Medical Marijuana, Recreational Marijuana and Treatment Courts

Dr. Cary Heck

Judge William Meyer (ret.)

Recognize the variations in state laws regarding medical/recreational marijuana and how that may potentially impact your probation supervision.

Learn practical supervision strategies in working with probationers in medical/recreational marijuana states.

Develop a medical/recreational marijuana drug court participant-use policy.

In 2000 54% of Colorado voters approved Amendment 20 to the State Constitution. This allowed the use of medical marijuana for patients with a “Written Medical Consent” for a variety of maladies including “chronic pain” and “nausea.”

In June of 2016 Colorado House Bill 16-1359 was signed into law. This Bill addressed the possession and use of medical marijuana for people on probation and stated that the court could not prohibit the use of medical marijuana as a condition of probation unless the client was charged with a marijuana related offense (violation of medical marijuana laws) or if the court determined that the use of medical marijuana was “necessary and appropriate to accomplish the goals of sentencing.”

In January of 2014 recreational marijuana became legal for people over the age of 21 based on Amendment 64 which passed with 54% of the vote in November of 2012.

During the first year of legalized recreational marijuana total sales were estimated at $700 million.

Revenues for education from marijuana taxes has been surprisingly low with some estimates at 2% of education budget.

Emergency room admissions with marijuana related issues have jumped dramatically since legalization with some studies showing as much as a 300% increase. Marijuana has been directly linked to three deaths with many more indirectly related via automobile crashes.

Edibles are disproportionately linked to emergency room admissions with less than 1% of sales contributing over 11% of admissions.

Homelessness has risen 8% in Colorado since legalization. This number is significantly higher in Denver where the majority ofshelters exist. Some of our data suggests that around 30% of our incoming probation population has unstable housing.

Treatment providers have difficulty working with clients who are using. Courts had to define abstinence as “necessary and appropriate to accomplish the goals of sentencing.” This claim has been legally challenged and upheld by the Colorado Court of Appeals.

Denver has experienced a large increase in client homelessness and mental illness among clients. These issues have created significant problems for supervision and stressors on limited resources.

Client success rates in treatment courts in Denver are significantly lower than courts in other districts.

Clients have embraced the values of the marijuana industry and see the drug as non-problematic.

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To be sure, marijuana remains illegal under federal law. The Federal Controlled Substances Act prohibits the possession of marijuana for nearly all uses. There is no exception for marijuana use for medical purposes, nor is there an exception for use in compliance with state law.

Arizona: Reed-Kaliher v. Hoggatt, 347 P.3d 136 (Ariz. 2015) & Polk v. Hancock, 347 P.3d 142 (Ariz. 2015) (Arizona MM Act prohibits a trial court from conditioning probation on refraining from possessing or using medical marijuana in conformance with AMMA)

Montana: State v. Nelson, 195 P.3d 826 (Mont. 2008), (Montana Supreme Court held that the trial court exceeded its authority in imposing a probation condition that required the defendant to comply with federal drug laws rather than the state's medical marijuana statute)

Colorado: The Mandatory Probation Condition of Section 18-1.3-204(1) That a Probationer Not Commit Any Offense Includes Federal Offenses People v. Watkins, 2012 COA 15, ¶ 39, 282 P.3d 500 (Colo. App. 2012

The condition of probation must have a logical relationship to the crime committed and rehabilitation of defendant.

Maine, California, and Michigan, defendant's use of medical marijuana may be denied or restricted if his or her conviction bears a logical relationship to potential drug use, such as drug possession or use or DUI and possession of a firearm by a felon. United States v Friel, 699 F Supp 2d 328, 330 [D Me 2010] People v Magyari, 2017 WL 127744, 2017 Mich App LEXIS 33 [Oakland Cir Ct, LC No. 2014 — 252567 — FH, Jan. 12, 2017; People v Leal (210 Cal App 4th 829, 149 Cal Rptr 3d 9 [2012]),

New York: People v. Stanton 60 Misc. 3d 1020, 80 NYS 3d 888, (2018) (where medically necessary, in criminal sexual act conviction)

https://scholar.google.com/scholar_case?case=2734933623257869282&hl=en&as_sdt=4006https://scholar.google.com/scholar_case?case=8918326248619763653&hl=en&as_sdt=4006https://scholar.google.com/scholar_case?case=10251923401532154711&q=marijuana&hl=en&as_sdt=4005&sciodt=4006

What do you do with probationers and MM?

Definition—Use period before considered long term

Elements of obligations to Probation & Court: bona fide relationship between doctor and patient?

reporting to doctor drug court participation?

verification of of report and prescription?

monitoring?

Why different than Short Term

Elements of obligations to Probation & Court:◦ Short term Plus

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