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Colorado Medical Marijuana and Probation – Analysis Of The New Law In 2015
By H. Michael Steinberg Colorado Probation Violation Criminal Defense Lawyer
PLEASE SEE 2016 UPDATE TO THIS ARTICLE – FOLLOW THIS LINK
Colorado Medical Marijuana and Probation – Analysis Of The New Law In 2015 – In May of this year – 2015 – Governor Hickenlooper signed an historic bill into law permitting individuals the right – under certain circumstances – to smoke medical marijuana. This article will analyze the new law and provides a LINK to the 2015 Colorado Medical Marijuaua During Probation Law.
House Bill 15-1267 Modifies Section 18-1.3-204 The Law On Setting The Conditions of Probation
The Introduction to the new law – which applies immediately to “persons on probation on or after the effective date of this act” (May 8th 2015) reads:
Under current law, a person on probation is prohibited from committing another offense. The possession and use of marijuana is an offense under federal law. The bill makes an exception to the probation conditions for the possession and use of medical marijuana pursuant to the state constitution unless the person is convicted of an offense related to medical marijuana.
Here is the language of the new sections added to 18-1.3-204 – the changes to the old law are in ALL CAPS:
18-1.3-204. Conditions of Probation
(1) (a) The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the defendant will lead a law-abiding life and to assist the defendant in doing so. The court shall provide as explicit conditions of every sentence to probation that the defendant not commit another offense during the period for which the sentence remains subject to revocation, that the defendant make restitution pursuant to part 6 of this article and article 18.5 of title 16, C.R.S., that the defendant comply with any court orders regarding substance abuse testing and treatment issued pursuant to sections 18-1.3-209 and 18-1.3-211 and article 11.5 of title 16, C.R.S., and that the defendant comply with any court orders regarding the treatment of sex offenders issued pursuant to article 11.7 of title 16, C.R.S.
The court shall provide as an explicit condition of every sentence to probation that the defendant not harass, molest, intimidate, retaliate against, or tamper with the victim of or any prosecution witnesses to the crime, unless the court makes written findings that such condition is not necessary.
(b) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH (a) OF THIS SUBSECTION (1), UNLESS THE DEFENDANT IS SENTENCED TO PROBATION FOR A CONVICTION OF A CRIME UNDER 12-43.3-901. Unlawful acts – exceptions THE POSSESSION OR USE OF MEDICAL MARIJUANA, AS AUTHORIZED PURSUANT TO SECTION 14 OF ARTICLE XVIII OF THE STATE CONSTITUTION, SHALL NOT BE CONSIDERED ANOTHER OFFENSE SUCH THAT ITS USE CONSTITUTES A VIOLATION OF THE TERMS OF PROBATION.
(2) (a) When granting probation, the court may, as a condition of probation, require that the defendant:
(VIII) Refrain from excessive use of alcohol or any unlawful use of controlled substances, as defined in section 18-18-102 (5), or of any other dangerous or abusable drug without a prescription; EXCEPT THAT, THE COURT SHALL NOT, AS A CONDITION OF PROBATION, PROHIBIT THE POSSESSION OR USE OF MEDICAL MARIJUANA, AS AUTHORIZED PURSUANT TO SECTION 14 OF ARTICLE XVIII OF THE STATE CONSTITUTION, UNLESS:
(A) THE DEFENDANT IS SENTENCED TO PROBATION FOR CONVICTION OF A CRIME UNDER
12-43.3-901. Unlawful acts – exceptions.; OR
[HMS – The above section refers to convictions for certain Unlawful Acts – under Colorado’s Medical Marijuana laws – these are very rarely charged – See link to Section 12-43.3-901- above]
(B) THE COURT DETERMINES, BASED ON THE ASSESSMENT AS REQUIRED BY SECTION 18-1.3-209, A PROHIBITION AGAINST THE POSSESSION OR USE OF MEDICAL MARIJUANA IS NECESSARY AND APPROPRIATE TO ACCOMPLISH THE GOALS OF SENTENCING AS STATED IN 18-1-102.5.
