Arizona Supreme Court OKs Pot for Patients on Probation, Says No Federal Conflict

Arizona Supreme Court OKs Pot for Patients on Probation, Says No Federal Conflict
Andrew Pielage

The Arizona Supreme Court ruled in two cases today that prosecutors can't ban people on parole or probation from using medical marijuana.

Because medical marijuana is a medicine when used under the state's voter-authorized program, the court stated in its opinions, patients should be allowed to use it -- even when conditions of probation ban the consumption of alcohol.

Interestingly, as part of the rulings, the state's highest court rejected the idea that the Arizona Medical Marijuana Act conflicted with federal law.

See also: -New Marijuana-Legalization Ballot Campaign Launched in Arizona

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State officers, including prosecutors, probation officers and judges, aren't violating their oaths of office by failing to ban convicts from using marijuana as a condition for them to remain on parole or probation, the 5-0 opinion in Reed v. Kaliher states. Quoting from a Michigan case, the judges ruled that "the people of Arizona 'chose to part ways with Congress only regarding the scope of acceptable medical use of marijuana.'"

This clearly takes much of Maricopa County Attorney Bill Montgomery's argument on the topic of a supposed conflict with the federal Controlled Substances Act. Montgomery's still appealing a lawsuit filed against the county by White Mountain Health Center, a Sun City dispensary that opened in December.

State law does prohibit the use of marijuana or prescription drugs except as administered by a "'health care practitioner,' a phrase that suggests the legislature intended to distinguish between illicit use and lawful medicinal use of such drugs," the ruling states.

Medical marijuana is legal under state law, therefore the judges have moved to "harmonize" the law -- essentially catching it up to the 2010 marijuana act. The Arizona Court of Appeals held to a similar opinion in July, but the Cochise County Attorney's Office appealed to the state Supreme Court.

Keenan Reed-Kaliher was convicted of selling marijuana and released from prison in 2011 after serving 1.5 years. He promptly took advantage of the 2010 Medical Marijuana Act, securing a patient card to help manage pain from a hip injury. But the county soon told him he couldn't do that, and revised his three-year probation terms to include a ban on using medical marijuana. Reed-Kaliher, with the help of lawyers Tom Dean, Sarah Mayhew and David Euchner, took on the system -- and won.

The Arizona medical-cannabis law states that legit patients are "not subject to... denial of any right or privilege, including any civil penalty or disciplinary action by a court."

Probation and parole, you may not have realized, are technically privileges in the eyes of the law. That was the gist of the second case on the matter addressed by the state's high court today, too. In that case, Jennifer Ferrell was convicted for DUI and signed a plea agreement that contained a ban on using marijuana as a condition of her probation. The agreement stated that the ban would be in effect "whether or not (Ferrell) had a medical-marijuana card."

The trial court refused to let Yavapai County Attorney Sheila Polk, an ardent foe of legal marijuana, back out of the agreement. Polk turned to the state Appeals Court, which backed her up.

But the prohibitionists' hopes came unraveled in July, when the Appeals Court ruled that Reed-Kaliher could use marijuana, and with today's state Supreme Court ruling.

State prosecutors actually have it backwards -- especially for violent convicts, they ought to consider making the use of medical marijuana a probation requirement.

Got a tip? Send it to: Ray Stern.

Follow Valley Fever on Twitter at @ValleyFeverPHX. Follow Ray Stern on Twitter at @RayStern.

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