panel wrote that individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and that prosecuting such individuals does not violate section 542.
Pre-trial Release Te use of marijuana while on pre-trial release seems just as hard to predict how each jurisdiction will likely rule. Since marijuana is still a Schedule I drug under the Controlled Substances Act, courts tend to be siding with the federal government. Most courts have held that a defendant may not use marijuana or medical marijuana while on pre-trial release.66
Te Eight
Circuit stood by this rationale denying the defendant the ability to use medical marijuana for chronic pain while on pre- trial release, but the court allowed the defendant two weeks to seek alternative treatment.67
Alternatively, the Southern
District of New York conditionally allows the use of medical marijuana while on pre-trial release.68
Tere seems to be no
clear consensus of how each court will react to the particular circumstances of each defendant’s pre-trial release.
Conclusion Cases and statutory laws are dynamic particularly in the area of the legality of marijuana. Currently there are 33 state medical marijuana laws69 revisions and amendments.70
since marijuana, whether it be recreational or medical, is still illegal under federal law as a Schedule I controlled substance,71
the
use of marijuana is a violation of those conditions because it violates federal laws. Tis violation may result in a revocation of probation and parole and instead incarcerate the defendant or revoke bail or bond and place the offender in jail pending their trial or plea which in turn populates the jails. The Controlled Substances Act,72
with constant Te Courts
are caught between federal marijuana prohibition laws and state legal medical marijuana laws, with some courts deferring to the federal laws while others to their own state medical marijuana laws. A general condition contained within most all terms and conditions of probation, parole or pre-trial release include an agreement by the probationer, parolee or charged offender not to violate any local, state or federal laws. Some courts take this term literally and find that
44 datia focus
making marijuana illegal under federal law along with the Raich decision serves as a sword for the Courts who hold that medical marijuana may not be used while in drug courts, probation, parole, pretrial release, and, diversion/deferred judgment. While the Consolidated Appropriations Act and its continuing amendments along with the Jackson and McIntosh decisions serve as a shield and supports the use of medical marijuana in these instances. There are also those Courts that do not hang their hat on the legal status of marijuana but instead focus on the underlying convictions, the totality of the circumstances, the standard prescription drug use approach, the sole judicial discretion, or constitutional considerations. Those Courts will probably not change their rationale even if marijuana is no longer illegal under federal law. How are the Courts going to traverse the formation of medical marijuana use policies? Should the Courts await a decision by their state Supreme Courts or the U.S. Supreme Court? Or should the Courts begin to synthesize their state and appellate case law and develop policies through their SCOAs or Chief Justices of their state Supreme Courts? Should all the Courts forego all other approaches safe for judicial discretion based upon the totality of the circumstances? Whatever the direction, these policies are becoming more and more essential. ❚
Judge Mary A. Celeste (ret.) sat on the Denver County Court bench 2000–2015. She was the Presiding Judge 2009 and 2010 and the co-founder of the Denver
County Court Sobriety Court. She is currently a law school professor teaching Marijuana and the Law at California Western School of Law and researcher under a contract with NHTSA and NORC on the topic of the prosecution of drugged driving cases. She is a former member of the Judicial Advisory Board member for the Foundation for the Advancement of Alcohol Responsibility (FAAR); Faculty for the National Association of Drug Court Professionals (NADCP) and the National Judicial College (NJC). She has also served as the past chair of ABA National Conference of Specialized Court Judges; the President of the American Judge’s Association and the Colorado Women’s Bar Association Foundation, and, as a National Highway Traffic Safety Administration (NHTSA) Judicial Outreach Liaison. She has written many articles and is a national speaker on the topics of marijuana; marijuana and drug impaired driving, drugged driving and specialty courts. She has presented to AJA; ALA; NEADCP, NADCP, APPA, AJA, ABA, DATIA, NHTSA, NEADCP, Lifesavers, Pennsylvania DUI Association, Michigan and Louisiana Association of Drug Court Professionals and to Judges, Specialty Court Conferences, and Safety Highway Offices in the States of Arizona, Arkansas, Colorado, Florida, Georgia, Illinois, Kansas, Pennsylvania, Massachusetts, Michigan, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Oklahoma, Texas, Utah, Washington, Wyoming and in Canada.
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