Medical Marijuana and Probation

Well, it finally came to pass. On February 2, 2012, the Colorado Court of Appeals issued a decision on the use of medical marijuana on probation. Unfortunately, the Court of Appeals determined that probations CANNOT use medical marijuana while on probation. The case, People v. Watkins, 2012CA15, was decided on the basis that a probationer cannot violate any law during probation.

The Court of Appeals reasoned that the phrase “cannot violate any law during probation” includes violation of federal law. As you should all know by now, any use, possession, sale, or cultivation of marijuana, medical or otherwise, continues to be a violation of federal criminal law.

It is curious that the Court of Appeals fell back on federal criminal law to resolve this question. The Colorado state courts, including the Court of Appeals, do not have the authority to enforce federal criminal law. It would seem that, in order to rely on federal criminal law, it would be necessary to have a contemporaneous federal criminal case.

Additionally, it stands to reason that Colorado courts are limited to enforcing Colorado criminal laws. As you know, Amendment 18/20 creates an exception to criminal law where patients and/or their primary caregivers are acting within the parameters of the Amendment. Probation is a creature of Colorado criminal law. As such, it is arguable that the Colorado court cannot impose any restrictions on compliant medical marijuana activities as a condition of probation – again, a creature of Colorado criminal law.

It appears that things are going to get worse before they get better for medical marijuana patients. Colorado courts are now relying on federal law to justify their limitations on medical marijuana activities, rather than enforcing Colorado laws using Colorado statutes and constitutional amendments. I suggest you contact your U.S. congress person and U.S. senator to let them know that a federal change is needed if Colorado medical marijuana laws are to have any meaning or protection.