With the legal use of medical marijuana on the rise, many states are being faced with the issue of what to do with their probationers who are medical marijuana card holders.
While unclear how often petitions are granted, California allows anyone on probation or in jail to petition a judge for lawful use of medical marijuana. Since 2014, the state of Washington stopped testing for marijuana in their parolees and allows them to use legal marijuana like any other citizen. Rhode Island state laws explicitly allow for parolees to continue using medical marijuana.
A recent Colorado case has pushed back on what judges are allowed to order in their courtroom when it comes to medical marijuana. Back in 2017, Alysha Walton pled guilty to driving under the influence of alcohol and speeding and agreed to probation as part of her sentence. During the process of Walton’s case, her legal team requested a hearing to allow her to continue using medical marijuana during her probation. The judge required the presence of a medical professional at the hearing in order to properly address her concerns.
When Walton appeared at the hearing without the presence of her doctor, stating that she was unable to get anyone to appear in person or by phone, the judge stated that her probation required her to abstain from medical marijuana. He did not find the presence of her medical marijuana card and a letter written by her doctor to be valid substitutes of his request for a doctor’s in-person testimony.
The Colorado Public Defender’s office took up the fight, arguing that this restriction was an abuse of the court’s power. They argued that, while she may not have brought a physical person to the courtroom as requested, she still provided adequate documentation to support her need for medical marijuana.
In 2015, Colorado passed a law dealing specifically with conditions of probation relating to the use of medical marijuana which states in pertinent part that probationers are to “[r]efrain from excessive use…of [an] abusable drug without a prescription; EXCEPT THAT, THE COURT SHALL NOT, AS A CONDITION OF PROBATION, PROHIBIT THE POSSESSION OR USE OF MEDICAL MARIJUANA…UNLESS…THE COURT DETERMINES…A PROHIBITION AGAINST THE POSSESSION OR USE OF MEDICAL MARIJUANA IS NECESSARY AND APPROPRIATE TO ACCOMPLISH THE GOALS OF SENTENCING…”
So, while Colorado state law specifically addressed the use of medical marijuana for probationers, whether a probationer was allowed to use medical marijuana rested solely within the discretion of the judge. There is, however, a problem with this.
“A person’s sentence always has a lot to do with who the judge is. And while you can never pick who your judge is, you can’t change who your judge is, you always have to know who your judge is. And if you’ve been doing this for as long as I have, you’re going to know what judges completely frown on marijuana no matter what. And you’re gonna [sic] know what judges have an open mind and are willing to follow the law because that’s what the legislature tells them to do,” Denver attorney Jay Tiftickjian told CPR News.
In Walton’s case, her lawyers argued that her case was about alcohol, not marijuana, and that the courts should not have restricted its use in the first place. They argued that inquiry of the facts of her medical marijuana use and requiring a doctor to present those facts was an abuse of the court’s power.
The court, fortunately, agreed with Walton’s attorneys in a decision issued late last year. The Court held that people sentenced to probation may use marijuana while on probation unless the prosecution can provide evidence that the use of marijuana during probation would be counter to the objectives of the person’s sentence.
While the decision to allow a probationer to use medical marijuana still rests within the discretion of the judge, their discretion to deny medical marijuana use is, at least, limited to only when the prosecutor can prove that its use would be a detriment.