CAN I SMOKE MARIJUANA WHILE I’M ON PROBATION IF I HAVE A MEDICAL MARIJUANA CARD?
I am often asked, “can I smoke medical marijuana on probation if I get a medical marijuana card and certificate?” The question is common due to the growing use of medical marijuana in Massachusetts, coupled with the frequency with which judges include a “no illegal drugs including marijuana” condition as a part of probation.
After several years of not being confident of the answer to such questions, I am happy to have the benefit of the Massachusetts Supreme Judicial Court’s recent guidance in Commonwealth v. Vargas, (August 3, 2016), released just yesterday.
The facts of Vargas are these, namely: the probationer had pleaded guilty to armed robbery on April 17 of 2013, during which plea he admitted that he used some of the robbery proceeds to buy marijuana, and also admitted to both frequent and recent use of marijuana. The judge placed the defendant on supervised probation, and included as a condition of said probation a “prohibition on the use of illegal drugs includ[ing] the use of marijuana.” The judge further ordered the probationer to comply with all Federal, State and local laws . . . includ[ing] laws regarding possession or marijuana.”
A few days later, on April 24, the probationer tested positive for THC (the active ingredient in marijuana). He again tested positive on May 14. Then, on May 29, the probationer obtained a “Physician’s Certificate for the Use of Medical Marijuana in the Commonwealth of Massachusetts.”
In June, the probation officer issued a Notice of Probation Violation and Hearing based on the positive drug screens. At the violation hearing, the probationer admitted to violating probation, and the judge modified his probation so as to include completion of what is usually called “Level 3 Probation,” which includes daily monitoring. Contemporaneously, the judge reiterated that the probation included a condition of no marijuana use, “except for prescribed medication . . . [but] no marijuana” use.
During the June violation hearing, the defense attorney informed the judge that the probationer had obtained a medical marijuana certificate, but did not assert it as a defense, or seek a modification of probation conditions so as to allow use of medical marijuana.
After being reprobated, the probationer again tested positive for marijuana, and probation issued a detention request. At the subsequent probation surrender hearing held on October 23, 2013, the judge did not order detention, but instead continued the hearing for four weeks to give the probationer a chance to get back into compliance, i.e., to test negative for marijuana.
On November 19, 2013, the probationer tested positive for marijuana again, and another violation notice issued. The judge then terminated probation and sentenced the probationer to 2-3 years in State prison. The probationer appealed.
On appeal, the probationer argued that he had immunity from punishment – including probation violations – because he was a “qualified patient” under the medical marijuana law (the “Act”). The Supreme Judicial Court did not agree, and held that “[t]he judge was not bound by any such restraint where, prior to acquiring the certificate, the defendant agreed to conditions of probation prohibiting the use of marijuana[,] and failed to secure a modification of that condition based on his later acquired qualifying patient status.”
The Court recognized that the Act explicitly states that “[a]ny person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for” possessing medical marijuana. The Court then framed its question as “whether [the probationer’s] status as a qualifying patient as of [the date he obtained the certificate] immunizes his use of marijuana in violation of a condition of probation imposed before he became a qualifying patient.” The answer to that question, according to the SJC, is that “[i]t does not.”
The Court rejected the argument that the certificate provided immunity because “[i]n agreeing to abide by the condition of no marijuana use, the defendant explicitly waived his right not to be prosecuted for the use or possession of marijuana.” The Court further observed that the “plain language” of the Act “does not operate to relieve the defendant of obligations and duties he undertook when he agreed to a condition of probation prohibiting the use of marijuana before attaining the status of qualifying patient.”
In the second half of the decision, the Court strongly suggested that defense counsel ought to seek a modification of probation conditions where the probationer client obtains a physician’s certificate (and now a registration card as well) after agreeing to probation conditions that include a prohibition on marijuana use.
So, now I know the answer to the question, “can I smoke medical marijuana on probation if I get a medical marijuana card and physician’s certificate?” If you are on probation with an order not to use or possess marijuana, and you subsequently meet the requirements of the Act, then you should seek a modification of your probation conditions at a hearing before the judge who placed you on probation. I would expect significant resistance from probation and the prosecutor (depending on the facts of the underlying case), and in my experience, some judges will not be receptive to the argument. The Vargas case leaves the issue open, stating in a footnote that “we do not reach the broader question whether the medical marijuana law limits a judge’s authority to prohibit the use of medical marijuana as a condition of probation where the defendant objects to this condition.” But simply getting the certificate and card after being placed on probation will absolutely not provide a legal defense to an allegation of violating probation due to marijuana use or possession.
If you are under a no-marijuana probation condition and have since become a qualified patient by obtaining a certificate and card, then you should obtain counsel and seek a modification of your probation conditions. And if you are a qualified patient under the Act prior to being placed on probation, you should inform your attorney so that he or she can bring that fact to the attention of the judge prior to sentencing.
Attorney Kevin D. Quinlan
The Law Offices of Kevin D. Quinlan
2 South Main Street, Suite 201
P.O. Box 248
Uxbridge, MA 01569
 As a side note, after the passage of the medical marijuana law, St. 2012, c. 369 (the “Act”), the Massachusetts Department of Public Health promulgated regulations implementing the Act. The regulations call for a two-step process to secure the immunity that the Act provides, to wit: an individual must obtain (1) a “written certification” from a qualified physician; and (2) a valid registration card. So, both a certificate and a card are now required before the immunity from penalty provision applies. This double requirement was not yet in effect at all times relevant to the Vargas case.