So I committed a felony (not drug related) and received probation as punishment.....when they asked me at the probation office if I "use substances" i said no. however, i applied and received a med cannibus prescription (for stress and anxiety) after the meeting with the evaluating po. My question is this....Should i mention that i have the prescription? If my po finds out (by me telling him or by any other means) about my prescription will i be charged with violating probation (for lieing or not obeying all laws)?
Aquired Med Card on Probation
- Thread starter Khach
- Start date
Smokin Moose
Fallen Cannabis Warrior & Ex Moderator
Strive4Wisdom
New Member
If you are being drug tested then it's something you are going to have to bring up. If you arent being tested then you might not want to bring it up.
The law says that if a physician recommends a medication and asserts it as beneficial to your health, then you are allowed to use that medication. So marijuana is condidered a legal medication, and you are allowed to use.
The only way you would run into trouble is if they deemed marijuana to be the cause of your violation, or violent behavior, etc... And then they could try and take it before a judge and say marijuana can cause violent/law breaking behavior.
But court rulings have also prohibited judges and juries from second guessing the diagnoses of a licenced physician.
So as long as your card is not fraudulant and you didnt do something crazy for them to believe your marijuana use would be hazardous to you or the public, then you shouldnt have problems.
My advice is to stay clean if you are being tested and then bring it up. That way if you have a PO on a high horse and he makes you piss to try and get a violation on you, you'll still be clean and avoid hassle.
Then you can request a probation modification where the judge knows you have obtained the card legally and have the proper documentation.
But my friend just showed his PO his documentation and that was that, the PO knew it was the law and didnt cause any hassles...
Let me know how it goes I'm in the same situation but have yet to obtain my card. Im being tested. I had possession, evading arrest, and DUI due to being under the influence of a hallucinogen (mushrooms) so I might run into opposition since I had a more serious case...
Good thing was my behavior was due to being under the influence of mushrooms, not cannabis. So they have nothing on me there.
But as soon as I get my card I'll let everyone know how it goes down. I still have to see an orthopedic surgeon and if he can't do anything for my shoulder I'll be making my way to a physician who can recommend some cannabis for me. Anti-inflammatories and synthetic opiates are hell!
The law says that if a physician recommends a medication and asserts it as beneficial to your health, then you are allowed to use that medication. So marijuana is condidered a legal medication, and you are allowed to use.
The only way you would run into trouble is if they deemed marijuana to be the cause of your violation, or violent behavior, etc... And then they could try and take it before a judge and say marijuana can cause violent/law breaking behavior.
But court rulings have also prohibited judges and juries from second guessing the diagnoses of a licenced physician.
So as long as your card is not fraudulant and you didnt do something crazy for them to believe your marijuana use would be hazardous to you or the public, then you shouldnt have problems.
My advice is to stay clean if you are being tested and then bring it up. That way if you have a PO on a high horse and he makes you piss to try and get a violation on you, you'll still be clean and avoid hassle.
Then you can request a probation modification where the judge knows you have obtained the card legally and have the proper documentation.
But my friend just showed his PO his documentation and that was that, the PO knew it was the law and didnt cause any hassles...
Let me know how it goes I'm in the same situation but have yet to obtain my card. Im being tested. I had possession, evading arrest, and DUI due to being under the influence of a hallucinogen (mushrooms) so I might run into opposition since I had a more serious case...
Good thing was my behavior was due to being under the influence of mushrooms, not cannabis. So they have nothing on me there.
But as soon as I get my card I'll let everyone know how it goes down. I still have to see an orthopedic surgeon and if he can't do anything for my shoulder I'll be making my way to a physician who can recommend some cannabis for me. Anti-inflammatories and synthetic opiates are hell!
Smokin Moose
Fallen Cannabis Warrior & Ex Moderator
2. Are you a California "qualified medical marijuana patient"* who is under house arrest, on probation or parole or enrolled in Prop 36 or another diversion program and facing negative consequences for your patient status?
To begin, we just want to say how sorry we are that you are having issues with medical marijuana and imprisonment-related issues. Unfortunately, because you have had previous interactions with the justice system, your rights are different than those patients who have not. However, you d*o still have rights. Choose *from the four questions below to learn about them:
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I. Are you a medical marijuana patient in jail or under house arrest?
According to California Health and Safety Code § 11362.785 (SB 420):
1. "Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained.
2. Notwithstanding subdivision (a), a person shall not be prohibited or prevented from obtaining and submitting the written information and documentation necessary to apply for an identification card on the basis that the person is incarcerated in a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained.
3. Nothing in this article shall prohibit a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained, from permitting a prisoner or a person under arrest who has an identification card, to use marijuana for medical purposes under circumstances that will not endanger the health or safety of other prisoners or the security of the facility."
In layperson's terms this means that medical marijuana patients in jail may submit their information to a County Department of Health to apply for a state medical marijuana ID card. However, a correctional facility is not required to accommodate use of medical marijuana, and it is up to the discretion of the correctional facility supervisor as to whether a patient with a state-issued ID card may medicate during his/her detention, if that medication "will not endanger the health and safety of other prisoners or the security of the facility."
