Medical Marijuana Allowed for Probationers

On May 8, the Governor signed a new bill that allows people who are placed on probation to use medical marijuana while on probation.  A standard condition of probation is that the probationer abide by all laws.  Medical marijuana was legalized in Colorado well before the legalization of recreational use.  However, most judges and probation officers took the position that, because marijuana use and/or possession was still in violation of federal law, even medical marijuana use was considered a violation of probation.  Judges recognized that Colorado’s legalization of medical and recreational marijuana could cause confusion for probationers, so most judges explicitly informed probationers that any and all marijuana use was prohibited while on probation.

This condition was imposed even if the underlying crime had nothing to do with marijuana.  People who were placed on probation for a DUID were prohibited from medical marijuana use, which might make sense under the circumstances, but similarly, people who were placed on probation for stealing a shirt from a department store were also prohibited from medical marijuana use.  Unless the person was under the influence of marijuana at the time he or she committed the theft, this condition does not make sense for this person.

The new bill tells judges and probation officers that use of medical marijuana is not a new law violation and, therefore, is not in and of itself a violation of probation.  There are a few important points about this new law that probationers should be aware of:

1.  The new law does not apply to recreational use of marijuana, the exception only applies to medical marijuana.

2.  The simple use of medical marijuana is not a new law violation, but this does not mean that a person cannot commit a new offense by using medical marijuana.  For example, it is a new law violation to drive while under the influence of marijuana, even if the marijuana is being used for medical reasons.

3.  It is not entirely clear whether the new bill automatically does away with the prohibition of medical marijuana use or if the court needs to modify the terms and conditions of probation to allow for medical marijuana.  Because a violation of probation can result in serious consequences, it would be wise to check with your probation officer and the court to ensure use will not result in a probation revocation.  It is too risky to assume it will not be a problem.

4.  The new bill does allow the court to prohibit the use of medical marijuana while on probation if the court can make a specific finding that the prohibition is necessary and appropriate to carry out the purpose of the sentence.