Probation and Medical Marijuana

Colorado’s legalization of medical marijuana and later, recreational marijuana, raised the question – would legalization impact people on probation? Could they lawfully use marijuana for medical or recreational purposes or both? The specific legal question focused on a provision of a Colorado statute addressing probation conditions. The statute in question requires that every probation sentence include a condition that the defendant commit no new offenses while on probation. Because use of marijuana was no longer a crime under Colorado law, it was argued that marijuana use was no longer prohibited while serving a probation sentence. Many prosecutors, probation departments and courts took a different view. They reasoned that because marijuana was still criminalized under federal law, possession or use was an “offense” for purposes of the statute. Some attorneys claimed that the term “offense” did not necessarily include marijuana offenses despite federal law. They argued that federal law was pre-empted on the issue because medical and recreational marijuana were legalized, by amendments to the Colorado Constitution, not by state statute. That argument was rejected by the Colorado Court of Appeals. While the case before the Court of Appeals addressed the use of medical marijuana, the basis of the decision logically applies to recreational marijuana as well.
Apparently in response to the decision, in 2015 the legislature amended the statute to allow medical marijuana use while on probation. When the bill was first introduced in the Colorado legislature, it would have permitted probationers to use marijuana for both recreational and medical purposes. However, as the bill moved through the legislative process it was amended to delete the reference to recreational marijuana, limiting the proposed amendment to medical marijuana only.
The bill amending the statute passed out of the legislature and was sent to the Governor who signed the bill into law. The changes to the statute went into effect on April 8, 2015. As of that date, people on probation, and those placed on probation on or after that date, were allowed to use medical marijuana. However, the amendment to the statute certain exceptions. If the probation sentence is imposed for an offense relating to medical marijuana, medical marijuana use is prohibited. A second exception gives the sentencing judge some discretion to prohibit the use of medical marijuana. This latter exception requires that the judge find, based on any material evidence, that a prohibition against the possession or use of medical marijuana is necessary and appropriate to accomplish the goals of sentencing.

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