Pubdate: Wed, 08 Apr 2015
Source: Arizona Republic (Phoenix, AZ)
Copyright: 2015 The Arizona Republic
Contact: http://www.azcentral.com/arizonarepublic/opinions/sendaletter.html
Website: http://www.azcentral.com/arizonarepublic/
Details: http://www.mapinc.org/media/24
Author: Michael Kiefer

RULING ALLOWS PROBATIONERS TO USE MEDICAL POT

Court: Stopping Valid Use Can't Be Probation Term

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 ReedKaliher'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 preemption has to be addressed sooner or later," Montgomery said.
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MAP posted-by: Jay Bergstrom