dissenting.
The issue presented in this appeal is the availability of the defense of justification to a criminal indictment for the unlawful possession of marijuana. The defendant is a quadriplegic who asserts that his use of marijuana is a “medical necessity” *76because it is the only treatment that can ease the pain of severe, recurring spastic contractions. The defense is claimed under the New Jersey Code of Criminal Justice, N.J.S.A. 2C:3-2(a). The Court today rejects the defense. It expresses the view that the Code constitutes a statutory codification that supplants any common-law principles that would otherwise elucidate the meaning of this defense, and, looking to particular provisions of N.J.S.A. 2C:3-2(a), it rules that medical necessity for the possession of marijuana is not allowed as a justification defense under the Code.
In my opinion the Court misperceives the purpose and effect of the Legislature’s codification of the common-law necessity doctrine and errs in discounting the common-law antecedents of the Code justification defense; it also reads the Code much too strictly in interpreting and applying the operative statutory language. I take a different tack and reach a different conclusion. It is my view that under the Code the defense of justification based on medical necessity is available with respect to the use of marijuana in the context of the limited and special circumstances that are present in this case. I therefore dissent from the opinion of the Court.
I.
The justification defense outlined by the Code in N.J.S.A. 2C:3-2a.1 is not self-defining. It obviously is not susceptible of an interpretation based solely upon provisions that are plain, unambiguous, and admit of only one meaning. See State v. Butler, 89 N.J. 220, 226 (1982). Hence we must look to extrinsic sources to elucidate that meaning.
In this interpretive exercise, it is of some significance that the drafters of the New Jersey Code intended that the Code defense of justification track generally the Model Penal Code (MPC). In doing so, the drafters of the New Jersey Code and the Legislature, which endorsed their views, did not repudiate the common-law doctrine of necessity as lending content and *77meaning to the Code defense. Indeed, the relevance of the common-law was specifically recognized. In its Final Report, the Criminal Law Revision Commission explained that the defense of necessity could not be given a fixed or static statutory meaning. The rarity of the defense and the imponderables of the particulars of specific cases convinced the Commission that the courts on a ease-by-case basis could best define and apply the defense. Moreover, the Commission determined that the continued explication and application of the necessity defense was more appropriately left to the judiciary rather than the Legislature. Thus, by N.J.S.A. 2C:3-2b, the Commission explicitly stressed the continued relevance of the common law, viz:
While we are confident that the Code defines all proper justification defenses, we would not want to destroy by inference a proper, but unusual, defense which we have failed to include. We, therefore, make sufficient any defense of justification permitted by the common law and not inconsistent with a deliberate legislative choice. [Final Report Commentary § 2C:3 — 2.]
Contrary to the approach taken by the majority, which eschews any reference to the common-law origins of this unique defense, the judiciary was explicitly adjured by the Legislature to develop this defense on a progressive decisional basis, albeit within statutory parameters. For that reason the common-law exposition of this special doctrine is not only generally enlightening and historically curious, it is inescapably germane to an informed understanding of the nature and scope of the necessity defense.
The Code provision for necessity-justification encapsulates a criminal defense that has been long recognized at common law in a variety of forms and contexts. This defense has been described as a legal excuse when the physical forces of nature or the pressure of circumstances cause the accused to take unlawful action to avoid a harm that social policy deems greater than the harm resulting from a violation of the law. W. LaFave & A. Scott, Handbook on Criminal Law, 381-83, 386 (1972). It has been stated that “where the act done was necessary or reasonably seemed to be necessary to save life or limb or health and did not in itself in any way endanger life, *78limb or health, the exculpatory effect of the necessity is clear; but where the offense charged is not one of particular gravity, the courts have not hesitated to recognize necessity as an excuse where the danger or apparent danger to be avoided was less serious in its nature.” R. Perkins, Criminal Law 848 (1957).
