PHOENIX — The right of patients to smoke marijuana recommended by a doctor for medical conditions cannot be taken away by a judge, even if the person has been convicted of a crime, the Arizona Supreme Court ruled Tuesday.
In a pair of unanimous decisions, the justices rejected arguments by prosecutors in two cases who said denying someone the ability to use medical marijuana is a legitimate condition for probation.
Justice Ann Scott Timmer, writing one of the rulings, said prosecutors’ assertions ignore the wishes of voters when they approved the Arizona Medical Marijuana Act in 2010.
Justice Rebecca Berch, writing the other, not only reached the same conclusion, but rejected arguments by Cochise County prosecutors that federal marijuana laws pre-empt what voters enacted.
Cochise County Attorney Brian McIntyre said he thinks the justices missed the point of why a judge may conclude a criminal defendant should not be smoking marijuana, for any reason, while on probation.
“I think it’s a mistake to remove completely the power from judges to legitimately review a probationer’s medical information and their use of certain substances,” McIntyre said. “The trial court’s usually in the best position to this particular defendant in terms of what they do or don’t need.”
McIntyre is weighing his legal options. So is Yavapai County Attorney Sheila Polk, who said she may seek U.S. Supreme Court review specifically on the question of whether federal law trumps what voters here approved.
In one case, Jennifer Lee Ferrell was arrested in 2012 after police say they found her unconscious in the front seat of a parked car. She was charged with multiple offenses, including driving under the influence of alcohol.
In exchange for dismissing several of the charges, Ferrell pleaded guilty to three of them, including DUI, and she signed a plea agreement with the Yavapai County Attorney’s Office agreeing not to buy, grow, possess, consume or use marijuana in any form, even though she had a medical marijuana card when arrested.
A trial judge accepted the plea deal but struck the no-marijuana condition as illegal, leading to the appeal.
The other case involves Keenan Reed-Kaliher, who spent time in prison for possessing marijuana for sale before being released to serve three years’ probation in June 2011. Terms of his probation included include a condition he “obey all laws” and not possess or use illegal drugs.
Reed-Kaliher subsequently got a medical marijuana card allowing him to obtain and use the drug. His probation officer then barred his possession and use of pot, saying it was consistent with the original court order.
A Cochise County Superior Court judge OK’d the condition, but the Supreme Court disagreed. Timmer, writing in Ferrell’s case, said the 2010 law is clear about the right of qualified patients to possess and use medical marijuana “without fear of arrests, prosecution or penalty.”
Dennis McGrane, the chief deputy Yavapai County attorney, argued that Ferrell waived her rights under the Arizona Medical Marijuana Act by signing the plea deal.
Berch, in the Cochise County case, noted the law about barring the use of marijuana contains an exception for drugs as “lawfully administered by a health care practitioner.”