On appeal from Superior Court of New Jersey, Law Division, Monmouth County, whose opinion is reported at 194 N.J. Super. 622 (1984).
Antell, J. H. Coleman and Simpson. Antell, P.J.A.D., dissenting.
A Monmouth County Grand Jury indicted defendant for possession of more than 25 grams of marijuana in violation of N.J.S.A. 24:21-20a(4). Defendant served notice on the prosecutor that he would rely on the defense of medical necessity. See N.J.S.A. 2C:2-3. Defendant, who is a quadriplegic, wants to present evidence in the trial to establish that he possessed the marijuana in question for his use to ease the pain caused by the disabling spasticity associated with being a quadriplegic.
The State's pre-trial motion to strike the medical necessity defense as a matter of law was denied. We denied the State's motion for leave to appeal. R. 2:5-6. The Supreme Court granted the State leave to appeal and "summarily remanded [the matter] to the Appellate Division to hear . . . the merits of the appeal." 97 N.J. 679.
We now affirm the order under review substantially for the reasons expressed by Judge McGann in his opinion dated April 6, 1984. 194 N.J. Super. 622. Compare State v. Stewart, 196 N.J. Super. 138 (App.Div.1984).
We add simply that should defendant be acquitted during the impending trial based on a medical necessity defense, his continued use of marijuana will be justifiable pursuant to N.J.S.A. 2C:2-3 only until either the Controlled Dangerous Substance Therapeutic Research Act, N.J.S.A. 26:2L-1 et seq., makes marijuana available to defendant or until the Bureau of Drugs, Food and Drug Administration, in the U.S. Department of Health and Human Services makes tetrahydrocannabinol (THC) available to defendant, whichever first occurs. Our decision should not be interpreted as exempting from prosecution those who would aid defendant in obtaining or possessing marijuana. Finally, this decision is to be given only prospective application.
ANTELL, P.J.A.D., dissenting.
I disagree that defendant's tragic condition supports the affirmative defense of necessity to a charge of unlawfully
possessing marihuana. Although its utility for research purposes "under strictly controlled circumstances," N.J.S.A. 26:2L-2, has been given legislative recognition, marihuana nevertheless remains a Schedule I controlled dangerous substance. N.J.S.A. 24:21-5e. As the trial judge noted, this means that apart from its "high potential for abuse," the statute declares that it has "no accepted medical use in treatment in the United States; or lacks accepted safety for use in treatment under medical supervision." Ibid. Although the premises of this enactment are being debated within the medical profession and may be under examination by the legislature, the legal prohibition upon the use of marihuana prevails and until the law is changed the substance remains unavailable for use by defendant even for what he conceives to be medicinal purposes.
According to the opinion under review the defense of necessity would be established upon proof of the following:
(1) [defendant's] condition;
(2) that it is "sense-threatening" -- in his case, that the involuntary spastic ...