Medical marijuana probation ban sentences patients to problems, attorney says
Last week, we told you about a court ruling that bans medical marijuana patients from using cannabis while on probation.
The decision was praised in a Denver Post editorial, but George Yingling, the attorney who represented Leonard Charles Watkins, the man at the center of the case, believes it was the wrong call.
As we've reported, Watkins wound up on probation as the result of 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." No surprse, then, that Chambers's office subsequently challenged the decision to allow medical cannabis use.
Before the Colorado Court of Appeals, 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," according to the ruling on view below. The judges were not persuaded, however. Here's a key excerpt from their decision:
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, which refers to a ruling against Jason Beinor, a medical marijuana patient who lost his street-sweeping job after failing a random drug test.
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."
By the way, marijuana activist Kathleen Chippi, who encouraged Beinor to appeal the judgment against him, tells us that the Colorado Supreme Court has not yet decided whether it will weigh in on the matter.
As for attorney Yingling, he's frustrated by the verdict in the Watkins case. Yingling is not a specialist in marijuana law, nor is he a personal fan of weed. "I've got a medical condition where I could get a medical marijuana card," he says. "But I don't like the drug. I don't want to be around it." Moreover, he concedes that "before I started doing research, I didn't know squat about medical marijuana. I was a blank slate." Before long, though, he became convinced that some people, including his client, benefit tremendously from MMJ use. And he feels that forcing Watkins to use heavy narcotics rather than pot to treat his condition is counter-intuitive.
Page down to read more of Yingling's views and the Watkins ruling.
In his argument, Yingling cited rulings in California and Montana that allowed medical marijuana patients to use cannabis during their probationary period. However, "the Court of Appeals said California and Montana did not have a state statute that required a judge to order a probationer not to violate any laws," he points out, "and they decided that included federal law. And federal law classifies marijuana as a Schedule 1 drug, which includes a finding that it has no medical value. But that flies in the face of an awful lot of anecdotal evidence and some scientific research to the contrary.
"The feds have some draconian penalties for possession of marijuana," Yingling continues, "even though sixteen states allow for its medical use. And I don't know this for a fact, but I would wager that none of the people making these decisions have any of the painful conditions that medical marijuana gives relief."
Yingling declines to specify Watkins's ailment; he feels the information falls under the umbrella of attorney-client privilege. Speaking generally, however, he says "my client suffers from a chronic condition that cannot be cured, that is incredibly painful, and has put him in the hospital three separate times. Now, when he goes to the hospital, they have to give him morphine, but he was using medical marijuana to combat the condition otherwise. And now, in order to withstand the pain, he'll have to take medication that involves narcotics, like Percocet and Vicodin. And they can be addictive."
In addition, Yingling believes that in many situations, medical marijuana is safer and more effective than these drugs. "I had a client who had been on Vicodin for five and a half years before she tried medical marijuana, and she said she got better results from marijuana, and the effects on her were less. And she's not the only one. We have person after person out there who actually suffer, and who get genuine relief from medical marijuana when using it to combat pain -- and there are enough scientific findings to show that it has an analgesic effect. And now, because of this decision, the option to use medical marijuana is gone for people on probation -- and gut level, from a layman's standpoint, I think that's a worse solution."
This is particularly true for Watkins, Yingling maintains. "He's a handyman, and he uses saws and things like that, which have warnings not to use the equipment while taking narcotics. So what's he going to do? I've had enough contact with his probation officer to know he thinks it's a ruse, but this guy doesn't use marijuana to get high. He uses it to control his pain."
Since the court's decision, Yingling has been contacted by at least one activist encouraging him to appeal the outcome to the Colorado Supreme Court. But Watkins doesn't have the financial ability to fund such an appeal (he did some work around Yingling's home in lieu of paying him), and even if he did, the fact that the court ruled unanimously gives his attorney little hope that such an effort might succeed.
Not that Yingling is satisfied. "From a human standpoint, this ruling is a disaster," he allows. "There's nothing in the court of appeals' legal reasoning that gives any weight to the human suffering that the decision will cause. They say we have this law we have to follow, and it doesn't offend the constitutional amendment. My argument was that the amendment trumped the statute, but they don't agree."
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."
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