AZ Supreme Court: Probationers can use Medical Marijuana under Protections of AMMA

“Probation is a privilege that cannot be denied under AMMA; Penalties & criminal defense for probation violations.”

Nearly 5 years after the passing of Arizona Medical Marijuana Act (AMMA) the Arizona Supreme Court heard two cases involving denial of the privilege of qualified patients to use marijuana.

The Arizona Supreme Court held that a condition included in terms of their probation that denies Registered Qualified Patients the right to use medical marijuana is invalid and unenforceable.

They agreed to hear the cases on the basis that they involved recurring immunity under AMMA as they applied to plea agreements, and probation terms, had repetitive statewide impacts.

In an effort to narrow this discussion, we will focus on one of those cases.

Arizona Supreme Court Case and Ruling  

The defendant pled guilty to marijuana and narcotic charges and sentenced to serve 1.5 years in prison, and three years of probation. In 2010, while the petitioner was still in prison, Arizona voters passed a ballot initiative in the Arizona Medical Marijuana Act (AMMA).

Among other terms included in the probation conditions, set forth in the plea agreement, at the time of signing, the defendant agreed to obey all laws, and refrain from using or possessing illegal drugs, toxic vapors, or controlled substances, or use or possess any prescription drugs without a valid prescription.”

After the AMMA became law, the petitioner applied for a medical marijuana card, to enable him to use medical marijuana to relieve pain from a “debilitating medical condition” he suffered.

Subsequently he qualified for the program, and obtained a registry card by the Arizona Department of Health (ADHS) for of Medical Marijuana.

While on probation, the petitioner’s probation officer added a new condition to the probation terms. This new condition specified that the probationer could not “possessing or use marijuana for any reason.”

The probationer asked the court to delete the new term due to his immunity under the new AMMA law.  The court denied the motion.

The probationer then sought relief filing special action in the AZ Court of Appeals, due to the immunity protections under A.R.S. 36-2811 (B), which state:  

“A registered qualifying patient or registered designated caregiver is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege.”

The Court of Appeals granted relief and agreed that a qualifying patient cannot be deprived of the privilege of probation, based solely qualified use of Medial Marijuana when it is being used in compliance with the AMMA.

The Arizona Supreme Court affirmed the Appeals Court Decision.

No Imposition of Penalties on Probationers using Marijuana Compliant with AMMA

The State opposed the Appeals Court to remove the condition that prohibited the use of Marijuana in any form by the probationer.

The state argued that imposing this prohibition on one convicted of a drug crime should be allowed, because it was a reasonable and necessary condition.

The court advised that the question before the court was not whether the condition was appropriate, but whether or not it was lawful.

The court agreed that while it the state and can and should be including reasonable and necessary probationary terms, the state is prohibited from including unlawful terms and unenforceable terms citing Coy v. Fields (State) 2001.

The AZ Supreme Court concurred that the AMMA possessed broad immunity provisions, and recognized that there were a few narrow exceptions, but that being a “probationer” was not one of this exceptions. Thus, it was their opinion that immunity applied to the probationer rather than excluding him from it.

“Probation is a privilege; Revoking Probation is a Penalty.”

The court held that probation is a privilege in Arizona, citing State v. Montgomery; and that revoking probation resulting from violations of those terms is a penalty, citing State v. Lyons.

Probation is a privilege because it allows a defendant to elect probation in exchange for a suspension or the imposing of incarceration for a specified term.   However, crimes or convictions are eligible for probation.

If probation terms are violated the court may revoke the probation, and reinstate the order for the maximum sentence to be served in jail or prison, therefore, resulting in a penalty.

The Court found that revoking probation after having granted it is a penalty. Imposing this condition, therefore, was in violation of Arizona’s law, the Court ruled, because it would enact a penalty (revoking probation) for using medical marijuana.

The AMMA allows for marijuana use and possession within the confines of the law may not   result in a penalty. The Court has found that granting probation to those convicted of crimes is a “privilege.”

If the probationer violated this condition in accordance with his qualified right to use Medical Marijuana under the AMMA, he faced certain consequences of having his probation revoked and likely returning to prison.

The Court also established of course, that use of medical marijuana does not violate Arizona drug law, A.R.S. 13-3408(g) because that statute specifies that narcotic and prescription drugs are prohibited unless “lawfully administered by a health care practitioner,” which implies that the legislation’s intent was to make a distinction between illegal drug use, vs. medicinal use.

