Russell Hebets April 6, 2012

Ever since the medical marijuana boom started a few years ago here in Colorado, some weed-related legal issues have become a bit, well, hazy. One of the issues we have seen in our practice is whether a medical marijuana patient with a state issued license to smoke may or may not continue to use marijuana while on probation for an offense. The reason this is an issue is because a standard term of probation prohibits the probationer from committing any offense while on probation. Even though the patient is compliant with Colorado state law in their possession/consumption of marijuana, they are still violating federal law when they burn one down.

Courts have been handling this issue in different ways. Some jurisdictions, Jefferson County for example, prohibit anyone from using marijuana on probation whether they have their state card or not. Other counties, such as Denver and Arapahoe, do not have blanket policies on the issue- the decision is left to the individual sentencing judges, and we have seen many of them allow for continued medical marijuana use on probation. Dazed and confused?

Unfortunately for medical marijuana patients, clarity may be coming thanks to a recent decision by the Colorado Court of Appeals. In People v. Watkins, 2012 COA 15 No. 10CA0579, a brand-spanking new case, the Court of Appeals reversed a trial court’s decision to allow a legitimate medical marijuana patient to use while on probation. The Court of Appeals used the reasoning outlined above- that because marijuana use is still illegal under federal law, using it constitutes a new offense, which probation forbids.

But wait a minute- what about the fact that Colorado probation departments are perfectly OK with a probationer using other medicinal drugs? That’s right, Vicodin, Oxycontin, Percocet, and pretty much every other prescription drug are OK for a person on probation as long as the probationer can show that they have a script for them. So why is the Court carving an exception for marijuana? The Court of Appeals reasoned that because Colorado law only allows for “recommendations” for marijuana, it cannot be considered a “written lawful prescription.”

This appears to be the first binding precedent on this issue, and most courts will soon be following it. What will be interesting is whether or not case will stand up after November if Colorado voters decide to approve Amendment 64- the ballot initiative aimed at fully legalizing marijuana in Colorado. Until then, if you’re on probation for any offense in Colorado, any dreams you may have of toking up are hereby up in smoke!