growing.

Minnesota’s limited, expensive medical marijuana program excludes many. The law adds unnecessary costs, precludes insurance coverage, and makes home grow inaccessible to the disabled. So, what could explain that irrational state of affairs? An “ends justify the means” tactic of anti-drug warriors with blood in their eyes? More on Minnesota home grow laws:

Marijuana Grow Criminal Laws in Minnesota.

Medical marijuana: no safe harbor law, yet

Many sick people using medical cannabis are not qualified to participate in Minnesota’s limited medical cannabis statutory program. And even if they can qualify, they are often unable to afford its uninsured, high cost. Those who can may be forced to choose” medicine or civil rights?

The sick and parents of the sick “can get it on the street,” as former Governor Dayton famously remarked. After all, illegal marijuana is now more affordable for disabled people in Minnesota.

Medical Necessity defense

For those people, perhaps the only legal defense available is the “necessity defense” or the more specific application of it, the “medical necessity defense.” This defense says that a person is not criminally responsible for their conduct, if necessary to prevent a greater harm.

What is the medical necessity defense to a marijuana charge in Minnesota?

First, consider that humans have used marijuana, or cannabis, as medicine for thousands of years. People long used cannabis treatment of disease. Now modern medical research and clinical practice proves the efficacy of marijuana. Medical science shows it helps relieve symptoms as well as cure disease — from the bothersome all the way to cancer.

And marijuana had never been a crime. But then beginning in the 1930s in the United States, the alcohol Prohibition was disintegrating. And then the government developed a convenient replacement — the marijuana Prohibition.

History of Medical Necessity defense

People widely used marijuana as medicine at the time. Medical Doctors prescribed it. And its medicinal use persisted for decades. But laws increasingly criminalizing it eventually drove the medical use of marijuana underground. So, medical use continued despite criminal Prohibition laws.

“Necessity” has been a recognized legal defense to what otherwise would be a crime, since ancient times. And so, we see the defense as natural law. The defense is commonplace in nature, across cultures, across human history.

“The English courts stated the principle of necessity in 1551 in Reninger v. Fagossa (1 Plowd. 1, 75 Eng. Rep. 1): “A man may break the words of the law, and yet not break the law itself … where the words of them are broken to avoid greater inconvenience, or through necessity, or by compulsion.” The case cites the New Testament example of eating sacred bread through necessity of hunger or taking another’s corn. Mathew 12:3-4.

Older English cases contain many examples which recognize the general principle of necessity. It was a defense to breaking a law that the person committed the act to save a life or put out a fire. Jurors could depart without the permission of the judge in case of emergency. Prisoners might escape from a burning jail without committing a crime. A person did not commit the misdemeanor of exposing an infected person in public if the person was being carried through the streets to a doctor.”

The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil

Lesser of Two Evils Defense

We call it the necessity defense. And it is an affirmative defense to a criminal charge – a “lesser-of-two-evils” defense. Consider the crime of lying to police while hiding Anne Frank & family in The Netherlands during World War II.

After the accused presents evidence supporting the defense; the judge instructs the jury on the law of the defense of necessity. And if the jury accepts the defense, that means the defendant did the prohibited act intentionally; but did so reasonably to avoid a greater evil, out of necessity. So it is not a crime.

It is often a justification type defense. So, if the jury accepts the defense; that does not mean the defendant did not intentionally do the prohibited act. But rather, it means that she reasonably did so to avoid a greater evil, out of necessity.

Common Law & Jury Court

It is a common law defense — old and widely accepted. Like many other common law defenses, it has been codified in statutes over the past several decades, in many jurisdictions. But the overlap between the “common law” and the “jury trial” is coextensive.

The term “medical necessity defense” is a special application of the more general, “necessity defense.”

If you are sick with glaucoma or cancer and marijuana may provide you with relief or cure. Even though marijuana may be a crime to possess or grow; you may choose your health (or your child’s life) over the Prohibition legal menace.

According to mainstream polling, in the United States today we have a consensus that medical use of marijuana should be legal. So most jurors believe that medical cannabis is not a real crime. But courts in Minnesota in the past have not trusted jurors to have all of the evidence.

