Opinion No. 11
from the district court of the Fourth Judicial District of
the State of Idaho, Ada County. Hon. Richard D. Greenwood,
district court's judgment of conviction is affirmed.
D. Fredericksen, State Appellant Public Defender, Boise,
attorneys for appellant. Brian R. Dickson argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, attorney
for respondent. Jessica M. Lorello argued.
Nature of the Case
Douglas Earl Meyer ("Meyer"), appeals his felony
conviction for possession of over three ounces of marijuana.
Meyer asserts on appeal that the district court erred when it
denied his request for a jury instruction on the necessity
defense. Meyer is a Washington State resident who has a
prescription for medical marijuana and is the designated
medical marijuana provider for one, Tammy Lee Rose. He was arrested while driving through
Idaho on his way to California with over three ounces of
marijuana in his vehicle. He argues that the district court
was required to provide a necessity defense jury instruction
because he had made a prima facie showing of each of the
elements of that defense: (1) he will suffer pain if he does
not use marijuana; (2) he was not the cause of his medical
condition; (3) marijuana is an effective medication for him
where other medications have not been effective; and (4) any
harm caused by violating the law is less than the harm that
he would have suffered if he did not use marijuana. The State
responds that Meyers did not make a showing of each of the
elements of the necessity defense because: (1) Meyer's
use of marijuana to treat chronic pain does not constitute a
specific threat of harm; and (2) Meyer could have avoided
violating the law altogether by driving through Oregon
instead of Idaho. The State further asserts that to the
extent that Idaho Supreme Court precedent set forth in
State v. Hastings, 118 Idaho 854, 801 P.2d 563
(1990) requires a necessity instruction in this case,
Hastings should be overturned.
Factual and Procedural Background
August 24, 2014, Meyer was pulled over for driving in excess
of the speed limit. Police recovered an amount of marijuana
in excess of three ounces as well as $2, 600 in cash. The
State charged Meyer with: (1) possession of a controlled
substance with intent to deliver in violation of Idaho Code
section 37-2732(a), and in the alternative (2) possession of
marijuana in excess of three ounces in violation of Idaho
Code section 37-2732(e). Each of these crimes is a felony in
the state of Idaho.
January 27, 2015, Meyer filed a motion for jury instructions.
The motion contained the following necessity instruction:
The defendant cannot be guilty [of (name of crime)] if the
defendant acted because of necessity. Conduct which violates
the law is justified by necessity if:
1. There is a specific threat of immediate harm to [the
defendant] [name of person],
2. The defendant did not bring about the circumstances which
created the threat of immediate harm,
3. The defendant could not have prevented the threatened harm
by any less ...