Arizona Supreme Court Says Probation Conditions Can’t Prohibit Medical Marijuana Use

Medical marijuana with a prescription bottle


by Owen Poindexter

on April 10, 2015

The Arizona Supreme Court issued a landmark ruling earlier this week, deciding that felons could use medical marijuana while on probation, provided that they have a card permitting them to do so under the state’s medical law. Two similar cases were brought by Keenan Reed-Kaliher and Jennifer Lee Ferrell, who were denied the right to use medical pot by their probation officers, despite having cards.

Reed-Kahiler was convicted of selling cannabis in 2010, and was prohibited by his probation officer from using it while his probation lasted. He used weed to treat chronic pain that he suffered as a result of a fractured hip. Reed-Kahiler first sought to have this provision overturned in a superior court, then, after being denied, went to the Arizona Court of Appeals. There, his argument was accepted, the provision removed, and the State Supreme Court upheld the Appeals Court ruling.

Arizona’s law provides immunity from prosecution to all registered patients except under certain narrowly defined conditions (e.g. while driving or while in a correctional facility). The Court ruled that Reed-Kahiler did not fit into any of these immunity-denying scenarios, and thus should be allowed to have his medicine.

“If the state extends a plea offer that includes probation, it cannot condition the plea on acceptance of a probationary term that would prohibit a qualified patient from using medical marijuana,” the Court wrote. The judges elaborated that the law “does not expressly prohibit those who have been convicted of drug offenses from using medical marijuana.”

Marc Victor, defense attorney for the patients, said that the judges’ decision stemmed from the language of the voter initiative that legalized medical cannabis in Arizona in 2010.

“The initiative specifically said your right to use medical marijuana can’t be taken away,” said Victor.

The ruling also applies to Ferrell, who refused to accept the terms of a plea deal over a DUI, because it disallowed her from using cannabis under probation. The prosecution withdrew from the plea agreement, and the case was passed up to the Arizona State Court of Appeals. While the marijuana portion of her probation deal was ruled ineligible, the court did allow the prosecution to throw out her plea deal, because the judge who initially agreed to that deal did so under the original pot-prohibiting terms. Going forward, any plea deal she negotiates cannot deny her right to use marijuana for medical purposes.

The Arizona Supreme Court’s decision is notable in that it takes the perspective of cannabis as a legitimate treatment —not unlike a prescription drug — and not an illegal substance.

“The Supreme Court is recognizing what the people decided when they passed the initiative: You can use your medicine,” said David Euchner, the assistant public defender in Pima County. Euchner argued for the defendants as a friend of the court and member of the Arizona Attorneys for Criminal Justice.

“Now they’re being treated like actual patients with the right to their own medicine,” says Carlos Alfaro, Arizona Political Director for the Marijuana Policy Project. “Policies like these open up the mentality of people toward marijuana use as medicine, but also change the mindset for future legalization.”

Currently 23 states have a comprehensive medical marijuana laws on the books, and a handful of others allow high-CBD/low-THC cannabis for a narrow list of conditions. The same question posed to the Arizona Supreme Court could theoretically be presented in over half the states in the U.S. While the federal government has not had a coherent policy toward medical marijuana states — only varying degrees of meddling — the increasing number of medical and fully legal states is forcing the issue more and more.

Unlike gay marriage, a cause marijuana legalization is often compared to, pot policy has been advanced mostly through the ballot box, not the courts or the legislature. It remains to be seen whether pot advocates grow increasingly bold in pursuing lawsuits to advance policy.

One state expected to consider the question of legalization is Arizona itself. While the state legislature is unlikely to advance progressive policy, the voters already have in passing the state’s medical marijuana law. Advocates will ask them to do so again on a legalization ballot initiative planned for 2016. While full legalization is a big step from medical marijuana, public acceptance of marijuana is growing quickly, and the larger, younger electorate typically seen in presidential elections helps the legalization cause.

Marijuana is, as much as anything, a patients’ rights issue. In the past, patients have largely been forced to accept the terms handed down by their particular state, however limited and convoluted. The Arizona Supreme Court’s decision in Reed Kaliher v. Hoggatt creates a precedent of patients successfully defending their rights from a state that initially sought to deny them.