Can You Take Medical Marijuana While On Probation?

A probation sentence can affect many areas of your life, from your ability to drive to your use of alcohol. But can a judge order you to change your medication? Can you take medical marijuana while on probation?

Colorado Medical Marijuana Use Flourishes

Every year, Colorado residents across the state register to use medical marijuana. As of December 2019, the medical marijuana registry included 81,610 patients in active status. Of those, 5,640 received physician certifications in December 2019 alone. An overwhelming 93% of those patients use marijuana to treat severe pain, while 34% reported muscle spasms, and 16% treated nausea (many patients report more than one debilitating or disabling medical condition).

While the medical use of marijuana is protected by law, many of these patients find themselves in court for other reasons. When a criminal conviction results in jail time or a probation order, those patients may be forced to change their medical regimen, going so far as to take other narcotic pain prescriptions to manage the symptoms otherwise controlled through marijuana usage.

Probation Orders and Drug and Alcohol Use

For many Colorado residents facing criminal charges, probation is the lesser evil. It keeps them out of jail and able to continue to live and work to support their families. Every probation order puts limits on the probationer’s activities. These are the terms or conditions of probation. They are supposed to guide the probationer toward living a life in line with the law. Common conditions of probation related to drugs and alcohol include:

  • Following all state and federal laws
  • Reporting to a supervising probation officer (in a supervised probation order)
  • Refraining from using illegal controlled substances or alcohol
  • Submitting to random drug and alcohol testing, and
  • Attending substance abuse therapy or support groups such as Alcoholics Anonymous or Narcotics Anonymous

This raises a complicated question for medical marijuana patients beginning a probationary sentence. One of the holdups is that marijuana is still considered an illegal controlled substance under federal law. Another is that while Colorado legalized the recreational use of marijuana in 2014, a probation order can still require a probationer using marijuana recreationally to abstain from possessing or using any marijuana whatsoever.  Because of this, when Colorado residents without a state-issued medical marijuana authorization card reach a plea deal and are sentenced to probation, it likely means they will be required to be clean and sober for as long as the probation order is in place.

Medical Marijuana Authorization Turns a Drug into Medicine

The rules are different if a person is using marijuana for medical purposes and has gone through the steps to receive a state-issued medical marijuana authorization card. A recent Colorado Supreme Court decision set the record straight in favor of criminal defendants with medical conditions treated through marijuana.

In Walton v People, 451 P.3d 1212, Defendant Alysha Walton was stopped by a police officer for speeding and weaving. The officer who stopped her smelled alcohol on her breath and asked her to complete roadside sobriety tests. She failed them and was arrested for driving under the influence. Eventually, she admitted to drinking 2 alcoholic beverages, but nothing in her case suggested she was under the influence of marijuana or any other drug.

When Walton pleaded guilty to DUI under a deferred judgment and sentence, the county court judge ordered her to complete a presentence alcohol evaluation. She told the probation officer that she had a medical marijuana registry identification card. At sentencing, Walton asked that she be allowed to continue using medical marijuana while on probation. The county court judge required her to present a medical professional to testify about her condition and treatment before the request would be granted. Apparently, it was this judge’s standing policy to require physician testimony rather than relying on the presentation of the card and supporting documents, or even referencing the online medical marijuana registry. When Walton was not able to present her doctor, the judge entered a probation order prohibiting her from using marijuana for 1 year.

Court Says Medical Marijuana is Presumed to be Okay on Probation

The Colorado Supreme Court said that was the wrong decision. It referred to the Colorado probation statute which said that as a condition of probation, the court may:

“require that the defendant . . . [r]efrain from . . . any unlawful use of controlled substances, as defined in section CRS 18-18-102(5), or of any other dangerous or abusable drug without a prescription; except that the court shall not, as a condition of probation, prohibit the possession or use of medical marijuana, as authorized pursuant to section 14 of article XVIII of the state constitution, unless . . .

(B) The court determines, based on any material evidence, that a prohibition against the possession or use of medical marijuana is necessary and appropriate to accomplish the goals of sentencing as stated in section CRS 18-1-102.5.”

The supreme court said this law presumes (assumes) that a criminal defendant may continue the authorized use of medical marijuana while on probation. Before the court can rule otherwise, it is up to the prosecutor to present specific evidence that prohibiting medical marijuana use is “necessary and appropriate to accomplish the goals of sentencing.”

The supreme court said that a prosecutor could use evidence from the presentence investigation report, the defendant’s criminal history, or an evaluation like a drug and alcohol presentence evaluation to support his or her argument that a prohibition against medical marijuana is needed in a particular case. But future defendants with state-issued medical marijuana authorization cards will not need to bring their doctors to court to defend their right to take medical marijuana while on probation.

What to Do if You are a Medical Marijuana Patient Facing Probation

Medical marijuana patients have more to lose than most from a probation sentence. Before you plead guilty to criminal charges based on a promise that you will avoid jail, be sure to discuss your marijuana use with your criminal defense attorney. Together, you can gather the documentation to show that your use is medicinal, not recreational, and defend your right to follow your doctor’s advice.

At Aviso Law, LLC, our criminal defense attorneys have extensive experience within the Colorado court system. We know the pros and cons of probation orders. We can advocate on your behalf at sentencing and defend your right to take medical marijuana. We work hard to get our clients the best solution available to protect them and their interests in criminal court. Contact us today to schedule a consultation.

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