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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