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49 Judges J. 29 (2010)
On Prohibiting the Use of Medical Marijuana by Persons Granted Probation

handle is hein.journals/judgej49 and id is 163 raw text is: By Judge Frederic B. Rodgers udges in states that have legitimized mredtical marijuana are increasingly faced with the need to decide whether to prohibit medical marijuiana use as a condi- tion of probation. In 1972, marijuiana was placed in Schedule I of the Controlled Suibstances Act, which reflected the U.S. government's view of it as having no cur- rently accepted medical use in treatment in the United States.1 In 1996, however, Califomnia voters first approved an initia- tive legalizing possession and sale of mari- juana for medical purposes in Proposition 215.2 Thirteen other staites followed suit.' In addition, two more states have passed laws that, in one case, permit physicians to prescribe it (Arizona) and, in another, allow its medical use as a legal defense in a prosecution for unlawful possession (Maryland). Moreover, b-ills to legalize marijuana have been introduced in the state legislatures in 13 more states.4 In 2009, the U.S. Department of Justice (DOJ) announced that prosecu- tonial priorities should not target indi- viduals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. Specifically, it indicated that individuals with cancer or other serious illnesses who use medical marijuana and the caregivers who provide the miedical mariju-iana in accordance with state law should not be the focus of federal pros- ecution. On the other hand, the Memo statesc that prosecuition of commercial enterprisesi that uinlawfuilly market and sell marijuana for profit continues to be an enforcement priority. It is also explicitly stated that it does not 'legalize' marijuana or provide a legal defense to a violation of federal law. However, one may, infer from the memo that the Suipreme Court's decision in Goazates tv. Raich, recognizing with compassionate-use lawxs, will be fol- lowed whenever the alleged offender's compliance with the state law is not clear and unambiguous.16 In many of the states that have legalized medical marijuana, as in my home state of Colorado, medical marijuana is a growth industry. It is not unusual to see advertise- ments for marijuana dispensaries in tradi- tional media, and to learn of enterprising individuals leasing retail space for future use as commercial dispensaries. Others are leasing, optioning, and buying tracts of agricultural land for marijuana growing operations-and all this before state and local governments have put the finishing touches on regulating the marijuana busi- ness through zoning and other measures. A Poll, conducted on behalf of the American Association of Retired Persons (AARP) by International Communications Research (ICR), has revealed that a large, 72-percent majority of seniors support legalizing mari- juana for medical purposes. This support, together with the many ballot successes, may signal a watershed change in attitude about cannabis sativa 1. Yet, through all this evolution, operat- ing a motor vehicle w hile under the influ- ence of drugys or alcohol remains a strict liability crime in all 50 states. Whether the defendant is impaired or drunk from having ingested either beer, wine, scotch whisky, Vicks NyQuil (an alcohol-based over-the-counter cold remedy), Adderall (ain amphetamine derivative and Schedule II drug, addictive and mnind altering, pre- scribed for persons wilth attention deficit disorder), or Acapulco Gold (marijuana) is of no legal significance in connection with the proof of the underlying offense. Although accurate measurement of mani juana in a suspect's system is less certain than measuring thie presence of ethyl alco- hol,~ ~ ~ ~ ~~~4 foaneietastdp in t s th Against this backg round, judges recog- nize that probation is a privilege, not a right.' Many convicted impaired driv- ers avail themselves of this privilege, especially first offenders. In most states, and particularly with respect to drug and alcohol driving offenses, when a defendant receives probation, the court suspends conditionally what might be a harsher punishment, as long as it is con- sistent with the offender's potential for rehabilitation and protecting the safety of the community.' Probation is, in effect, a contract sanctioned by law made by the court with the convicted person that he or she may remain out of j ail based on good conduct and following all of the express terms and conditions of probation designed to promote rehabilitation. But a probationer is charged with the knowl- edge that a breach of probationary terms will most assuredly result in a revocation of probation and a subsequent sentence.9 The same reasoning applies to juvenile impaired-driving offenders.10 States' laws require that a person on probation not violate any federal, state, or local laws or orders of court.1 While the use of marijuana remains unlawful under federal law,1 the October 19, A2009, DOJ memo brings little clarity to the situation. MNarijuana remains on the con- trolled substan-ces list aind thus is ipso facto illeglal, but the U.S. govemnment will not prosecuite compliant patients in states withi compassionate use laws. What is the court to do in sentencing to probation when faced with this state of the lawv and a DUI offender who participates in a legal marijuiana comtpassionate use program. Remember that in law school nobody promised you that fathoming the conse-

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