Two of the most common dispositions of a criminal case are the continuance without a finding (“CWOF”), and the guilty finding with a sentence of probation imposed as the penalty. In either case, the judge will inform the defendant of what the length and terms of the probation will be, and then the defendant will make his or her way to the probation department, and there will agree in writing to abide by the probation conditions imposed by the judge.

Along with conditions such as repaying the victim of the crime, attending a drunk driving class, and staying away from certain persons or property (“stay out of Walmart” is a common probation condition in shoplifting cases), it is quite commonplace for an order of probation conditions to include a prohibition against the use of illegal drugs and/or alcohol.
Since the passage of General Laws Chapter 94C, section 32L, possession of marijuana in an amount equal to or under an ounce can only subject the possessor to a small civil fine – it cannot be punished criminally. Moreover, the law decriminalizing possession of an ounce or less of marijuana specifically defines the possession of marijuana so as to include testing positive for marijuana.  So, one might be forgiven for thinking that they could not possibly violate probation just by smoking marijuana and subsequently testing positive for THC. One would, however, be wrong in so thinking, for at least three reasons.

Firstly, although no criminal penalties attach to the possession of an ounce or less of marijuana, nevertheless its possession subjects its possessor to a fine, and to forfeiture of the contraband property. Marijuana, then, quite clearly continues to remain illegal.
Secondly, many judges these days will explicitly order that the requirement to abstain from the use of “illegal drugs” includes marijuana. In fact, many will advise a defendant before he or she leaves the courtroom that even in the case that he or she obtains a medical marijuana prescription, the defendant had better come back before the court and explain why “medical marijuana” was medically necessary. Inasmuch as a judge has the legal authority to order abstinence from alcohol as a probation condition even when the probationer is 21 or older, therefore a judge certainly can prohibit recreational marijuana use. Whether a judge can permissibly second-guess a licensed physician’s determination that a person should or should not be smoking marijuana is a matter that has not yet been settled, but the probationer-smoker proceeds at his or her peril.

Thirdly, as the Massachusetts Superior Court recently noted, “[a] sanction following the finding of a violation of probation is not a punishment for the offending conduct, but for the underlying offense for which the defendant is on probation.” Commonwealth v. Ward (2015). Therefore, if a court imposes a punishment, e.g., jail, an extension of the length of probation, or the addition of a drug treatment program, after finding that the probationer violated probation by smoking marijuana and testing positive for THC, then the judge has not violated G.L. c. 94C, §32L, by imposing a criminal punishment for small-scale marijuana use, but has in fact only punished the probationer for his or her original crime, which crime was the basis for the probationer having been put on probation in the first place.

In my practice, I am often asked about marijuana use. When it comes to the intersection of marijuana use and probation conditions, the person asking is typically either considering agreeing to a condition of “no illegal drugs,” and wants to know if they can “still smoke,” or has just been placed in violation by their probation officer for failing a drug test, and wants to know if this is fair. The answer is “yes,” you can and very probably will be found in violation of the terms of probation if you test positive for THC after being placed on probation with conditions that include “no illegal drugs.”
Of course, testing positive for THC is typically seen by the judge, by the prosecutor, and by the probation department as minor compared to, e.g., testing positive for opiates or heroin, but it behooves the prudent probationer- or prospective probationer – to understand the standard that will applied to them, and to understand exactly what the have agreed to do – or not do.

Kevin D. Quinlan
Attorney and Counselor at Law
At Uxbridge, MA
January 11, 2016

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