California Medical Marijuana – What if I’m On Probation?

Q: I have a serious medical condition, and my physician has recommended the use of medical marijuana to treat.  But I’m on probation for a past offense, and my probation terms say I can’t have any drugs or alcohol in my system.  Should I ask probation if they can make an exception?

A: More and more probationers are seeking to lawfully use medical marijuana to treat illness, while at the same time, seeking to act in full compliance with the terms of their sentence.  The first and foremost manner of obtaining permission to use medical cannabis on probation is of course to ask for it before entering a plea and setting the terms of probation.  An attorney knowing the medical marijuana laws should be able to negotiate permission from probation, the district attorney, and the court for the patient to at least use marijuana while on probation, and a skilled attorney will be able to negotiate permission for the patient to grow for personal use while on probation.  Such a task becomes more difficult if the offense in the underlying prosecution involves drug charges, such as unlawful cultivation or transportation, but in most other cases, where drugs or alcohol are not involved, it is possible to negotiate rights for the probationer to use and cultivate medical marijuana before the entry of the plea.

For those who are already on probation which restricts drug usage and contains no exception for medical marijuana, the proper procedure lies within a motion to modify the terms and conditions of probation under California Penal Code §1203.2(b) and §1203.3(a).  Upon petition of the probationer, the court may alter or modify the terms of probation in the interests of justice, and should consider any report by probation and the evidence in support of the petition.  More specific to medical marijuana, however, is California Health and Safety Code §11362.795, which permits any criminal defendant, on either probation or parole, to petition the court specifically to use medical marijuana while on probation, released on bail, or released on parole from state prison.  Even if the probationer obtains a recommendation after the instatement and imposition of the sentence, the probationer may make the request to the court to modify the terms and conditions of probation.

Further, those being charged with a violation of probation (VOP) for using marijuana without such an exception still have a defense under California Health and Safety Code 11362.5.  The appellate court in People v. Tilehkooh (2003) 113 Cal.App.4th 1433 ruled that while the illegal use of marijuana could form a basis to revoke a defendant’s probation, the lawful use of medical cannabis provides the probationer with a defense at the VOP hearing, to show that they used medical marijuana pursuant to a valid physician’s recommendation, and otherwise within applicable state and local guidelines.

If you are on probation, and are either considering obtaining a physician’s recommendation for medical marijuana, or are charged with a violation as a result of marijuana usage, growth or possession, you should consult with a skilled, professional attorney in order to fully protect and secure your rights to the extent possible.Beck Law P.C. can furnish the experience and knowledge to help guide you through the complexities of California Medical Marijuana law.
Making an appointment to meet with us is an investment in exploring what options may or may not apply to your particular situation. Your visit to Beck Law confidential, as is the information discussed. You can contact our office at 707-576-7175 or contact us online.


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