Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Wednesday, April 8, 2015

Arizona Supreme Court rules in favor of medical marijuana patients in criminal justice system

DownloadAs reported in this local article, the "Arizona Supreme Court on Tuesday issued two rulings barring courts and prosecutors from denying marijuana use as a term of probation if the convicted felons have valid medical-marijuana cards."  Here is more on these notable rulings:

In one case, a man convicted of possessing marijuana for sale in Cochise County was forbidden from using marijuana by a probation officer after he was released from prison.

In the second, a woman pleading guilty to DUI in Yavapai County refused to accept abstention from marijuana as a term of probation, prompting the prosecution to withdraw the plea agreement. Both had valid medical-marijuana cards.

The Supreme Court ruled that both had the right to use marijuana for their medical conditions and that prosecutors and courts could not block that right as a term of probation.

"The Supreme Court is recognizing what the people decided when they passed the initiative: You can use your medicine," said David Euchner, an assistant Pima County public defender. Euchner argued as a friend of the court in both cases in his role as a member of the executive committee for Arizona Attorneys for Criminal Justice....

"[I]f the state extends a plea offer that includes probation, it cannot condition the plea on acceptance of a probationary term that would prohibit a qualified patient from using medical marijuana ..." [one of the Arizona court's] ruling said.

Prosecutors are not pleased with the ruling. "It's another example of the problems with initiative drafting and unintended consequences," Maricopa County Attorney Bill Montgomery said in an e-mail to The Arizona Republic. "There was no discussion at the time of the election regarding the impact to case resolutions and the ability for parties to negotiate plea agreements."

Montgomery is a staunch opponent of marijuana use. On March 23, he raised eyebrows during a debate in Tempe over the use of recreational marijuana when he called a veteran who admitted to using the drug an "enemy."

But the defense attorney he faced off against, Marc Victor, said Tuesday's court ruling was just, "because the initiative specifically said your right to use medical marijuana can't be taken away."...

The second case Tuesday covered a slightly different probation angle. Jennifer Lee Ferrell was arrested in 2012 and charged with DUI.

Pursuant to Yavapai County Attorney's Office policy, Ferrell's plea agreement required her to avoid marijuana as a condition of probation. The high court said no.

Yavapai County Attorney Sheila Polk is also firmly against marijuana use. "I implemented the 'no marijuana condition' after the probation department noted a significant increase in the number of probationers obtaining a medical marijuana card to use marijuana while on felony probation," Polk said in an e-mail to The Republic. "My goal — and the goal of the system — is to set convicted felons up to succeed, to find employment and to turn their lives around. Marijuana is not part of that equation."

Polk said she is considering appealing to the U.S. Supreme Court.

Here are links to the opinions references in this article:

CV-14-0226: KEENAN REED-KALIHER v. HON. HOGGAT/STATE

Rebecca White Berch, Author; Scott Bales, Concur; John Pelander, Concur; Robert M. Brutinel, Concur; Ann A. Scott Timmer, Concur

CV-14-0084: STATE v. HON. HANCOCK/JENNIFER FERRELL

Ann A. Scott Timmer, Author; Scott Bales, Concur; John Pelander, Concur; Rebecca White Berch, Concur; Robert M. Brutinel, Concur

https://lawprofessors.typepad.com/marijuana_law/2015/04/arizona-supreme-court-rules-in-favor-of-medical-marijuana-patients-in-criminal-justice-system.html

Court Rulings, Criminal justice developments and reforms, Who decides | Permalink

Comments

I also participated in this case as "friend of the court" on behalf of NORML along with David Euchner for the AACJ. This isn't rocket science. Revoking a person's probation is a punishment. You don't have to go to law school to understand that when the law says a registered patient cannot be punished for his or her medical use of marijuana, then it means just that. Enough tax payer dollars have been wasted by the government trying to undo what the voters passed. It's been over 4 years now since the AMMA passed and its time for the government to accept their defeat and move on to other things of more importance, such as investigating violent crimes and other other conduct that actually threatens the safety of Arizona residents.

Posted by: Tom Dean | Apr 9, 2015 5:02:54 PM

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