The Colorado Court of Appeals issued its opinion in People v. Watkins on February 2, 2012.
Probation—Medical Marijuana—Federal Law—Offense.
The People appealed the trial court’s order denying a motion for reconsideration of a previous order approving the use of marijuana for medical purposes by defendant, who is a probationer. The order was vacated and the case was remanded with directions.
The written conditions of defendant’s probation, to which he expressly agreed, include provisions that (1) he will not violate any laws; (2) he will not use or possess any narcotic, dangerous, or abusable substances without a prescription; (3) drug and alcohol evaluation and treatment would be left to the discretion of the probation department; and (4) he will not purchase, possess, or use any mind-altering or consciousness-altering substances without a written lawful prescription. The prosecution argued that the trial court erred in allowing defendant to use marijuana for medical purposes because it is prohibited by federal criminal statutes.
An “offense” under CRS § 18-1.3-204(1) includes any violation of a statute or ordinance for which confinement is authorized as a penalty. Federal law makes it unlawful for any person to knowingly or intentionally possess marijuana. Any person who violates prohibition may be sentenced to prison for not more than one year. Therefore, defendant’s federally prohibited use of medical marijuana would constitute an “offense” within the meaning of CRS § 18-1.3-104(1) and violate the terms of his probation. Furthermore, Colorado’s Medical Use of Marijuana Amendment only allows a physician to provide “written documentation” stating that the patient has a debilitating medical condition and might benefit from the medical use of marijuana. Therefore, defendant’s physician’s certification does not constitute a “written lawful prescription” as required by the terms of his probation.
Therefore, defendant’s alleged constitutional right to use medical marijuana may be curtailed during the term of his probationary sentence. The trial court’s order approving defendant’s use of marijuana for medical purposes while on probation was vacated and the case was remanded for further proceedings consistent with this opinion.