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IN THE IOWA DISTRICT COURT IN AND FOR BLACK HAWK COUNTY

STATE OF IOWA,                     )
                                   )
        Plaintiff,                 )     CASE NO.  SRCR071205
                                   )
    vs.                            )
                                   )
ERIC PAUL TWESME,                  )       RULING AND ORDER
484-82-3601                        )
                                   )
        Defendant.                 )

        On the 2nd day of February, 1998, the above-captioned matter came before the court for hearing on the defendant's Motion for Appointment of Expert and the State's Motion for Preliminary Determination of Admissibility of Evidence.  The State appeared by Assistant Black Hawk County Attorney Steven Norby.  The defendant appeared in person and with his attorney, David Mullin.
        The motions before the court squarely present the Issues of whether or not the defense of "medical necessity" is available to the defendant on a charge of Possession of Marijuana and, secondly, whether or not the defendant is entitled to appointment of an expert witness at State expense for purposes of presenting evidence in support oŁ the defense of medical necessity at trial.  The defendant is charged with the crime of Possession of a Controlled Substance, to wit Marijuana, pursuant to Section 124.401(5) of the Iowa Criminal Code.  He seeks to present the defense of "medical necessity" at the time of trial in his case.   The defendant claims to suffer from fibromyalgia, although no medical evidence was presented at the time of hearing to substantiate the defendant's claim.  Myalgia is defined as a pain in a muscle or muscles, Dorland's Medical Dictionary, 26th Edition.   For purposes of deciding the issues before the court, it will be assumed that the defendant would be able to substantiate through competent medical evidence that he does, indeed, suffer from the condition of fibromyalgia.
        Defense counsel at the time of the hearing cited several appellate court cases from other jurisdictions which allowed the presentation of the defense of "medical necessity" in cases in which the defendants were charged with Possession of Marijuana.  The State also cited several cases from other jurisdictions which did not allow the defense of "medical necessity" to be raised at trial.  Needless to say, there is a split of authority with regard to whether or not "medical necessity" may be raised as a defense to a charge of possession of Marijuana.
        The legislature in Iowa has criminalized the possession of controlled substances without a prescription including the substance marijuana, Section 204.401(5), the Code.  Marijuana is listed as a Schedule I controlled substance, Section 124.204(4)(m), the Code.  Substances listed in Schedule I are those substances which: (1) have high potential for abuse; and (2) have no accepted medical use in treatment in the United States; or lack accepted safety for use and treatment under medical supervision, Section l24.203, the Code.
        The legislature, in placing marijuana in Schedule I, also established an exclusion for marijuana when used for medicinal purposes "pursuant to rules" [Section 124.204(7)]; or as "provided by rules" [Sectien l24.204(4)(m)] of the State Board of Pharmacy Examiners.
        The State Board of Pharmacy Examiners have not promulgated any rules for the medical use of marijuana nor has the Iowa Legislature enacted any statutes recognizing the medical use of marijuana, as have some other states.   The Iowa legislature has obviously recognized the debate which has raged in various medical/pharmacological circles over the medical use of marijuana.  Although having recognized the controversy of the medical use of marijuana, they have not taken legislative action but rather have deferred to the judgment of the State Board of Pharmacy Examiners on the issue of whether any medical exceptions to the use of marijuana will be permitted.  In doing so, the legislature has specifically allowed for a determination to be made by the State Board of Pharmacy Examiners regarding the medical use of marijuana.  The State Board of Pharmacy Examiners, however, has not acted to recognize the medical use of marijuana pursuant to the sections cited above.
        By enacting Section 124.204(7), the legislature has not only recognized the debate with regard to the medical uses of marijuana and deferred to the judgment of the State Board of Pharmacy Examiners the recognition of such medical use, they have also have made plain their intent to exclude the medical use of marijuana as a necessity defense unless and until the State Board of Pharmacy Examiners recognizes the medicinal use by promulgating rules for the medical use of marijuana.   See State vs. Tate, 505 A. 2nd 941 (N.J.  1986) and State vs. Hanson, 468 NW 2nd 77 (Minn. App. 1991).
        The court thus concludes that until such time as the State Board of Pharmacy Examiners recognizes by the promulgation of rules the medicinal use of marijuana, that the "medical necessity" defense cannot be raised in the state of Iowa where a defendant is charged with Possession of Marijuana.
        In argnment and in the cases cited, defense counsel also raises the common law "defense of necessity."  The Iowa Supreme Court has recognized the "defense of necessity," State vs. Ward, 170 Iowa 185, 152 NW 50l (1915); State vs. Reese, 272 NW 2nd 863 (Iowa 1976); State vs. Walton, 311 NW 2nd 113 (Iowa 1981).  See also State vs. Harrison, 473 NW 2nd 242 (Iowa App. 1991); State vs. Hibdon, 509 NW 2nd 502 (Iowa App. 1993); and State vs. Cornelison, 538 NW 2nd 864 (Iowa App. 1995).  The Supreme Court in Walton stated that, "The necessity defense does not apply except in emergency situations where the threatened harm is immediate and the threatened disaster imminent.  The defendant must be stripped of options by which he or she might avoid both evils," Walton at p. 115.
        The Iowa legislature has likewise recognized the defense of "compulsion", Section 704.10, the Code of Iowa, which states:

