​A 52-year-old Texas man will use medical necessity as a defense after police found one marijuana plant and 1.5 ounces of cannabis at his home on September 30, according to his attorney. The man smokes marijuana to alleviate his suffering from diabetic neuropathy with severe symptoms including chronic pain and insomnia.

The detectives told the man they had received a tip that he was growing marijuana on the premises. After finding the growing plant and the dried marijuana, officers arrested the man for marijuana possession. Whether the case will be prosecuted as a misdemeanor or a felony will be decided depending on the dried weight of the cannabis seized.

The man, who lives in Weatherford, Texas, uses marijuana with the full knowledge and support of his physicians, who claimed they could not provide him with the synthetic substitute, Marinol, because it was heavily regulated and reserved for cancer and HIV patients.

​Fort Worth Attorney David Sloane said he intends to raise the medical necessity defense, as well as other procedural and constitutional grounds in defending the case. Sloane, a legislative committee member for the National Organization for the Reform of Marijuana Laws ( NORML ) and an officer of the local DFW NORML chapter, said 15 states now recognize the medical need and necessity of lawful marijuana use.

“This guy hasn’t smoked (or slept) since this happened,” Sloane told Toke of the Town. “He looks awful… That is his primary need, is help sleeping.”

According to Sloane, his client, who lives alone on his $1,125 a month disability pension, cannot use conventional sleeping pills because they make him sleepwalk.

“Among other serious incidents after taking sleep medication, several years back a neighbor found him standing in their home in the middle of the night,” Sloane told us. “When they confronted him, he turned and walked out without saying a word. He was awakened the next morning by police and remembered nothing of the incident. He was charged then with burglary, which was later reduced to trespassing.”

“Cannabis is the only thing he’s found that helps him with sleep without all the harmful side effects,” Sloane said.

A 2009 Texas bill that would have allowed seriously ill patients to raise a medical necessity defense to the specific offense of marijuana possession died in committee.

Sloane said he sees no problem going ahead without this legislation under these circumstances. Texas penal law already provides for a justification of necessity for all criminal law violations “if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm” and “the desirability and urgency of avoiding the harm clearly outweighs… the harm sought to be prevented by the law proscribing the conduct.”

“Had the 2009 bill passed, it might have curtailed a number of needless arrests of medical patients here in Texas, but that doesn’t mean the common and statutory defenses and justifications for all offenses aren’t still available to us in the courts,” Sloane said.

“I must admit I was a little intimidated in trying this, even though my repeated application of the facts to the law in this case told me this is what I should do,” Sloane said. “I had never even heard of anyone else trying it here.”

But then Sloane found a case from Amarillo with substantially similar facts where it took the jury only 11 minutes to find a marijuana patient not guilty when they were given the opportunity to consider his medical necessity.

“I have gone from believing it would be a long shot to believing it would be malpractice not to raise it in defending a medical marijuana patient with what appears to be a genuine need,” Sloane said.

“If the Texas Legislature wants to continue dragging their heels by ignoring the medical needs of their citizens, that’s fine, I guess,” Sloane said. “But I’m going to do my job. And I’m hoping these judges and juries will do theirs.”