SB423 and Patients on Probation

July 2, 2011

SB 423, our new medical marijuana law in Montana, prohibits individuals  under the supervision of the department of corrections from being registered cardholders. This was one of several onerous provisions of the bill that our lawsuit sought to have enjoined.

While were victorious on many levels, the judge did not agree to that particular portion of our request. However,  he did offer some helpful guidance in his decision (500KB PDF):

“While the state may not disregard the health conditions of those persons in its custody or supervision, it has great discretion in the manner it will address those conditions…. So long as the Department of Corrections attends to the needs of those it supervises in a reasonable manner, there is no constitutional violation. Challenges to the ban on probationers having access to medical marijuana should be made on a case-by-case basis….”

In other words, the judge is saying that patients on probation should be allowed safe access to cannabis in certain situations.

We are requesting stories to share with our attorneys from probationers affected by the new law.   We cannot help to seek an exception for everyone who contacts us.  We’re looking for good test cases that can act as a foundation to create new legal precedent for probationers. A good set of facts might be a probationer patient who benefits mightily from cannabis as medicine, suffers from a seriously debilitating malady, does not have a history of substance abuse problems, and has not been convicted of a drug crime.  If most of that describes you, please contact us and tell us your brief story, and include your attorney’s name and your location.

Our attorneys have been discussing the probation issue with government officials. It’s our hope that they’ll develop a policy, formal or informal, of non-interference with probationer patients’ cannabis use, so long as that use is not part of a pattern of dangerous substance abuse or criminal activity. We’ve made some progress, but probationers should be cautious in the meantime, and the safest legal strategy (for those who are medically able)  is to abstain for now.

Some probation officers have told patients that their card is invalid as of July 1st, and we’ve actually shared this interpretation. Adopting the strictest possible read on legal matters is a good strategy to stay out of jail.  However, it’s possible and not unreasonable to interpret the new law differently.

The Department of Public Health and Human Services’ medical marijuana FAQ  (updated July 1st) says:

13. I am under the supervision of the department of corrections (or a youth court). After the new law takes effect what will happen to my card?
The patient’s card will expire on the expiration date printed on the current card. Upon renewal, the patient will no longer be eligible to be a registered cardholder.

We’ve seen conflicts between the DPHHS FAQ and law enforcement interpretations before — until some time in early 2010, DPHHS was saying that patients could possess up to one ounce of hashish, despite law enforcement’s claims (and actions) to the contrary. Unfortunately, some cardholders suffered the impacts of adopting the more liberal interpretation in the form of criminal charges.

We’re also informed that some probationers have been told that they must surrender their cards immediately, and must “pee clean” as soon as next week. There is nothing in the new law that explicitly requires either condition. If your probation officer has told you this, please let us know the details of your situation.

In the short term, MTCIA will continue to seek clarity on this matter.  The real solution is to throw out the entirety of SB 423 via the initiative referendum process. Signature gathering will begin next week, so please sign up to help, right now.