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Link to Us2. Are you a California medical marijuana patient who is under house arrest, on probation or parole or enrolled in Prop 36 or another diversion program and facing negative consequences due to your patient status?
To begin, we just want to say how sorry we are that you are having issues with medical marijuana and imprisonment-related issues. Unfortunately, because you have had previous interactions with the justice system, your rights are different than those patients who have not. However, you do still have rights. Keep in mind, that you may also want to look into getting a prescription for Marinol, which is legal to prescribe in every state, if you think it will help with your condition, if your use of medical marijuana is exacerbating your issues with the criminal justice system. For more information on Marinol, please see Section I.E. of this Civil FAQ. Choose from the four questions below to learn about them:
I. Are you a medical marijuana patient in jail or under house arrest?
According to California Health and Safety Code § 11362.785 (SB 420):
- "Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained.
- Notwithstanding subdivision (a), a person shall not be prohibited or prevented from obtaining and submitting the written information and documentation necessary to apply for an identification card on the basis that the person is incarcerated in a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained.
- Nothing in this article shall prohibit a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained, from permitting a prisoner or a person under arrest who has an identification card, to use marijuana for medical purposes under circumstances that will not endanger the health or safety of other prisoners or the security of the facility."
In layperson's terms this means that medical marijuana patients in jail may submit their information to a County Department of Health to apply for a state medical marijuana ID card. However, a correctional facility is not required to accommodate use of medical marijuana, and it is up to the discretion of the correctional facility supervisor as to whether a patient with a state-issued ID card may medicate during his/her detention, if that medication "will not endanger the health and safety of other prisoners or the security of the facility."
In order to influence the supervisor of your correctional facility to use his/her discretion to let you medicate during your detention, obtain a state medical marijuana ID card (if you are able), and offer possible scenarios in which your medication would not deleteriously affect other prisoners. These scenarios might include allowing you to use edibles or tinctures or setting up a designated medication area. In your appeal, you can also reference the words of current San Francisco County Sheriff Mike Hennessey, who said he would allow terminally ill medical marijuana patients to medicate in jail.
If you are a medical marijuana patient who is serving a part (or all) of your detention in a residence, under house arrest, or in a transitional home, your rights are similar to those of a patient in an actual correctional facility. Because you are still serving the sentence you received (as opposed to having completed it, and being on parole/probation), it is like you are in jail, except that the supervisor whose discretion you need to appeal to will more likely be the County Probation Department or transitional house supervisor, as opposed to the warden. In your appeal, you should note that the fact that you are either in a non-correctional residence or a transition house, and the likelihood of your medication "endangering the health and safety of other prisoners or the security of the facility" is greatly decreased by not being in an actual correctional facility. You may also want to acknowledge that you are aware of the differences between your situation and probation, but that there is a California Appellate Court (3rd District) decision that says not allowing a medical marijuana patient to medicate on probation is unreasonable. Unfortunately, it remains unlikely that the decisionmaker will decide to allow you to medicate during your period of detention.
II. Are you a medical marijuana patient who is having difficulties while enrolled in a Prop 36 or other diversion program?
Prop 36 is a program approved by voter-initiative in 2000 that allows first or second time non-violent adult drug offenders who are charged with use, possession, or transportation of illegal drugs for personal use to receive drug treatment instead of incarceration. In this way, it is similar to house arrest or transitional houses in that you are enrolled in a Prop 36 program in lieu of your jail sentence, but you are not in a correctional facility. Hence, you should appeal to the supervisor of your program to use her/his discretion to allow to you medicate while enrolled in a Prop 36 program. You many want to obtain a state medical marijuana ID card if you are able in order to provide a copy to the supervisor. However, success is more unlikely in this situation than in the house arrest context (See Section I of this FAQ), since the mission of Prop 36 is drug treatment, and the administrators may not understand the role that medical marijuana plays in your life.
Additionally, the Prop 36 statute (California Penal Code § 1210.1(a)) itself says:
"As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court may also impose, as a condition of probation, participation in vocational training, family counseling, literacy training and/or community service. A court may not impose incarceration as an additional condition of probation. Aside from the limitations imposed in this subdivision, the trial court is not otherwise limited in the type of probation conditions it may impose."
