STATE OF IOWA, )
)
Plaintiff, ) NO. 22690
)
vs. )
) ORDER OF THE COURT
JAN RENE PLEAS, )
)
Defendant. )
_________________________________________________________________
On the 23rd day of May 1994, the State's Motion to Strike
Affirmative Defense came before the Court. The Court, having
reviewed the pleadings, heard the oral arguents of the parties,
and examined the case law provided, makes the following
findings:
Defendant claims, in her Notice of Affirmative Defense of
Medical Necessity, that the marijuana found in her residence
during a police search was medically necessary to stabilize the
interocular pressure in her left eye, which has glaucoma.
Defendant further claims that there was a specific threat of
immediate harm, that Defendant did not bring about the
circumstances necessitating the illegal act, that no alternative
drug was effective in minimizing the effects of glaucoma, and
that the harm avoided was greater than the harm caused.
Plaintiff argues that the affirmative defense of medical
necessity is not a recognized criminal defense in the State of
Iowa, and so should be stricken.
The Court finds that the necessity defense, by which the
defendant much choose the lesser of two evils, is a recognized
defense in the state of Iowa. In State v. Walton, the Iowa
Supreme Court stated that the necessity defense is available
only in emergency situations where the threatened harm is
immediate and the threatened disaster imminent. 311 N.W.2d 113,
115 (Iowa 1981). Additionally, no alternative option must exist
by which the defendant could avoid both evils. Id.
Defendant is entitled to attempt to establish the defense of
necessity. If the trial judge finds that Defendant has
established the required elements of the necessity defense in
the State of Iowa, the judge may then instruct the defense of
necessity. The Court declines to rule that the defense of
medical necessity does not exist in the State of Iowa.
IT IS ORDERED, ADJUDGED, AND DECREED that Plaintiff's Motion
to Strike Affirmative Defense is hereby denied.
DATED this 16th day of June, 1994.
JUDGE, FOURTH JUDICIAL DISTRICT