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Legal Lines: Use of medical marijuana while on probation

Question: I am on probation and I have a medical marijuana card for my ailments. However, my probation officer insists I cannot use marijuana because it’s in violation of federal law. Do I have a right to use medical marijuana or do I need to follow the rules of my probation officer?

Answer: While many issues regarding the use, manufacture and acquisition of medical marijuana remain unsettled, the Colorado Court of Appeals considered the issue of a medical marijuana patient’s use of medical marijuana while on probation in the 2012 case of People v. Watkins.

In the case, the People of Colorado appealed a ruling by the trial court approving the use of marijuana for medical purposes by the defendant while he was on probation. Specifically, the People argued that, because possession or use of marijuana — even for medical purposes — is a federal offense, the trial court’s order approving such use conflicts with the probation requirement mandated by C.R.S. § 18-1.3-204(1) that states, “The court shall provide as [an] explicit condition of every sentence to probation that the defendant not commit another offense during the period for which the sentence remains subject to revocation.”

The Colorado Court of Appeals agreed with the People that an “offense” includes offenses under federal law, such as the use and possession of marijuana, even for medical purposes. The Court of Appeals cited the case of People v. Slayton, holding that probation is premised on a defendant leading a law-abiding life and that an “offense” includes any violation of a statute or ordinance for which confinement is authorized as a penalty.

Federal law provides for confinement for the use and/or possession of marijuana; therefore, the Colorado Court of Appeals decided in People v. Watkins that use of medical marijuana by a probationer violates the requirement that probationers not commit another offense during the term of probation. The court further ruled that a physician merely recommends that a patient use medical marijuana and that this recommendation does not constitute a formal prescription that would comply with state statute, which states a court may require probationers to refrain from any unlawful use of controlled substances or of any other dangerous or abusable drug without a prescription (see C.R.S.§ 18-1.3-204(2)(a)(VIII)). The court also said that even if defendants have a constitutional right to use medical marijuana, this may be curtailed during the term of the probationary sentence.

In conclusion, your probation office is correct in stating that you cannot use medical marijuana because it’s in violation of federal law and that would cause you to commit an offense while still on probation. Until People v. Watkins is challenged or marijuana becomes legal on a federal level, you do not have a right to use medical marijuana while on probation in Colorado.

The Colorado Bar Association welcomes your questions on subjects of general interest. This column is meant to be used as general information. Consult your own attorney for specifics. To submit general legal questions to the CBA, please email Sara Crocker at scrocker@cobar.org.

 Legal Lines is a question-and-answer column provided as a public service by the Colorado Bar Association. Attorneys answer questions of interest to members of the public for their general information.

This story was posted on May 23, 2013.