Numerous cases illustrate the breadth and diversity that characterize the common-law necessity defense. For example, in the early common law it was acknowledged that if a prison caught fire and a prisoner departed to save his life, the necessity to save his life “exeuseth the felony.” 1 Hale P.C. 611 (1736). It has been held to be justifiable for a ship’s crew to revolt and return to port because the vessel was unseaworthy, United States v. Ashton, 24 F.Cas. (C.C.Mass.1834) (No. 14,470); for a ship to enter and take refuge in a blockaded port because of a violent storm, The William Gray, 29 F Cas. 1300 (C.C.N.Y.1810) (No. 17,694); for a ship to dock at an embargoed port if forced to by storms in an effort to save lives of the crew, The Brig Struggle v. United States, 13 U.S. (9 Cranch) 71, 3 L.Ed. 660 (1815); for a vehicle to stop at a prohibited place, due to heavy traffic, Commonwealth v. Brooks, 99 Mass. 434 (1868); for a parent to withdraw his child from school without the consent of the school board because of the child’s ill health, State v. Jackson, 71 N.H 552, 53 A. 1021 (1902); for a person to kill a deer in violation of the game laws in order to protect his property, State v. Ward, 170 Iowa 185, 152 N. W. 501 (1915); and for a person to violate the speeding laws in order to apprehend a fleeing felon, State v. Gorham, 110 Wash. 330, 188 P. 457, 9 A.L.R. 365 (1925).
The decisions that permit the invocation of the necessity defense to criminal conduct have running through them certain common threads, such as the immediacy or actuality of the harm, the absence of an available alternative, a reasonable belief that the harm will occur if the unlawful action is not undertaken, and the perceived need to take such action to avoid a greater evil. Note, Medical Necessity as a Defense to *79Criminal Liability: United States v. Randall, 46 Geo. Wash. L.Rev. 273, 277-78 (1978). The doctrine recognizes that under force of extreme circumstances conduct that would otherwise be criminal can be considered to be legally justifiable and socially tolerable. United States v. Dorrell, 758 F.2d 427 (9th Cir.1985); see Note, Justification: The Impact of the Model Penal Code on Statutory Reform, 75 Colum.L.Rev. 914, 916 (1975); 1 Wharton’s Criminal Law § 88, 409 (1978). The defense, however, is not applicable where the compelling circumstances have been brought about by the accused or where a legal alternative is available to the accused. United States v. Randall, 104 Daily Wash.L.Rptr. 2249, 2252 (D.C.Super.Ct. 1976); Bice v. State, 109 Ga. 117, 34 S.E. 202 (1899).
New Jersey’s statutory codification of the necessity-justification defense, N.J.S.A. 2C:3-2a, is derived in part from the Model Penal Code. It is readily apparent that the MPC treatment of this defense is heavily influenced by its common-law origins. The several components comprising the necessity-justification defense of the MPC are broadly reflective of common-law principles. It contemplates that a choice of evils exists when a person acts in an unlawful manner that he or she believes to be necessary to avoid a personal harm or evil; this conduct may be justifiable provided that the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense. MPC § 3.02. The commentary that explains the defense further expounds upon its common-law themes. Thus, the defendant first must actually believe that his or her conduct is necessary to avoid an evil; a belief that such behavior possibly may be conducive to ameliorating certain evils is insufficient. MPC § 3.02, Comment 2 (1985). The evil or harm to be avoided must be greater than the evil or harm sought to be avoided by the law defining the offense charged. Ibid. The balancing of evils is not committed to the private judgment of the actor. Ibid. Further, recklessness or negligence in bringing about the sitúa*80tion requiring the choice of evils can preclude the defense. Ibid.
The MPC, however, is not a mere restatement of the common law. Reflecting legislative absorption of the subject matter, the MPC further provides that there can< be no legal justification if either the MPC or another statute defining an offense provides exceptions or defenses dealing with the specific situation involved, or a legislative purpose to exclude the asserted justification otherwise plainly appears. MPC § 3.02. Thus, the defense cannot succeed if the issue of competing values has been previously foreclosed by a deliberate legislative choice. MPC § 3.02, Comment 2. Thus, the MPC treatment of justification, which is rooted in the common law, is highly relevant to a proper understanding of that defense under our own Code of Criminal Justice.
II.
Under the New Jersey Code, the Legislature pointedly elected not to define the discrete elements of the necessity-justification defense. The substantive standards that govern the defense are not set forth. Provision for the defense is made only by the broadest reference possible; it is described simply by its own labels, i.e., “justification” and “necessity.” N.J.S.A. 2C:3-2(a). As in the case of the MPC, there is every reason to believe that, by virtue of this almost-generic designation of the justification defense without further definitional elaboration, the Legislature intended to invest the defense with the protean meaning that it had acquired at common law. It is thus fair to conclude that the Code defense embraces the essential elements with which the defense was invested in the course of its long common-law evolution. Further, it is safe to assume that by incorporating the common-law under-standing of the justification defense the Code also absorbed the common law’s inherent capacity to grow, change and adapt. See Renz v. Penn Central Corp., 87 N.J. 437, 440 (1981).
*81The New Jersey Code of course is a legislative product. Paralleling the MPC, the Code, along with its broad and unembellished designation of the justification defense, also provides that if the conduct sought to be justified itself has been clearly precluded or foreclosed by a deliberate legislative determination, the defense cannot be invoked. Under the Code, if (1) either the Code itself or another statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved or (2) a legislative purpose to exclude the justification claimed otherwise plainly appears, justification cannot be urged as a defense. N.J.S.A. 2C:3-2a. Thus, aside from whether the offense charged in this case is amenable to the substantive standards of the necessity-justification defense, an initial inquiry may logically be made as to whether the defense has been preempted by other statutory prohibitions. The interpretation and application of these limiting provisions are crucial to the outcome of this case.
Focusing upon these limitations, the majority rules that there is a legislative purpose to exclude the justification defense for the possession of marijuana. Such a legislative purpose is said to be found in the Legislature’s classification of marijuana as a Schedule I controlled dangerous substance under Title 24. N.J.S.A. 24:21-5. This, it is claimed, demonstrates an intent to preclude any legal justification for the use of marijuana under N.J.S.A. 2C:3-2a.
Under N.J.S.A. 24:21-5a, substances may be classified as Schedule I for the following reasons: (1) the drug or substance has a high potential for abuse; (2) the drug or substance has no accepted medical use in treatment in the United States; or (3) there is a lack of accepted safety for use in treatment of the drug or other substance under medical supervision. The Court seems to assume that because a Schedule I drug by definition has “no currently accepted medical use,” any use asserted on the basis of “medical necessity” could not have been within the legislative contemplation. Ante at 70. The Court necessarily presumes that the terms “accepted medical use” and “medical *82necessity” are equivalent expressions and have exactly the same meaning. As a consequence, if the drug has no “accepted medical use,” it can have no use based on “medical necessity.”
The validity of this position turns on what the Legislature meant by the phrase “accepted medical use” in defining Schedule I controlled dangerous substances. This standard suggests that a medical use is one that is generally accepted by the medical profession. Compare U.S. v. 1,048,000 Capsules More or Less, etc., 347 F.Supp. 768 (S.D.Tex.1972) (“generally accepted” means extensive recognition rather than universal acceptance); U.S. v. X-O TAG Plus Tablets, 441 F.Supp. 105 (D.Colo.1977) (generally the same), with U.S. v. An Article of Drug ... Neo-Terramycin Soluble Powder Concentrate, 540 F.Supp. 363 (N.D.Tex.1982) (where there is a genuine difference among experts, drug cannot be generally recognized as effective); U.S. v. 354 Bulk Cartons, 178 F.Supp. 847 (D.N.J.1959) (same).
There is, moreover, a parallel between the statutory phrase, “accepted medical use,” and the evidentiary standard governing the competency and admissibility of scientific evidence. Generally, scientific reliability is the basis upon which otherwise disputable scientific evidence is rendered competent. It suffices for these purposes if there is general acceptance within the scientific community that the scientific subject-matter is reliable. E.g. Romano v. Kimmelman, 96 N.J. 66 (1984) (general acceptance within scientific community demonstrates scientific reliability of breathalyzer tests); State v. Hurd, 86 N.J. 525 (1981) (general acceptance within the scientific community demonstrates scientific reliability of hypnosis). This standard is applicable to the fields of medical science. E.g., State v. Kelly, 97 N.J. 178 (1984) (general acceptance within the professional community of scientific reliability of “battered women’s syndrome” demonstrates competency of this evidence); Evers v. Dollinger, 95 N.J. 399 (1984) (general recognition by the medical profession coupled with general public acceptance demonstrates medical reliability of proposition that delayed diagnosis increases risk of cancer); State v. Hurd, supra; cf. State v. *83Cavallo, 88 N.J. 508 (1982) (absence of general professional acceptance of reliability of rapist profile renders such evidence incompetent).
Such reliability, however, does not depend upon unanimous belief or universal agreement within the scientific community as to the acceptability of the subject-matter. Thus, the admissibility standard implicitly recognizes that a scientific or medical matter that is not generally or widely accepted by the professional community as being reliable, and therefore incompetent as evidence, could nevertheless be effective in an individual situation. See State v. Cavallo, supra, 88 N.J. 508 see also State v. Melvin, 65 N.J. 1 (1974) (even though a polygraph test may be effective in individual cases, it is not generally accepted in scientific community as reliable and its results are therefore generally inadmissible in evidence); State v. Andretta, 61 N.J. 544 (1972) (regardless of its accuracy in an individual case, voice print not shown to be scientifically acceptable and therefore inadmissible in evidence). Such individualized efficacy, however, would not render the particular subject matter competent for purposes of admissibility in evidence.
There is no reason to believe that the Legislature did not contemplate the traditional understanding of scientific reliability when it used the language, “accepted medical use” with respect to classifying controlled dangerous substances. So understood, an “accepted medical use” is one that would be generally recognized by the professional community as being reliable and effective for general medical purposes. Consequently, a medical use that is efficacious only in a unique, special or isolated individual case would, for that reason alone, not constitute an “accepted medical use.” Thus, a Schedule I drug under Title 24 is one that does not have a universally recognized or generally accepted medical use, even though it might have an effective individualized or idiosyncratic use. Put differently, even though a drug may have an effective or successful individualized use, if its medical use is not generally *84accepted, it will still be classified as a proscribed Schedule I substance.
What this suggests is that in considering the kinds of drugs or substances that should be banned, the Legislature did not focus upon the idiosyncratic or unique uses of such products. The Legislature itself determined that the individualized use of drugs was not directly relevant to the prohibitions of Title 24. Indeed, it recognized that Schedule I drugs, which by definition have no generally accepted medical use, may nevertheless be medically effective in unique cases. The Legislature has declared under the Therapeutic Resource Act, N.J.S.A. 26:2L-1 to -9, that recent medical research has shown that the therapeutic use of certain Schedule I controlled dangerous substances may alleviate the nausea and ill effects of certain medical treatment, such as cancer chemotherapy, and, additionally, may alleviate the ill effects of certain diseases, such as glaucoma. N.J.S.A. 26:2L-2. Moreover, the Legislature recognized that there is a need for further therapeutic research with regard to the use of such controlled dangerous substances for these purposes under strictly controlled circumstances.1 Ibid.
*85The Court itself acknowledges that the limited or exceptional uses of a Schedule I drug that are authorized under Title 24 pursuant to the TRA would involve drugs whose medical use is not generally accepted. Ante at 72. It reasons, however, that the only uses of a drug that could qualify as a “medical necessity” under the Code’s justification defense would be those undertaken exclusively pursuant to the TRA. I disagree.
There is nothing in Title 24 or the Code provision for the necessity-justification defense that impels such an interpretive strait-jacket. It is evident that in the enactment of the TRA the Legislature intended to permit the uses of Schedule I substances in conjunction with medical research and treatment under suitable regulatory, institutional and professional controls. Such uses might or might not serve to relieve patient-suffering in individual cases. The uses under this programatic scheme, however, are not likely to reach the kind of situation that might arise in the case of an individual suffering severely and acutely from a condition that can be treated only by the use of the Schedule I drug where no TRA program is available or feasible. The empirical history of the TRA program demonstrates its extremely limited scope. The meticulous and burdensome standards for lawful use under the TRA markedly discourage and restrict its availability in individual cases.2 *86These circumstances, so apparent to us, surely were not lost to our legislators.
If the TRA exception were the sole criterion for the allowable or excusable use of a Schedule I drug, it would present an insurmountable obstacle to a Schedule I drug ever being considered “medically necessary,” no matter how dire, extreme or compelling the individual’s need. One might reasonably expect that if it were the intention of the Legislature that the specific TRA uses constitute the exclusive exception to the unlawful possession of Schedule I substances, that exception would be stated expressly under the Code or under Title 24. See N.J.S.A. 2C:3-2a (justification defense is available if Code or other statute defining offense does not provide exception or defense dealing with “specific situation”.)
