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Medical Marijuana

Medical Marijuana on Probation? Courts Saying Yes!

drying bud, trimming
Photo by Getty Images

Probation is a far preferable alternative to incarceration for minor crimes. It’s 20 times cheaper for the state, which doesn’t have to pay to keep a low-level offender behind bars. That money can then be spent fixing schools or filling potholes, making life better for citizens.

And probation is better in every way conceivable for the offender, who can live at home and go to work and otherwise not have his or her life utterly disrupted by a spell behind bars, while still paying a debt to society.

But what if one of the terms of your probation was that you had to live in chronic pain, suffer abdominal cramps or be unable to sleep or eat? In other words, what if the state had the power to tell you, sure, you can stay out of jail, but you can’t use your medication—and if you do, and you’re caught, you’ll go there anyway?

You can imagine the outcry if the criminal justice system instructed AIDS patients to ditch their retrovirals or cancer patients to take a few years’ break from radiation. Yet the state can, and does, impose such restrictions if the medication is medical marijuana.

Though perhaps not for long. 

Michigan has had medical marijuana since 2008, making it one of the country’s more-established homes for legal cannabis. Nonetheless, it’s typical for judges to require probationers to refrain from using drugs—including marijuana—while on probation.

Doing so violates Michigan’s 2008 Medical Marijuana Act, according to attorney David Rudoi, who is arguing so in the state Court of Appeals.

As MLive reports, the law says “anyone who has been issued and possesses a registry identification card” can have medical cannabis. It makes no exceptions for people on probation.

Rudoi’s client is 63-year-old Dennis Magyari, who was convicted of his third DUI offense in 2014. He was sentenced to 60 days and jail and three years of probation, during which time he would be barred from using marijuana—which he’d been using to find relief from insomnia, diabetes, fibromyalgia, “thryoid issues and neck fusion,” the newspaper reported. If he can’t use cannabis, he’s likely to dive into prescription opiates instead, Rudoi argues.

Magyari has since been sentenced to prison—for violating his probation, of course—and wouldn’t be able to use medical cannabis behind bars. But his case is still relevant.

If Rudoi wins, any resulting Court of Appeals ruling could be precedent-setting and would prohibit other judges from forbidding probationers from using cannabis.

It would be preferable to the current piecemeal approach.

Rudoi says he’s successfully convinced judges to lift such restrictions in about 30 other cases, but having a ruling from an upper court would mean he—and his clients—would no longer be subject to a judge’s attitude or views on whether marijuana is a legitimate medicine and therefore cannot be part of a probationer’s terms.

It would also follow Arizona, where the state Supreme Court upheld a lower court’s finding that a registered and qualifying medical marijuana patient can’t be prohibited from using cannabis while on probation.

Ruling in favor of a man with a fractured hip who’d been convicted of marijuana sales, courts in Arizona ruled that marijuana patients “cannot be deprived of the privilege of probation solely based on [their] medical use of marijuana,” provided that the medical use follows state law.

There’s no guarantee Michigan or other states will follow suit, but it bodes well for Rudoi, Magyari and anyone else on probation who follows the law—including using medical marijuana.

You can keep up with all of HIGH TIMES’ marijuana news right here.

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