STATE OF IOWA,                    )
                                  )
             Plaintiff,           )           NO. 22690
                                  )
        vs.                       )
                                  )       ORDER OF THE COURT
JAN RENE PLEAS,                   )
                                  )
             Defendant.           )
_________________________________________________________________
    On the 23rd day of May 1994, the State's Motion to Strike

Affirmative Defense came before the Court.  The Court, having

reviewed the pleadings, heard the oral arguents of the parties,

and examined the case law provided, makes the following

findings:

    Defendant claims, in her Notice of Affirmative Defense of

Medical Necessity, that the marijuana found in her residence

during a police search was medically necessary to stabilize the

interocular pressure in her left eye, which has glaucoma.

Defendant further claims that there was a specific threat of

immediate harm, that Defendant did not bring about the

circumstances necessitating the illegal act, that no alternative

drug was effective in minimizing the effects of glaucoma, and

that the harm avoided was greater than the harm caused.

Plaintiff argues that the affirmative defense of medical

necessity is not a recognized criminal defense in the State of

Iowa, and so should be stricken.

    The Court finds that the necessity defense, by which the

defendant much choose the lesser of two evils, is a recognized

defense in the state of Iowa.  In State v. Walton, the Iowa

Supreme Court stated that the necessity defense is available

only in emergency situations where the threatened harm is

immediate and the threatened disaster imminent.  311 N.W.2d 113,

115 (Iowa 1981).  Additionally, no alternative option must exist

by which the defendant could avoid both evils.  Id.

    Defendant is entitled to attempt to establish the defense of

necessity.  If the trial judge finds that Defendant has

established the required elements of the necessity defense in

the State of Iowa, the judge may then instruct the defense of

necessity.  The Court declines to rule that the defense of

medical necessity does not exist in the State of Iowa.

    IT IS ORDERED, ADJUDGED, AND DECREED that Plaintiff's Motion

to Strike Affirmative Defense is hereby denied.

    DATED this 16th day of June, 1994.



                             JUDGE, FOURTH JUDICIAL DISTRICT