cannabisnews.com: It’s Already Legal to Use Marijuana for Med. Need It’s Already Legal to Use Marijuana for Med. Need Posted by FoM on April 11, 2000 at 14:51:15 PT By Richard S. Miller, Special to the Star-Bulletin Source: Honolulu Star-Bulletin What Hawaii legislators need to know, as they consider the medical marijuana bills now before them, is that medical use of cannabis is already permitted under Hawaii law. The current bills will not establish any radical new legal rights. But they will make existing Hawaii law and legal rights workable for the very sick and debilitated patients who need marijuana to ease their suffering. And they will be easily administered to ensure that those who are not sick and debilitated will not abuse the law. Our legislators can therefore extend the important and well-proven health benefits of medical marijuana to qualifying Hawaii citizens without really undermining any settled principle of Hawaii law. They will not be leading a sharp and radical change of direction from the law of the past. Let me explain.Hawaii's Penal Code contains a "Choice of Evils" defense. This humane rule allows a person to defend a criminal charge on the basis of "justification" if the alleged criminal act was committed in order to avoid a consequence that would be more harmful than the crime itself. The law applies to situations where, for example, a bus driver deliberately drives his bus full of children into a parked car, wrecking the car, in order to stop his bus with failed brakes from continuing down a steep hill and crashing with much more serious consequences. It applies equally well when a person supplies or smokes marijuana in order to prevent or alleviate severe or debilitating pain or nausea.Under the Choice of Evils law persons charged with a marijuana offense have a complete defense to the charge if 1) they reasonably believe that their conduct was necessary to avoid imminent harm either to themselves or others and, 2) the harm to be avoided is greater than the harm that the applicable penal code provision is seeking to prevent. Furthermore, once a defendant asserts the Choice of Evils defense, the burden falls on the prosecution to disprove the choice of evils defense beyond a reasonable doubt. That is, the prosecutor bears the burden of proving, beyond a reasonable doubt, that 1) the defendant did not have a reasonable belief that furnishing or using the marijuana was necessary to prevent or avoid his own or another's serious pain, nausea or other debilitating condition or, 2) the harm created by violating the marijuana laws is as great as or greater than the harm to the person who is using the marijuana if he or she doesn't get the marijuana to alleviate his or her debilitating condition.This law makes it very difficult to convict a patient with a debilitating condition who uses marijuana only to alleviate that condition and not for other purposes.If this defense already exists under Hawaii law, why do we need to adopt a special statute such as the medical marijuana bills now before the Legislature?The reason is clear: Currently, under the Choice of Evils defense fellow citizens who would qualify to grow, possess, use or distribute marijuana to alleviate a debilitating condition risk being arrested and tried in a criminal case for promoting a detrimental drug. If they are arrested they have to retain a lawyer to defend themselves and find a physician to testify for them. Further, they have to go through the pain, pressure and great delay of a trial, and possibly an appeal. The cost, delay and anxiety, especially for persons who are already suffering from seriously debilitating or dangerous conditions, is more than most of them can tolerate. In other words, while the current legislative policy is to allow the defense of justification in such cases, the effect of current law is to undermine that policy as a practical matter. If the purpose is to alleviate suffering of seriously ill citizens or those with great pain who can benefit from marijuana -- as it very clearly seems to be -- the burdens imposed by the current procedure defeats that purpose.The beauty of the proposed medical marijuana legislation is that it establishes the right to use the cannabis in advance, before the drug is used and before an arrest is made. Once they receive a recommendation from a physician and once they register in accordance with the law, fellow citizens are unlikely to be prosecuted unless they abuse the privilege or exceed what the law allows. Allowing them to ease their unbearable pain, debilitating nausea and other terrible conditions without harassment by the police and without fear that they will be treated like law breakers is essential if the legislative policy implicit in the Choice of Evils defense is to be given effect. It is also consistent with the U.S. Institute of Medicine study, funded by federal drug czar Barry McCaffrey, which found that "there are patients with debilitating symptoms for whom smoked marijuana might provide relief." Furthermore, allowing our fellow citizens to use marijuana to ease terrible pain, to overcome nausea, to prevent blindness, to alleviate AIDS wasting syndrome and to deal with other debilitating conditions is consistent with the views of the vast majority of our fellow citizens, as determined in February by an independent survey of registered voters by QMARK Research. The survey found that "a solid majority (77 percent) of Hawaii voters are in favor of 'the Hawaii State Legislature passing a law...to allow seriously or terminally ill patients to use marijuana for medical purposes if supported by their medical doctor.' "Richard S. Miller is professor of law emeritus at the University of Hawaii School of Law. The views expressed are those of the author and do not necessarily represent the views of the law school or the university. Note: Law has to be made workable and effective so hurting patients who need marijuana can get it. By Richard S. MillerPublished: April 8, 2000© 2000 Honolulu Star-Bulletinhttp://starbulletin.comRelated Articles:Medical Marijuana Makes The Cuthttp://www.cannabisnews.com/news/thread5011.shtmlLegislators Approve Marijuana Proposals http://www.cannabisnews.com/news/thread5006.shtmlMedical Marijuana Bills Making Progresshttp://www.cannabisnews.com/news/thread4969.shtml Home Comment Email Register Recent Comments Help Comment #4 posted by dddd on April 12, 2000 at 11:07:38 PT Choice of evils Mr. Toke is right.There is nothing "evil" about marijuana.But the legal concept is astounding.It may be a promising way to restructure national laws to begin the end of the current insanity.............ddddCome to think of it,Choice between evil and good is the reason ,and answer to the question of "free will".I'm sorry to stray off on a tangent here,but I think this is one of the basic mega-heavy things concerning free will,and life in general.I'll put it as briefly as I can.And once again,my apologies for straying from the topic,but I feel kinda free right now. People wonder,"If God is good,then why would he create a world that includes evil,and suffering,and cruel weirdos..etc?"..and the answer is,,,God created man in his own image,according to the bible,,and in order to not create people like everyone else,and not have them be automaticly always/only good followers of himself,he gave us the choice to choose between good and evil.This choice is a necessary thing if we are to have free will.It is the little tidbit that makes us special individuals,And I think it makes it easier to understand The King Of The Universe,and the mystery of good and evil,God and devil,nice and mean,happy and sad,hot and cold...ad infinitum(etc.) Sorry for the somewhat irrelevant addendum.I think it's rather heavy.I wont blame anyone if they think I'm a nut.I'm proud to be a nut............................May JAH Shine on You Always..........dddd [ Post Comment ] Comment #3 posted by Mr. Toke on April 12, 2000 at 07:54:23 PT What evil? There is nothing "evil" about marijuana, period. [ Post Comment ] Comment #2 posted by observer on April 11, 2000 at 19:20:22 PT more mapinc related articles :-) this one works even better:http://www.mapinc.org/find?K=judge+jury+hear+evidence&COL=Body&T=All+words&MAX=100&Y=All&DE=Low [ Post Comment ] Comment #1 posted by observer on April 11, 2000 at 19:16:39 PT Kangaroo Courts Hawaii's Penal Code contains a "Choice of Evils" defense...Unfortunately, many courts offer up justice in name only. Since the prosecutor/judge is able to decide what the defense is allowed to bring before the jury; is able to pre-screen the defense's case, then any law which the defense might bring up (the Constitution, Proposition 215 in California, the Bill of Rights, you name it) is ruled inadmissable and the defense lawyer cannot mention these facts. Still, occassionally there are judges that are uncorrupted (though they be few and far between), so sometimes (very rarely) the law of the land (which police prosecutor and judge are sworn to uphold), is upheld. mapinc.org jury trial stories... [ Post Comment ] Post Comment Name: Optional Password: E-Mail: Subject: Comment: [Please refrain from using profanity in your message] Link URL: Link Title: