COURT REJECTS DEFENSE OF ‘MEDICAL MARIJUANA'

A "medical marijuana" defense will not fly in West Virginia criminal
drug cases, the state Supreme Court has ruled.

"The Legislature has made no exception for medical use," Justice
George Scott wrote for the majority in the appeals court's 4-1 ruling.
"Accordingly, we hold that medical necessity is unavailable as an
affirmative defense to a marijuana charge in West Virginia. "

With its ruling, the court rejected the appeal of a Tucker County
woman who argued she was wrongly barred from presenting such a defense
after deputies found marijuana plants in her house.

In his dissent, Justice Larry Starcher sided with the married mother
of four, who is dying of multiple sclerosis.

"I believe that the circuit court was wrong to deny Donna Jean Poling
(and her doctor) the right to tell the jury why Ms. Poling was growing
marijuana," Starcher wrote. "The majority decision could be seen as
cruel and shortsighted."

Poling said she resorted to marijuana after a series of costly
prescription drugs failed to allay the symptoms of her crippling,
incurable disease. She said smoking pot allowed her to live nearly
symptom-free for three years - until her March 1998 arrest on
cultivation charges.

Poling chose to plead guilty last year after the trial judge granted a
motion by prosecutors to exclude a "medical necessity" defense. Under
the terms of her plea, Poling was allowed to appeal the judge's ruling
as well as challenge the search that yielded the plants in her house.

A one-to five-year prison sentence was suspended, and she was placed
on probation.

Poling argued that she broke the law only while under a form of
duress: Only marijuana helped her with her disease. Scott wrote that
state lawmakers have concluded otherwise.

"A threat of future injury is not enough," the opinion
said.

"Moreover, the Legislature has imposed criminal penalties upon any
person who manufactures, delivers, or possesses with intent to
manufacture or deliver, marijuana."

In his dissent, Starcher agreed, to a point.

"The final decision whether or not to criminalize certain drug use is
one to be made by our Legislature, of course, " he wrote.

"But it is this court that has the right and the duty to decide what a
defendant can tell a jury about why they committed an act that may be
a crime."

The Supreme Court's ruling notes that doctors remain divided over
whether marijuana offers any medicinal benefits.

Starcher included in his dissent a discussion of cases in which other
states have either allowed or wrestled with the medical marijuana issue.

Starcher filed his dissent Wednesday. The Supreme Court ruling, issued
Monday, also rejected Poling's arguments regarding the search.