In a case of first impression, Division 2 of the Arizona Court of Appeals recently decided that a person on probation could use medical marijuana so long as that use was compliant with the guidelines established by the Arizona Medical Marijuana Act (herein the “AMMA”), A.R.S. § 36-2801 through 36-2819. See, Reed-Kaliher v. Hoggatt, 691 Ariz. Adv. Rep. 42 (2014).
In May of 2010, Reed-Kaliher was charged in Cochise County with multiple drug violations. Pursuant to a plea agreement, Reed-Kaliher agreed to serve a short prison term that would be followed by a longer term of supervised probation upon his release from prison.
When Reed-Kaliher was released from prison, his written probation terms contained typical verbiage that required him to “obey all laws” and “not possess or use illegal drugs, toxic vapors, or controlled substances, or use or possess any prescription drugs without a valid prescription.” Reed-Kaliher subsequently obtained a “registry identification card” pursuant to the AMMA. In reaction to his marijuana card, Reed-Kaliher’s probation officer gave him additional written directives that ordered him to “not possess or use marijuana for any reason.”
Reed-Kaliher filed a motion to modify his terms of probation. In denying his request, the Superior Court judge reasoned that people on probation routinely lose many of their rights. Since Reed-Kaliher had entered into a plea agreement with the State, the State could deny him the right to use medical marijuana. Furthermore, since federal law still prohibited possession of marijuana and probationers must “obey all laws” (not just state law), federal law prohibited his use of medical marijuana.
In overturning, the trial court, and permitting the use of medical marijuana on probation, the Arizona Court of Appeals declared that “[t]he clear language of the AMMA limits a judge’s authority to prohibit a probationer such as Reed-Kaliher from using marijuana, so long as his use is consistent with the AMMA.” More importantly, the Court of Appeals emphasized that “a probationer violates no state law nor participates in any state criminal activity by using marijuana in conformity with the AMMA.”
In arriving at its decision, the Court of Appeals cited the AMMA’s immunity clause which declares that
a “registered qualifying patient … is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau” for the patient’s “medical use of marijuana pursuant to” the AMMA.
A.R.S. § 36-2811(B)(2) (Emphasis added.) This statutory immunity does have some limitations. A cardholder cannot possess more than the lawful amount. See, A.R.S. §36–2811(A)(2).
In addition, a cardholder cannot use medical marijuana at: any school (pre-K through high school); on a school bus; in a correctional facility; or, in any public place. See, A.R.S. §36–2802. Probation, however, is not one of the specific limitations listed in the AMMA. As a result, a judge cannot prohibit medical marijuana for those on probation because doing so would violate state law.
In rejecting the State’s argument that the terms of state court probation require a person to obey federal law, the Court of Appeals reaffirmed long-standing precedent that the enforcement of federal law is a duty “belonging to federal officials in federal courts.”
If you or a loved one is being denied the ability to utilize medical marijuana on probation, please call(480) 833-2341, to speak with an experienced marijuna defense attorney in our office immediately.
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