State Supreme Court Deciding How Judges Can Restrict MMJ on Probation

Scott Lentz
With over 80,000 Coloradans on the state's MMJ registry, it's not surprising that this question frequently crops up: Can a medical marijuana patient on probation still use their cannabis medication?

The answer was supposed to be black and white after a 2015 state law approving allowing people on probation to use medical marijuana, but the reality is still gray and murky, with frequent court arguments over the burden of proof and necessity for a convicted patient's medical marijuana use while on probation. However, a 2016 DUI case could finally push the Colorado Supreme Court to provide more definitive answers.

Over three years ago, Alysha Walton was charged with an alcohol DUI in El Paso County, eventually pleading guilty and receiving a deferred sentence and one year of unsupervised probation. Her attorney requested and received a hearing with county court judge Karla Hansen for clarity on Walton's medical marijuana use after sentencing, and Walton was informed of Hansen's universal requirement for medical marijuana patients on probation: They must provide live testimony from a doctor.

According to Walton's attorneys, she could only provide her state-approved medical marijuana card and a signed letter from her recommending doctor, and Hansen ultimately denied Walton's request to continue using cannabis. Walton and state public defenders took the case to the state Supreme Court (as first reported by the Denver Post), arguing that Hansen's requirement went too far and obstructed her constitutional right as a medical marijuana patient.

In oral arguments before the Colorado Supreme Court on Thursday, October 17, Walton's public defense attorney, Cayce Duncan, argued that by requiring live testimony to affirm their medical marijuana recommendations, the court is undermining doctors' state-approved recommendations, and patients' constitutional protections are bypassed.

"The court prohibited Ms. Walton to continue to use medicine" Duncan told the justices. "The legislature has clearly laid out a regulatory scheme for supervising the issuance of medical marijuana authorizations."

The law was written to explicitly exclude any patient convicted of a crime connected to medical marijuana, but  judges can still take away the right to use medical marijuana during or after sentencing if it inhibits the goals of sentencing and social safety, or compromises a person's criminal rehabilitation. According to Walton's defense, she wasn't found to be under the influence of other substances at her arrest, but didn't inform her probation officer of her medical marijuana card until after sentencing.

Despite the late alert, Walton's probation officer didn't include cannabis as a prohibited substance during probation — but the El Paso County district attorneys office argued that Walton initially hid her cannabis use during court proceedings and “indicated an unwillingness to change her drug/alcohol use.”

"The court should have the discretion to inquire [marijuana use] further when the sentencing is at issue," El Paso County deputy district attorney Tanya Karimi told the state's highest court. "Just as the way a court can inquire into the authenticity and need for a [drug] prescription...the same way the court could inquire into the constitutional authorization of use of medical marijuana."

State Supreme Court justices prodded both arguments, questioning the length at which judges should be able to inquire a probationer's need for medical marijuana use. "This is a DUI. We have concerns about use of alcohol. Is that not a legitimate reason to be considered of use of substances that could impair this person?" asked justice Melissa Hart.

But much of the conversation focused on just how much proof a patient should be required to show a judge if it were deemed that he or she wouldn't be a danger to themselves or others by using medical marijuana. With a state registry of medical marijuana patients, Duncan argued that proving a patient's authenticity was relatively easy for Colorado courts.

Justices Richard Gabriel and William Hood III both questioned the need for a blanket policy by a judge for the proof of patients' need for medical marijuana. "What's the basis for the court to require the defendant to pay money to bring in a doctor [to testify], other than 'I'm going to put another roadblock in front of you here before I allow marijuana?'" Gabriel asked.

"It's hard not to look at what has happened here and infer this county court judge just decided that this is kind of a dumb law as applied to DUI cases. and has just decided to use...whatever roadblocks you can to prevent the General Assembly's edict form being implemented," Hood added.

However, Karimi argued that giving judges more discretion was needed "to benefit the defendant and the community," adding that trial courts typically have broad sentencing abilities after convictions.

Oral arguments ended October 17; the court has not yet released its decision.