Brian K. McHugh

Criminal Defense

                                                Marijuana and Conditions of Probation

         Colorado’s legalization of medical marijuana and later, so called  recreational marijuana, raised the question - would legalization impact people on probation? Could they use marijuana for medical or recreational purposes? The specific legal question focused on a provision of section 18-1.3-204, CRS requiring that every probation sentence include a specific condition that the defendant not commit any new offenses. Because possession and use of marijuana were no longer crimes under Colorado law, it was assumed by some that marijuana use was no longer prohibited while serving a probation sentence. Many prosecutors, probation departments and courts took a different view. They reasoned that since marijuana was still criminalized under federal law, possession or use was an “offense” for purposes of the statute. Some defense attorneys claimed that the term “offense”, did not include marijuana possession offenses under the federal law. They argued that federal law was pre-empted on the issue because both medical and recreational marijuana were legalized not by state statue, but by amendments to the Colorado Constitution. That argument was rejected by the Colorado Court of Appeals in People v. Watkins, 282 P.3d 500, (Colo. App. 2012). While the Watkins decision addressed the use of medical marijuana while on probation, the basis of the decision logically applied to recreational marijuana as well.
        Apparently in response to the decision in Watkins, in 2015 Section 18-1.3-204, CRS was amended to allow medical marijuana use by people on probation. When the bill to amend the statute was first introduced in the Colorado legislature, it would have permitted probationers to use marijuana for both recreational and medical purposes. As the bill moved through the legislative process however it was amended to delete the reference to recreational marijuana, limiting the proposed amendment to medical marijuana only.
        The bill amending section 18-1.3-204, CRS passed out of the legislature and was sent to the Governor who signed the bill into law. The changes to the statue went into effect on April 8, 2015. As of that date, people on probation, and those placed on probation on or after that date, were allowed to use medical marijuana. However, the amended statute contains two exceptions. If the probation is imposed for an offense relating to medical marijuana, medical marijuana use is prohibited. The second exception gives the sentencing judge some discretion to prohibit use of medical marijuana. This latter exception requires that the judge specifically find, based on a substance abuse evaluation, that the use of medical marijuana would be contrary to the purpose of a probation sentence for a particular defendant.