Feb 292012
 February 29, 2012

medical marijuanaIs Medicating While on Supervised Probation Allowed in Colorado?

by Ann Toney

Initially there were jurisdictions and judges that allowed some probationers to medicate with marijuana while on supervised probation in Colorado. Slowly this has, unfortunately, changed. I was told by a District Court judge that the judges received a communication asking them not to allow medicating while on probation. I had a client who was initially allowed to medicate and then about a year into the client’s supervised probation, suddenly the client was told by his probation officer there could be no more medicating or the client would get revoked.

What I have seen in the courtroom are judges going out of their way to tell defendants that they cannot use any drug “recommended” by a physician; only “prescribed.” Back in 2009 and 2010, a fair number of courts were allowing medicating on a “case by case” basis, and judges actually were using their discretion. The political climate has changed and the results have been draconian; prohibiting bona fide patients with severe medical needs from using their most effective medicine. Apparently judges either assume all medicating is recreational or they simply disregard the section of the Colorado Constitution under which medicating is allowed. I have heard judges use the rationale that it is a violation of federal law to possess or use marijuana, therefore it cannot be allowed while on state probation.

What to do? What I have done and have seen other lawyers attempt is to file a “motion for clarification” of the supervised probation conditions by which the client had to abide. This would give the judge a chance to hear specifically how this client has a medical need to medicate with marijuana and how the court needs to make an exception in this case. While at one time that worked in some cases, more and more judges are in lockstep ignoring these pleas and across the board refusing to allow patients to medicate while on supervised probation. I did have one judge specifically place the client on “unsupervised” probation where he would not be drug tested knowing that this client was a medical marijuana user. It may be worth the effort to at least have your attorney bring this request to the judge.

Over the past years it has been understood that drug test results for the prescription drug Marinol mimicked the drug test results of marijuana. As such a prescription for Marinol has been used by some as a cover when medicating with marijuana. Marinol (Dronabinol) contains a synthetic form of Delta-9 THC. Some labs though have new technology that can distinguish between the Marinol in your blood and marijuana. If you try this approach, having a Marinol prescription while medicating with marijuana on supervised probation, do so at your own peril in the event the state lab has the new equipment.

Ultimately, you may simply have to do an exceptional job with your probation officer and apply to get moved to unsupervised probation as soon as possible.

Ann Toney, P.C. is a Denver-based law firm that focuses on medical marijuana business law and marijuana defense; and defending people charged with driving under the influence of alcohol and drugs (DUI/DUID). Ann Toney can be contacted via phone or web at (303) 399-5556 and www.medicalcannabislaw.com.

Article from Culture Magazine and republished with special permission

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Johnny Green is a marijuana activist from Oregon. He has a Bachelor's Degree in Public Policy. Follow Johnny Green on Facebook and Twitter. Also, feel free to email any concerns.
  • Jeff Gard

    Unfortunately Ann, your information is a little out of date. On February 2, 2012, the Colorado Court of Appeals issued a decision on the use of medical marijuana on probation. Unfortunately, the Court of Appeals determined that probationers CANNOT use medical marijuana while on probation. The case, People v. Watkins, 2012CA15, was decided on the basis that a probationer cannot violate any law during probation.

    The Court of Appeals reasoned that the phrase “cannot violate any law during probation” includes violation of federal law. As you should all know by now, any use, possession, sale, or cultivation of marijuana, medical or otherwise, continues to be a violation of federal criminal law.

    It is curious that the Court of Appeals fell back on federal criminal law to resolve this question. The Colorado state courts, including the Court of Appeals, do not have the authority to enforce federal criminal law. It would seem that, in order to rely on federal criminal law, it would be necessary to have a contemporaneous federal criminal case.
    Additionally, it stands to reason that Colorado courts are limited to enforcing Colorado criminal laws. As you know, Amendment 18/20 creates an exception to criminal law where patients and/or their primary caregivers are acting within the parameters of the Amendment. Probation is a creature of Colorado criminal law. As such, it is arguable that the Colorado court cannot impose any restrictions on compliant medical marijuana activities as a condition of probation — again, a creature of Colorado criminal law.

    It appears that things are going to get worse before they get better for medical marijuana patients. Colorado courts are now relying on federal law to justify their limitations on medical marijuana activities, rather than enforcing Colorado laws using Colorado statutes and constitutional amendments. I suggest you contact your U.S. congress person and U.S. senator to let them know that a federal change is needed if Colorado medical marijuana laws are to have any meaning or protection.

    Jeff Gard

  • Ty

    Any news on the subject after amendment 64 was passed?