In order to influence the supervisor of your correctional facility to use his/her discretion to let you medicate during your detention, obtain a state medical marijuana ID card (if you are able), and offer possible scenarios in which your medication would not deleteriously affect other prisoners. These scenarios might include allowing you to use edibles or tinctures or setting up a designated medication area. In your appeal, you can also reference the words of current San Francisco County Sheriff Mike Hennessey, who said he would allow terminally ill medical marijuana patients to medicate in jail.
If you are a medical marijuana patient who is serving a part (or all) of your detention in a residence, under house arrest, or in a transitional home, your rights are similar to those of a patient in an actual correctional facility. Because you are still serving the sentence you received (as opposed to having completed it, and being on parole/probation), it is like you are in jail, except that the supervisor whose discretion you need to appeal to will more likely be the County Probation Department or transitional house supervisor, as opposed to the warden. In your appeal, you should note that the fact that you are either in a non-correctional residence or a transition house, and the likelihood of your medication "endangering the health and safety of other prisoners or the security of the facility" is greatly decreased by not being in an actual correctional facility. You may also want to acknowledge that you are aware of the differences between your situation and probation, but that there is a California Appellate Court (3rd District) decision that says not allowing a medical marijuana patient to medicate on probation is unreasonable. Unfortunately, it remains unlikely that the decisionmaker will decide to allow you to medicate during your period of detention.
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II. Are you a medical marijuana patient who is having difficulties while enrolled in a Prop 36 or other diversion program?
Prop 36 is a program approved by voter-initiative in 2000 that allows first or second time non-violent adult drug offenders who are charged with use, possession, or transportation of illegal drugs for personal use to receive drug treatment instead of incarceration. In this way, it is similar to house arrest or transitional houses in that you are enrolled in a Prop 36 program in lieu of your jail sentence, but you are not in a correctional facility. Hence, you should appeal to the supervisor of your program to use her/his discretion to allow to you medicate while enrolled in a Prop 36 program. You many want to obtain a state medical marijuana ID card if you are able in order to provide a copy to the supervisor. However, success is more unlikely in this situation than in the house arrest context (See Section I of this FAQ), since the mission of Prop 36 is drug treatment, and the administrators may not understand the role that medical marijuana plays in your life.
Additionally, the Prop 36 statute (California Penal Code § 1210.1(a)) itself says:
"As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court may also impose, as a condition of probation, participation in vocational training, family counseling, literacy training and/or community service. A court may not impose incarceration as an additional condition of probation. Aside from the limitations imposed in this subdivision, the trial court is not otherwise limited in the type of probation conditions it may impose."
This lack of limitation on the types of probation conditions a judge may impose on a Prop 36 patient (unlike the determination made by the Court regarding probation in People v. Tilehkooh) suggests that an appeal to a judge's discretion in this case may be less successful than one from a patient on probation or parole. Nonetheless, if you are under the control of Probation Department, you should present People v. Tilehkooh and demonstrate the similarities between your situation and that of Tilehkooh. Unfortunately, it is unlikely that you will be allowed to medicate while on Prop 36.
While other diversion programs that serve as alternatives to incarceration may not include similar authorizing language regarding possible probation conditions, the same issues remain, and if the goal of the diversion program is drug treatment, then it is also unlikely that you will be allowed to medicate while in the program.
NOTE: This emphasis on drug treatment and its relationship to medical marijuana is exactly why ASA suggests that qualified patients who are charged with marijuana offenses should not choose Prop 36 or other diversion programs in lieu of going to court if they are able to do so, and they should instead refer to Section I of the preceding FAQ if faced with state charges.
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III. Are you a medical marijuana patient who is having difficulties with probation?
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A. Are you a patient who would like to discuss medical marijuana with your probation officer?
If the court is not forcing you to test for marijuana, and your Probation Officer is unaware of your patient status, you may not want to mention it until you actually have issues.
However, if you are being tested (and will likely test positive) or your Probation Officer is aware of your medical marijuana patient status, you should present a copy of your recommendation and print a copy of People v. Tilehkooh and ask your probation officer to put them into your file. Explain to your Probation Officer that this case states that it is an unreasonable probation condition to test medical marijuana patients for marijuana, and it affirmatively allows patients to possess, transport, and cultivate their medicine. Try to create a written agreement with your Probation Officer.
To be even safer, you should ask the Public Defender that you had for your original offense to request a Probation Condition Modification Hearing. As a medical marijuana patient, you have the right to get a judge to confirm that you may use your medicine.
California Health and Safety Code § 11362.795(a) (SB 420) states:
1. "Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail.
2. The court's decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court.
3. During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana.
4. The court's consideration of the modification request authorized by this subdivision shall comply with the requirements of this section."
At the Probation Condition Modification Hearing, have your Public Defender present your recommendation and a copy of the Appellate Court (3rd District) decision, People v. Tilehkooh. Ask the judge for an affirmative order to be able to possess, transport and cultivate at least 8 oz. of medical marijuana and 6 mature or 12 immature plants, just like any other California qualified patient.
In the 2003 case of People v. Tilehkooh, 113 Cal.App.4th 1433 (Cal.App. 3rd Dist., 2003) the 3rd District Appellate Court disagreed with its own 2001 ruling in People v. Bianco, 93 Cal.App.4th 748 (Cal.App. 3rd Dist., 2001), and stated that no rehabilitative purpose is served by a probation condition that denies a qualified patient the ability to medicate in cases where there is no claim of diversion or any connection between the prohibition and the original offense.