No act, other than an act by which one intentionally or recklessly causes physical injury to another, is a public offense if the person so acting is compelled to do so by another's threat or menace of serious injury, provided that the person reasonably believes that such injury is imminent and can be averted only by the person (doing such act.

Clearly, under the Code section cited above, the defense of compulsion would not be available to the defendant inasmuch as it is not alleged that the defendant was compelled to possess marijuana as the result of "another's threat or menace of serious injury."
        In analyzing the common law "defense of necessity" the question arises whether the legislature, by codifying the defense of compulsion, also eliminated the common law "defense of necessity" or, alternatively, limited the defense of necessity to only those situations where a person is acting under another's (person) threat or whether the defense of necessity at common law still exists to excuse acts otherwise crimina1 if forces other than another individual compelled the commission of the act.
        The necessity defense and compulsion defense have generally arisen in Iowa in cases where defendants have alleged threats to their lives or safety by other individuals.  Because of the limited factual scenarios in which the defense of necessity and compulsion have arisen in the state of Iowa, the defenses have been used somewhat interchangeably by the appellate courts in their decisions.  The only Iowa case found where the necessity defense arose in which the defendant was not personally subject to the threat of another is State vs. Harrison.   In that case the defendant sought in his appeal to raise a necessity defense to the offense of Driving While Barred based upon the threat that the defendant alleged his cousin posed to others by his cousin's alleged operation of a motor vehicle while intoxicated.  The Court of Appeals concluded that even assuming the defense of necessity was available to a defendant who seeks to avoid harm to others, the defense of necessity does not apply except in emergency situations where the threatened harm is immediate and the threatened disaster imminent.  The Court of Appeals went on to state that the fear of future injuries does not excuse an offense.
        Even assuming that the codification of the compulsion defense did not eliminate the common law defense of necessity, the court concludes that the common law defense of necessity would in any event be unavailable to the defendant.  As the Supreme Court of New Jersey stated in Tate:

The defense is based on public policy.  In essence it reflects a determination that if, in defining the offense, the legislature has foreseen the circumstances faced by the defendant, it would have created an exception.  It would have balanced the competing values and chosen the lesser evil.  Obviously, then, the defense is available at common law only when the legislature has not foreseen the circumstances encountered by the defendant.  If it has in fact anticipated the choice of evils and determined the balance to be struck between the competing values, defendants and courts alike are precluded from reassessing those values in determining whether certain conduct is justified.

The legislature has weighed the competing value of medical use of marijuana against the values served by prohibition of its use or possession, and has set forth the narrow circumstances under which that competing value may be served.  Outside those narrow circumstances, the value of medical use of marijuana cannot be deemed to outweigh the values served by is prohibition.  State vs. Tate, Supra at 946.

        The court is further persuaded that the defense of medical necessity is not available to the defendant by the further realization expressed by the New Jersey Supreme Court in Tate that the defense of necessity as asserted by the defendant would of necessity require approval, tacit though it may be, of the sale or distribution of a controlled substance by others from whom the defendant obtained the marijuana.  As the New Jersey Supreme Court stated in Tate, "It is inconceivable that the legislature intended to sanction this activity by conferring a blessing on the use of the illicit drug."
        The court thus concludes for all of the foregoing reasons that the defense of medical necessity is not available to the defendant and further concludes that the defendant's request for the appointment of an expert witness should also be denied.
        IT IS THEREFORE HEREBY ORDERED that the defense of medical necessity may not be raised by the defendant at the time of trial in the above-captioned case.
        IT IS FURTHER HEREBY ORDERED that the defendant's Motion for Appointment of Expert is DENIED.

        Dated February 11, 1998.

        James D. Coil
        District Associate Judge

Copies to:  Assistant Black Hawk County Attorney Steven Norby; Attorney David Mullin; Court Administrator