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Medical marijuana: Nathan Benner may appeal ruling forbidding MMJ use on probation

An Aspen judge ruled against Nathan Benner regarding his request to use medical marijuana while on probation -- but that may not be the final word on the subject.

Attorney Joseph Saint-Veltri says he's discussing a possible appeal with Benner and family. And even if they don't decide to move ahead, he thinks someone will push the issue to the appeals court level soon.

Benner has chronic shoulder pain that he'd like to treat with MMJ. But if he does so, he risks violating his probation for a 2009 conviction over a break-in at an Aspen pharmacy, reportedly to steal oxycodone. But while medical marijuana has been blessed by Colorado voters, Saint-Veltri notes that "every term of probation says, 'You shall not violate any state or federal law' -- and possessing and using marijuana violates federal law."

Saint-Veltri has run up against state-versus-federal conflicts before, having defended Highlands Ranch medical marijuana grower Chris Bartkowicz, who was ultimately convicted of federal marijuana cultivation charges and sentenced to five years in prison despite his belief that he was in compliance with Colorado law.

Unlike in that case, Saint-Beltri was able to use a medical defense -- one that was countered by Chief Deputy District Attorney Arnold Mordkin on the grounds of Benner's age (he's 23) and condition. The Aspen Times quoted him as saying, "Mr. Benner is not someone suffering from cancer. He's got some shoulder pain. He's a very young man. He can suffer a little bit... until he gets off probation.

Judge Gail Nichols wasn't quite so blunt about forbidding blunts, but in turning thumbs-down on Benner's request, she suggested he explore alternate pain-alleviation therapies, including yoga.

In addition, Saint-Veltri points out, "the court said prescription drugs are, by their very nature, prescribed, and there are dosage restrictions and refill restrictions that, according to the judge, do not apply to marijuana -- so there's no way to really gauge or determine how much the patient is using."

The judge's consideration of elements like dosage factors is somewhat unusual, Saint-Veltri acknowledges. Due to marijuana's illegality at the federal level, "a lot of D.A.'s in a lot of counties say that's far as you need to go," he maintains. "They feel you don't need to get into any second issue about whether the probation department can prohibit your use of marijuana because it's a psychoactive drug."

His arguments against these assertions? "No federal authorities are really enforcing the federal law against people who are smoking or possessing small amounts of marijuana. That's just not happening. So the next issue becomes: How can you restrict people from using a medicine that the people in the State of Colorado via Amendment 20 have proclaimed to be a medicine, even though it may have psychoactive attributes?"

After all, he goes on, "if we were talking about a prescribed medication by a doctor, I doubt very much if the probation department could restrict it. Suppose it was diabetes. I'm certain probation wouldn't and couldn't restrict the use of insulin. That's an extreme example, but if you slide down the scale, there are a lot of people on anti-depressants, mood elevators, sleep enhancers -- and they're all prescribed by a physician."

Such legal conflicts cry out for a resolution, Saint-Veltri believes. In his words, "I imagine some appellate court will be dealing with this sooner or later."

If Benner decides to continue his challenge, put your money on "sooner."

More from our Marijuana archive: "Medical marijuana raid in Highlands Ranch: Chris Bartkowicz attorney Joseph Saint-Veltri on conflicts between federal, state marijuana law."


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