Patients on Probation: A Death Knell?
On February 2, 2012, in People v. Leonard Watkins, 10CA0579 (“Watkins”), the Colorado Court of Appeals delivered a death knell to the use of medical marijuana by citizens who are serving a pro
On February 2, 2012, in People v. Leonard Watkins, 10CA0579 (“Watkins”), the Colorado Court of Appeals delivered a death knell to the use of medical marijuana by citizens who are serving a probationary sentence in Colorado. In Watkins, the defendant/probationer was allowed by a District Court judge’s order to medicate while on probation. The District Attorney in the 18th Judicial District, Carol Chambers, objected and appealed the District Court’s order. The three-judge Court panel considered two issues in deciding that a probationer could not medicate in the State of Colorado while on probation.
The first issue in Watkins is whether the mandatory probationary section of §18-1.3-204(1), C.R.S., “the defendant not commit another offense during the period [of probation],” is violated if a probationer medicates with marijuana legally under Colorado law since possessing and using marijuana is still against federal law.
The Court agreed yes, that an “offense” does indeed occur because possessing and using marijuana is against federal law. Therefore, the citizen is committing an offense while on probation. The key here is that the person medicating is not even charged federally and does not have a federal conviction.
The Court cited the case of People v. Slayton, 878 P.2d 106 (COA 1994), when it discussed the definition of “offense.” Slayton said that a conviction of a municipal ordinance qualifies as an “offense,” and that such an ordinance should be treated like a statute. Essentially, the Court is saying that because there is a federal law—which no one is even being charged with or convicted of—Colorado residents shall be prohibited from medicating with marijuana.
The second issue is where the Court explains its ban as more of a cross section of reasoning. One, that pursuant to the terms of probation the probationer is allowed to use “lawfully prescribed” prescription drugs and this does not qualify as a physician “recommends” marijuana under the Colorado Constitution article XVIII, §14. The Court trots out the oft-used reasoning, “Probation is a privilege, not a right,” Byrd v People, 58 P.3d 50 (Colo. 2002), stating that while Colorado’s medical marijuana Amendment creates an exception to Colorado’s criminal drug laws, the use of medical marijuana while on probation does not come under that exception as the violation to probation is administrative, not criminal.
Time to talk to your legislator and fix this.