This lack of limitation on the types of probation conditions a judge may impose on a Prop 36 patient (unlike the determination made by the Court regarding probation in People v. Tilehkooh) suggests that an appeal to a judge's discretion in this case may be less successful than one from a patient on probation or parole. Nonetheless, if you are under the control of Probation Department, you should present People v. Tilehkooh and demonstrate the similarities between your situation and that of Tilehkooh. Unfortunately, it is unlikely that you will be allowed to medicate while on Prop 36.
While other diversion programs that serve as alternatives to incarceration may not include similar authorizing language regarding possible probation conditions, the same issues remain, and if the goal of the diversion program is drug treatment, then it is also unlikely that you will be allowed to medicate while in the program.
NOTE: This emphasis on drug treatment and its relationship to medical marijuana is exactly why ASA suggests that qualified patients who are charged with marijuana offenses should not choose Prop 36 or other diversion programs in lieu of going to court if they are able to do so, and they should instead refer to Section I of the preceding FAQ if faced with state charges.
III. Are you a medical marijuana patient who is having difficulties with probation?
A. Are you a patient who would like to discuss medical marijuana with your probation officer?
If the court is not forcing you to test for marijuana, and your Probation Officer is unaware of your patient status, you may not want to mention it until you actually have issues.
However, if you are being tested (and will likely test positive) or your Probation Officer is aware of your medical marijuana patient status, you should present a copy of your recommendation and print a copy of People v. Tilehkooh and ask your probation officer to put them into your file. Explain to your Probation Officer that this case states that it is an unreasonable probation condition to test medical marijuana patients for marijuana, and it affirmatively allows patients to possess, transport, and cultivate their medicine. Try to create a written agreement with your Probation Officer.
To be even safer, you should ask the Public Defender that you had for your original offense to request a Probation Condition Modification Hearing. As a medical marijuana patient, you have the right to get a judge to confirm that you may use your medicine.
California Health and Safety Code § 11362.795(a) (SB 420) states:
- "Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail.
- The court's decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court.
- During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana.
- The court's consideration of the modification request authorized by this subdivision shall comply with the requirements of this section."
At the Probation Condition Modification Hearing, have your Public Defender present your recommendation and a copy of the Appellate Court (3rd District) decision, People v. Tilehkooh. Ask the judge for an affirmative order to be able to possess, transport and cultivate at least 8 oz. of medical marijuana and 6 mature or 12 immature plants, just like any other California qualified patient.
In the 2003 case of People v. Tilehkooh, 113 Cal.App.4th 1433 (Cal.App. 3rd Dist., 2003) the 3rd District Appellate Court disagreed with its own 2001 ruling in People v. Bianco, 93 Cal.App.4th 748 (Cal.App. 3rd Dist., 2001), and stated that no rehabilitative purpose is served by a probation condition that denies a qualified patient the ability to medicate in cases where there is no claim of diversion or any connection between the prohibition and the original offense.
Unless a different Appellate Court issues a published decision directly contradicting the premise of this case, People v. Tilehkooh should constitute mandatory authority that all Superior Court judges should follow. It is however, important to note that in People v. Berry, 52 Cal.Rptr.3d 634 (Cal.App. 5th Dist., 2006) the 5th District Appellate Court distinguished Tilehkooh, upholding a restrictive marijuana probation condition where it was reasonably related to the original offense (such as in this case where the defendant, who had pled no contest to possession of PCP, had used marijuana as a delivery system for PCP). Additionally, if a judge denies a patient's request for confirmation that he/she can medicate, and follows the requirements of California Health and Safety Code § 11362.795(a), appeals may be difficult because of the wording of the statute.
Patient Anecdote: Several patients have told me that their Probation Officers have said that the doctor's recommendations are invalid because the signing doctor was not local or had not been "approved" by the County Probation Department. Remember, you have the power to choose which doctor you see, not the County Probation Department. According to SB 420, a recommendation is valid if it is issued by an "Attending Physician", which is an individual who possesses a license in good standing to practice medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of California. Any physician who satisfies this criterion may issue a valid recommendation, whether or not the County Probation Department is willing to recognize it as such.
