Pubdate: Thu, 19 Jan 2001 Source: Argus Leader (SD) Copyright: 2001 Argus Leader Contact: http://www.argusleader.com/ Details: http://www.mapinc.org/media/842 Author: Jennifer Gerrietts, Argus Leader JUDGE: MEDICAL USE OF POT VALID LEGAL DEFENSE Quadriplegic Man May Apply Defense A Sioux Falls magistrate judge's decision will allow a quadriplegic man to tell a jury that he had a medical need for the marijuana he was charged with possessing last summer. The case could be the first time such a decision has been made in South Dakota courts, observers say. Matthew Ducheneaux, a 36-year-old former Sioux Falls resident, was arrested on a misdemeanor drug possession charge last summer in Yankton Trail Park in Sioux Falls. Ducheneaux says he uses the drug to help him relieve muscle spasms and pain caused by a paralyzing accident. Magistrate Pat Riepel decided that Ducheneaux can tell a jury that he has a medical need for the drug. Deputy Minnehaha County State+s Attorney Matt Theophilus plans to appeal the decision to the circuit court. He declined further comment. Ducheneaux could not be reached for comment Wednesday. Ducheneaux's lawyer, Assistant Minnehaha County Public Defender Chris Moran, said his client was forced to choose between using drugs that gave him side effects and smoking marijuana for relief from his medical condition. "It is our position that Matthew Ducheneaux was faced with a true 'choice of evils,' and that he chose the lesser of those evils by possessing marijuana." Ducheneaux was arrested last summer with two marijuana cigarettes and a bottle of medication. A 1985 auto accident left him with severe spinal cord damage, paralyzing his arms and legs. He uses a wheelchair and experiences severe pain and spastic tremors. Ducheneaux has said that he has been prescribed codeine, Tylenol, cocaine, Valium and a synthetic version of marijuana. But many of the drugs gave him no relief and left him with side effects of liver toxicity, extreme drowsiness and hair loss. He has a permit to legally receive marijuana from a pharmacy but has been unable to find one that would dispense it. At the time of his arrest, Ducheneaux had a note from a doctor written on a prescription form that said "Matthew is a quadriplegic. He uses marijuana for muscle spasms caused by his paralysis." Prosecutors have argued that state law does not recognize any medicinal value to marijuana, which should outlaw a defense on those grounds. Riepel's decision found that the South Dakota Supreme Court has said in cases involving other crimes that a necessity defense can be used if the offense was justified by a reasonable fear of death or injury. "The court concludes that the medical defense is the extension of the necessity/justification defense recognized by our State Supreme Court," Riepel wrote. University of South Dakota Law Professor Chris Hutton said the case could help define state laws. "This is the type of case that gets appealed and appealed to the higher levels," Hutton said. Rep. Tom Hennies, R-Rapid City, who unsuccessfully tried this year to pass a law that would outline medical need as a defense in marijuana possession cases, is pleased by Riepel's decision. "If you let a judge hear the case and make this decision, only those with the most serious needs would use this defense," said Hennies, a former Rapid City Police Chief. "It would separate out the frivolous cases." Hennies doesn't want to see marijuana legalized. But there are times when people have a medical need for the drug, he said. "You should have the ability to go to the court and explain why you did what you did," Hennies said. "It would be up to the court to decide." Bob Newland of Hermosa, a spokesman for the South Dakota Cannabis Coalition, said the facts of Ducheneaux's case support a medical marijuana defense. He hopes the case withstands appeal. "People are already using marijuana medically," Newland said. "The system needs to recognize that fact, because they're not going to stop, because marijuana works." Ducheneaux's trial is May 9, but the case will likely be delayed. If convicted, he could face up to one year in jail and a $1,000 fine.