offered as a pre-conviction agreement to dismiss the criminal charges if the offender completes all the terms and conditions of the drug court program. T e purposes of the diversion statutes was to restore the diverted to productive citizenship without the lasting stigma of a criminal conviction.24


Under


the original diversion statutory scheme, if the defendant successfully completed the diversion program, the charges were dismissed. In State v. Nelson in the Supreme Court of Montana,25


a defendant received a


three-year deferred imposition of sentence subject to conditions that prohibited defendant from possessing marijuana except in pill form and only then by prescription. Te District Court acknowledged the legitimacy of the Montana Medical Marijuana Act (MMA), but believed that restricting the defendant’s use would be less intrusive to family members and help him be a beter parent to the children.26


Differences Between Probation Parole and Pretrial Release


Probation is typically used as a sentencing sanction upon conviction of a criminal charge in lieu of jail and may last up to a few years. It requires the probationer to abide by terms and conditions set forth by the probation department and the judge. Parole is reserved for more serious criminal convictions related to felonies and is also utilized in lieu of jail time. Te terms of both probation and parole are geared toward the charged conviction. For example, in domestic violence cases a condition of probation may be counseling or a protective order on behalf of the victim or in a driving under the influence of alcohol case the offender may have to use an interlock device in their car or an ankle bracelet that monitors alcohol use. Pre-trial release is a pre-conviction condition for serious criminal charges where the offender is set free on bond or bail with certain conditions until trial or plea.


40 datia focus


Probation/Parole Tere are a variety of case decisions that take differing approaches to permiting or prohibiting the use of medical marijuana while on probation. Each case discusses the rational for their decisions. Each court, in deciding whether to grant the probationer medical use of marijuana typically balances the facts of the conviction, the probationer’s medicinal need for medical marijuana use, the degree of the probationer’s illness or ailment, and alternative treatments available and federal and state laws.


Developing Case law When marijuana is an element of the conviction, courts tend to deny a probationer’s use or possession of medical marijuana. In Maine, a defendant who was convicted of possession of marijuana with intent to distribute was denied the right to use medical marijuana while on probation.27 In a California case, defendant was denied the use or possession of marijuana while on probation because defendant was convicted of felony cultivation of marijuana.28


Te


Court stated that even if a defendant is convicted on a non-marijuana related offense but the circumstances of the crime are marijuana related, then the defendant can be denied the right to use medical marijuana while on probation.29


itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.32 Alternatively, New York allowed the


use of medical marijuana while on felony probation because defendant, a qualified patient with a valid doctor’s prescription, had no criminal history in relation to prior drug use or possession.33


On the other


hand, the Montana Supreme Court allowed a defendant, who was convicted of criminal possession or manufacturing of dangerous drugs, to use medical marijuana in pill form during the defendant’s probationary sentence.34


In another related decision,


a California court allowed a defendant, a qualified patient, who was convicted of unlawful exhibition of a firearm and grand theſt to use medical marijuana in concentrated form during the defendant’s probation period under the Compassionate Use Act.35


In such cases, marijuana use,


or possession, were not elements of the conviction, in which case the court allowed the probationer the ability to use medical marijuana while on probation. Some state courts strictly construe their


Te Court


went even further and found that aſter being sentenced, the probationer may not then apply for and obtain qualified patient status under the given state’s medical marijuana law, to become immune to marijuana related probation violations.30


Following the same


rationale, a California court also denied the use of medical marijuana for a probationer who was convicted of possession with the intent to distribute.31


In that case the Court


referred to California 3-part seminal “Lent Test” and further stated “. . . as such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not


state medical marijuana laws and take a liberal approach to use while on probation. Te Arizona courts, for example, have held that probationer may not be denied the ability to use medical marijuana under the Arizona Medical Marijuana Act, even though the underlying conviction was marijuana related.36


Te Court went on


to state that “while a court can impose a condition that probationers not violate federal laws generally, it must not include terms requiring compliance with federal laws that prohibit marijuana use pursuant to Arizona Medical Marijuana Act (AMMA), A.R.S. § 36-2811(B)(1).37


Some states like


Michigan, while they give their medical marijuana act deference and credence, they look at the totality of circumstances. In People of the State of Michigan v. Dennis Ray Magyari,38


the defendant was convicted of driving while intoxicated and driving 2020 • Issue 2


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