Probationers and medical marijuana

Interesting questions have been presented regarding what would happen if a qualifying patient on probation tested positive for marijuana. Would they be violated or would the Act provide them protection? The short answer is that it is unclear.

The outcome of any violation hearing would be based upon the facts of the particular case. When probation is ordered there are always conditions attached. Usually this includes, but is not limited to, no alcohol consumption, no entering any place that serves alcohol by the glass, no ingestion of illegal drugs and a requirement that the probationer not break any laws. If a person is a qualifying patient, then the qualifying patient’s ingestion of marijuana for medicinal purposes is arguably not illegal. However, marijuana is still illegal under federal law. As such, there is a chance that a Probation Officer and/or court would point to the federal law to support a violation based upon either the prohibition of ingesting illegal drugs or the requirement that the probationer not break any laws.

The safest way to deal with this issue would be to address it before risking a violation for using your medicine. The most logical place to so address would be at the time of sentence. Your lawyer, or yourself, should inform the court that you are a qualifying patient and ask them to specifically exclude being tested for marijuana from the conditions of probation. Have your card handy, as the Judge is likely to want proof of your claim before even entertaining the possibility of such exclusion. If you are already on probation when you become a qualifying patient, you will want to speak to your probation officer to find out their position on the issue and ask them for guidance.

As with many of the discussions on this website, there have been some interesting hypotheticals presented regarding this issue. The best answer that can be given to any hypothetical at this time is that each case must be dealt with on an individual basis, but otherwise the outcome is unclear. We just don’t know how any particular Judge or Probation Officer is going address this issue. Our courts are not permitted to give advisory opinions and the Michigan Medical Marijuana Act has not been in effect long enough for cases to work their way through the courts. Until such a case or cases have worked their way through the system and precedent has been set, a trial court Judge is essentially left to use their discretion in making such decision.