¶23 (dissenting) — While I sympathize with William Kurtz’s unfortunate situation, I am compelled to dissent because the common law defense of necessity is predicated on a lack of legal alternatives. Washington voters have provided a comprehensive statutory scheme for the use of medical marijuana, enacted by initiative in 1998. Because individuals in this state have a legal way of using *480medical marijuana, the previously articulated common law defense of medical necessity for marijuana use is no longer appropriate. Therefore, I respectfully dissent.
¶24 The common law necessity defense has existed for hundreds of years for defendants who were forced to violate the law to avoid a greater harm. Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 444 (2d ed. 1986). To assert the necessity defense, a defendant must reasonably believe the unlawful action was necessary to avoid harm. State v. Diana, 24 Wn. App. 908, 914, 604 P.2d 1312 (1979); LaFave & Scott, supra, at 446. In addition, the harm the defendant sought to avoid must outweigh the harm caused by a violation of the law. Diana, 24 Wn. App. at 914; LaFave & Scott, supra, at 446-47. Finally, and most importantly for our analysis of this case, the defense cannot be asserted when “a legal alternative is available to the accused.” Diana, 24 Wn. App. at 913-14; LaFave & Scott, supra, at 448-49.
¶25 A common example of the necessity defense is a prisoner who escapes from a prison on fire. See People v. Whipple, 100 Cal. App. 261, 279 P. 1008 (1929). Such a prisoner could theoretically defend against a charge of prison escape by arguing that there was no legal alternative to avoid severe injury or death. Id. at 263 (noting a prominent 1736 treatise on criminal law that states, “If a prison be fired by accident, and there be a necessity to break prison to save his life, this excuseth the felony.” 1 Matthew Hale, The History of the Pleas of the Crown 611 (1736), available at http://archive.org/details/historiaplaci torOlhale). In contrast, a prisoner who escapes from prison because he claims the conditions amounted to brutal and inhumane treatment cannot assert the defense of necessity when there is no record that he attempted to address prison conditions through lawful means. Whipple, 100 Cal. App. at 262, 265.
¶26 Thus, the necessity defense is specifically predicated on a defendant’s lack of legal alternatives. The United *481States Supreme Court has made this clear for the defenses of necessity and duress: “if there was a reasonable, legal alternative to violating the law . . . the defenses will fail.” United States v. Bailey, 444 U.S. 394, 410, 100 S. Ct. 624, 62 L. Ed. 2d 575 (1980). As the Court of Appeals has stated, the requirement to show a lack of legal alternatives is “[n]ot only . . . consistent with existing Washington case law, it is mandated by common sense.” State v. Pittman, 88 Wn. App. 188, 196, 943 P.2d 713 (1997).
¶27 When the Court of Appeals created the medical necessity defense for marijuana use in 1979, there was no provision for legal medical use of marijuana to treat the defendant’s multiple sclerosis. Diana, 24 Wn. App. at 915. Accordingly, the Court of Appeals created a three-part medical necessity defense, including a requirement that defendants present evidence that there was no legal alternative to using marijuana illegally to treat their symptoms. Id. at 916. Specifically, defendants had to show that no legal drug was as effective as marijuana in minimizing the effects of their disease. Id. Defendants that made such a showing could assert the medical necessity defense because they had no legal alternative to using marijuana for medical purposes.
¶28 But in 1998, the people of this state passed Initiative Measure 692 (the Washington State Medical Use of Marijuana Act,10 chapter 69.51A RCW), which provided a legal alternative for individuals to use marijuana for medical purposes. Consequently, the crucial underpinning to the necessity defense — the lack of legal alternatives — no longer existed for medical marijuana use. This change is particularly evidenced by Diana’s requirement that defendants show that no legal drug was as effective as marijuana in minimizing the effects of their disease. Logically, I do not see how Kurtz can show that no legal drug is as effective as marijuana when marijuana itself is now allowed for medi*482cal purposes. The specific necessity defense designed by the Court of Appeals for medical marijuana use has become moot by its own terms.
¶29 Courts consistently reiterate that defendants asserting the necessity defense must show that they lacked legal alternatives. The Court of Appeals has held that a person eluding a pursuing police vehicle to help a friend in danger cannot assert the necessity defense when there is a legal alternative: seeking that police officer’s assistance. State v. Gallegos, 73 Wn. App. 644, 651, 871 P.2d 621 (1994). In Gallegos, the court reviewed the case of a man who believed his female friend was in danger and began speeding toward her location. Id. at 646. When he was pulled over by a police officer en route, he yelled to the officer that he was okay and that the officer should follow him. Id. He then sped off. Id. When he was later charged with attempting to elude a pursuing police vehicle, the court held that he could not assert the necessity defense because he had a legal alternative — he could have explained the situation to the officer and asked for help for his friend. Id. at 651. This was a reasonable legal alternative that would have averted harm to his friend without violating the law against eluding a pursuing police officer.
¶30 The Alaska Supreme Court has held that stealing highway construction equipment to free a stranded vehicle is unnecessary when there is a legal alternative: calling a tow truck. Nelson v. State, 597 P.2d 977, 980 (Alaska 1979). In Nelson, an Alaska man “borrowed” highway construction equipment to free his truck that was stuck in nearby mud. See id. at 977-78. His unsuccessful attempt to free his truck resulted in significant damage to the construction equipment, and he was charged with destruction of personal property and joyriding. Id. at 978. He attempted to assert the necessity defense, explaining that he believed his truck was in danger of tipping over and being damaged. Id. at 980. The court held that he could not assert the necessity defense because he had several legal alternatives to unlaw*483fully using the construction equipment, noting that multiple people had stopped and offered assistance to the defendant, including rides or offers to telephone state troopers or a tow truck. Id.
