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Medical Marijuana vs. Probation

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.

 

Is Utah Going Too Far?

We have kept an eye out on Utah ever since they first began talking about lowering the legal BAC level to 0.05% and when they, if fact, enacted the lower BAC limit in 2019. We had hoped that the restrictions would end there, not just with Utah, but across the country, all the while watching as more and more states, including California, started to consider lowering their legal blood alcohol limits to 0.05%.

Well, it looks like Utah legislature has struck again.

House Bill 325 seeks to create an “Alcohol-Restricted Individual Program,” which would essentially allow the government to monitor and restrict a person’s right to purchase alcohol. According to The Salt Lake Tribune, “Under HB325, the Utah Department of Alcoholic Beverage Control would create the program, which would ‘prohibit a state store from selling, offering for sale, or furnishing liquor to an individual enrolled in the program.’”

The bill allows for individuals to join and be removed from the list voluntarily.

However, in addition to voluntary enrollment, any first-time conviction for driving under the influence could carry with it a sentence requiring a person participate in the Alcohol-Restricted Individual Program

This new requirement would be in addition to the mandatory penalties the court would hand down which includes up to 6 months in jail, fines up to $1,000 plus court costs, an alcohol assessment and attendance at a state-approved alcohol and drug educational program, and a license suspension.

State-run liquor stores would be required to scan a person’s driver license to determine whether a person is participating in the program in order to approve or deny the purchase.

A DUI conviction could potentially lead to mandatory enrolled a program that would limit, if not outright restrict a person’s right to purchase and consume alcohol.

According to Fox 13, “all alcoholic products (except beer) are sold through DABC stores. Even bars and restaurants must purchase their liquor through the state.” However, it remains unclear as to whether other alcohol-serving establishments, such as restaurants, would also be subject to the law.

Forget about restaurants, what about the many other ways that a person can get alcohol? A person convicted of a DUI could have a friend or family member purchase the alcohol for them. A person convicted of a DUI can go to a social gathering where alcohol is served, either commercially or personally.

Is it just me or does this seem like a futile attempt at the government telling us what we can and can’t consume? It certainly seems so given the many glaring issues with mandatory participation in the program.

Having said that, it’s nice to know that the legislature took at least some time to protect its citizens from governmental overreach. The bill goes on to require that “The department may not: disclose any information related to an individual currently or previously enrolled in the program, or retain any information related to an individual previously enrolled in the program.”

Medical Marijuana Creates Complications for Employers

The legalization of marijuana in several states over the past few years has done little to create a standardized method of calculating and determining impairment. Although researchers are able to collect more information regarding marijuana use and impairment, they are still far from finding that magical number that distinguishes impairment from sobriety, like they have with a blood alcohol content. There is no current equivalent to the 0.08% BAC that was established for alcohol consumption.

Worse still, the federal government has yet to get on board with medical and recreational marijuana, despite several states doing so.

For many companies who solely operate within the scope of a single state, generally, they must only worry about state laws with regards to marijuana guidelines within the workplace. However, for companies in industries like transportation, navigating the parameters can be a lot more complex since their businesses can take them across multiple state lines where a state laws run at odds with another state’s laws or the federal government’s laws, confusing operations.

More than half of the states (currently 33 states and counting) have legalized medical marijuana within their boundaries. Multiple studies have shown the benefits it offers many pain-inflicted patients, and how it can help them regain some form of quality of life. Yet, without the federal limitations lifted, this puts employers in a difficult position.

The Department of Transportation (DOT) is pretty clear about where it stands on accepting medical marijuana users. The official website offers a “DOT ‘Medical Marijuana’ Notice” which states the following:

 

The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.

That section states:

  • 40.151 What are MROs prohibited from doing as part of the verification process?

As an MRO, you are prohibited from doing the following as part of the verification process:

(e) You must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act. (e.g., under a state law that purports to authorize such recommendations, such as the “medical marijuana” laws that some states have adopted.)

Therefore, Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.” Please note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

As such, employers are left with two options when managing their employees who use medical marijuana: either 1) ask the person to stop taking their medication in order to comply with DOT regulations, or 2) terminate the employee following a positive drug test. Given the current climate and considering what we know about the benefits of marijuana use, the current options under DOT seem outdated to say the least.

To make the situation even more complicated, courts are allowing for termination cases to be challenged, even though many states have protections in place to keep employers from liability. These states created medical marijuana statutes that attempt to safeguard employers in the event of firing employees who test positive for marijuana.

In states such as Delaware and Connecticut, the courts have expanded workplace protections for medical marijuana users. In the case of Wild v. Carriage Funeral Holdings, Inc. the New Jersey Supreme Court is currently considering upholding an  appellate decision that held a terminated employee could contest his termination for a positive drug test under New Jersey’s Law against Discrimination.

So, what are employers to do? Using their discretion doesn’t seem to be working or giving any direction. Until the federal government decides to adjust their views on marijuana being a Schedule I drug, it seems that they can only continue to juggle the state and federal workplace laws. States where medical marijuana is legal should try to determine if they want to allow its use in non-safety-sensitive positions and perhaps tailor post-accident testing for only when there is reasonable suspicion of actual impairment. Guidelines for determining actual impairment should be added into the training of safety managers.

In any event both employers and employees are in a tricky spot. Maybe it won’t be the scientists who figure out how to determine impairment, but rather a safety-conscious Human Resources manager of a trucking company. That’ll be interesting to wait and see.

