On November 5, 1996, California voters passed Proposition 215, also known as the Compassionate Use Act (CUA). The CUA added section 11362.5 to the California Health & Safety Code, which created an affirmative defense for people who use and cultivate marijuana for their own personal medical use pursuant to a doctor’s recommendation. The CUA also created a provision for designated primary caregivers who consistently assume responsibility for the housing, health, or safety of a medical marijuana patient. In 2003, the California legislature passed Senate Bill 420, also known as the Medical Marijuana Program Act (MMP). The MMP was put into effect in January 2004 and amended the Health & Safety Code to add several additional sections, specifically sections 11362.7 through 11362.83.
Anticipating that judges would be confronted regularly with probationers who had been recommended medical marijuana, the legislature included in the MMP § 11362.795 Health & Safety Code: (a) (1) Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail.
From my personal experience, requests to use marijuana on probation almost always take the form of a formal written motion submitted to the court and argued in front of a judge. Often times, this is the judge who did your sentencing, but not always. Also, the DA will often file an opposition to this motion, requesting that the court specifically prohibit your use of marijuana on probation. The court’s ability to request or deny your motion will be based on several factors outlined later in this article.
Besides drafting a persuasive motion, you will also want to present evidence at the hearing. At a very minimum, you will want to have medical records supporting your condition and the doctor who wrote your recommendation. Ideally, you would have your treating physician, not just a doctor who writes marijuana recommendations for his livelihood. This is because most judges do not give any weight or credibility to the testimony of “medical marijuana doctors.” Though these judges are often times ignoring the law, they will continue to make these rulings until challenged and overturned on appeal. Similarly, they will second-guess your reason for using medical cannabis if they feel that your illness is not severe enough to warrant the use of marijuana while on probation. They may also order you to try other medications, some of which may be extremely addictive and dangerous. Again, these judges are ignoring the law and placing themselves in a position where they are essentially involved in the unauthorized practice of medicine – deciding what medicine you can and can’t use to treat your illness. This goes entirely against the CUA, which specifically allows the use of marijuana for “any condition for which marijuana provides relief.”
If you don’t make a request for the court to allow you to use medical marijuana on probation, and you test dirty, you still have a defense. At issue in the seminal case of People v. Tilehkooh (2003), 113 Cal.App.4th 1433, was whether the defendant could assert a Compassionate Use defense for a probation revocation. Answering in the affirmative, the court held that the language of section 11362.5: “Precludes the imposition of a ‘criminal sanction’ for the use and possession of marijuana and ensures the right to use and possess marijuana when the user satisfies the conditions of section 11362.5. For this reason, section 11362.5 provides a defense to a probation revocation based on marijuana possession or use. In this case, depriving a defendant of the right to predicate a defense to a probation revocation upon section 11362.5 denied him due process.” Tilehkooh at 1444-1445.
The court in Tilehkooh further held: “We are directed to give sense to all of the terms of an enactment. To do so requires that we give effect to the purposes of section 11362.5 to ensure the right to obtain and use marijuana. In particular, we must give effect to subdivision (b)(1)(A), which establishes a ‘right to obtain and use marijuana for medical purposes,’ and which links the right to use marijuana with the prohibition on the imposition of a ‘criminal prosecution or sanction.’ It is readily apparent that the right to obtain or use marijuana is not “ensure[d]” if its use is not given protection from the adverse consequences of probation. Since the use of marijuana is not a crime, the term “prosecution or criminal sanction” must be read to apply to any criminal sanction for the use of marijuana. The immediate candidate is probation, the regulation of which is within the penal code provisions on punishment and the violation of which subjects a probationer to significant restrictions on his or her liberty. (Pen. Code § 1203.2.) Indeed, it would completely frustrate the purpose of section 11362.5 if a violation of probation for the medical use or possession of marijuana is permitted while barring a criminal prosecution for the identical conduct.” (Id. at 1443, emphasis added)
Tilehkooh stands for the proposition that a condition of probation, which in effect prohibits the lawful use of a prescription drug, serves no rehabilitative purpose and is invalid. In Tilehkooh, the Court of Appeals had to decide whether a probationer, who uses marijuana for medical purposes in compliance with the Compassionate Use Act of 1996 (Prop. 215), can have his probation revoked and sanctions imposed for possessing or testing positive for marijuana. The Tilehkooh court, following the California Supreme Court’s lead in People v. Mower (2002), 28 Cal.4th 457, 482, analogized the use of marijuana under Prop. 215 to the use of a prescription drug. The court held that (where no claim is sustained that the probationer was endangering others or diverting marijuana for non-medical purposes) a condition, which in effect prohibits the lawful use of a prescription drug, serves no rehabilitative purpose and is therefore invalid. Consequently, the order revoking probation had to be reversed.
The court in Tilehkooh remarks that, “California courts have traditionally been wary of using the probation system for any non-rehabilitative purpose, no matter how superficially rational.” (Tilehkooh, supra, at 1444) The court goes on to hold that, “A rehabilitative purpose is not served when the probation condition proscribes the lawful use of marijuana for medical purposes pursuant to section 11362.5 any more than it is served by the lawful use of a prescription drug.” (Id.) Citing People v. Lent (1975) 15 Cal.3d 481, 486, the court relates the fundamental rule that a valid probation condition must be “reasonably related to the crime of which the defendant was convicted or to future criminality.” (Id.) The court then concludes, “However, it ordinarily cannot be said that the treatment of an illness by lawful means is so related.” (Id.)
Interpreting the rule set forth in Lent, the court in People v. Brooks (2010), 182 Cal.App.4th 1348, denied the defendant’s motion to modify his probation. In Brooks, the defendant was stopped for a traffic violation and found with approximately two pounds of marijuana. (Id. at 1350) The defendant was arrested for possession of marijuana and methamphetamine. (Id.) Though the defendant had a doctor’s recommendation, the court found that the defendant’s possession of marijuana was for sale, rather than personal use. (Id.) The defendant attempted to argue that there was no “nexus” between his underlying offense and his use of marijuana under Prop. 215. (Id. at 1352) The court held that the defendant’s probation condition forbidding the legal use of marijuana under Prop. 215 was sufficiently connected to his illegal possession because the defendant was hiding his illegal selling operation behind the legal front of Prop. 215. (Id. at 1353)
In sum, if the underlying offense in your case is in no way related to the unlawful possession of marijuana, you may have a shot at getting your probation modified to allow your use of medical cannabis. In San Diego courts, it will depend on the seriousness of your condition, the credibility of your doctor, and the judge who hears the motion. However, if you do not succeed in getting your probation modified, I do not recommend continuing your cannabis use and relying on the Tilehkooh case above for your defense. The probation department in San Diego will almost always ignore Tilehkooh and initiate probation revocation proceedings against you. If you get a judge who is anti-marijuana, you may ultimately get revoked and be forced to fight your case on appeal. My best advice: contact a knowledgeable attorney to discuss your situation before using cannabis on probation.
Michael E. Cindrich is an attorney practicing criminal law in San Diego and can be reached at (619) 262-2500.
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