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Emry v. United States

August 14, 2003


Appeals from the Superior Court of the District of Columbia (M13668-98) (Hon. Stephanie Duncan-Peters, Trial Judge)

Before Terry, Schwelb, and Reid, Associate Judges.

The opinion of the court was delivered by: Reid, Associate Judge

Argued May 20, 2003

On January 28, 2000, appellant, Ms. Renee Emry, was convicted of unlawful possession of marijuana in violation of D.C. Code § 33-541 (d) (1998). *fn1 On appeal she challenges the trial court's rejection of her medical necessity defense. We affirm, and hold that on the facts of this case, Ms. Emry failed to establish a case of medical necessity.


On September 15, 1998, at around 9:18 in the morning, Ms. Emry, a Michigan resident, entered the United States Capitol office of Representative William M cCollum, a member of Congress from the State of Florida, and began smoking marijuana. She appeared "wobbly" and held a banner which read: "I use marijuana for m ultiple sclerosis." Officers with the United States Capitol Police responded to the scene and arrested her.

At trial the defense claimed that it was medically necessary for Ms. Emry to use the marijuana because of her multiple sclerosis, and presented Dr. Denis Petro, an expert in neurology and pharmacology, as its only witness. *fn2 He examined Ms. Emry after her arrest and confirmed upon reviewing her medical records *fn3 that she suffered from multiple sclerosis and experienced spasticity as a re sult - a symptom involving painful, uncontrollable muscle spasms. Several drugs are generally prescribed to treat the condition, including Baclofen, Dantrium, Valium, and marijuana. Ms. Emry has used marijuana and Baclofen to control the symptoms of her illness.

The trial court ruled that the evidence presented by M s. Emry was insufficient to permit a necessity defense because it did not satisfy the factors set forth in Griffin v. United States, 447 A.2d 776 (D.C. 1982). Specifically, it determined that Ms. Emry had legal alternatives besides using marijuana to treat her spasticity. It further found that she was not in imminent danger of experiencing spasticity at the time she smoked marijuana in the congressman's office, and that Ms. Emry's use of marijuana was not designed to avert an attack of spasticity.


Ms. Emry contends that the trial court erred in failing to follow the principles set forth in United States v. Randall, 104 DAILY WASH. L. RPTR. 2249 (D.C. Super. Ct. December 28, 1976), which recognized the use of a medical necessity defense to the illegal possession of marijuana. She claims that the Superior Court's decision in that case "has been explicitly accepted by this Court as precedent" and thus she should have been permitted to raise a medical necessity defense to her crim inal charge.

However, we have not adopted Randall's holding, nor do we decide on this record whether medical necessity can ever be a defense to the unlawful possession of marijuana. Even assuming such a defense exists in this jurisdiction, the facts presented here are insufficient to support its application.

In Griffin, supra, which involved a claim that the charged unlawful entry of a church was "necessary" to call attention to the plight of homeless persons, we explained that "the necessity defense exonerates persons who commit a crime under the 'pressure of circumstances,' if the harm that would have resulted from compliance with the law would have significantly exceeded the harm actually resulting from the defendants' breach of the law." Id. at 777 (citing Randall, supra, 104 DAILY WASH. L. RPTR. at 2249) (other citations omitted). But, we made clear that

[t]he defense is not available where: (1) there is a legal alternative available to the defendant[] that does not involve violation of the law; (2) the harm to be prevented is neither imminent, nor would be directly affected by the defendant['s] actions; and (3) the defendant['s] actions were not reasonably designed to actually prevent the threatened greater harm.

Id. at 778 (internal citations omitted). In other words, "'if there was a reasonable legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm, the [necessity] defens[e] will fail.'" Id. at 778 (quoting United States v. Bailey, 444 U.S. 394, 410 (1980)) (internal quotation marks and other citation omitted). Moreover, since necessity is an affirmative defense, the burden was on Ms. Emry to put forth sufficient evidence to satisfy the Griffin factors. See also United States v. Unser, 165 F.3d 755, 764 (10th Cir. 1999) ("[T]he defendant . . . must bear ...

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