The Court also relies on N.J.S.A. 24:21-20(a) as further evidence of a legislative purpose to exclude a Schedule I substance as part of the justification defense. This statutory provision prohibits the knowing or intentional procurement or possession of a controlled dangerous substance unless it was obtained directly or pursuant to a valid prescription or order from a practitioner in a professional capacity or as authorized by the act. The Court takes the position that the Legislature has thereby expressly provided an exception covering the “spe*87cific situation” contemplated by the asserted necessity-justification defense. N.J.S.A. 2C:3-2a. Ante at 71.
The Court assumes that because a defendant is suffering from a medical condition that necessitates his use of a proscribed drug, its use can be rendered lawful only if it is validly prescribed or ordered by a physician; only if a drug is validly authorized by a physician can its medical use be deemed legally necessary. The flaw in this analysis is the assumption that justification through medical necessity is identical with lawful possession. The infirmity in the Court’s reasoning is the failure to recognize that if a defendant can obtain a drug through a valid prescription, its possession or use is not unlawful, and any defense based on medical necessity is obviated. The effect of the provision for an “exception” under N.J.S.A. 24:21-20(a) is simply to legitimate or de-criminalize possession of a drug that can otherwise be validly obtained by professional authorization. The “exception” has nothing to do with a possession or use that cannot be legitimated by a valid authorization. The necessity-justification defense in the context of this case relates to possession or use that is occasioned by medical necessity; such possession or use may be excused or legally justified, but it is not “lawful.”
I am satisfied that in providing for the limited and unusual defense of justification under the Code, the Legislature has not harbored a purpose to exclude the possession or use of marijuana, a Title 24 Schedule I drug, from its consideration as a basis for “medical necessity.” Nor has the Legislature expressed in any other provision or statute an intent or purpose to exclude marijuana from the Code justification defense. Further, the Legislature has not preempted the defense of medical necessity in this context by a clear explicit exception. Accordingly, I conclude that an affirmative defense based upon medical necessity may be raised as a legal justification under the Code with respect to the possession for use of marijuana, a Title 24 Schedule I controlled dangerous substance.
*88III.
It follows from the conclusion that medical necessity for the possession of marijuana may constitute a justification defense under the Code that the standards governing the applicability of that defense in particular must be identified and applied. These standards, I suggest, are to be derived from the common-law doctrine of the necessity-justification doctrine, which has been infused into the Code.
The Court takes some solace in the observation that its holding eliminating the defense of necessity averts what would otherwise be a wholesale evasion of the criminal sanctions of Title 24. Ante at 71. Im my judgment, the Court’s fears are exaggerated. Strict and workable standards governing the application of this defense can eliminate the risk of its abuse while at the same time accommodate the special, individual situation deserving of the defense. Consequently, it is imperative to consider the standards of the medical necessity defense that would be applicable in a case such as this. This is a subject not explored by the Court in view of its holding that the necessity-justification defense is not available to Title 24-Sched-ule I defendants as a matter of law.
As noted, defendant here served notice on the Monmouth County Prosecutor that he would rely on the defense of medical necessity at his trial. He contended that he was prepared to present evidence that he uses marijuana because it eases the severity of spastic contractions regularly suffered by quadriplegics and that no other prescribable medication gives him such relief. The trial court accepted this proffer in ruling that the justification defense was available. The court posited four criteria that the defendant must meet to support the claim of medical necessity. It ruled that a defendant who seeks to assert medical necessity as a justification defense must demonstrate by competent evidence that he has a medically recognized condition, that his condition is life- or sense-threatening, that use of an illicit substance ameliorates the condition or *89relieves the pain, and that no legal, prescribable substance can provide similar relief without deleterious side effects. 194 N.J.Super. at 633. The court further held that a judge, not the jury, would decide the question of public policy — that is, whether the individual’s need outweighs society’s interest in enforcing the criminal law. Id. at 634. The court also ruled that the defense of necessity was an affirmative defense, which requires that the defendant first produce evidence supporting it, thereby shifting the burden to the State to disprove its existence. Id.
