State v. Tate

GARIBALDI, Justice,

dissenting.

I agree with my dissenting brethren that under narrowly-circumscribed conditions the affirmative defense of medical necessity may be available to certain seriously ill persons as a legal justification to the charge of possession of marijuana. In enacting N.J.S.A. 24:21-3(a), N.J.S.A. 24:21-5(a), and N.J.S.A. 24:21-20(a), the Legislature did not focus on whether in a medical emergency it was illegal to use a Schedule 1 controlled dangerous substance for a valid medical purpose. 1 The State’s purpose in prohibiting the use of marijuana generally is not furthered by prohibiting the use of marijuana in certain exceptional cases — for example, by denying a cancer victim relief from excruciating pain, a glaucoma victim a chance to preserve his or her sight, or a quadriplegic or multiple sclerosis victim *96 relief from continuous recurring spastic contractions. In such cases, marijuana is the only medical treatment that ameliorates the condition or relieves the pain without deleterious side effects.

My dissenting brethren set forth criteria that a defendant must meet in order to assert the defense of medical necessity as a justification of his or her possession of a Schedule 1 drug. Ante at 90, 91. In establishing such criteria we must be concerned that defendants charged with violating drug laws not be able to claim as defenses all types of allegedly vital but actually tenuous connections between their illicit use of drugs and their physical or psychological ailments. This fear does not impel me to refuse the availability of the defense to the truly ill person in a life- or sense-threatening situation who is unable to find other viable medical treatment. It does lead me, however, to disagree slightly with my dissenting brethren on the requirements and parameters of the defense. I would impose an additional requirement.

The dissent allows the jury in determining if the defendant’s action constituted a reasonable necessity to consider, as one factor, whether the defendant had obtained expert medical advice prior to engaging in the illegal activity. If the defendant had sufficient time to consult expert medical advice and failed to do so, the dissent states, “reliance on self-diagnosis might well be found to be unreasonable and could defeat a claim based on medical necessity.” Ante at 93.

I would make such a requirement a matter of law. A defendant who has sufficient time to consult a medical expert before taking a Schedule 1 drug for medical purposes but fails to do so would be denied the use of the defense. It is only reasonable that the defense of medical necessity be based on expert medical opinion. “In medical necessity cases, the essential element of proof is the reality of the medical circumstances claimed to exist.” Note, Medical Necessity as a Defense to Criminal Liability: United States, 46 Geo.Wash.L.Rev., 273, 289 (1978). The defense of medical necessity should not be *97 allowed on the basis of a defendant’s self-diagnosis or self-treatment. 2

Accordingly, a defendant must establish prior to his or her possession of marijuana that a medical doctor advised the defendant of the serious nature of his or her medical condition, and for a reasonable period of time treated the defendant for this condition with the available legal medical remedies, all of which proved to be ineffective. This requirement would not eliminate the further condition imposed on defendant by (5)(1) of the dissenting opinion, ante at 91, to furnish competent medical-expert testimony that the unlawful conduct eliminated or materially and substantially relieved the condition.

The requirement that a defendant prove that he had expert medical advice before he purchased the Schedule 1 drug, together with the other criteria set forth in the dissenting opinion, will substantially reduce the potential for abuse of this defense by drug users. Under the standard for the defense of medical necessity set forth herein and in the other dissent, defendant Tate’s proffer in support of his claims of justification based on medical necessity is sufficient to present a triable issue. Accordingly, I would affirm the judgment below.

For reversal and remandment — Justices CLIFFORD and POLLOCK, and Judges FRITZ and MICHELS, P.JJ.A.D. (temporarily assigned) — 4.

For affirmance — Justices HANDLER, GARIBALDI and STEIN — 3.

Iagree with the dissent that at the present time participation in the program proposed under the Dangerous Substances Therapeutic Research Act (TRA), NJ.S.A. 26:21-1 to -9, does not offer a viable alternative to "an individual suffering severely and acutely from a condition that can be treated only by the use of the Schedule 1 drug.” Ante at 85. Although there is surface appeal to the assertion that the TRA program offers such an alternative, it is refuted by reality. Dr. Thomas T. Culkin, who was the Executive Director of the Drug Utilization Review Council of the New Jersey State Department of Health and Administrator of the TRA program, testified at the hearing that the program "has never gotten off the ground in any practical sense.”

Surprisingly, the courts that have allowed the defense of medical necessity have failed to address and resolve the issue of the validity of self-diagnosis and treatment. U.S. v. Randall, 104 Daily Wash.L.Rptr., 2249 (D.C.Super.Ct.1976), and Washington v. Diana, 24 Wash.App. 908 , 604 P.2d 1312 (1979), involved defendants charged with possession of marijuana. The defendant in the former testified that he used it to treat his glaucoma symptoms; defendant in the latter used it for relief of the disabling spasticity associated with multiple sclerosis. Both courts found medical necessity a defense to possession but emphasized its availability under very limited circumstances. Nevertheless, in both cases it appears that the defendant used the drugs based on his own self-diagnosis, which later was confirmed by expert medical testimony.