B. Are you a patient who has been charged with a probation violation?
1. Arraignment
Your first court appearance will be an arraignment where the judge will ask you to plead Guilty or Not-Guilty. We advise you to show up well-dressed and early to your arraignment (ideally a half-hour before), and make contact with the Public Defender on duty who will likely appear in the front of the courtroom addressing the audience. Please be aware that Public Defenders have many cases, so be polite. Keep in Mind: This Public Defender on duty will only represent you at this appearance, and you will likely receive a different Public Defender for the duration of your case after pleading Not Guilty if you qualify under your county's standards.
Please bring with you two (2) copies of the following to give to the Public Defender on duty:
- Your recommendation (and any other relevant recommendations for collective situations); also, bring the original recommendation for verification purposes, just in case.
- Your state medical marijuana identification card, if you have one (See this list of counties participating in the state ID card program).
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People v. Tilehkooh, 113 Cal.App.4th 1433 (Cal.App. 3rd Dist., 2003). In a 2003 decision, the 3rd District Appellate Court disagreed with its own 2001 ruling in People v. Bianco, 93 Cal.App.4th 748 (Cal.App. 3rd Dist., 2001), and stated that no rehabilitative purpose is served by a probation condition that denies a qualified patient the ability to medicate in cases where there is no claim of diversion or any connection between the prohibition and the original offense.
Unless a different Appellate Court issues a published decision directly contradicting the premise of this case, People v. Tilehkooh should constitute mandatory authority that all Superior Court judges should follow. It is however, important to note that People v. Berry, 52 Cal.Rptr.3d 634 (Cal.App. 5th Dist., 2006) did distinguish Tilehkooh, in that where a restrictive marijuana probation condition is reasonably related to the original offense (such as in this case where the defendant, who had pled no contest to possession of PCP, had used marijuana as a delivery system for PCP), the 5th District Appellate Court would uphold it.
Give the Public Defender on duty these documents, note that your original offense was unrelated to marijuana, if this is so, and that there is no evidence of diversion (if appropriate), and explain that, as a California qualified patient on probation with less medical marijuana than the minimum allowed under the guidelines, you were simply exercising your rights under the law, and have done nothing illegal. Then, ask the Public Defender to bring your documentation to the District Attorney (DA) on duty before your arraignment, and attempt to explain your situation in an effort to get the DA to dismiss the case without even having to plead.
Sometimes, this will work, and the DA will decline to pursue charges. However, often, because of a DA or a judge who refuses to recognize settled law, the case will continue. If so, you will be arraigned, and, when standing in front of the judge, you are likely advised to plead Not Guilty, as you will not waive any of your rights, and can always choose to accept a deal and plead Guilty later in the process. At this point (or soon after) you are likely to be assigned a Public Defender to represent you for the duration of the case.
2. Motions Hearings, Pre-trial Hearing
After your Arraignment, your Public Defender will represent you at several hearings at which she/he can argue motions and set the parameters for trial.
You should ask your Public Defender to raise the medical marijuana defense during these hearings by making a Motion to Set Aside the Indictment or Information under Penal Code § 995, otherwise known as a "Section 995 Motion to Dismiss", and in it, he should cite People v. Tilehkooh.
Contact ASA's Legal Coordinator if your Public Defender is having trouble getting your case dismissed, and you would like him/her to consult with ASA's Legal Department on medical marijuana and legal strategy matters.
IV. Are you a medical marijuana patient who is having difficulties with parole?
A. Are you in a county whose Department of Health issues the state medical marijuana ID card?
According to California Health and Safety Code § 11362.795(b) (SB 420)
- Any person who is to be released on parole from a jail, state prison, school, road camp, or other state or local institution of confinement and who is eligible to use medical marijuana pursuant to Section 11362.5 may request that he or she be allowed to use medical marijuana during the period he or she is released on parole. A parolee's written conditions of parole shall reflect whether or not a request for a modification of the conditions of his or her parole to use medical marijuana was made, and whether the request was granted or denied.
- During the period of the parole, where a physician recommends that the parolee use medical marijuana, the parolee may request a modification of the conditions of the parole to authorize the use of medical marijuana.
- Any parolee whose request to use medical marijuana while on parole was denied may pursue an administrative appeal of the decision. Any decision on the appeal shall be in writing and shall reflect the reasons for the decision.
- The administrative consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.