The Federal Preemption Debate: The AMMA Does Not Conflict with Federal Law

The Arizona Supreme court ruling addresses the ongoing debate that continues to arise with regard to potential conflict of the legalization of Medical Marijuana in Arizona in light of the Federal prohibition.

The high court acknowledged that Marijuana in any form remains prohibited under the Federal Controlled Substances Act.  However, ruled that it does not conflict with Arizona’s AMMA because the federal law does not contain an exception that allows medicinal use of Marijuana.

The State argued that the probation conditions required the probationer to follow all laws, and that “all laws” included Federal Laws.  The Arizona Supreme Court rejected this argument, related to the State’s AMMA and Federal Controlled Substances Act.

In response to the State’s challenge, the Court advised that the State would otherwise be correct if the Federal Controlled Substances Act preempted the Arizona Medical Marijuana Act.

The Court provided further clarification of its position by advising that the Federal Controlled Substances Act would preempt or override the AMMA if:

• The Controlled Substances Act explicitly preempted state law; or
• Congress had determined it must exclusively govern the field;  or
• The two laws conflict to the extent that it is physically impossible to comply; or
• The state law stands in the way of Congress’s ability to accomplish its intent.

The Court declared that none of those conditions applied here. Further, it cited the fact that:

“Congress itself has specified that the Federal CSA does not expressly preempt state drug laws or exclusively govern the field…There is no such conflict here.”

The court also cited a Michigan case that they felt was persuasive, Ter Beek v. City of Wyoming, (Mich. 2014).  In that case, it was ruled that the Medical Marijuana statute “does not prevent federal authorities from enforcing federal law—it merely provides “a limited state-law immunity.”

In that case, the Court opinioned that Congress’s intent was to “to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.”  Michigan’s medical marijuana law had a narrow scope applying only medicinal use, and did not conflict with the federal law to the extent that they negated Congress’s purpose in passing the law. The Arizona Supreme Court ruled that the same applied in this state, and therefore the CSA did not preempt the AMMA and a probationer could comply with both.

The State’s Waiver Argument to the Arizona Supreme Court

The State’s final argument was that by entering the plea agreement that stated while the defendant was on probation he agreed to “obey all laws”; it implied that he waived his right to use marijuana under the AMMA.

The Court rejected this argument, on the basis that the defendant could not have knowingly waived a right under the AMMA since it did not exist at the time he entered the plea agreement. The Court also added that even if it did exist at the time, such waiver was not enforceable, because it was unlawful and invalid citing State v. Ferrell, Arizona, 2015.

Case Conclusion 

The Arizona Supreme Court affirmed the opinion of the Arizona Court of Appeals granting relief to the petitioner in the special action.

The Importance of Understanding Your Probation Conditions

We discussed the fact that probation was a privilege.   Despite that, you may find that certain terms are unduly burdensome for you to accept in return for suspension of incarceration.   It is important that when offered a plea agreement, that you fully understand all the terms of the plea agreement. This applies to both the incarceration terms, but all other conditions, such as payment of fees, restitution, probation, parole, substance abuse counseling and treatment, and all other terms.  You should review it carefully.  Make sure you understand any waivers, and what they mean, and discuss any concerns or objections you have with your attorney.

Penalties for Probation Violations

“In some cases, the penalties for violating the probation may be more severe than the penalties called for by the underlying offense.”

Probation is one of the most common conditions in a plea agreement and in sentencing for convictions. Penalties for violating probation terms can result in serious consequences.

Judges generally have broad discretion over the penalties.  When determining the punishment, they will consider multiple factors. This includes factors such as the nature and severity of the offense as well as whether or not it was a repeat violation of probation terms.

In some cases, the penalties for probation violations may be more severe than the penalties called for by the underlying offense.   If it is a first time violation of a less serious nature, your probation officer may hand down a warning only. More severe and repeat violations may include one or more of the following, but are not limited to:

• Reinstatement or original jail or prison sentencing;
• Revocation of probation;
• Imposing additional incarceration, or extension of probation:
• Random alcohol or drug screening;
• Mandatory alcohol or substance abuse counseling and treatment;
• Economic fines;
• Civil or community service;
• New criminal charges:
• Attendance of other rehabilitation programs designed to correct criminal behaviors;
• Adding more stringent terms and conditions known as “intensive probation”.

Generally, the penalty is more serious if the probation violation is similar to the criminal activity for which they were originally convicted. This list is not all encompassing. Penalties may vary based on the nature of the violation of probation.