Medicinal Marijuana Approved for Use with Prop 36

The California Court of Appeal ruled recently that the use of medicinal marijuana is not an automatic violation of probation for non-violent drug offenders participating in “Prop 36” programs. California Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, was an initiative passed by voters into law that allows qualifying defendants convicted of non-violent drug offenses to complete drug treatment programs in lieu of incarceration. If a participant violates any terms of the probation, which include regular drug tests, he or she will be found in violation of probation and be required to serve a prison or jail sentence.

In the case of People v. Beaty, decided by the Court of Appeal on January 28, 2010, the defendant had been convicted of possession of methamphetamine. The trial court suspended the imposition of a prison sentence and allowed Beaty to participate in the Prop 36 program. The terms of the probation included the usual restrictions on the use of any unauthorized drugs.

As a result of a motorcycle accident in 1998, Beaty was disabled and had been legally prescribed medicinal marijuana to combat his chronic pain. Throughout his intake process and participation in the Prop 36 program, he disclosed his daily use of marijuana to his counselors at the drug treatment center. Unsurprisingly, his drug tests came back positive for marijuana, a purported violation of the terms of his probation. Based on expert testimony that the use of marijuana was “mind altering, habit-forming, and used daily,” the trial court determined that the use of the drug, despite the fact it was legally prescribed, was a violation of Beaty’s probation.

Beaty appealed the decision of the trial court that his use of medicinal marijuana was a violation of his probation. Fortunately, the appellate court agreed with him. Comparing the use of marijuana to Adderall, another mind altering, habit forming drug used daily (to treat attention deficit disorder), the court determined that the use of legally prescribed medicinal marijuana should not be an automatic violation of the terms of probation for the Prop 36 program.

As a result of this decision, thousands of people eligible for Prop 36 will not have to suffer unnecessarily by being either being denied their rights to access safe, approved prescription medication, or by flouting the law and being locked up as a result of attempting to ease their suffering. Undoubtedly, this is a step further in the right direction in allowing for the controlled use of marijuana for medicinal purposes.

For the full text of the opinion, click here.

"Probation" Explained

You’ve probably met or heard of a person who is “on probation” but have you ever wondered what that actually means? Well, depending on whether the person is on formal or informal probation and the particulars of the crime, it could mean any number of different terms to each individual.

Formal, or “supervised” probation, is the more serious form. Formal probation requires the individual sentenced to make regular reports to a probation officer. Informal probation, also known as a “summary” or “court” probation, or “conditional sentence,” does not require the individual to make regular reports to a probation officer. Both kinds of probation, however, can subject an individual to the loss of many freedoms.

Often, probation is given in lieu of a jail or prison sentence. At the time of conviction, if a defendant is eligible for probation, the judge may either impose a sentence and then suspend the execution of that sentence, or may suspend imposing the sentence at all, in favor of granting probation. Probation consists of a fixed term during which the probationer must abide by the terms set by the court or probation officer. If the probationer breaks his or her probation, for example by committing another crime or failing a drug test, he or she will be subject to the sentence that was suspended by the court at the time probation was granted. This means if you screw up your probation, you are almost assuredly going to jail.

The court or probation officer have broad discretion to impose any “reasonable conditions” necessary to secure justice and assist the “reformation and rehabilitation” of the probationer, as long as the conditions are reasonably related to the offense and aimed at deterring such misconduct in the future. These terms include things like mandatory alcohol or drug testing, community service, counseling, curfews for minors, stay-away orders, electronic monitoring, home detention, travel restrictions, or suspension of a driver’s license.

Probation might not sound like very much fun, but it is often a welcome alternative to jail time. If you are facing a potential conviction on criminal charges, it is important you have an experienced attorney to negotiate on your behalf. A skilled attorney familiar with the judge and district attorney in your case can arrange for probation instead of jail, and will be able to get the best possible terms. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.