The Colorado Court of Appeals has weighed in on the question of whether a medical marijuana patient can smoke while completing a probationary sentence that specifically nixes drug use. The judges' answer in a decision on view below? A resounding "no" justified in part by references to the case of Jason Beinor, a medical marijuana patient who was fired from his job as a street sweeper after failing a random drug test.
The man at the center of the latest controversy is Leonard Charles Watkins. At the time of a 2010 package by 9News, Watkins was reportedly on probation in Arapahoe County following a 2005 conviction involving sexual assault on a child. Nonetheless, a judge had sanctioned his use of MMJ, much to the chagrin of 18th Judicial District DA Carol Chambers. In an e-mail statement to 9News, Chambers wrote, "Does anyone think it's a good idea to allow a convicted sex offender to get high? People on probation have admitted to violating the law. There are different public safety concerns and different laws that apply to them than apply to the rest of the community."
Chambers's office subsequently appealed the decision allowing cannabis medication. Hence, the current case, in which Watkins argued that Amendment 20, which legalized medical marijuana in Colorado, "is paramount and necessarily prevails" over probation rules that forbid him from using or possessing "any narcotic, dangerous or abusable substance without a prescription."
To that, the judges wrote, "We are not persuaded." Here's their elaboration on that point:
The Amendment provides that it shall be an exception from the state's criminal laws for any patient in lawful possession of a "registry identification card" to use marijuana for medical purposes.... Under the Amendment, however, a physician does not prescribe marijuana, but may only provide "written documentation" stating that the patient has a debilitating medical condition and might benefit from the medical use of marijuana... Therefore, defendant's physician's certification does not constitute a "written lawful prescription" as required by the terms of his probation.
Just as important is this passage:
As a division of this court recognized in Beinor, the Amendment created a defense to criminal prosecution and is not a "grant to medical marijuana users of an unlimited constitutional right to use the drug in any place or any manner."
As we've reported, Jason Beinor's legal odyssey began after his sacking. He filed for unemployment benefits, and a hearing officer eventually ruled in his favor because there was "no reliable evidence to suggest that...claimant was not eligible for a medical marijuana license" or that his use of the marijuana negatively impacted his job performance. But his employer appealed the decision, and a panel ruled in the company's favor, citing Article XVIII of the Colorado constitution, which states that an employee who tests positive during working hours for "controlled substances" that are "not medically prescribed" doesn't qualify for benefits.
The Colorado Court of Appeals concurred by a 2-1 margin, with the majority finding that patients don't have carte blanche to violate firms' policies and practices. And this ruling has been cited in a number of subsequent court matters -- one reason marijuana advocate Kathleen Chippi convinced Beinor to participate in an appeal to the Colorado Supreme Court last fall.
In the meantime, the folks at Legalize 2012, who are pushing what they call the Cannabis Re-legalization Act, describe the most recent ruling in a release as "a huge blow to medical marijuana patients statewide, many of whom will be forced off of their safe, effective and natural cannabis medicine and forced to use dangerous and expensive pharmaceutical alternatives.
"Previously, probation departments across Colorado had wide discretion into whether or not a patient on probation would be allowed to use their medicinal cannabis," the statement continues. "With the Court of Appeals ruling, the ability of probation officers to address individual patient situations on a case-by-case basis has been eliminated and replaced with a statewide 'Zero Tolerance' policy for medical cannabis use and probation."
Read the ruling below:
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More from our Marijuana archive: "Top 25 marijuana stories in Colorado in 2010: The year in weed."