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Probation and Medical Marijuana

Clarkston Legal Feb. 16, 2021

Medical MarijuanaOver the past decade, standing next to clients at their sentencing hearings, I’ve heard many a judge warn defendants that using medical marijuana during probation would land them in jail on a violation. Such warnings came regardless of whether the defendant held a valid medical marijuana registration card.

Until now, some judges would allow a probationer to use medical marijuana, but most would prohibit any marijuana use. The Michigan Court of Appeals decided a case this week clearing the air.

In People v Thue, the defendant was convicted of a road-rage assault resulting from an incident in Traverse County. As a condition of his probation, the defendant could not use marijuana, even medical marijuana for which he held a valid registration card.

When denying the defendant’s motion to modify his probation to allow his use of marijuana, the district court judge relied on the county-wide policy proscribing all marijuana use for probationers, even for medical purposes. The district court was also persuaded by the prosecutor’s argument that sentencing judges had the power to restrict or condition a probationer’s use of medication.

The Michigan Court of Appeals disagreed, reversing the district court’s decision, citing the often-used immunity provision of the medical marijuana statute:

[A] qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act…

In accord with this statutory language, Michigan courts have invalidated portions of many statutes, ordinances or other laws that conflict with the medical marijuana act.

The Court of Appeals expressly held in this case that a condition of probation that prohibits valid medical marijuana use is unenforceable:

[P]rovisions of the probation act that are inconsistent with the MMMA do not apply to the medical use of marijuana. In other words, a condition of probation prohibiting the use of medical marijuana that is otherwise used in accordance with the MMMA is directly in conflict with the MMMA and is impermissible.

The Court’s unanimous opinion will be published, meaning this holding will apply to all probationers in Michigan. All district and circuit courts are now bound by and must follow this rule.

We note that a former colleague from our Attorney General Days, Judge Thomas Cameron, was on this panel. The decision was written by Judge Mark J. Cavanaugh; Judge Deborah Servitto was also on the panel.

Here at Clarkston Legal, we have represented clients who have been fully compliant with the medical marijuana act, yet they have been denied medication while on probation. This was a much-needed decision to deepen the tapestry of Michigan’s medical marijuana jurisprudence.

In one of our recent cases, the probationer was a cancer survivor who relied on her medical marijuana as a form of narcotic-free pain relief. She successfully completed probation, but had to endure 9-months of bone pain to do so.

If you have probation or marijuana expungement issues, we can help. We are experienced criminal defense lawyers addressing these issues since the medical marijuana act was passed in 2008.

Call us for a free consultation.