Judge May Prohibit Medical Marijuana Use as a Condition of Probation

It is increasingly common for judges nowadays to specify to a defendant being placed on probation that he or she cannot use marijuana. Defendants often respond quickly, “but I have a medical marijuana card, Your Honor.” The judge says, “Sir (or Ma’am), I repeat, you cannot use marijuana in any way, shape or form as a condition of probation. I do not care if you have a medical marijuana card.”

Rhetorically speaking, is this legal? What if the marijuana’s medical purpose is to prevent pain – can a judge make such medical use illegal?

The case of Steven Hughes addressed this issue. Mr. Hughes was convicted of cultivating marijuana (a violation of California Health & Safety Code § 11358), possession of marijuana for sale (a violation of California Health & Safety Code § 11359), and transportation of less than 28.5 grams of marijuana (a violation of California Health & Safety Code § 11360).

His conviction followed a traffic stop wherein his vehicle registration had expired more than six months earlier. When this is the case, police may impound the car. Pursuant to impounding the vehicle, the officers found thirty-eight small marijuana plants. Hughes claimed he was transporting the small plants to a collective at the time, from which he would receive in exchange, medicinal marijuana for his donation.

Riverside County trial judge Timothy Freer granted Hughes formal probation for a period of three years, conditioned on terms that he could not possess medical marijuana pursuant to a valid medical marijuana prescription for treatment of pain.

Hughes appealed the probation condition, on grounds that his medical use of marijuana is lawful under California Health and Safety Code § 11362.5 (The Compassionate Use Act of 1996).

The Fourth Appellate District, in People v. Steven Ebbert Hughes (2012 DJDAR 1153), affirmed the trial court. Its analysis began with noting that Judge Freer asked Hughes’ counsel his position on such a probation condition. Hughes’ counsel replied that such a condition would be appropriate for someone using their license to sell dope on the street, however, he argued that Hughes’ case was “entirely different.”

Judge Freer then expressed concern about the adequacy of the medical evaluation Hughes’ doctor performed prior to issuing Hughes a medical marijuana prescription. In the trial court’s view, the evaluation was “most cursory.” Freer stated on the record that he thought there was no “real physical examination, no blood work, anything of that nature.”

Freer then cited to People v. Bianco (2001) 93 Cal. App. 4th 748 and People v. Brooks (2010) 182 Cal. App. 4th 1348, as authority for imposing such a condition of probation.

In reviewing the trial court’s condition of probation, the Appellate Court noted that a trial court has broad, but not unlimited, discretion in setting the terms and conditions of probation. On appeal, the higher court must find an abuse of discretion to overturn the trial court.

Here, the Appellate Court found that the discretion was not abused because the terms had some connection to the conviction, i.e. sales, and forbade conduct related to future criminality. Therefore, the term of probation prohibiting Hughes from possessing marijuana even for medical use was valid. The Appellate Court consequently affirmed the terms of probation.

As an aside, the Appellate Court commented that Judge Freer’s inquiry and comments concerning the propriety of the medical marijuana prescription were improper, but were not material in Freer’s decision to impose the conditions of probation he ordered.