Additionally, the California Department of Corrections and Rehabilitation clarified this law in 2005 memorandum (Policy Number 05-21) referencing SB 420's state ID cards:
"Parolees who qualify to obtain a medical marijuana identification card to possess a prescribed amount of marijuana for medical purposes shall ensure that their assigned Parole Agent receives a copy of the identification card for placement in the parolee's field file prior to the parolee obtaining possession of the marijuana. The parolee . . . will not be subject to substance testing for marijuana while under the parole custody and supervision of the California Department of Corrections and Rehabilitation."
If you are a patient-parolee not currently being tested for marijuana, and your Parole Officer is unaware of your patient status, you may not want to mention it until you have issues. Otherwise, if you reside in one of the listed counties, apply for the voluntary state medical marijuana ID card. After you receive the card, make a copy of it (both sides), and give it to your Parole Officer to place in your Parole file, along with a printed copy of the California Parole Policy. This should help guarantee that you can legally use/possess/cultivate/transport your medicine under the guidelines, and please alert Contact ASA's Legal Coordinator if your Parole Officer finds this to be insufficient.
B. Are you in a county whose Department of Health does not issue the state medical marijuana ID card?
According to California Health and Safety Code § 11362.795(b) (SB 420):
- "Any person who is to be released on parole from a jail, state prison, school, road camp, or other state or local institution of confinement and who is eligible to use medical marijuana pursuant to Section 11362.5 may request that he or she be allowed to use medical marijuana during the period he or she is released on parole. A parolee's written conditions of parole shall reflect whether or not a request for a modification of the conditions of his or her parole to use medical marijuana was made, and whether the request was granted or denied.
- During the period of the parole, where a physician recommends that the parolee use medical marijuana, the parolee may request a modification of the conditions of the parole to authorize the use of medical marijuana.
- Any parolee whose request to use medical marijuana while on parole was denied may pursue an administrative appeal of the decision. Any decision on the appeal shall be in writing and shall reflect the reasons for the decision.
- The administrative consideration of the modification request authorized by this subdivision shall comply with the requirements of this section."
Additionally, the California Department of Corrections and Rehabilitation clarified this law in 2005 memorandum (Policy Number 05-21) referencing SB 420's State ID cards:
"Parolees who qualify to obtain a medical marijuana identification card to possess a prescribed amount of marijuana for medical purposes shall ensure that their assigned Parole Agent receives a copy of the identification card for placement in the parolee's field file prior to the parolee obtaining possession of the marijuana. The parolee . . . will not be subject to substance testing for marijuana while under the parole custody and supervision of the California Department of Corrections and Rehabilitation."
If you are a patient-parolee not currently being tested for marijuana, and your Parole Officer is unaware of your patient status, you may not want to mention it until you have issues. Otherwise, since do you not reside in one of the listed counties, and your county continues to refuse to implement California state law, you are probably unable to apply for the voluntary state medical marijuana ID card. Make a copy of your doctor's recommendation, and give it to your Parole Officer to place in your Parole file, along with a printed copy of the California Parole Policy.
Explain to your Parole Officer that you would get a state medical marijuana ID card if you were able, but that you should not be denied the same rights that you would have living in a friendlier county. Explain that, under California law, a "qualified patient" is one who has obtained "the written or oral recommendation or approval of a physician" to use marijuana medicinally. (Cal. Health & Saf. Code § 11362.5, subd. (d)). Although the California legislature has established a voluntary identification card system implemented by counties to assist law enforcement officers confirm the status of qualified medical marijuana patients (see Cal. Health & Saf. Code § 11362.71, subd. (a)), it made clear in doing so that "[i]t shall not be required for a person to obtain an identification card in order to claim the protections of [the Compassionate Use Act]." (Cal. Health & Saf. Code § 11362.71, subd. (f).) Thus, under neither the Compassionate Use Act (Prop 215) nor the Medical Marijuana Program Act (SB 420) is it necessary for a parolee to obtain a county-issued medical marijuana identification card, in addition to a physician's written recommendation, to obtain the legal protections of California's medical marijuana laws. On a practical level, you may also want to contact the Department of Health in the county nearest to yours that has implemented the program and is willing to issue ID cards, and ask them if, in fact, they do have a county residency requirement. If the neighboring county does not require that you live in that county, then you should get an ID Card, and then present that to your Parole Officer.
Please contact Contact ASA's Legal Coordinator if you reside in a county that does not issue medical marijuana ID cards and your Parole Officer refuses to modify your Parole Conditions.