AZ Will Allow Probationers to Use MMJ

Photo courtesy Weed Journal

A recent ruling by the Arizona Supreme Court states that citizens who are on probation cannot be barred from using marijuana as a term of their probation, so long as the person has a valid medical marijuana card.

The case was based around two separate incidences, both involving probationers from Arizona who were denied access to use of medical marijuana as a part of their probation sentencing, which is considered a violation of the Arizona Medical Marijuana Act (AMMA) approved by voters in November 2010.

The first case concerns Jennifer Lee Ferrell, who was arrested in 2012 after police reported that they found her unconscious in the front seat of a parked car. She was charged with multiple offenses in the arrest, including driving under the influence of alcohol. Ferrell agreed to sign a plea agreement following the incidents, in exchange for the dismissal of several of the charges placed against her. Ferrell pleaded guilty to three of the charges, including DUI.

However, part of the plea agreement that she signed stated that she agreed not to buy, grow, possess, consume or use marijuana in any form, even though she had a valid medical marijuana card before the incident occurred. When the trial judge received the plea deal it was accepted, but the clause restricting Ferrell from accessing her medical marijuana was stricken as illegal and the case was appealed.

The case was brought before the Arizona Supreme Court when the state requested to withdraw the plea agreement, but was denied by the trial court.

“By adopting the AMMA, voters established as public policy that qualified patients cannot be penalized or denied any privilege as a consequence of their AMMA-compliant marijuana possession or use,” wrote Justice Ann Timmer in the ruling for Ferrell’s case. “This policy would be severely compromised if the state and a defendant could bargain away the defendant’s ability to lawfully use medical marijuana.”

Justice Timmer ruled that the trial court improperly denied the state’s request to withdraw the plea agreement, as the request was made before it was formally accepted by a judge.

The second case revolves around Keenan Reed-Kaliher, who was arrested and spent time in prison for possessing marijuana and narcotics with attempt to sell. He was released to serve on probation for three years, beginning in June of 2011. However, a probation officer overseeing Reed-Kaliher added a clause to his terms of probation which banned him from marijuana use of any kind. But Reed-Kaliher had already become registered medical marijuana cardholder for chronic pain related to a fractured hip subsequent to his release from prison.

When Reed-Kaliher asked for the clause to be removed from the terms of his probation, he was denied by an Arizona superior court. The state argued that under Arizona law, all drug offenders must be prohibited from any and all drug use during their probation. The case was then brought before the Arizona Court of Appeals, who ruled that any patient who qualified under the AMMA and was legally prescribed the medicine could not “be deprived of the privilege of probation solely based on his medical use of marijuana.”

The Arizona Supreme Court agreed with this ruling, with Justice Rebecca Berch writing the opinion of the court.

She wrote: “The state observes that probation conditions can prohibit a wide range of behaviors, even those that are otherwise legal, such as drinking alcohol or being around children. While the court can condition probation on a probationer’s agreement to abstain from lawful conduct, it cannot impose a term that violates Arizona law.”

In both cases, the probationer was allowed to keep their right to access their medical marijuana freely and legally. And while this may seem to be an excellent example of Arizona’s ability to uphold its laws to better the lives of its people, there are still those who are unhappy with the rulings.

Attorney Bill Montgomery, who recently insulted Vietnam veteran Don Ream at a medical marijuana debate by referring to him as an “enemy” for using cannabis, outwardly disagreed with the two Supreme Court decisions.

In an email he sent to the Arizona Republic he claimed that “It’s another example of the problems with initiative drafting and unintended consequences. There was no discussion at the time of the election regarding the impact to case resolutions and the ability for parties to negotiate plea agreements.”

However, Attorney Marc Victor, Montgomery’s opponent in the same infamous debate in March, said that the Supreme Court made the right call on the decisions they made. He claimed that Prop 203 specifically states that the patients’ rights to access the medical marijuana could not be impeded in any way, and that the Supreme Court saw this and understood it to be right.

Overall, Arizona seems to be doing quite well at upholding the rights of its probationers, especially when it comes to accessing their prescribed medications. But, Arizona isn’tt the only state to consider this ruling for its probationers.

According to reports, lawmakers in Colorado began a proposal that would allow anyone serving on probation or parole to use medical marijuana. Even though the state has had legal medical marijuana for the past 15 years, it has never been allowed to those serving probation or parole.

This proposal closely follows the cases from Arizona, following closely to the fact that patient’s rights should be upheld. The only difference is that unlike the Reed-Kaliher ruling in Arizona, those convicted of drug-related crimes in Colorado will still be barred from accessing marijuana. Rep. Joe Salazar, a sponsor of the bill, explained that “If it’s in the constitution, you should have the right to use it on probation.”

The bill has already passed in the House and is now on it’s way to the Governor.

Should probationers and parolees be denied medical marijuana? Let us know what you think in the comments below.