[HMS – Here is Section 18-1.3-209- It provides for a drug and alcohol use assessment in every criminal case when a party applies for any form of probation:]
§ 18-1.3-209. Substance Abuse Assessment Required
(1) Each person convicted of a felony committed on or after July 1, 1992, and each person convicted of a misdemeanor or petty offense on or after July 1, 2008, who is to be considered for probation or a deferred judgment and sentence that includes supervision by the probation department, shall be required to submit to an assessment for the use of controlled substances or alcohol developed pursuant to section 16-11.5-102(1) (a), C.R.S., as part of the presentence or probation investigation required pursuant to section 16-11-102, C.R.S., or, if the investigation is waived pursuant to section 16-11-102(4), C.R.S., and the person is sentenced to probation or supervised by a probation officer, then as a part of intake.
(2) The court shall order each person required to submit to an assessment pursuant to subsection (1) of this section to comply with the recommendations of the alcohol and drug assessment. If the person is sentenced to probation, a deferred judgment and sentence that includes supervision by the probation department, or any other sentence except a sentence only to jail, the person shall be ordered to comply with the recommendations as a condition or as part of the sentence imposed, at the person’s own expense, unless the person is indigent.
(3) The assessment required by subsection (1) of this section shall be at the expense of the person assessed, unless the person is indigent.
Will ALL Patients on Probation Be Allowed to Use Medical Marijuana?
There Appear To Be TWO Exceptions That May Prevent A Colorado Probationer From Using Medical Marijuana During Probation
First one needs to understand the context of a sentence to probation. Probation is a criminal sentence – it is intended to provide the defendant who pleads guilty or who is convicted by a jury or a judge after a trial – with an opportunity for rehabilitation without confinement.
All Defendants must “apply” for probation as the grant of probation is deemed a privilege and not a right.
Exception One: The Probation Department Recommends Against The Use Of Medical Marijuana During Probation
As part of the APPLICATION FOR PROBATION process or as part of the INTAKE process after being sentenced to probation – an alcohol and drug abuse assessment is done pursuant to the 2015 Colorado Medical Marijuaua During Probation Law. As I read the new amendments to the Conditions of Probation law – (and they have not been tested yet), if, as a result of the drug and alcohol evaluation, the probation department objects to permitting the use of medical marijuana during probation – the Probationer MAY BE DENIED the right to use medical marijuana during probation. It will be their decision
Exception Two: The Defendant – Probationer Has Been Convicted Of A Criminal Under The Colorado Medical Marijuana Code 12-43.3-101 through 12-43.3-1102 but particularly the 12-43.3-901. Unlawful acts – exceptions
As noted above – this is a very rare occurrence as charges under the Colorado Medical Marijuana Code are almost never filed.
Summary and Conclusion: Colorado Medical Marijuana and Probation – An Analysis Of A New Law In 2015
Some Additional Points To Remember
While states – such as Arizona – have found a right to use medical marijuana during probation – Colorado’s right now is rooted in the changes to an old law – above.
Colorado has not found that such a right exists prior to the enactment of the new law amending 18-1.3-204 The Conditions of Probation
The Colorado Amendment to it’s Constitution also does not provide for a prescription for the use of marijuana. It provides a medical marijuana “patient” to lawfully possession of a “registry identification card” to use marijuana for medical purposes. A doctor does not “prescribe” marijuana, instead providing “written documentation” stating that the patient has a “debilitating medical condition” and can benefit from the medical use of marijuana… There is no “written lawful prescription” as required by the terms of his probation in the statute above.
The new law – as written – does not GUARANTEE the right to use medical marijuana. Also – the law has nothing to do – contrary to media reports – with individuals on parole. The Colorado Board of Parole will decide whether to permit those on parole the privilege to smoke marijuana.
On the other hand – the new law grants – in almost every case – the marijuana patient’s use of his or her doctor’s recommended treatment while on probation, No longer is a medical marijuana patient forced to choose treatment with less effective or even harmful prescription alternatives to medical marijuana.
Colorado Medical Marijuana and Probation – Analysis Of The New Law In 2015
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
You must make a responsible choice for a Colorado Criminal Defense Lawyer – we encourage you to look at our firm. Over the last 40 plus years – H. Michael has mastered nearly every area of criminal law, procedure and trial and courtroom practice and he is passionate about getting you the best result in your case.
He has written and continues to write extensively on Colorado criminal law and he hopes this article – – helps you in some small way. H. Michael hopes you found this page helpful – Colorado Medical Marijuana and Probation – Analysis Of The New Law In 2015.
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