There is some decisional support for this position. In Washington v. Diana, 24 Wash.App. 908, 604 P.2d 1312 (1979), the defendant suffered from multiple sclerosis and claimed medical necessity as a defense to a charge of possession of marijuana. The court reversed his earlier conviction and remanded the case to the trial court to give the defendant ,an opportunity to demonstrate the alleged beneficial effect, if any, of marijuana on his symptoms, and to establish that his use of marijuana was medically necessary and therefore justified his possession. Significantly, the court required defendant to provide corroborating medical testing to support his assertions that he reasonably believed his use of marijuana was necessary to protect his health.
Additionally, in U.S. v. Randall, supra, 104 Daily Wash.L.Rtpr. 2249, the defendant grew and used marijuana and was arrested for possession. He raised the defense of medical necessity and provided expert medical testimony that revealed that prescribed glaucoma medications were ineffective and that defendant’s experimental use of marijuana neutralized inner-ocular pressure and lessened visual distortion caused by the disease. In determining whether the evil to be avoided by the defendant’s act was greater than that inherent in the possession and personal use of marijuana, the court balanced the defendant’s interest in preserving his sight against the government’s interest in controlling the drug. The court concluded that defendant’s right to preserve his sight outweighed the government’s interest in outlawing the drug. Special emphasis *90was placed upon the importance of an individual’s right to preserve and protect his own health and body.
Further, in State v. Bachman, 61 Hawaii 71, 595 P.2d 287 (1979), the need for adequate expert evidence in support of the defense was particularly emphasized. The court rejected the defense because defendant failed to show by competent medical testimony the beneficial effects upon the defendant’s condition of marijuana use, in addition to the absence or ineffectiveness of conventional medical alternatives. The court noted that in the presence of such proof, medical necessity could be asserted as a defense to a charge of unlawful possession of marijuana.
This case law, coupled with the legislative intention to fashion a defense premised upon malleable common-law precepts, is instructive in formulating the standards relevant to the justification defense of medical necessity. Accordingly, I would hold that in order successfully to assert medical necessity as a justification defense in a case involving a controlled dangerous substance, a defendant must meet several criteria. The test would reflect a multi-faceted standard appropriately drawn from the common law. It would require: (1) the defendant must be suffering from a condition that involves intolerable pain, or an immediate, actual, or substantial threat to his life, health, vital senses, or basic physical or mental wellbeing; (2) the suffering experienced by the defendant from the harmful condition necessitates resort to unlawful conduct involving the prohibited controlled dangerous substance in order to eliminate, avoid, or substantially ameliorate the acuteness of the threatening condition; (3) there must be an absence of any other lawful treatment, substance or procedure that is available to the medical profession for the defendant that could similarly relieve the harmful condition or accomplish the same result as that achieved through the unlawful conduct; (4) it must be demonstrated that the defendant’s decision to resort to the unlawful possession or use of the prohibited substance is based on reasonable necessity, which shall include a good-faith effort to relieve the harmful condition through normally-accepted medi*91cal treatment; (5) competent expert medical evidence must be submitted demonstrating (i) that the harmful condition was medically genuine, (ii) that the unlawful conduct eliminated or materially and substantially relieved the condition, and (iii) that there was no alternative treatment or substance legally available for the harmful condition; (6) it must be shown that the situation precipitating the decision by the defendant to engage in unlawful conduct to alleviate or eliminate the harmful condition was not brought about by any actions of the defendant; and (7) it must appear that from a social standpoint, under the circumstances, the criminal punishment of the defendant for the unlawful conduct is less important than allowing the defendant to obtain relief from the harmful condition.
I would also hold that the justification defense based upon medical necessity is an affirmative defense under the Code. N.J.S.A. 2C:3-1 and 2C:1-13c(1). Accordingly, the burden of proof is upon defendant to establish the essential elements of the necessity-justification defense by a preponderance of the evidence. See State v. Toscano, 74 N.J. 421 (1977). This will not of course negate the State’s continuing obligation to establish beyond a reasonable doubt to the satisfaction of the jury all of the essential elements of the offense charged. Ibid.
