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Medical Marijuana and Probation

Dec 30 2015, by Jessica McElfresh in Federal Marijuana Issues, Legal Blog, Marijuana Charges, Medical Marijuana

In California, medical marijuana patients have a good chance of being able to continue treatment while on parole or probation. In fact, the law states that a prisoner can even request to use marijuana while in jail—but how often these requests are granted is difficult to ascertain.

Your ability to smoke marijuana legally while on probation or parole will depend on your probation conditions or parole officer. Both parole and probation are programs that allow a convict to avoid detention in exchange for meeting certain requirements. Parole refers to the early release of a prisoner from incarceration, while probation is a replacement for detention.

If you have questions regarding medical marijuana while on probation, contact a San Diego marijuana attorney to learn more about your rights. Call Jessica McElfresh today at (858) 756-7107.

Free consultation for criminal defense cases only. Dispensaries/collectives consultation requires a fee.

It’s Possible to Use Medical Marijuana During Probation

According to § 11362.795(a) of the California Health and Safety Code, any criminal defendant who is eligible to use marijuana may request that the court confirms that he or she is allowed to use medical marijuana while he or she is on probation.

During the period of probation, it also possible for someone who is not yet eligible to use medical marijuana to get a recommendation from a physician and then request the court to authorize his or her marijuana use. None of this means that the court must grant your request—the court may set probation conditions at its discretion.

Fortunately for cannabis patients, an important case, People v. Tilehkooh, holds that testing medical marijuana patients for marijuana as a condition for probation is unreasonable. Furthermore, the case holds that legal patients can possess, transport, and grow cannabis while on probation—so long as the original offense didn’t involve marijuana.

If your probation order does not require you to test for marijuana, and your probation officer doesn’t know you are a patient, it’s probably best not to bring up the issue of medical marijuana at all.

You May Request to Use Medical Marijuana While on Parole

California Health and Safety Code § 11362.795(b) provides that any person released from jail, state prison, or other confinement and who is eligible to use medical marijuana may request that he or she be allowed to continue treatment while on parole.

As with probation, it’s possible to obtain a recommendation for using medical marijuana while on parole and then requesting that you be allowed to treat yourself. If your parole officer denies your application to use medical marijuana, you may file an administrative appeal.

In a 2005 memorandum, the California Department of Corrections and Rehabilitation specified that parolees who are medical marijuana patients will not be subjected to substance testing for marijuana. The memo recommends that a parolee provides the parole agent with a copy of the medical marijuana card before obtaining or using medical marijuana.

Medical Marijuana Use is Mostly Incompatible with Prop 36

Prop 36 is a program that provides substance abuse treatment to first or second-time, non-violent drug offenders instead of jail. While it is possible for someone under Prop 36 to ask his or her program supervisor for permission to medicate, it is unlikely this request will be granted. This is because the use of marijuana—even for medical purposes—may seem at odds with the spirit and goals of the substance abuse program.

As a medical marijuana user, you have rights. But all too often, law enforcement and the criminal justice system trample on these rights. At McElfresh Law, we are dedicated to helping our clients get access to the medicine they need. If you’re a medical marijuana cardholder facing legal issues, call San Diego marijuana attorney Jessica McElfresh today for a free and confidential consultation at (858) 756-7107 of your case.

This website is intended for informational purposes only. Use of this website does not create an attorney-client relationship. Free consultation for criminal defense cases only. Dispensaries / collectives consultation requires a fee.

California marijuana laws change frequently. For updated information, see the following pages: Medicinal Uses of Marijuana and Recreational Marijuana Business