Changes to Indiana’s Expungement Laws

Back in May of last year, Indiana House Bill 1541 was passed – marking a huge milestone for state legislation. Starting July 1, 2019, those who wished to file for expungement were given a better opportunity to work towards having a true second chance at life.

In Indiana, individuals with dismissed cases, misdemeanor convictions, and any with a class D felony conviction were eligible to have their cases expunged after a set number of years. This meant that the court could issue an order to state agencies who are in possession of such records to seal or redact any identifying personal information in those reports.  When background checks were requested for these individuals, the expunged cases would now not show up, allowing for them to have a better chance for a fresh start. The only exception was that the internal records held by law enforcement agencies, prosecutor’s offices, or probation departments would not require any corresponding changes. For people with a class C felony or above, the expunged records would show on a background check but would be considered a class C infraction.

With the passing of House Bill 1541, the situation changed in the favor of the petitioners. It didn’t necessarily make the process for requesting expungement any easier, nor did it change the rules for how long one had to wait before expungement. Instead, it allowed a wider range of petitioners to be considered for expungement. In addition, the bill changed the terms “expunge,” “seal,” and “redact,” to “destroy or permanently delete.”

This may prove to be a huge step in a positive direction. The bill allows all case levels to be eligible (except for sex and violent offenses), allowing many more to have a second chance at trying to put their past convictions behind them. Also, the courts are no longer able to consider expunged cases in their ruling for future criminal charges.

Even with these changes, there are certain sections that did not change. One of the parts that remained the same is the reporting of information by the Indiana Bureau of Motor Vehicles to the Commercial Driver’s License Information System. This keeps the bill in accordance with federal law. Also, even with an expungement, there is no automatic restoration of firearms rights to those with domestic violence convictions.

While the law might open the door for fresh starts, there are some potential drawbacks. Unfortunately, this also can mean that prosecutors and judges will start to look at appeals much more closely than they have before. Any sort of leniency that was shown for early expungements may no longer apply. Since the expungement is now much more permanent, judges may feel that they have more responsibility and should show more strictness in making sure that the petitioner is deserving of the expungement. This can increase the risk of the expungement appeal being denied. In addition, this applies much more pressure on defense attorneys to step up their game. These attorneys may have to do more in order to ensure that they are able to convince the judges that their clients deserve the expungement.

Bear in mind that individual states approach expungements differently. Additionally, what the consequences are of a successful petition to expunge say, a DUI, will be different here in California than what they are in Illinois. For information on how an expungement in California might affect a California DUI conviction, see Can I Expunge a California DUI?.

DUI for CBD?

We have covered the continued issues with measuring THC in the body, more specifically, determining whether someone is impaired based on a given THC reading. In addition to not being able to find the benchmark for impairment from using marijuana, it seems like some of the machines used to measure the drug in the body can’t tell the difference between THC and CBD.

CBD, or cannabidiol, and THC, or tetrahydrocannabinol, are both naturally occurring compounds in both cannabis and hemp. Traditionally, the concentration of CBD found in hemp is higher and marijuana has a higher concentration of THC. Although they have the same molecular structure, a big difference between the two is that CBD lacks the psychoactive component that THC is most widely known for. And for purposes of a DUI, a person cannot get a DUI with CBD in their system because it would not cause someone to become so impaired that they are unable to operate a vehicle as a sober person would.

Also, while cannabis or marijuana is only legal in some states and not federally accepted, the passing of the Farm Bill of 2018 federally allowed the growth and sale of industrial hemp. With the legalization of hemp came a wide variety of CBD products which claim to offer assistance with anxiety or insomnia, however, the FDA only has approved one drug that contains CBD, which aids in treating a rare form of epilepsy.

Now, as mentioned above, hemp and marijuana both carry trace amount of both compounds. So while processed hemp, or CBD, products may not list THC as an active ingredient, it is possible that trace amounts of it show up on a blood test, or depending on the test conducted, the presence of CBD could be mistaken for THC.

Such was the case for Mark Pennington. Pennington, a divorced father who was sharing custody of his 2 year-old son, was informed by the mother of the child that his custodial rights were going to be taken away because she had run a drug test with the son’s hair and the test came back positive for THC, which could only have been during the time that the child was in his custody. Pennington had no recollection of giving his son anything containing THC and did not recall using the substance near his son. He was later advised of “a little-known study published in 2012 in the Journal of Analytical Toxicology that showed that a common forensic drug testing method could easily mistake the presence of CBD for THC,” by Frank Conrad, a scientific consultant who acted as his expert witness.

The notion that a drug test can misidentify the presence of THC is terrifying, especially given the problems we continue to encounter (and write about) with regards to determining intoxication.

The studies that Conrad referred to in his testimony deal with those that are run through the gas-chromatography mass spectrometry machine (GC-MS). Not all tests that are run through this chemical analysis unit are the same. Certain substances must be combined with a chemical in a process called derivatization. Commonly, the tests are run with a chemical called trifluoracetic anhydride (TFAA). The 2012 journal article found that when the GC-MS used TFAA to run its tests, it was unable to distinguish between CBD and THC, resulting in a report with the presence of THC.

Not all tests are derivatized with TFAA, but it is the most common derivatizing agent. Now, many labs have upgraded their testing to the use of high-performance liquid chromatography, which is less likely to make the distinguishing error between CBD and THC, but there are still many that rely on GC-MS technology.

As if there wasn’t enough to worry about in the way of law enforcement and prosecution getting the “damning” information correct.