Unless a different Appellate Court issues a published decision directly contradicting the premise of this case, People v. Tilehkooh should constitute mandatory authority that all Superior Court judges should follow. It is however, important to note that in People v. Berry, 52 Cal.Rptr.3d 634 (Cal.App. 5th Dist., 2006) the 5th District Appellate Court distinguished Tilehkooh, upholding a restrictive marijuana probation condition where it was reasonably related to the original offense (such as in this case where the defendant, who had pled no contest to possession of PCP, had used marijuana as a delivery system for PCP). Additionally, if a judge denies a patient's request for confirmation that he/she can medicate, and follows the requirements of California Health and Safety Code § 11362.795(a), appeals may be difficult because of the wording of the statute.
Finally, medical marijuana patients who are on Federal Probation (alternatively known as Federal Supervised Release) do not have the right to ask a judge to confirm that they may use their medicine. However, if patients have a prescription for Marinol, and use both Marinol and medical marijuana, positive results on most drug tests (though not all) cannot differentiate between the two.
Patient Anecdote: Several patients have told me that their Probation Officers have said that the doctor's recommendations are invalid because the signing doctor was not local or had not been "approved" by the County Probation Department. Remember, you have the power to choose which doctor you see, not the County Probation Department. According to SB 420, a recommendation is valid if it is issued by an "Attending Physician", which is an individual who possesses a license in good standing to practice medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of California. Any physician who satisfies this criterion may issue a valid recommendation, whether or not the County Probation Department is willing to recognize it as such.
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B. Are you a patient who has been charged with a probation violation?
1. Arraignment
Your first court appearance will be an arraignment where the judge will ask you to plead Guilty or Not-Guilty. We advise you to show up well-dressed and early to your arraignment (ideally a half-hour before), and make contact with the Public Defender on duty who will likely appear in the front of the courtroom addressing the audience. Please be aware that Public Defenders have many cases, so be polite. Keep in Mind: This Public Defender on duty will only represent you at this appearance, and you will likely receive a different Public Defender for the duration of your case after pleading Not Guilty if you qualify under your county's standards.
Please bring with you two (2) copies of the following to give to the Public Defender on duty:
* Your recommendation (and any other relevant recommendations for collective situations); also, bring the original recommendation for verification purposes, just in case.
* Your state medical marijuana identification card, if you have one (See this list of counties participating in the state ID card program).
*
People v. Tilehkooh, 113 Cal.App.4th 1433 (Cal.App. 3rd Dist., 2003). In a 2003 decision, the 3rd District Appellate Court disagreed with its own 2001 ruling in People v. Bianco, 93 Cal.App.4th 748 (Cal.App. 3rd Dist., 2001), and stated that no rehabilitative purpose is served by a probation condition that denies a qualified patient the ability to medicate in cases where there is no claim of diversion or any connection between the prohibition and the original offense.
Unless a different Appellate Court issues a published decision directly contradicting the premise of this case, People v. Tilehkooh should constitute mandatory authority that all Superior Court judges* should follow. It is however, important to note that People v. Berry, 52 Cal.Rptr.3d 634 (Cal.App. 5th Dist., 2006) did distinguish Tilehkooh, in that where a restrictive marijuana probation condition is reasonably related to the original offense (such as in this case where the defendant, who had pled no contest to possession of PCP, had used marijuana as a delivery system for PCP), the 5th District Appellate Court would uphold it.
Give the Public Defender on duty these documents, note that your original offense was unrelated to marijuana, if this is so, and that there is no evidence of diversion (if appropriate), and explain that, as a California qualified patient on probation with less medical marijuana than the minimum allowed under the guidelines, you were simply exercising your rights under the law, and have done nothing illegal. Then, ask the Public Defender to bring your documentation to the District Attorney (DA) on duty before your arraignment, and attempt to explain your situation in an effort to get the DA to dismiss the case without even having to plead.
Sometimes, this will work, and the DA will decline to pursue charges. However, often, because of a DA or a judge who refuses to recognize settled law, the case will continue. If so, you will be arraigned, and, when standing in front of the judge, you are likely advised to plead Not Guilty, as you will not waive any of your rights, and can always choose to accept a deal and plead Guilty later in the process. At this point (or soon after) you are likely to be assigned a Public Defender to represent you for the duration of the case.
2. Motions Hearings, Pre-trial Hearing
After your Arraignment, your Public Defender will represent you at several hearings at which she/he can argue motions and set the parameters for trial.
You should ask your Public Defender to raise the medical marijuana defense during these hearings by making a Motion to Set Aside the Indictment or Information under Penal Code § 995, otherwise known as a "Section 995 Motion to Dismiss", and in it, he should cite People v. Tilehkooh.
Contact ASA's Legal Coordinator if your Public Defender is having trouble getting your case dismissed, and you would like him/her to consult with ASA's Legal Department on medical marijuana and legal strategy matters.
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IV. Are you a medical marijuana patient who is having difficulties with parole?
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A. Are you in a county whose Department of Health issues the state medical marijuana ID card?
