AZ Supreme Court allows medical marijuana on probation

The Arizona Supreme Court on Tuesday issued two rulings barring courts and prosecutors from denying marijuana use as a term of probation if the convicted felons have valid medical-marijuana cards.

In one case, a man convicted of possessing marijuana for sale in Cochise County was forbidden from using marijuana by a probation officer after he was released from prison.

In the second, a woman pleading guilty to DUI in Yavapai County refused to accept abstention from marijuana as a term of probation, prompting the prosecution to withdraw the plea agreement. Both had valid medical-marijuana cards.

The Supreme Court ruled that both had the right to use marijuana for their medical conditions and that prosecutors and courts could not block that right as a term of probation.

"The Supreme Court is recognizing what the people decided when they passed the initiative: You can use your medicine," said David Euchner, an assistant Pima County public defender.

Euchner argued as a friend of the court in both cases in his role as a member of the executive committee for Arizona Attorneys for Criminal Justice.

The court ruled, however, that the Yavapai County Attorney's Office had the right to withdraw from the offered plea agreement because it had not yet been accepted by a judge.

In 2010, Keenan Reed-Kaliher pleaded guilty to possession of marijuana for sale in Cochise County and was sent to prison for a year and a half.

The Medical Marijuana Act was passed later that year and went into effect in 2011, so it did not affect Reed-Kaliher's plea agreement.

The terms of his probation required that he "obey all laws," according to the Supreme Court decision.

When he was released on probation, Reed-Kaliher's probation officer added the term that he not possess or use marijuana. Reed-Kaliher, who had a valid medical-marijuana card, appealed.

A Cochise County Superior Court judge did not agree with his argument, but the Arizona Court of Appeals did.

Tuesday's decision affirmed the Court of Appeals ruling.

"[I]f the state extends a plea offer that includes probation, it cannot condition the plea on acceptance of a probationary term that would prohibit a qualified patient from using medical marijuana ..." the ruling said.

Prosecutors are not pleased with the ruling.

"It's another example of the problems with initiative drafting and unintended consequences," Maricopa County Attorney Bill Montgomery said in an e-mail to The Arizona Republic. "There was no discussion at the time of the election regarding the impact to case resolutions and the ability for parties to negotiate plea agreements."

Montgomery is a staunch opponent of marijuana use. On March 23, he raised eyebrows during a debate in Tempe over the use of recreational marijuana when he called a veteran who admitted to using the drug an "enemy."

But the defense attorney he faced off against, Marc Victor, said Tuesday's court ruling was just, "because the initiative specifically said your right to use medical marijuana can't be taken away."

Still, Victor found it "bizarre," noting Reed-Kaliher's conviction and "at the same time we're giving you the right to smoke marijuana while you're rehabilitating."

The second case Tuesday covered a slightly different probation angle.

Jennifer Lee Ferrell was arrested in 2012 and charged with DUI.

Pursuant to Yavapai County Attorney's Office policy, Ferrell's plea agreement required her to avoid marijuana as a condition of probation.

The high court said no.

Yavapai County Attorney Sheila Polk is also firmly against marijuana use.

"I implemented the 'no marijuana condition' after the probation department noted a significant increase in the number of probationers obtaining a medical marijuana card to use marijuana while on felony probation," Polk said in an e-mail to The Republic. "My goal — and the goal of the system — is to set convicted felons up to succeed, to find employment and to turn their lives around. Marijuana is not part of that equation."

Polk said she is considering appealing to the U.S. Supreme Court.

The Reed-Kaliher case also addressed whether federal drug laws pre-empted state law and would undo the two court decisions.

The Arizona Supreme Court said no.

"The matter of pre-emption has to be addressed sooner or later," Montgomery said.