MEDICAL MARIJUANA DEFENSE DENIED

Eagle Butte Man's Possession Conviction Upheld

PIERRE - A paralyzed Eagle Butte man who claims he must smoke marijuana for
his health and wants legal immunity for it couldn't sell his argument to
the state Supreme Court.

The justices unanimously upheld Matthew Ducheneaux's pot possession
conviction on Thursday.

Ducheneaux's lawyer told the high court last month that a judge should have
let his client to use a medical-necessity defense in his trial. Ducheneaux,
confined to a wheelchair since a 1985 car crash, said he uses pot to ease
chronic muscle spasms that do not respond well to prescription drugs.

He was arrested in Sioux Falls on July 15, 2000, when a police officer saw
him smoking marijuana with another man at an outdoor music festival.
Ducheneaux, 39, was found guilty and got a suspended five-day jail sentence
if he promised not to smoke pot for a year.

Although a magistrate agreed to let Ducheneaux argue that he needs
marijuana for medical reasons, Circuit Judge Gene Paul Kean overruled that
decision.

Upholding Kean, the Supreme Court said Ducheneaux could not rely on a state
law that allows illegal conduct when a person is being threatened by
unlawful force.

Such a necessity defense may be used by inmates who defend themselves
against attacks in prison or a parent who kidnaps a child who was being
abused by the other parent. But the law contains no provision for medicinal
marijuana use.

Allowing Ducheneaux to argue that he must smoke pot for health reasons does
not fall within the limits of the necessity-defense law, the high court
stated. It would strain the language of the law if it could be used to show
that a health problem amounts to unlawful force against a person, the
justices said.

"Laws govern the actions or inactions of people, not medical conditions,"
wrote Justice Richard W. Sabers.

The Supreme Court said it is sympathetic to Ducheneaux's circumstances, but
that it cannot interpret the law any other way. Only the Legislature can
decide to allow marijuana for medical purposes, and state lawmakers have
rejected that idea in the past, the justices said.

"Although he testified that traditional medications have unwanted and
detrimental side effects, Ducheneaux had legal means to combat the pain and
spasms accompanying his condition," Sabers added.

Ducheneaux's doctors prescribed several drugs for him, but he opted instead
for marijuana, the justice said.