According to California Health and Safety Code § 11362.795(b) (SB 420)
1. Any person who is to be released on parole from a jail, state prison, school, road camp, or other state or local institution of confinement and who is eligible to use medical marijuana pursuant to Section 11362.5 may request that he or she be allowed to use medical marijuana during the period he or she is released on parole. A parolee's written conditions of parole shall reflect whether or not a request for a modification of the conditions of his or her parole to use medical marijuana was made, and whether the request was granted or denied.
2. During the period of the parole, where a physician recommends that the parolee use medical marijuana, the parolee may request a modification of the conditions of the parole to authorize the use of medical marijuana.
3. Any parolee whose request to use medical marijuana while on parole was denied may pursue an administrative appeal of the decision. Any decision on the appeal shall be in writing and shall reflect the reasons for the decision.
4. The administrative consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.
Additionally, the California Department of Corrections and Rehabilitation clarified this law in 2005 memorandum (Policy Number 05-21) referencing SB 420's state ID cards:
"Parolees who qualify to obtain a medical marijuana identification card to possess a prescribed amount of marijuana for medical purposes shall ensure that their assigned Parole Agent receives a copy of the identification card for placement in the parolee's field file prior to the parolee obtaining possession of the marijuana. The parolee . . . will not be subject to substance testing for marijuana while under the parole custody and supervision of the California Department of Corrections and Rehabilitation."
If you are a patient-parolee not currently being tested for marijuana, and your Parole Officer is unaware of your patient status, you may not want to mention it until you have issues. Otherwise, if you reside in one of the listed counties, apply for the voluntary state medical marijuana ID card. After you receive the card, make a copy of it (both sides), and give it to your Parole Officer to place in your Parole file, along with a printed copy of the California Parole Policy. This should help guarantee that you can legally use/possess/cultivate/transport your medicine under the guidelines, and please alert Contact ASA's Legal Coordinator if your Parole Officer finds this to be insufficient.
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B. Are you in a county whose Department of Health does not issue the state medical marijuana ID card?
According to California Health and Safety Code § 11362.795(b) (SB 420):
1. "Any person who is to be released on parole from a jail, state prison, school, road camp, or other state or local institution of confinement and who is eligible to use medical marijuana pursuant to Section 11362.5 may request that he or she be allowed to use medical marijuana during the period he or she is released on parole. A parolee's written conditions of parole shall reflect whether or not a request for a modification of the conditions of his or her parole to use medical marijuana was made, and whether the request was granted or denied.
2. During the period of the parole, where a physician recommends that the parolee use medical marijuana, the parolee may request a modification of the conditions of the parole to authorize the use of medical marijuana.
3. Any parolee whose request to use medical marijuana while on parole was denied may pursue an administrative appeal of the decision. Any decision on the appeal shall be in writing and shall reflect the reasons for the decision.
4. The administrative consideration of the modification request authorized by this subdivision shall comply with the requirements of this section."
Additionally, the California Department of Corrections and Rehabilitation clarified this law in 2005 memorandum (Policy Number 05-21) referencing SB 420's State ID cards:
"Parolees who qualify to obtain a medical marijuana identification card to possess a prescribed amount of marijuana for medical purposes shall ensure that their assigned Parole Agent receives a copy of the identification card for placement in the parolee's field file prior to the parolee obtaining possession of the marijuana. The parolee . . . will not be subject to substance testing for marijuana while under the parole custody and supervision of the California Department of Corrections and Rehabilitation."
If you are a patient-parolee not currently being tested for marijuana, and your Parole Officer is unaware of your patient status, you may not want to mention it until you have issues. Otherwise, since do you not reside in one of the listed counties, and your county continues to refuse to implement California state law, you are unable to apply for the voluntary state medical marijuana ID card. Make a copy of your doctor's recommendation, and give it to your Parole Officer to place in your Parole file, along with a printed copy of the California Parole Policy.
Explain to your Parole Officer that you would get a state medical marijuana ID card if you were able, but that you should not be denied the same rights that you would have living in a friendlier county. Explain that, under California law, a "qualified patient" is one who has obtained "the written or oral recommendation or approval of a physician" to use marijuana medicinally. (Cal. Health & Saf. Code § 11362.5, subd. (d)). Although the California legislature has established a voluntary identification card system implemented by counties to assist law enforcement officers confirm the status of qualified medical marijuana patients (see Cal. Health & Saf. Code § 11362.71, subd. (a)), it made clear in doing so that "t shall not be required for a person to obtain an identification card in order to claim the protections of [the Compassionate Use Act]." (Cal. Health & Saf. Code § 11362.71, subd. (f).) Thus, under neither the Compassionate Use Act (Prop 215) nor the Medical Marijuana Program Act (SB 420) is it necessary for a parolee to obtain a county-issued medical marijuana identification card, in addition to a physician's written recommendation, to obtain the legal protections of California's medical marijuana laws.
Please contact Contact ASA's Legal Coordinator if you reside in a county that does not issue medical marijuana ID cards and your Parole Officer refuses to modify your Parole Conditions.
NOTES:
*The term "qualified medical marijuana patient" is a person with an up-to-date recommendation to use marijuana for medical purposes from a licensed physician in the state of CA. People v. Wright, states: "A person is entitled to the protections of the Compassionate Use Act if that person is a 'seriously ill' Californian whose use of marijuana 'has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief." (Cal. Health & Safety Code § 11362.5, subd. (b)(1)(A), People v. Wright, 14-15).
