Do You Offer Free Consultations on Medical Marijuana and Probation?
No. Due to the high volume of people inquiring about MMJ use while on probation or parole, we simply cannot meet the number of inquiries without charging a fee for our time. We consult with our clients that we represent regarding these issues, but for non-clients, we do not offer free consultations. Tiftickjian Law Firm charges a fee for a one-time consultation on this issue to answer questions regarding medical marijuana use. If you are interested in setting up a paid consultation, feel free to contact us.
If you are looking for information, but not interested in paying for an attorney consultation, below is information regarding HB 15-1267 and C.R.S. §18-1.3-204. Hopefully, this information will shed some light on the state of the current law and the court’s discretion to still deny medical marijuana use while on probation.
What is HB 15-1267?
HB 15-1267 is a Colorado law that became effective on May 8, 2015, which allows individuals with Medical Marijuana Registry Cards to use medical marijuana (MMJ) while on probation. While there is a couple of exceptions, the new law specifically states: “the possession or use of medical marijuana as authorized pursuant to…the State Constitution, shall not be considered another offense such that it constitutes a violation of the terms of probation.”
Why was HB-15-1267 necessary?
In 2012, the Colorado Court of Appeals ruled that individuals who are on probation with a sentence that specifically prohibits drug use should also be prohibited from using MMJ. The decision came after the then-District Attorney for the 18th Judicial District challenged a lower court’s ruling allowing an individual probationer, Leonard Charles Watkins, to use MMJ. Following the DA’s reasoning that, “[t]here are different public safety concerns and different laws that apply to [individuals on probation] than apply to the rest of the community,” the Court of Appeals distinguished Medical Marijuana Registry Cards from pharmaceutical prescriptions and held that Colorado’s constitutional amendment allowing sanctioned use of MMJ did not grant, “an unlimited constitutional right to use the drug in any place or any manner.”
HB 15-1267 overrules the Court of Appeals’ decision in the Watkins case. With the new law, individuals who have a Medical Marijuana Registry Card can use MMJ without violating the terms of their probation.
Does HB 15-1267 allow for recreational use of marijuana while on probation?
No. HB 15-1267 does not allow for recreational use of marijuana while on probation. The new law is specific to MMJ and only allows for medical use in accordance with Amendment 20 to the State Constitution (the amendment authorizing sanctioned use of MMJ).
Didn’t the Colorado Supreme Court rule that all people on probation can use medical marijuana in November, 2019?
In Walton v. People, the Colorado Supreme Court held that statute’s plain language creates a presumption that a defendant who is sentenced to a term of probation may use medical marijuana unless one of the enumerated exceptions applies. It goes on to hold that the burden is on the prosecution, and not the defendant, to prove that prohibiting a defendant’s otherwise-authorized medical
marijuana use is necessary and appropriate to promote statutory sentencing goals. This means that, for example, a person with a substance abuse issue or a person convicted of driving under the influence of marijuana may not be allowed to use medical marijuana on probation if a judge finds that the use would interfere with the rehabilitative goals of the sentence. Because the presumption favors defendants’ authorized medical marijuana use while on probation, the burden to point the court to material evidence showing why the court should prohibit a particular defendant from using authorized medical marijuana while on probation is on the prosecution. In addition, the court must make findings sufficient to show that it has considered the sentencing goals and that a prohibition of medical marijuana is necessary and appropriate to accomplish those goals in the case.
What are the exceptions that still make it illegal to use MMJ while on probation?
HB 15-1267 has two notable exceptions to the general rule that individuals cannot be held in violation of their probation for using MMJ.
First, the general rule does not apply to individuals who have been convicted of a crime under the Colorado Medical Marijuana Code (Article 43.3 of Title 12 of the Colorado Revised Statutes). Examples of such crimes include:
- Consuming MMJ in a licensed medical marijuana center,
- Allowing someone else to use your Medical Marijuana Registry Card, and
- Illegally buying or selling MMJ.
Second, HB 15-1267 still allows the Colorado courts to prohibit use of MMJ on a case-by-case basis if, “based on the assessment as required by [applicable law], a prohibition against the possession or use of medical marijuana is necessary and appropriate to accomplish the goals of sentencing.”
As a result, judges will still have quite a bit of leeway in deciding whether or not individual defendants should be allowed to use MMJ. If you are sentenced to probation for a drug-or-alcohol-related offense, it is high likely that the Judge in your case will deny the use of medical marijuana on probation citing the fact that they believe the prohibition against the use of medical marijuana is necessary and appropriate to accomplish the goals of sentencing.