Several probationers argued, to no avail, that a denial of the use of medical marijuana while on probation violated a variety of their constitutional rights.
probationer’s conditions of hypertension and post-traumatic stress or what dosage was authorized, or evidence that prohibiting medical use of marijuana would cause serious medical impairment for probationer or that he could not obtain relief from other drugs.”51
Several
held that “notwithstanding ORS 137.540, the condition of supervision of a person who holds a registry identification card and is sentenced to probation related to use of usable marijuana, medical cannabinoid products, cannabinoid concentrates or cannabinoid extracts must be imposed in the same manner as the conditions of supervision of a person sentenced to probation related to prescription drugs.”49
Constitutional Challenges Several probationers argued, to no avail, that a denial of the use of medical marijuana while on probation violated a variety of their constitutional rights. Although those rights have already been addresses in the U.S. Supreme Court case of Raich,50
additional California cases addressed the “right to privacy” argument to no avail with the most recent case in 2019. Te probationer argued that the condition that he cannot use medical marijuana while on probation was overbroad in its infringement of his constitutional right to privacy. Te Court stated that the defendant “cites no authority to support his claim that he has a constitutional right of privacy to use medical.”52 In People v. Brooks,53
the trial Court
prohibited the probationer from using physician-recommended marijuana as a term of probation and the probationer argued that it violated his Eighth Amendment Right against cruel and unusual punishment.54
without guessing at its meaning. Aſter all, ‘reasonable specificity’ is required, not perfect specificity.”56
Federal & State Legislation
Te Court held that wherein
the Court established that there is no constitutional right to use medical marijuana under the commerce clause, the trial courts have reviewed the constitutional arguments on a case by case basis. In Leal, the Court found that
prohibiting use of medical marijuana otherwise authorized by (California) Compassionate Use Act (CUA) did not violate the defendant’s constitutional right to privacy “absent evidence of how much relief marijuana provided for
42 datia focus
it was not an unconstitutional cruel and unusual punishment, since prohibition was not deliberate indifference to probationer’s medical needs; there was no evidence that medical marijuana was the only treatment or even the most effective treatment for his medical condition, and there was ample evidence from probationer’s criminal history that he suffered from addiction to intoxicating substances. In People v. O’Neal,55
the defendant
contended that the probation condition prohibiting him from using any controlled substance not prescribed by a medical professional is unconstitutionally vague because it did not adequately define “controlled substance.” Te Court found that “the drug condition here is sufficiently precise. We believe that people of common intelligence can understand the proscription to ‘[n]either use nor possess any controlled substance unless prescribed to [him] by a medical professional’
Te approach and rationale to deny a probationer to use medical marijuana if the underlying conviction was marijuana related is found in a Colorado statute addressing the issue. In 2015, Colorado passed a legislative approach to this issue. Te law states that “when granting probation, the court may, as a condition of probation, require that the defendant . . . “[r]efrain from excessive use of alcohol or any unlawful use of controlled substances, as defined in section 18-18-102(5), or of any other dangerous or abuseable drugs without a prescription.” (C.R.S.A §18-1.3- 204 (2)(a)(viii)). Tis law was modified in 2017 and changed the language to include an exception which states, “except that the court shall not, as a condition of probation, prohibit the possession or use of medical marijuana, as authorized pursuant to section 14 of article XVIII of the state constitution, unless: (a) [t]he defendant is sentenced to probation for conviction of a crime under article 11 of title 44; or (b) [t]he court determines, based on any material evidence, that a probation against the possession or use of medical marijuana is necessary and appropriate to accomplish the goals of sentencing as stated in section 18-1-102.5.” (C.R.S.A §18-1.3-204(2(a) (viii)(a-b). Te rationale for the exception seems to indicate the need to support judicial discretion. Tis statute has not rectified the varying
approaches taken by Colorado Judges, however and has necessitated the weigh in of the Colorado Supreme Court. “Each jurisdiction’s judges are different. ‘It’s been inconsistent and rather overwhelming ever since the law changed to allow it, . . . Some judges make the conditions of using medical marijuana while on probation so prohibitive that a reasonable person
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