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Can I use medical marijuana on probation?

| May 31, 2018 | Criminal Law

One of the questions we are often asked by our criminal defense clients is, “can I use medical marijuana on probation?” The short answer is that you can in theory but it depends. This entire area of law is rapidly evolving and has undergone several changes in the past few years. While the lawmakers have made clear that most people should be able to use medical marijuana on probation, ultimately it will be up to the judge in whatever court you are appearing in to make the decision. Let’s begin our discussion with a review of the history of using medical marijuana on probation.

Colorado has had medical marijuana since the year 2000, when its voters approved Amendment 20 to the Colorado Constitution. That Amendment was silent on medical marijuana on probation. Additionally, before President Obama’s election in 2008, there were no legal dispensaries or stores to purchase medical marijuana from, so this was less of a public issue. Eventually, after dispensaries began to open, and the amount of individuals with medical marijuana recommendations increased, this became a larger issue that needed to be addressed.

To start with, the decisions regarding the use of medical marijuana on probation were left to the individual courts. Some judges in Boulder or Denver were allowing people with medical cards to use medical marijuana on probation, just like they would also allow someone with a prescription to use the prescribed drugs. Other judges in more conservative jurisdictions refused to allow any use of medical marijuana on probation. Then, the appellate courts stepped in.

In 2012, the Colorado Court of Appeals held that because medical marijuana was illegal under federal law, and because probation requires all individuals on probation to not violate any laws, medical marijuana use could not be allowed while on probation.[i] That ruling meant that no judge, even if the judge wanted to, could authorize using medical marijuana on probation. This was true even if all parties agreed that it was the right thing to do. Luckily for patients, the Colorado General Assembly sprang into action a few years later.

In 2015, the Legislature passed H.B. 15-1267. H.B. 1267 amended Colorado’s statute regarding probation. First, it overruled the Colorado Court of Appeals by changing the law to specifically exclude medical marijuana from law violations when on probation.[ii] Second, it stated that while probation can prohibit excessive alcohol or any drug use, medical marijuana was to be excluded from that prohibition unless certain exceptions were met. Those exceptions included (1) if the person violated Colorado’s medical marijuana laws or (2) if the Court found, based on probation’s assessment, that prohibiting medical marijuana use was necessary and appropriate to accomplish the goals of sentencing.

That didn’t work. Instead, probation officers would simply say “medical marijuana interferes with the goals of sentencing” in every case, and most judges were not allowing medical marijuana use on probation. So, in 2016, the General Assembly passed H.B. 16-1359, which modified its original law by striking the portion about probation’s assessment and, instead, requiring the judge to find “any material evidence” that prohibiting the use of medical marijuana on probation was necessary and appropriate to accomplish the goals of sentencing.

Today, some judges are following the law and allowing the use of medical marijuana on probation more regularly. Others are still being defiant and finding “material evidence” in almost every situation. Others still are making the defendant provide lots of substantiating evidence that a person needs medical marijuana.

The current system is working a lot better than the old version. However, too many judges still are wrongfully denying patients access to the medical marijuana they need. At Cheney Galluzzi & Howard, we fight for those patients. If you or someone you know needs to be able to use medical marijuana on probation, call us today! Life happens. We can help.


[i] People v. Watkins, 282 P.3d 500 (Colo. App. 2012)

[ii] C.R.S. 18-1.3-204(1)(b)