To begin, we just want to say how sorry we are that you are having issues with medical marijuana and imprisonment-related issues. Unfortunately, because you have had previous interactions with the justice system, your rights are different than those patients who have not. However, you d*o still have rights. Choose *from the four questions below to learn about them:
-+
I. Are you a medical marijuana patient in jail or under house arrest?
According to California Health and Safety Code § 11362.785 (SB 420):
1. "Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained.
2. Notwithstanding subdivision (a), a person shall not be prohibited or prevented from obtaining and submitting the written information and documentation necessary to apply for an identification card on the basis that the person is incarcerated in a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained.
3. Nothing in this article shall prohibit a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained, from permitting a prisoner or a person under arrest who has an identification card, to use marijuana for medical purposes under circumstances that will not endanger the health or safety of other prisoners or the security of the facility."
In layperson's terms this means that medical marijuana patients in jail may submit their information to a County Department of Health to apply for a state medical marijuana ID card. However, a correctional facility is not required to accommodate use of medical marijuana, and it is up to the discretion of the correctional facility supervisor as to whether a patient with a state-issued ID card may medicate during his/her detention, if that medication "will not endanger the health and safety of other prisoners or the security of the facility."
In order to influence the supervisor of your correctional facility to use his/her discretion to let you medicate during your detention, obtain a state medical marijuana ID card (if you are able), and offer possible scenarios in which your medication would not deleteriously affect other prisoners. These scenarios might include allowing you to use edibles or tinctures or setting up a designated medication area. In your appeal, you can also reference the words of current San Francisco County Sheriff Mike Hennessey, who said he would allow terminally ill medical marijuana patients to medicate in jail.
If you are a medical marijuana patient who is serving a part (or all) of your detention in a residence, under house arrest, or in a transitional home, your rights are similar to those of a patient in an actual correctional facility. Because you are still serving the sentence you received (as opposed to having completed it, and being on parole/probation), it is like you are in jail, except that the supervisor whose discretion you need to appeal to will more likely be the County Probation Department or transitional house supervisor, as opposed to the warden. In your appeal, you should note that the fact that you are either in a non-correctional residence or a transition house, and the likelihood of your medication "endangering the health and safety of other prisoners or the security of the facility" is greatly decreased by not being in an actual correctional facility. You may also want to acknowledge that you are aware of the differences between your situation and probation, but that there is a California Appellate Court (3rd District) decision that says not allowing a medical marijuana patient to medicate on probation is unreasonable. Unfortunately, it remains unlikely that the decisionmaker will decide to allow you to medicate during your period of detention.
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II. Are you a medical marijuana patient who is having difficulties while enrolled in a Prop 36 or other diversion program?
Prop 36 is a program approved by voter-initiative in 2000 that allows first or second time non-violent adult drug offenders who are charged with use, possession, or transportation of illegal drugs for personal use to receive drug treatment instead of incarceration. In this way, it is similar to house arrest or transitional houses in that you are enrolled in a Prop 36 program in lieu of your jail sentence, but you are not in a correctional facility. Hence, you should appeal to the supervisor of your program to use her/his discretion to allow to you medicate while enrolled in a Prop 36 program. You many want to obtain a state medical marijuana ID card if you are able in order to provide a copy to the supervisor. However, success is more unlikely in this situation than in the house arrest context (See Section I of this FAQ), since the mission of Prop 36 is drug treatment, and the administrators may not understand the role that medical marijuana plays in your life.
Additionally, the Prop 36 statute (California Penal Code § 1210.1(a)) itself says:
"As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court may also impose, as a condition of probation, participation in vocational training, family counseling, literacy training and/or community service. A court may not impose incarceration as an additional condition of probation. Aside from the limitations imposed in this subdivision, the trial court is not otherwise limited in the type of probation conditions it may impose."
This lack of limitation on the types of probation conditions a judge may impose on a Prop 36 patient (unlike the determination made by the Court regarding probation in People v. Tilehkooh) suggests that an appeal to a judge's discretion in this case may be less successful than one from a patient on probation or parole. Nonetheless, if you are under the control of Probation Department, you should present People v. Tilehkooh and demonstrate the similarities between your situation and that of Tilehkooh. Unfortunately, it is unlikely that you will be allowed to medicate while on Prop 36.
While other diversion programs that serve as alternatives to incarceration may not include similar authorizing language regarding possible probation conditions, the same issues remain, and if the goal of the diversion program is drug treatment, then it is also unlikely that you will be allowed to medicate while in the program.
NOTE: This emphasis on drug treatment and its relationship to medical marijuana is exactly why ASA suggests that qualified patients who are charged with marijuana offenses should not choose Prop 36 or other diversion programs in lieu of going to court if they are able to do so, and they should instead refer to Section I of the preceding FAQ if faced with state charges.
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III. Are you a medical marijuana patient who is having difficulties with probation?
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A. Are you a patient who would like to discuss medical marijuana with your probation officer?
If the court is not forcing you to test for marijuana, and your Probation Officer is unaware of your patient status, you may not want to mention it until you actually have issues.
