Medicinal marijuana

Medicinal marijuana [Tribune file]

Tribune file

State judges cannot bar those placed on probation from using medical marijuana if they are otherwise eligible, the state Court of Appeals ruled Friday. And that even includes those who were convicted for drug offenses.

Appellate judge Peter Eckerstrom said when voters approved the Arizona Medical Marijuana Act in 2010 they declared that those with a doctor's recommendation and the required state-issued ID card are not subject to “arrest, prosecution or penalty in any manner, or denial of any right or privilege.” That “clear language,” Eckerstrom said, prohibits a trial judge from barring someone from using medical marijuana consistent with that law.

Eckerstrom did not dispute there are probably public policy concerns about letting someone with a long history of substance abuse, as in this case, continue to use marijuana for whatever reason. But the judge said these public policy debates are for the Legislature and, by extension, for the people through their constitutional power to make their own laws.

“They have done so here,” he wrote. “Our task is to apply the law they have written, not to second-guess the wisdom of their determinations.”

Deputy Cochise County Attorney Brian McIntyre, who had argued the restriction was valid, said his agency is reviewing the ruling before deciding whether to seek Supreme Court review.

The ruling, which sets new precedent in Arizona, involves Keenan Reed-Kaliher, who was charged with possession of marijuana for sale and attempted possession of a narcotic drug for sale.

He was sentenced to 18 months in prison on the marijuana sale count and placed him on probation for three years on the other charge. That probation began on his release in June 2011.

Among the conditions was that 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 imposed an additional condition specifically barring possession and use of marijuana, saying that was consistent with the original court order.

Cochise County Superior Court Judge Wallace Hoggatt upheld the condition, saying Reed-Kaliher had agreed to the conditions as part of the deal. Anyway, the judge said, probationers may lose rights that other citizens have.

Eckerstrom, writing for the majority in Friday's 2-1 ruling, said that decision was wrong.

“Under the express terms of the immunity provision, Reed-Kaliher could not be deprived of the privilege of probation solely based on his medical use of marijuana,” the appellate judge wrote. “A condition of probation threatening to revoke his privilege for such use cannot be enforced lawfully and is invalid.”

And Eckerstrom said that the promise to “obey all laws” can't be used against Reed-Kaliher because voters specifically exempted medical use from criminal laws.

The drug does remain illegal under federal law. But Eckerstrom said the Arizona law is not preempted by federal law as Reed-Kaliher still could be arrested by federal authorities if they wanted.

He said state judges have neither a duty nor role in enforcing the federal statutes.

Friday's ruling drew a dissent by appellate Judge Philip Espinosa who said the terms of the 2010 voter-approved law is irrelevant. He said Reed-Kaliher stipulated to the terms of his probation, including an agreement to obey all laws.

“In this case, Reed-Kaliher expressly agreed to accept that restriction in order to gain the benefits of a plea bargain, and I see no basis for excluding the federal drug laws from that agreement,” Espinosa wrote.

The judge also said there could be implications for defendants charged with drug offenses if the majority opinion stands.

“Prosecutors and courts unable to prohibit marijuana use may be much less likely to offer or approve plea agreements in many cases,” Espinosa wrote.

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