The Constitution guarantees the right to a “jury trial,” and the right to present a “complete defense.” So, you have the right to present the jury with your true defense. Then, the jury can accept your defense, or reject it. The jury decides (not a judge). That is what a jury trial is.

In our system of checks and balances; trial by jury limits government power to enforce laws that violate the conscience of the community.

Yet when a patient using marijuana as medicine, faces marijuana charges; if a judge does not permit her physician to testify, or her to testify about it herself; the judge denies a meaningful jury trial and violates her right to present a defense.

Minnesota’s 1991 Hanson Case

So why then have Minnesota appellate courts failed to support your right to present your medical necessity defense?

To find out, you can read the thirty-year old Minnesota Court of Appeals case from 1991, State v. Hanson. Though every court case is fact specific, the court’s main rationales in the State v. Hanson case appear in this excerpt:

“The statutory classification of marijuana as a Schedule I substance implies a determination that marijuana has ‘no currently accepted medical use in the United States.’ Minn. Stat. § 152.02, subd. 7(1) (1990). The legislature has enacted a single exception, in the THC Therapeutic Research Act (TRA), exempting from criminal sanctions possession or use of marijuana for cancer patients undergoing chemotherapy who are receiving the drug under the strict controls of an approved medical research program. Minn. Stat. § 152.21, subds. 1, 3, 6 (1990). These statutory provisions demonstrate that the legislature has specifically addressed and determined the possible medical uses of marijuana.”

State v. Hanson, 468 NW2d 77, 78-79 (Minn. App. 1991)

Medical Marijuana: Currently Accepted Medical Use

Let’s consider their first point, that at the time the Hanson case was decided, marijuana’s Minnesota “Schedule 1” status implied “no currently accepted medical use in the United States.”

Such an “implied legislative determination” was based on the Schedule 1 classification. If ever true, is not true today. Intervening events and legislation have overcome that court’s 1991 presumption.

After all, Minnesota no longer classifies marijuana as “Schedule 1.” (In 2023, marijuana was moved to “Schedule 3.”) And the majority of the U.S. population now lives in states with legal medical marijuana programs, including Minnesota. Medical professionals currently accept marijuana as having medical use — including the United States Surgeon General.

And since the Hanson case, even Minnesota has joined the majority with legal, state-sanctioned, medical marijuana. Minnesota’s newer, comprehensive medical marijuana law has made the Hanson court’s reading of legislative intent obsolete. The Minnesota legislature has now spoken: Marijuana does have “currently accepted medical use in the United States.”

So the underpinnings of the 1991 Hanson court’s gutting of the common law “medical necessity defense,” collapsed.

No Explicit Legislative Intent to Destroy Rights

The second argument in Hanson, was that since the Minnesota legislature had enacted the “THC Therapeutic Research Act” (a “research” program so restrictive that nothing ever came of it); that therefore the legislature must have then intended to preclude any other consideration of any other exception or defense for medical use of marijuana.

But the legislature never actually said that.

This is the classic rhetorical form — expressio unius est exclusio alterius, a Latin phase meaning “the expression of one thing is the exclusion of the other.” But that was a stretch. After all, the Minnesota legislature never did specifically abrogate the common law medical necessity defense.

And perhaps ironically, the “THC Therapeutic Research Act,” Minnesota Statutes Section 152.21, subd. 6, itself removed marijuana from Schedule 1 to Schedule 2:

“For the purposes of this section, THC is removed from Schedule I contained in section 152.02, subdivision 2, and inserted in Schedule II … .”

Minn. Stat. § 152.21, subd. 6

So, the same statute the Hanson court cited to justify denial of a jury trial; undermined its “Schedule 1 – no medical use” argument. Because that very statute removed marijuana from Schedule 1 for its purposes.

And in 2023, the legislature repealed the Minnesota “THC Therapeutic Research Act.”

The Hanson case was from 1991. But much has changed since then, politically, legally, and in the medical research community. So would a modern Minnesota appellate court right this 1991 wrong? Well, in 2014, it didn’t.

Minnesota’s 2014 Thiel Case: medical necessity defense

In a 2014 decision the Minnesota Supreme Court, in State v. Thiel left intact the Schedule I classification despite a constitutional challenge by a defendant convicted of marijuana possession; where the judge hid the truth from the jury about his:

• medical condition,
• medical recommendation for marijuana,
• California medical marijuana card.