However, if you are being tested (and will likely test positive) or your Probation Officer is aware of your medical marijuana patient status, you should present a copy of your recommendation and print a copy of People v. Tilehkooh and ask your probation officer to put them into your file. Explain to your Probation Officer that this case states that it is an unreasonable probation condition to test medical marijuana patients for marijuana, and it affirmatively allows patients to possess, transport, and cultivate their medicine. Try to create a written agreement with your Probation Officer.
To be even safer, you should ask the Public Defender that you had for your original offense to request a Probation Condition Modification Hearing. As a medical marijuana patient, you have the right to get a judge to confirm that you may use your medicine.
California Health and Safety Code § 11362.795(a) (SB 420) states:
1. "Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail.
2. The court's decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court.
3. During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana.
4. The court's consideration of the modification request authorized by this subdivision shall comply with the requirements of this section."
At the Probation Condition Modification Hearing, have your Public Defender present your recommendation and a copy of the Appellate Court (3rd District) decision, People v. Tilehkooh. Ask the judge for an affirmative order to be able to possess, transport and cultivate at least 8 oz. of medical marijuana and 6 mature or 12 immature plants, just like any other California qualified patient.
In the 2003 case of People v. Tilehkooh, 113 Cal.App.4th 1433 (Cal.App. 3rd Dist., 2003) the 3rd District Appellate Court disagreed with its own 2001 ruling in People v. Bianco, 93 Cal.App.4th 748 (Cal.App. 3rd Dist., 2001), and stated that no rehabilitative purpose is served by a probation condition that denies a qualified patient the ability to medicate in cases where there is no claim of diversion or any connection between the prohibition and the original offense.
Unless a different Appellate Court issues a published decision directly contradicting the premise of this case, People v. Tilehkooh should constitute mandatory authority that all Superior Court judges should follow. It is however, important to note that in People v. Berry, 52 Cal.Rptr.3d 634 (Cal.App. 5th Dist., 2006) the 5th District Appellate Court distinguished Tilehkooh, upholding a restrictive marijuana probation condition where it was reasonably related to the original offense (such as in this case where the defendant, who had pled no contest to possession of PCP, had used marijuana as a delivery system for PCP). Additionally, if a judge denies a patient's request for confirmation that he/she can medicate, and follows the requirements of California Health and Safety Code § 11362.795(a), appeals may be difficult because of the wording of the statute.
Finally, medical marijuana patients who are on Federal Probation (alternatively known as Federal Supervised Release) do not have the right to ask a judge to confirm that they may use their medicine. However, if patients have a prescription for Marinol, and use both Marinol and medical marijuana, positive results on most drug tests (though not all) cannot differentiate between the two.
Patient Anecdote: Several patients have told me that their Probation Officers have said that the doctor's recommendations are invalid because the signing doctor was not local or had not been "approved" by the County Probation Department. Remember, you have the power to choose which doctor you see, not the County Probation Department. According to SB 420, a recommendation is valid if it is issued by an "Attending Physician", which is an individual who possesses a license in good standing to practice medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of California. Any physician who satisfies this criterion may issue a valid recommendation, whether or not the County Probation Department is willing to recognize it as such.
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B. Are you a patient who has been charged with a probation violation?
1. Arraignment
Your first court appearance will be an arraignment where the judge will ask you to plead Guilty or Not-Guilty. We advise you to show up well-dressed and early to your arraignment (ideally a half-hour before), and make contact with the Public Defender on duty who will likely appear in the front of the courtroom addressing the audience. Please be aware that Public Defenders have many cases, so be polite. Keep in Mind: This Public Defender on duty will only represent you at this appearance, and you will likely receive a different Public Defender for the duration of your case after pleading Not Guilty if you qualify under your county's standards.
Please bring with you two (2) copies of the following to give to the Public Defender on duty:
* Your recommendation (and any other relevant recommendations for collective situations); also, bring the original recommendation for verification purposes, just in case.
* Your state medical marijuana identification card, if you have one (See this list of counties participating in the state ID card program).
*
People v. Tilehkooh, 113 Cal.App.4th 1433 (Cal.App. 3rd Dist., 2003). In a 2003 decision, the 3rd District Appellate Court disagreed with its own 2001 ruling in People v. Bianco, 93 Cal.App.4th 748 (Cal.App. 3rd Dist., 2001), and stated that no rehabilitative purpose is served by a probation condition that denies a qualified patient the ability to medicate in cases where there is no claim of diversion or any connection between the prohibition and the original offense.
Unless a different Appellate Court issues a published decision directly contradicting the premise of this case, People v. Tilehkooh should constitute mandatory authority that all Superior Court judges* should follow. It is however, important to note that People v. Berry, 52 Cal.Rptr.3d 634 (Cal.App. 5th Dist., 2006) did distinguish Tilehkooh, in that where a restrictive marijuana probation condition is reasonably related to the original offense (such as in this case where the defendant, who had pled no contest to possession of PCP, had used marijuana as a delivery system for PCP), the 5th District Appellate Court would uphold it.
