Colorado Supreme Court to weigh in on how judges decide when people on probation can use medical marijuana

The case involves an El Paso County judge who demanded the defendant bring a doctor to court

By Saja Hindi
Colorado courts are still trying to figure out the ground rules for people using medical marijuana while on probation, and the state Supreme Court will weigh in when it hears oral arguments Thursday in an El Paso County case where a judge denied a woman’s use of the drug while on probation for DUI.

The woman will ask justices to decide whether a defendant must provide evidence that the marijuana is medically necessary or whether probationers can use it unless a judge decides it’s appropriate for the sentence. The case also questions to what lengths a probationer must go to prove the marijuana is critical to their health.

Attorneys who represent criminal defendants hope the court’s decision will provide more clarity on the issue. Supreme Court decisions take months.

A county court judge prohibited Alysha Walton from using medical marijuana while on probation for a DUI, and a district court judge agreed with the decision.

But the Colorado Public Defender’s Office, which represented Walton, has argued the county court abused its discretion and violated Walton’s rights, according to the opening brief to the Supreme Court. The judge placed an undue burden on Walton when she demanded that Walton have her doctor testify in court about the necessity of marijuana, the public defenders said. Walton had brought her state-issued medical marijuana card to court.

Walton was charged in August 2016 with DUI in El Paso County, according to the brief. She pleaded guilty and was given a deferred sentence and a year of unsupervised probation.

There was no evidence that Walton was under the influence of drugs, and Walton later informed her probation officer that she had a medical marijuana card for a health condition, according to her opening brief. The officer didn’t recommend she be prohibited from medical marijuana use, just that she refrain from alcohol and attend alcohol education classes. She was recommended for the lowest-level of treatment available, according to her attorneys.

El Paso County Judge Karla Hansen had a policy though — if a defendant wants to use medical marijuana while on probation, he or she needs to have live testimony from a physician.

Walton’s defense attorney knew the court’s standing requirement, the response brief stated.

In February 2017, Walton and her attorney brought documentation about Walton’s medical marijuana authorization to the plea and sentencing hearing. But they didn’t bring a doctor. So, the judge prohibited Walton from using medical marijuana while on probation, saying the court didn’t have enough evidence to prove its necessity.

That is in violation of statute and Walton’s Constitutional rights, attorneys said. State law prohibits a court from barring medical marijuana use in probation for a crime not related to the state’s marijuana code unless it prevents accomplishing the goals of sentencing or inhibits rehabilitation, attorneys argued. A defendant isn’t required to provide specific information to be allowed to use it.

The Legislature “did not intend to give trial courts unbridled discretion to prohibit use of medical marijuana, nor was the intent to place a burden on probationers to present evidence in an effort to persuade judges to permit use of medical marijuana,” the brief stated.

But El Paso County district attorneys argued that Walton wasn’t forthcoming about her drug use in the evaluation and her scores “indicated an unwillingness to change her drug/alcohol use.”

“The county court found it had no information about defendant’s medical situation and nothing on which to base any kind of authority for medical marijuana use,” the response stated.

The case demonstrates a widespread problem, Deputy State Public Defender Cayce Duncan, one of the attorneys representing Walton in the Supreme Court, said in a statement.

“Colorado courts frequently impose conditions of probation that are not related to the crime committed or to the defendant’s specific needs,” she wrote. “Imposing onerous and unnecessary conditions makes the successful completion of probation difficult, if not impossible.”

The system should help people become successful, “not overburden people with conditions that are unwarranted, unnecessary, and in this case, we believe unconstitutional,” she said.

Representatives from El Paso County courts declined to comment on the case.

The case is considering a procedural issue but is also about how Colorado regulates marijuana legalization, University of Colorado Law School Professor Richard Collins said. Ultimately, he believes the case went to the Supreme Court because a poor person would not be able to afford to hire a doctor to testify while someone of means could do it.

Denver attorney Jay Tiftickjian said the law allows a person to use medical marijuana while on probation in most circumstances so judges typically allow it as long as the crime doesn’t involve pot.

His office receives more questions about it than any other issue. Each jurisdiction’s judges are different.

“It’s been inconsistent and rather overwhelming ever since the law changed to allow it,” he said.

Some judges make the conditions of using medical marijuana while on probation so prohibitive that a reasonable person couldn’t get by with the orders, Tiftickjian added.

Others allow their own feelings to dictate restrictions, he said.

“Are judges misinterpreting the statute? No, but I think certain judges are not making specific factual findings, but are across the board making an arbitrary line to say they won’t allow it in their courtroom.”