But the 2014 Thiel case also predated Minnesota’s Medical Marijuana law. So a court should not decide the Thiel case the same way; now that the Minnesota legislature has clearly spoken: Marijuana does have “currently accepted medical use in the United States.”

So a person facing a marijuana charge can raise the medical necessity defense in Minnesota. But know the legal history. And be ready for a legal fight.

Legislature Can Correct: medical necessity defense

Alternatively, the Minnesota legislature could pass a Bill. A new statute could correct court misinterpretation of legislative intent. And a new law could guarantee your right, and the jury’s right, to the truth.

A Bill in the Minnesota legislature could guarantee the medical necessity defense to medical marijuana patients facing marijuana charges. And it would clarify that patients’ “right to introduce evidence or testimony of a medical need to use, … or [evidence of] a benefit derived from the use” of marijuana or concentrates.

It would guarantee that the accused could use this as an affirmative defense. So the defendant would have to make an initial showing of medical necessity. And if successful, the ultimate burden of proving criminal guilt would then shift to the prosecution.

Direct democracy: the jury governs

The necessity defense is a cornerstone of the right to a jury trial. And it’s the jury’s right to govern as the conscience of the community. Some judges in Minnesota, however, have been hostile to the medical necessity defense in medical cannabis cases.

Jury is the conscience of the community. The jury court has the power to acquit an accused. And this is so, even when it appears that the person did do what the criminal statute prohibits.

A jury can veto or nullify a law it views as unconscionable.  And it has the right to do so in secret. This power of jury lenity has existed for centuries in American law. It is the essential core of what a jury trial is. Juries have had this power, going back all the way to Classical Athens and the Trial of Socrates.

The juror is an important check and balance against the cultural elites in the legislature, and in the courts. A jury verdict of “not-guilty” can send a powerful message.

Democracy cannot exist without a real jury trial right.

On a jury, one person is a majority

If a jury cannot reach a unanimous verdict, there is no verdict. And though not as good as an acquittal, a hung jury is better than a “guilty” verdict.

Medical marijuana is the type of case where a jury, as “the conscience of the community,” could refuse to convict. The jury can do this whatever the evidence and whatever the unjust laws of Minnesota say. A jury has the power. Will they use it wisely, compassionately?

So, in the right case, with the right facts; the medical necessity defense could prevail in a Minnesota medical marijuana case.

Defending past acts vs. the future

If it’s too late to exercise a choice, so be it. Then, perhaps a medical necessity defense is the best option.

But if it’s not too late? Then Attorney Thomas Gallagher’s view is “don’t choose to be a test case; instead be active and help pass a Medical Necessity Defense statute, and legalize for responsible adult use.”

Government prosecutes the ill for medical marijuana

Prosecutors still charge seriously ill medical marijuana patients in Minnesota; for the “crime” of marijuana possession or cultivation.

The only current safe-harbor is within the Minnesota Office of Cannabis Management’s Medical Marijuana program. If you can qualify, and can afford it; that’s the best way to go. But the program is restrictive, leaving most medicinal marijuana patients out in the cold.

That means prosecutors can still criminally charge marijuana crimes, despite patients’ efforts to stay healthy and alive. Should that happen, Marijuana Attorney Thomas Gallagher can help. He has represented people charged with crimes related to medical cannabis successfully.

For patients facing a marijuana charge, we may find other, effective defenses, like:

Suppression of evidence

Identification of Marijuana, THC, Plants

Weight Thresholds Cannabis

Question? Call Attorney Thomas Gallagher, 612 333-1500

Are you a medical cannabis patient facing a criminal charge? Then you can benefit from the in-depth information on this website. Sometimes the medical necessity defense, or jury nullification may be the best defense available. Those defenses usually seem less viable in other types of criminal defenses.

And you can call Attorney Thomas Gallagher for help understanding your options. He is Minnesota’s Marijuana Lawyer with a criminal defense practice. Marijuana crimes defense gateway page:

Marijuana Lawyers Guide

More: medical marijuana

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Defending Marijuana Sale Cases in Minnesota

The Common Law Defense of Necessity

Odor of Marijuana: Probable Cause to Suspect a Crime?

How to Avoid a Marijuana Arrest in a Car: Nine Tips

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