Give the Public Defender on duty these documents, note that your original offense was unrelated to marijuana, if this is so, and that there is no evidence of diversion (if appropriate), and explain that, as a California qualified patient on probation with less medical marijuana than the minimum allowed under the guidelines, you were simply exercising your rights under the law, and have done nothing illegal. Then, ask the Public Defender to bring your documentation to the District Attorney (DA) on duty before your arraignment, and attempt to explain your situation in an effort to get the DA to dismiss the case without even having to plead.
Sometimes, this will work, and the DA will decline to pursue charges. However, often, because of a DA or a judge who refuses to recognize settled law, the case will continue. If so, you will be arraigned, and, when standing in front of the judge, you are likely advised to plead Not Guilty, as you will not waive any of your rights, and can always choose to accept a deal and plead Guilty later in the process. At this point (or soon after) you are likely to be assigned a Public Defender to represent you for the duration of the case.
2. Motions Hearings, Pre-trial Hearing
After your Arraignment, your Public Defender will represent you at several hearings at which she/he can argue motions and set the parameters for trial.
You should ask your Public Defender to raise the medical marijuana defense during these hearings by making a Motion to Set Aside the Indictment or Information under Penal Code § 995, otherwise known as a "Section 995 Motion to Dismiss", and in it, he should cite People v. Tilehkooh.
Contact ASA's Legal Coordinator if your Public Defender is having trouble getting your case dismissed, and you would like him/her to consult with ASA's Legal Department on medical marijuana and legal strategy matters.
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IV. Are you a medical marijuana patient who is having difficulties with parole?
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A. Are you in a county whose Department of Health issues the state medical marijuana ID card?
According to California Health and Safety Code § 11362.795(b) (SB 420)
1. Any person who is to be released on parole from a jail, state prison, school, road camp, or other state or local institution of confinement and who is eligible to use medical marijuana pursuant to Section 11362.5 may request that he or she be allowed to use medical marijuana during the period he or she is released on parole. A parolee's written conditions of parole shall reflect whether or not a request for a modification of the conditions of his or her parole to use medical marijuana was made, and whether the request was granted or denied.
2. During the period of the parole, where a physician recommends that the parolee use medical marijuana, the parolee may request a modification of the conditions of the parole to authorize the use of medical marijuana.
3. Any parolee whose request to use medical marijuana while on parole was denied may pursue an administrative appeal of the decision. Any decision on the appeal shall be in writing and shall reflect the reasons for the decision.
4. The administrative consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.
Additionally, the California Department of Corrections and Rehabilitation clarified this law in 2005 memorandum (Policy Number 05-21) referencing SB 420's state ID cards:
"Parolees who qualify to obtain a medical marijuana identification card to possess a prescribed amount of marijuana for medical purposes shall ensure that their assigned Parole Agent receives a copy of the identification card for placement in the parolee's field file prior to the parolee obtaining possession of the marijuana. The parolee . . . will not be subject to substance testing for marijuana while under the parole custody and supervision of the California Department of Corrections and Rehabilitation."
If you are a patient-parolee not currently being tested for marijuana, and your Parole Officer is unaware of your patient status, you may not want to mention it until you have issues. Otherwise, if you reside in one of the listed counties, apply for the voluntary state medical marijuana ID card. After you receive the card, make a copy of it (both sides), and give it to your Parole Officer to place in your Parole file, along with a printed copy of the California Parole Policy. This should help guarantee that you can legally use/possess/cultivate/transport your medicine under the guidelines, and please alert Contact ASA's Legal Coordinator if your Parole Officer finds this to be insufficient.
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B. Are you in a county whose Department of Health does not issue the state medical marijuana ID card?
According to California Health and Safety Code § 11362.795(b) (SB 420):
1. "Any person who is to be released on parole from a jail, state prison, school, road camp, or other state or local institution of confinement and who is eligible to use medical marijuana pursuant to Section 11362.5 may request that he or she be allowed to use medical marijuana during the period he or she is released on parole. A parolee's written conditions of parole shall reflect whether or not a request for a modification of the conditions of his or her parole to use medical marijuana was made, and whether the request was granted or denied.
2. During the period of the parole, where a physician recommends that the parolee use medical marijuana, the parolee may request a modification of the conditions of the parole to authorize the use of medical marijuana.
3. Any parolee whose request to use medical marijuana while on parole was denied may pursue an administrative appeal of the decision. Any decision on the appeal shall be in writing and shall reflect the reasons for the decision.
4. The administrative consideration of the modification request authorized by this subdivision shall comply with the requirements of this section."
Additionally, the California Department of Corrections and Rehabilitation clarified this law in 2005 memorandum (Policy Number 05-21) referencing SB 420's State ID cards:
"Parolees who qualify to obtain a medical marijuana identification card to possess a prescribed amount of marijuana for medical purposes shall ensure that their assigned Parole Agent receives a copy of the identification card for placement in the parolee's field file prior to the parolee obtaining possession of the marijuana. The parolee . . . will not be subject to substance testing for marijuana while under the parole custody and supervision of the California Department of Corrections and Rehabilitation."
If you are a patient-parolee not currently being tested for marijuana, and your Parole Officer is unaware of your patient status, you may not want to mention it until you have issues. Otherwise, since do you not reside in one of the listed counties, and your county continues to refuse to implement California state law, you are unable to apply for the voluntary state medical marijuana ID card. Make a copy of your doctor's recommendation, and give it to your Parole Officer to place in your Parole file, along with a printed copy of the California Parole Policy.
