AZ Court Clears Medical Pot for Probationers

PHOENIX (CN) - Probationers cannot be banned from using marijuana as a term of their probation if they have valid medical marijuana cards, the Arizona Supreme Court ruled in two separate decisions.

The Arizona Medical Marijuana Act (AMMA) - approved by voters in November 2010 - decriminalized medical marijuana use for people with certain medical conditions when prescribed by doctors.

In one case, Jennifer Ferrell agreed to plead guilty to three charges including DUI, which banned her from possessing or using marijuana even though she had an identification card allowing her to use medical marijuana.

Ferrell asked for the condition to be struck from the agreement before she was sentenced, which the trial court did. The state, in return, asked to withdraw the agreement, but the court denied the request.

"By adopting AMMA, voters established as public policy that qualified patients cannot be penalized or denied any privilege as a consequence of their AMMA-compliant marijuana possession or use," Justice Ann Timmer wrote in the Ferrell ruling. "This policy would be severely compromised if the state and a defendant could bargain away the defendant's ability to lawfully use medical marijuana."

Timmer found that the trial court improperly denied the state's request to withdraw the agreement, however, because the agreement explicitly authorized the state's withdrawal if the court denied any probation requirement.

In the other case, a probation officer added a term to Keenan Reed-Kaliher's probation that banned him from marijuana use, even though he was a registered card carrier for chronic pain related to a fractured hip. Reed-Kaliher had been convicted for possession of marijuana for sale and possession of a narcotic drug for sale.

A superior court denied Reed-Kaliher's request to delete the term from his conditions of probation, but the Arizona Court of Appeals found that a qualifying patient under the AMMA cannot "be deprived of the privilege of probation solely based on his medical use of marijuana."

The Supreme Court agreed.

"The state observes that probation conditions can prohibit a wide range of behaviors, even those that are otherwise legal, such as drinking alcohol or being around children," wrote Justice Rebecca Berch. "While the court can condition probation on a probationer's agreement to abstain from lawful conduct, it cannot impose a term that violates Arizona law."

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