These standards would impel me to rule in this case that defendant is entitled to demonstrate the availability of the necessity-justification defense. Defendant here claims he suffers violent and severe contractual spasms as a result of his quadriplegia. It is not clear whether in the actual circumstances there was an immediate urgency arising out of defendant’s physical condition in connection with his possession of marijuana. However, the trial court correctly observed “neither the Model Penal Code nor the New Jersey Criminal Code use the words ‘emergent’ or ‘emergency’.” 194 N.J.Super, at 630. While under the common law the necessity defense generally required that immediate harm be threatened, it was also recognized in certain circumstances that if a -progressive disease threatens health, preventive action need not wait until the *92disease reaches an advanced state. See, e.g., State v. Jackson, supra, 71 N.H. at 553, 53 A. at 1022-23 (court recognized the medical necessity defense of a parent who kept its child from school to prevent her health from degenerating further, and did not require the child’s illness to reach a near-fatal state before allowing preventive action to be taken). The necessity-justification defense may be applicable to acts prompted primarily by a reasonable fear of deteriorating health. Note, supra, 46 Geo. Wash.L.Rev. at 281.
I think it also important to acknowledge under defendant’s proffer in this case that his affliction and its accompanying spasticity are a continuing condition. In this regard the trial court observed that “the public policy from which the justification of necessity springs is not disserved by applying the justification to a continuing condition as well as to an isolated incident.” 194 N.J.Super. at 632. Thus, defendant’s proffer discloses the existence of a condition that threatens his wellbeing.
Further, in conjunction with evidence as to the nature of the harmful condition, defendant offered to show that his possession of marijuana would serve to ameliorate his suffering. He was also prepared to demonstrate the absence of any lawfully available alternative medical treatment. I would add that in a case such as this, a limitation focusing upon the medical etiology of defendant’s condition would prevent the justification defense from being improperly invoked on behalf of drug addicts and abusers claiming medical necessity as a defense to drug possession linked only to their addiction. Moreover, in this appeal, it has not been asserted that the situation precipitating the choice of evils was brought about by the conduct of the defendant. According to his proffer, defendant has no control over his spasms.
As noted, the choice made by the defendant — to commit a criminal act to overcome a harmful condition — must reflect reasonable necessity. Persons asserting medical necessity as *93the basis for the justification defense must demonstrate that their belief in the efficacy of the illegal action is genuine and reasonable. See Washington v. Diana, supra. The reasonableness of that choice under the circumstances is a fact question. Among the factors that would be relevant is whether expert medical advice was obtained by a defendant prior to engaging in any illegal activity based on medical necessity. If the defendant had sufficient time to consult expert medical advice before the unlawful action was taken but failed to do so, reliance on self-diagnosis might well be found to be unreasonable and could defeat a claim based on medical necessity. The absence of medical advice, however, would be a circumstance that a jury would be entitled to consider in determining whether relief of the harmful condition by resort to unlawful conduct was reasonably necessary.
Defendant has also represented that he will by expert medical testimony produce evidence that the nature of the spastic condition from which he suffers genuinely threatens his wellbeing, that marijuana materially eases the pain of his spasms, and that no legally available drug or treatment can accomplish the same result. If defendant succeeds in demonstrating by competent medical testimony that the condition from which he suffers poses an acute health- or sense-threatening condition, that the beneficial ameliorative effects of marijuana upon this condition are substantial and material, and that there are no comparably effective available legal medical alternatives, he will have satisfied these requirements of the defense. See State v. Bachman, supra, 595 P.2d at p. 288.
In addition, reasonable medical necessity must take into account the nature and extent of the unlawful conduct in relation to defendant’s condition. The nature and quality of the criminal offense must be comparatively weighed against the personal harm that is sought to be alleviated. In not all eases will the former be outweighed by the latter. Thus, for example, the criminal offense of the distribution, sale, or possession with intent to distribute marijuana, or the possession of an *94amount of marijuana clearly in excess of defendant’s personal medical needs, might well constitute offenses that would in particular circumstances militate against and outweigh the reasonableness of defendant’s choice in breaking the law in this fashion. Accord State v. Marzolf, 79 N.J. 167 (1979).