Explain to your Parole Officer that you would get a state medical marijuana ID card if you were able, but that you should not be denied the same rights that you would have living in a friendlier county. Explain that, under California law, a "qualified patient" is one who has obtained "the written or oral recommendation or approval of a physician" to use marijuana medicinally. (Cal. Health & Saf. Code § 11362.5, subd. (d)). Although the California legislature has established a voluntary identification card system implemented by counties to assist law enforcement officers confirm the status of qualified medical marijuana patients (see Cal. Health & Saf. Code § 11362.71, subd. (a)), it made clear in doing so that "t shall not be required for a person to obtain an identification card in order to claim the protections of [the Compassionate Use Act]." (Cal. Health & Saf. Code § 11362.71, subd. (f).) Thus, under neither the Compassionate Use Act (Prop 215) nor the Medical Marijuana Program Act (SB 420) is it necessary for a parolee to obtain a county-issued medical marijuana identification card, in addition to a physician's written recommendation, to obtain the legal protections of California's medical marijuana laws.
Please contact Contact ASA's Legal Coordinator if you reside in a county that does not issue medical marijuana ID cards and your Parole Officer refuses to modify your Parole Conditions.
NOTES:
*The term "qualified medical marijuana patient" is a person with an up-to-date recommendation to use marijuana for medical purposes from a licensed physician in the state of CA. People v. Wright, states: "A person is entitled to the protections of the Compassionate Use Act if that person is a 'seriously ill' Californian whose use of marijuana 'has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief." (Cal. Health & Safety Code § 11362.5, subd. (b)(1)(A), People v. Wright, 14-15).
signman2007
New Member
This is just my opinion and experiance from felony PAROLE I just finished. Any felony charge does not warrant the use of medical marijuana because the federal gov does not see it as legal. They can keep you from drinking and that is entirely legal. Now this is just my opinion but you should definately put everything on the table with your PO because it is not pretty for them to find out otherwise. If you show them the card and it is OK then by all means proceed but I can tell you from my experiance that the answer was no and after it was brought up the drug test stepped up as well so be very cautious either way. Your PO has the power to keep you from anything that is not FULLY legal by our systems today and if you just got probation and no time be happy and complete it so you can look back on it as a stepping stone in your life and not as a prison statistic. Believe me the cannabis is a huge reliefe for my problem but it definately is NOT worth going to the big house over! 
Strive4Wisdom
New Member
Very Very true...
Thats why I'm moving slow as possible and reading up on everything I can. My friend had felony DUI and was allowed to use so there is some hope. But everything is def. still a bit hazy.
And again, I would suggest being clean when you bring it up, and thats if you really have to bring it up. When and if I end up having to bring it to the table I will keep everyone posted to get some clearance...
So signman, in what county were you denied? My buddy was originally denied in Santa Clara and came to Monterey county and they allowed it so I know it all depends on who you are dealing with and where...
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I have been reading almost everything i can find on the net about this situation. My plan is to keep clean of thc till i meet with my PO (if the cocksucker ever wants to meet) then im just gonna tell him straight up.....if they count it as violation of probation, then it would just again prove to me how fucked up the people who work for the system are. Ill post up as soon as i can get an answer from Johnny Law.
signman2007
New Member
Now each state is different but as a whole with how touchy the MMJ world is right now I'm guessing you will get the same answer where ever you go on probation. Thats where they make their money is drug test and restitution. Mine was in Colorado. Like you said tho your freind was allowed so there are places that will allow it I suppose. Still not worth it IMO because after you bring it up and the answer is no then you are marked and surley going to be tested but if they say yes you will be good to go...
I had to do a 3 year mandatory tail and everyday I thought about getting my card and just had to wait it out, it sucks I know but let that be a lesson not to get into anymore trouble worked for me!
Strive4Wisdom
New Member
Oh ya, Colorado is a completely different story...
As much as I think about it and want to do it already, I am definitely not in any hurry to jeopardize my freedom. At the same time it seems so possible that I want to go to the doc this second....
But freedom and a hassle free PO is workin out great for me right now so im still gonna take my time and think about it.
As much as I think about it and want to do it already, I am definitely not in any hurry to jeopardize my freedom. At the same time it seems so possible that I want to go to the doc this second....
But freedom and a hassle free PO is workin out great for me right now so im still gonna take my time and think about it.
bmxweasel201
New Member
I just met with my PO today. I had my card for about four days before i met with her. I told her that i just got my MM card. I have a friend who did the same thing and there was no issue at all. It is even the same PO except when he got his there was a sub PO for the one there is now. My PO told me that she will have to submit it as a violation and i will have to go to court and the judge will decide whether or not i can smoke for the rest of my probation. I really think it is bs i have to go through all the shit. My charge was reckless driving WITHOUT the influence of drugs or alcohol. The only problem is that i was arrested for a dui on xtc. I admitted to the cop that i took xtc that night and i had smoked earlier in the day. In the drug test i took after being arrested mdma and weed came up. In the end it was a completely different charge but i feel the judge will not care. I will post after i go to court and the more i hear stuff. I am calling my public defender tomorrow to talk to her. Also if anyone knows good free advice or anything that may help me that would be appreciated.
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