Medical marijuana access denied to Western Michigan University student on probation

KALAMAZOO — Jon Fillinger admits he acted irresponsibly last Halloween. But the college student doesn’t believe taking away his medicine should be part of his punishment.

Fillinger, a 20-year-old student at Western Michigan University, was issued a citation for being a minor in possession of alcohol on Halloween night after attending a party. That was followed by additional charges of attempted assault and giving a false name to a police officer.

Doctor’s recommendation

But despite his legal problems, he thought nothing of continuing to use medical marijuana. Fillinger, of Waterford Township, received a doctor’s recommendation to use the drug last August. His medical marijuana patient ID card arrived in late December.

Michigan’s medical marijuana law states that a doctor’s recommendation can be used as a temporary proof of eligibility for medical marijuana use until an actual card arrives in the mail.

Before his first drug test in mid-November — required as part of his six-month probation sentence for his Halloween night offenses — Fillinger told his probation officer he was a medical marijuana patient. He was using the drug to treat chronic pain in his shoulder, pain he said he’s dealt with nearly all his life and that makes it nearly impossible to sleep at times.

Another failed drug test

The test came back positive for marijuana, and the probation officer told him Kalamazoo County District Court Judge Anne E. Blatchford was not going to allow Fillinger to continue using medical marijuana while he was on probation.

He failed another drug test in early December.

So he stopped using the drug. But after his card arrived, he began using again, believing he was protected. He tested positive for marijuana for a third time in early January.

“If the state didn’t want me using medical marijuana, then why did they give me the card?” asked Fillinger, who added he hasn’t used medical marijuana for nearly a month. “I don’t think I’m breaking the law. I’m really baffled by all this.”

At a hearing Thursday, Fillinger said Blatchford told him that an agreement under which the charges against him would be dropped if he successfully completed probation, which has included counseling, would be revoked if he continued using medical marijuana. He said he was told jail time also would be a possibility.

Kalamazoo County Chief Assistant Prosecuting Attorney Carrie Klein said even though Fillinger is a registered medical marijuana patient, that doesn’t mean he can continue to use the drug if a judge orders him not to.

“When someone is on probation, the judge has authority to put restrictions on them,” Klein said. “There are a lot of things that are legal but can be restricted for use under probation.”

For example, she said, a person over 21 who has been charged with operating a vehicle while intoxicated can be prohibited from using alcohol while their case is still open.

“Alcohol is not prescribed to treat a condition in this state. Marijuana can be,” attorney Daniel Grow said of Klein.

Grow, who has litigated several medical marijuana cases, said courts across the state have ruled differently on whether someone on probation still may use marijuana if they are a registered patient.

Fillinger’s attorney, John McNeil, of Paw Paw, said the case opens yet another gray area in Michigan’s nearly 2-year-old medical marijuana law, which has been criticized by law enforcement as overly vague in several respects.

Medical marijuana, McNeil said, has simply not yet risen to the same level as prescription drugs in the eyes of many law enforcement agencies.

Still, “I have to operate within the bounds of what the judge says,” he said. “And the judge said he (Fillinger) can’t use marijuana — period.”

Fillinger said he just wants to make his pain go away and get a good night’s sleep. The 800-milligram prescription pills of ibuprofen he now uses don’t come close to his medical marijuana in treating his pain.

”I feel like my liberties are being violated,” he said. “I shouldn’t be prosecuted for using medicine legal in the state of Michigan. I need that medicine. I’m in pain.”

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