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