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Is Medical Necessity a Defense to Marijuana Charges in SC?

Is Medical Necessity a Defense to Marijuana Charges in SC?
Axelrod & Associates, P.A.

Can you argue medical necessity if you are charged with marijuana possession or manufacturing in South Carolina?

You smoke marijuana because it is your medicine, for seizures, headaches, insomnia, panic attacks, or even post-traumatic stress disorder (PTSD). You need it, and, from where you sit, there is no reasonable alternative to alleviate your symptoms.

So, if you get arrested and charged with marijuana possession or manufacturing, you should be able to present your medical necessity defense to a jury, right?


Not in South Carolina, and not in most states. Below, we will discuss the marijuana medical necessity defense (and why it doesn’t exist) in SC, including:

  • The element of the defense of “necessity,”
  • Why there is no marijuana medical necessity defense in SC, and
  • The difference between the necessity defense and legalization as a defense.

What is the Medical Necessity Defense to Marijuana Charges?

“Medical necessity” is just a variation on the “necessity” defense, which most states recognize.

Most states, however, do not allow a defendant to argue “necessity” when charged with violating marijuana or other drug laws, and, in the states that do permit a marijuana medical necessity defense, the defendant must prove certain elements before a jury is even allowed to consider the defense.

For example, in Florida, you might be able to argue medical necessity, but you must prove:

  • That you did not cause the circumstances that led to your violation of the law (you did not intentionally cause your illness),
  • There were no reasonable alternatives to the use of marijuana (you attempted to alleviate your symptoms using other, legal methods, but they were ineffective), and
  • The illegal act (growing or using marijuana) was less harmful than the circumstances you were trying to avoid (smoking a plant that hurts no one vs. suffering with the symptoms of your illness).

This would not apply to anyone who is using marijuana recreationally, but it should apply if, for example, the marijuana relieves nausea that would otherwise prevent you from eating, it is the only drug that effectively relieves your panic attacks caused by PTSD, or it is the only effective pain relief for a terminal illness.

Which States Recognize the Defense?

Surprisingly, few states recognize a medical necessity defense in marijuana cases. In most cases, the refusal to recognize the defense is due to the availability of alternative treatments for most conditions. Whatever you are suffering from, a doctor can prescribe some “approved” drug that will feed the pharmaceutical industry’s profits…

In a document compiled by NORML, they provide a state-by-state analysis of the availability of the medical necessity defense (although some appellate decisions in some states they list as approving the defense were actually citing the state’s legalization of marijuana – if you have a prescription or would qualify for a prescription, you may have a defense).

According to NORML, California, Florida, Hawaii, Idaho, Washington, and Washington, D.C. allow a marijuana medical necessity defense (note that marijuana is already legal for medical or recreational purposes in most of these states, though), and the defense has not been allowed in cases in Alabama, Georgia, Massachusetts, Minnesota, New Jersey and (again) Washington.

There is a difference between a medical necessity defense and a defense based on a state’s legalization of marijuana – in most states where (according to NORML) necessity is permitted as a defense to marijuana charges, marijuana is already legal for recreational purposes, medical uses, or both.

Does South Carolina Recognize a Medical Necessity Defense?

There is no medical necessity defense to marijuana charges in South Carolina.

SC does recognize a “necessity defense,” but no SC case has ever approved its use in the context of a prosecution for marijuana possession or manufacturing.

Why There is No Marijuana Medical Necessity Defense in SC

South Carolina has recognized a necessity defense in limited circumstances.

For example, in State v. Cole, the SC Supreme Court approved the defense of necessity when a man was charged with driving under suspension (DUS) because he drove his wife to a pay phone to call for help when his wife was having a medical emergency, there was no phone in their home, and there was no one available to drive her to the hospital.

In other cases, SC appellate courts have recognized a necessity defense when an inmate was charged with escape, and the inmate could prove that there was no reasonable alternative (See State v. Henderson, 298 S.C. 331, 380 S.E. (2d) 817 (1989); State v. Worley, 265 S.C. 551, 220 S.E. (2d) 242 (1975).

The reasoning for the defense of necessity is that “a person should not be criminally accountable if he engages in illegal conduct to avoid a greater harm,” and it “reflects the determination that if the legislature had foreseen the circumstances faced by the defendant, it would have created an exception.”

It is an affirmative defense – before a defendant can get a jury instruction on the necessity defense, they must prove:

  • There was an imminent emergency that was not caused by the defendant,
  • The emergency created a reasonable fear of death or serious bodily injury unless the law was broken, and
  • There was no reasonable alternative to avoid the threat of harm.

In South Carolina, this could mean your wife may die if you don’t drive her to a pay phone, or you might die if you do not escape prison because your jailer is refusing life-saving treatment.

It does not mean you can smoke marijuana, though, because the court will find that 1) the lack of marijuana is not going to cause death or serious bodily injury, and 2) doctors can prescribe alternative medications for most conditions that are treated with marijuana.

Until SC legalizes marijuana for recreational or medical use, it’s not likely that SC courts will find that medical necessity is a defense to marijuana possession or manufacturing.

Got Axelrod?

Although medical necessity is not an available defense in SC, you may have other defenses to your marijuana charges including constructive possession or motions to suppress evidence based on constitutional violations, and you may be eligible for a pretrial diversion program that will keep the charges off your record.

If you have been arrested and charged with possession of marijuana in Myrtle Beach, schedule a free consultation with a Myrtle Beach criminal defense lawyer on the Axelrod team. Call us at 843-258-4478 or fill out our contact form today.

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