¶31 Similarly, the Ninth Circuit Court of Appeals has held that trespassing on a military base to warn fellow trespassers of impending danger from a military test exercise is unnecessary when there is a legal alternative: informing the military about the presence of the other trespassers. United States v. Mowat, 582 F.2d 1194, 1208 (9th Cir. 1978). In Mowat, a group of individuals were charged with trespassing for entering an island military base to protest military actions. Id. at 1197. One of the individuals who entered the base later than his cohorts asserted a necessity defense, claiming that he entered the military base to warn his friends about an impending bombing of the island. Id. at 1208. The court held that “the assertion of the necessity defense requires that optional courses of action appear unavailable” and that the defendant could not assert the defense because he “made no attempt to secure consent to enter the island, nor did he take the simple step of notifying the officials on the island who could have notified [his friends].” Id.
¶32 These cases are unified by the principle that the necessity defense is unavailable to defendants who fail to avail themselves of reasonable legal alternatives. The necessity defense is not an unlimited license to violate the law to avoid a potential harm. Rather, the defense exists to protect defendants who truly have no legal alternatives.
¶33 Of course the overall common law necessity defense continues to protect defendants who are forced to violate the law to avert a greater harm. But the narrow medical necessity defense developed in Diana specifically for individuals with a medical need to use marijuana no longer makes sense in a state that specifically provides a legal method for the medical use of marijuana. I would hold that a defendant wishing to assert a necessity defense would *484have to prove the broader elements that have developed over hundreds of years — including the lack of legal alternatives — not the narrow medical necessity test developed in a context that no longer exists. In Kurtz’s case, the record shows that he was later able to obtain appropriate authorization to legally use medical marijuana for his serious condition. He had a legal alternative to violating the law and thus does not qualify for the necessity defense.
¶34 In addition, both Diana and the majority opinion rely heavily on section 3.02 of the Model Penal Code (MPC) (Proposed Official Draft (1962)), despite the fact that the legislature considered and rejected that exact provision. A brief review of the legislature’s consideration of the MPC is instructive. In 1967, the Washington State Senate delegated the responsibility of recommending revisions to the criminal code of 1909 to the Judiciary Committee of Washington’s Legislative Council. Judiciary Comm, of Wash. Legis. Council, Legislative Council’s Judiciary Committee, Revised Washington Criminal Code at ii (Dec. 3, 1970). In 1970, the judiciary committee published a proposed draft of the revised criminal code that adopted MPC section 3.02’s necessity defense, calling it a “justification” defense. Id. at ii, 64. However, when the legislature adopted the criminal code of 1965, it did not include the justification defense. Laws of 1975, 1st Ex. Sess., ch. 260, at 828-30. Since MPC section 3.02 was explicitly proposed by the judiciary committee and then rejected by the full legislature, it seems inappropriate for the courts to subsequently adopt and apply that exact test.
¶35 Furthermore, I find no way to avoid the conclusion that the Medical Use of Marijuana Act abrogated the common law defense. A statute abrogates the common law when “ ‘the provisions of a . . . statute are so inconsistent with and repugnant to the prior common law that both cannot simultaneously be in force.’ ” Potter v. Wash. State Patrol, 165 Wn.2d 67, 77 196 P.3d 691 (2008) (alteration in original) (quoting State ex rel. Madden v. Pub. Util. Dist. *485No. 1, 83 Wn.2d 219, 225, 517 P.2d 585 (1973)). In this case, the Medical Use of Marijuana Act created a defense to charges of use or possession of marijuana if the defendant can show that he or she was using the marijuana for medical purposes — the exact issue addressed by the common law defense. Because the Medical Use of Marijuana Act addresses the very concern addressed by the common law, the two cannot coexist. The Medical Use of Marijuana Act sets out a comprehensive structure for the defense, including the qualifying conditions or diseases, the amount of marijuana allowed, and documentation of a physician’s recommendation. As a result of these detailed requirements, the statutory defense is much narrower than the common law defense. The common law did not require any communication with a physician, nor did it place a limit on the amount of marijuana at issue. Therefore, the provisions of the Medical Use of Marijuana Act’s defense are so inconsistent with the prior common law that both cannot simultaneously be in force. It does not make sense that the state would create a significantly narrower and more detailed statutory defense if it did not mean to replace the broader common law defense.
¶36 Moreover, allowing the common law defense to coexist with the statutory defense would frustrate the purpose of the Medical Use of Marijuana Act. When determining whether a statute is exclusive, this court has repeatedly indicated that it must strive to uphold the purpose of the statute. See, e.g., Potter, 165 Wn.2d at 87; see also Wash. Water Power Co. v. Graybar Elec. Co., 112 Wn.2d 847, 855, 774 P.2d 1199, 779 P.2d 697 (1989). In passing the Medical Use of Marijuana Act voters set up a structure to allow medical marijuana, but they specifically limited the defense to individuals using medical marijuana under a doctor’s supervision. If the court were to uphold the broader common law defense without the requirement of a doctor’s supervision, the court would frustrate the purpose of the *486voters that specifically added that requirement for the medical use of marijuana.
¶37 I respectfully dissent.
Fairhurst, J.M. Johnson, and Wiggins, JJ., concur with Owens, J.The Medical Use of Marijuana Act was renamed the Washington State Medical Use of Cannabis Act in 2011. RCW 69.51A.900.