Finally, in my view, the court must determine whether in the particular case as a matter of public policy the evil — the individual’s suffering from a harmful condition — sought to be avoided by resort to unlawful conduct is demonstrably greater or more significant than the evil — possession and use of a controlled dangerous substance — that has been criminalized by society. Consequently, in a case such as this, the court must balance the defendant’s interest in easing the severe spasms that threaten his senses and physical wellbeing against the State’s interest in controlling marijuana possession. I am satisfied that the nature and extent of defendant’s physical condition and the need for relief from that condition, if established by competent evidence in light of the standards set forth in this opinion, would outweigh the State’s interest in criminalizing the possession of marijuana for personal use. E.g. Washington v. Diana, supra, 24 Wash.App. 908, 604 P.2d 1312; U.S. v. Randall, supra, 104 Daily Wash.L.Rptr. 2249. As observed by the trial court “ ‘necessity’ enters into the picture when the illicit act is the only alternative and public policy dictates that society can accept that particular criminal act without exacting punishment for it in the face of the real harm it avoids.” 194 N.J.Super. at 629-30. Society clearly has a compelling interest grounded upon universal, humanitarian impulses in not having an individual suffer needlessly. The severe, debilitating consequences inherent in the personal plight of a quadriplegic’s recurring violent, spastic contractions summon the compassion of the community. The relief of such individual suffering takes on greater social significance tiian the societal benefits to be derived from imposing criminal sanctions upon the afflicted individual for his or her possession of marijuana. I credit the Legislature with having made this judgment.
*95IV.
In conclusion, I am of the view that the affirmative defense of necessity-justification is available under N.J.S.A. 2C:3-2a to a defendant charged with the possession of marijuana, a Schedule I controlled dangerous substance under Title 24. Defendant’s proffer in support of his claim of justification based on medical necessity is, in my estimation, sufficient to present a triable issue under strict but fair standards governing the application of this defense.
Accordingly, I would affirm the judgment below, and, therefore, respectfully dissent from the opinion of the Court.
The Legislature is not alone in its recognition of the potential therapeutic uses of marijuana. As of 1983 the Federal Food and Drug Administration (FDA) had approved seventy-nine Investigational New Drug (IND) plans to permit studies of THC and cannabis for therapy. Of these studies fifty-three dealt with nausea and vomiting from cancer therapy, thirteen studies in intraocular pressure or glaucoma, eight studies examined the effects of cannabis on spasticity, three dealt with anorexia and weight loss and two studies addressed miscellaneous syndromes. H.C. Jones and D.W. Lovinger, The Marijuana Question, p. 136 (1985). Of twenty-five states enacting statutes on medical use of cannabis or THC by 1980, officials in 12 secured federal approval for clinical research trials. In the next three years, eight more states enacted such statutes. Id. at 438.
All of the federally approved state programs dealt with the antiemetic matter. As of January 1983, state glaucoma programs existed in five states. The laws of eleven states also provide for medical treatment with marijuana as T.H.C. Id. In addition to the antiemetic or glaucoma studies, studies have been conducted to test marijuana effects on appetite stimulation (to curb anorexia), *85convulsions, spasticity, anxiety, depression and cancer all with varying results. Institute of Medicine, Marijuana and Health, 139-151 (1982).
At the hearing conducted by the trial court, Dr. Thomas Culkin, who was the Executive Director of the Drug Utilization Review Council in the State Department of Health, and Administrator of the Controlled Dangerous Substance Therapeutic Research Act, testified for the defendant. He stated that the purpose of the TRA was "to make available through physicians in the State of New Jersey under highly controlled circumstances Schedule I substances. Among those are marijuana, heroin and a number of other substances * * * for the purposes of alleviating patients in whom regular therapy has not worked.” He noted however, that the program is generally unimplemented and ineffective. Also, according to this witness, any program developed under the TRA requires the approval of the FDA and that agency prefers programs designed for cancer patients.
*86In addition, Dr. Culkin also discussed a similar federal program that involves the use of drugs for, among other things, alleviating the side effects of cancer treatment for patients. He noted the case of one patient who was receiving marijuana for treatment of glaucoma through such a program. In that program, "[a] physician has to send in all the paper work, establish his credentials, the patient’s need, etc. and the Food and Drug Administration has to then approve such a request.”
Dr. Culkin further testified that in 1983, in an attempt to get the TRA program initiated, the Department of Health sent a letter to over 15,000 physicians in the State alerting them to the existence of the program and inviting interested physicians to submit research studies. Only one bona fide study was submitted but the TRA was unable to acquire the requested drug.