Medical marijuana caregiver on probation, Erick Schmuckal, goes to jail over weed

On Wednesday, Erick Schmuckal was taken directly from a court hearing to jail. He's been ordered to serve 120 days for violating his probation.

What did he do to earn this sentence? According to his attorney, Sean McAllister, he acted as a medical marijuana patient and caregiver -- which he's licensed by the State of Colorado to do.

The ruling outrages McAllister. In his view, "you have a county court judge essentially overruling the constitution -- and doing it in a way they feel totally justified about, because they don't have any respect for the law."

On the surface, McAllister concedes, Schmuckal "is not the most sympathetic person" to be at the center of what could be a test case. After all, he's on probation because, last summer, he was convicted in relation to a domestic-violence incident involving his girlfriend -- the mother of their two-year-old child.

According to McAllister, his girlfriend "only had a scratch on her arm and a torn fingernail -- and not like torn in half" as a result of the incident. "He never hit her."

Nonetheless, he was convicted and placed on probation -- which didn't immediately seem like a big problem in terms of his status as a medical marijuana patient (he suffered a back injury in a car crash) and caregiver. But it quickly became one.

"During the last couple of years, most probation departments have not had policies regarding medical marijuana," McAllister allows. "Others have said, if you've got a card, it's legal and okay" even though individuals on probation aren't supposed to use drugs, and marijuana remains illegal under federal law. "So everything's going fine, and Erick is taking his [court-ordered] classes and doing his community service.

"But then, at the end of December, the chief judge for Adams County" -- C. Vincent Phelps -- "put out a ruling that basically said, 'Not in my district. From now on, the policy is that nobody on probation can use or possess marijuana, even with a license.' So they changed the rules in the middle of the game."

The alteration was particularly problematic for Schmuckal, an outspoken marijuana advocate and award-winning grower who earns his living as a caregiver. But Broomfield has taken a particularly tough stance on marijuana: On Wednesday, we told you about the fourth arrest related to a marijuana grow there in the past month and a half.

Also very aggressive is the North Metro Drug Task Force. In February, NMDTF Commander Jerry Peters told us about 23 active marijuana-related investigations.

Given these factors, what happened next wasn't a surprise -- but it still angers McAllister.

"Following the chief judge's order, they filed a motion to violate Erick's probation based only on medical marijuana," he says. "And then, because he's out-front and honest and open, the Broomfield Police and the North Metro Drug Task Force raid his house and decide that because he has almost 160 plants in his house, he's out of compliance with Amendment 20. They put him under arrest and charge him with cultivation and possession with intent to distribute."

Whether Schmuckal had really violated the amendment is a matter of dispute. In Colorado Daily coverage of Schmuckal's arrest, Peters said Schmuckal only had two patients -- and since the constitution allows just six plants per patient, he would have exceeded the limit by a long, long way.

In response, McAllister says Schmuckal actually has at least thirty patients. But because of delays in license-issuing by the Colorado health department -- exemplified by the story of Elaine Betts, whose card arrived five months after she ordered it, and three months after she died of cancer -- he couldn't prove it to the authorities' satisfaction.

"One of the reasons they raided Erick's house is that all he had to prove he's legal are these applications people sent in to the state," McAllister says. "If the cards didn't take six months to issue, he would have had 25 to thirty of them. So the health department's delays have put him in legal jeopardy."

Cut to this week's hearing. McAllister, who helped lead the campaign for marijuana decriminalization in Breckenridge, called a number of Schmuckal's patients to the stand, including Jarvis Shead, who suffers from cerebral palsy and gets around with the use of a wheelchair. And he also pointed out to Broomfield County Judge Amy Bockman a key passage in Amendment 20. It reads:

Effective June 1, 2001, it shall be an exception from the state's criminal laws for any patient or primary care-giver in lawful possession of a registry identification card to engage or assist in the medical use of marijuana, except as otherwise provided in subsections (5) and (8) of this section.

Because neither subsection five nor eight make any mention of probation, McAllister believes the exception allows medical marijuana use for people like Schmuckal. As he puts it, "What part of 'exception' don't you understand?"

Bockman didn't see things that way, McAllister allows: "She said, 'You're violating federal law, and being a caregiver doesn't qualify as employment. So you're going to jail.'"

To McAllister, this judgment represents overreaching.

"She's enforcing federal law -- but state courts have no power to enforce federal law," he argues. "You can't go in front of a state judge and say, 'A-ha. You violated the IRS code. I'm putting you in jail now.' And that's the equivalent of what she's done. You have a judge who's not only overriding the state constitution, despite the fact that she took an oath to uphold it, but she's becoming this federal agent. Which to me is really disgusting."

What next? McAllister is considering his options, none of which seem particularly good.

"We can ask the judge to reconsider her ruling," he notes. "I have zero confidence that she would do that, but we might file to force her to look at it again. We just got an oral ruling yesterday -- no written ruling. And we could take it to the Court of Appeals. But the problem with that is, it will take seven months to even get a decision, and he'll be out by then."

Another possibility: "We could file directly to the state supreme court and ask for a sort of extraordinary relief because his liberty is being taken away. We make look into that, because I believe strongly that the appellate court and the Colorado Supreme Court have to interpret the constitution as meaning what it says -- and the constitution says there's an exception from state criminal law for those in possession of a medical marijuana card."

McAllister feels Schmuckal would be willing to take on such a challenge: "He's a fighter, and we might be able to set a precedent with this one." That's especially important given other medical marijuana patients on probation who are being told they can't use their medicine for months or years. He cites one client who didn't want to take narcotics like Oxycontin during his probationary period, and subsequently suffered a breakdown as a result.

"This system is injustice built upon injustice," McAllister says. "When does it end?"

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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts