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Colorado Criminal Law – Can You Use Medical Marijuana While On Probation in Colorado –  Update – A New 2015 Law Says YES With Conditions

By H. Michael Steinberg – Colorado Drug and Probation Crimes Criminal Defense Lawyer

Colorado Criminal Law - Can You Use Medical Marijuana While On Probation in Colorado - Two Cases Wilburn and Watkins


Colorado Criminal Law – Can You Use Medical Marijuana While On Probation in Colorado – Two Cases Wilburn and Watkins

Colorado Criminal Law – Can You Use Medical Marijuana While On Probation in Colorado? In the state of Colorado when you accept a probationary sentence you are required to also accept a number of “standard” terms and conditions of probation. Among those conditions are typically conditions worded as follows:

  • The Defendant will not use alcohol to excess and will not use any narcotic, dangerous, or abusable drug without permission from the Court.
  • The Defendant will not violate any criminal law – federal, state or local.
  • The Defendant will comply with any other conditions required by his probation officer that are reasonably related to his rehabilitation…including the condition that the Defendant will not use or possess any narcotic, dangerous or abusable substance without prescription.

 The rest of this article has been modified by the passage of a new law in Colorado on May 8, 2015 – here is a LINK to the new article.

I have left the remainder of this article for historic purposes only – for those to see the old rule. HMS

Two cases, decided in over the last few years, prohibit the use of medical marijuana while on probation.

Case I – 2013 – People v. Wilburn

In the Wilburn case – as a condition of probationary supervision on a deferred judgment and sentence, the Defendant agreed to the provision in his terms and conditions to “not use or possess any narcotic, dangerous or abusable substance without prescription.”

A complaint to revoke his probation was filed because he had tested positive several times for THC which is the illegal and active ingredient of marijuana. At the hearing on the alleged violation of the deferred judgment and sentence, the Judge found that Mr. Wilburn had NOT violated his probation by using medical marijuana and the Court refused to revoke the deferred judgment and sentence.

The Trial Judge found that Wilburn established an affirmative defense to the probation revocation because he alleged and proved that he could seek asylum under the Colorado State Constitution provisions pertaining to the use of medical marijuana. But the Court of Appeals reversed that decision.

The Colorado Court of Appeals Reversed The Trial Judge On The Medical Marijuana Affirmative Defense To A Probation Revocation Proceeding

The rule of law – as of this 20012-23 case – is now:

There is no affirmative defense to a revocation of a deferred judgment based on the Colorado state Constitution’s provisions (article XVIII, section 14(2)(a) of the Colorado Constitution) as regards the medical use of marijuana. There is NO DEFENSE to the administrative proceeding of a revocation of probation.

There can be no legally recognized prescription for marijuana under Federal Law as marijuana remains a schedule I controlled substance and cannot be legally prescribed.

The “standard condition” of all probationary sentences – that a defendant on probation cannot “use or possess any narcotic, dangerous, or abusable substance without a prescription” means no marijuana – medical or otherwise.

 A Complaint To Revoke Probation IS NOT A Criminal Prosecution Under Colorado Law

Under Colorado law – a proceeding to revoke a deferred judgment is not a criminal prosecution. (See People v. Watkins below). The courts describe a motion to revoke probation as “fundamentally different from a criminal trial.” Under this legal interpretation, Defendants are not “entitled to the full range of constitutional guarantees afforded to defendants in criminal prosecutions” and therefore the Colorado Constitution provision as regards medical marijuana cannot be used as a defense as they do not apply to a proceeding to revoke a deferred judgment or other kinds of probation revocation proceedings.

Put another way – the use of medical marijuana is a violation of probation and the Colorado Constitution does not immunize a probationer from revocation of probation which includes revocation of a deferred judgment.

A Defendant technically “accepts” probation at the time of sentencing and by accepting a sentence to probation or negotiating an agreement to a deferred judgment (both must be approved by the Judge) – the agreement is considered a kind of contract bestowing a privilege under Colorado law. When a person is sentenced to probation or to a deferred judgment they waive most of their constitutional rights – rights that apply to a trial and other pre-adjudication criminal case but not to the revocation of that probation or deferred judgment and sentence.

One Last Point – The Court Ruled On A Narrow Issue of No Controlled Substances – Not On A Violation of Law As A Basis For The Probation Violation

The Court in Wilburn specifically and intentionally never addressed the use of medical marijuana as a violation of federal law and therefore a violation of probation.

Compare California’s Law On The Use of Medical Marijuana While On Probation

Under identical circumstances – California permits a hearing and grant’s a judge discretion to allow a probationer the right to smoke medical marijuana during probation.

California Health and Safety Code § 11362.795(a) (see also the California Case Of People v. Tilehkooh (2003))

1. 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.

2.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.

3. 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.

4. The court’s consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.

Colorado Rejects California’s Approach – In People v. Tilehkooh

Colorado rejects California’s approach to the use of medical marijuana while on probation.

“We disagree with the court’s reasoning in Tilehkooh, which, in any event, relied on statutory language significantly different from that at issue here. Contrary to that court’s conclusion, in revoking probation based on a violation of federal law, a court is not enforcing federal law through a state statute. Nor does a court thereby punish a defendant for a violation of state laws prohibiting the possession or use of marijuana. .. Rather, the court enforces a provision of state law requiring that the probationer lead a “law-abiding life” by not committing any offense.

Case II – 2012: People v Watkins

In the Watkins case – Mr. Watkins was permitted by the lower court to use medical marijuana while on probation for a felony sex crime. At the motion to revoke his probation filed by the Arapahoe county probation department – he argued that Colorado Constitution – Amendment 20 “is paramount and necessarily prevails” over the standard conditions of probation which included a prohibition against possessing ” any narcotic, dangerous or abusable substance without a prescription.”

The case posed two issues:

1. Does the legally mandated condition of probation which requires a probationer not to “commit another offense” while on probation include commission of offenses under federal law?

2. Does article XVIII, section 14 of the Colorado Constitution (the Medical Use of Marijuana Amendment or the Amendment) allow a court to permit an exemption of the “no new crime” requirement for a person to use medical marijuana – for a user who has a :registry identification car.”

The standard conditions of probation contain at least these basic provisions:

Probationers shall not violate any laws.

Probationers will not use or possess any narcotic, dangerous or abusable substance without a prescription.

Probationers shall not purchase, possess or utilize any mind altering or consciousness altering substance without a written lawful prescription.

As noted the Arapahoe county judge permitted the use of medical marijuana without a hearing.. The DA appealed and the People argued possession or use of marijuana – even for medical purposes – is a federal offense, and therefore the lower Court’s order approving such use conflicted with the probation condition mandated by section 18-1.3-204(1), C.R.S. – the provision states as follows and is very clear on it’s face:

The court shall provide as [an] explicit condition [] of every sentence to probation that the defendant not commit another offense during the period for which the sentence remains subject to revocation . . .

The Mandatory Probation Conditions In Section 18-1.3-204(1) Includes a Prohibition That A Probationer Not Commit Any Offense – This Includes Federal Offenses

Since it is a Federal crime for any person to knowingly or intentionally possess marijuana, (21 U.S.C. § 844(a) any person who violates prohibition may be sentenced to prison for not more than one year), Colorado prohibits the use of marijuana in any form while on a probationary sentence.

When Is A Prescription Not A Prescription?

The Watkins Court held that under Colorado law a physician does not “prescribe marijuana”, instead the doctors provides “written documentation” stating that the patient has a debilitating medical condition and might benefit from the medical use of marijuana. Colo. Const. art. XVIII, § 14(2)(c)(II).

The physician “certification” provided for by Colorado law is not a prescription for the use of marijuana.. Put another way – a physician’s certification does not constitute a “written lawful prescription” – which is what is necessary fo use a controlled substance under the terms of every probation sentence in Colorado.

Summary and Conclusion – A Probation Violation Hearing Is Considered An Administrative Not A Criminal Hearing In Colorado

According to the Colorado Court of Appeals – a revocation of probation is NOT a criminal prosecution. It is an administrative proceeding which affirms the original sentence and only changes the nature of the sentence or terms of the Court’s sentencing order.

Since a probation based sentence is a privilege and not a right, persons on probation do not enjoy ‘the absolute liberty to which every citizen is entitled’” and therefore there is no right to defend against such a probation revocation proceeding because it is not a criminal proceeding at that point.

Colorado Criminal Law – Can You Use Medical Marijuana While On Probation in Colorado – Two Cases Wilburn and Watkins

If Colorado is to follow California’s lead in this area – Colorado must exclude the condition of probation that probationer’s cannot “commit another offense during the period for which the sentence remains subject to revocation.” Since that is unlikely to happen – the use of medical marijuana while on probation will likely never be permitted.

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Never stop fighting – never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at  hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

A Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. If you are seeking counsel there maybe other more specific technical or legal advice on the information provided and related topics. For that, please contact the author.

If you are charged with A Colorado crime or you have questions about the topic of this article – Colorado Criminal Law – Can You Use Medical Marijuana While On Probation in Colorado – Two Cases Wilburn and Watkins, please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

Colorado Experienced Criminal DefenseH. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 30 years of day to day courtroom experience – specializing in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. Call now for an immediate free phone consultation.


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Colorado Defense Lawyer H. Michael Steinberg regularly appears and provides solid criminal defense for clients throughout the Front Range of Colorado – including the courts of:

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and all the other cities and counties of Colorado along the I-25 Corridor… on cases involving the subject of this article – Colorado Criminal Law – Can You Use Medical Marijuana While On Probation in Colorado – Two Cases Wilburn and Watkins.

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Colorado Criminal Law - Can You Use Medical Marijuana While On Probation in Colorado -  Update A New 2015 Law Says YES With Conditions
Article Name
Colorado Criminal Law - Can You Use Medical Marijuana While On Probation in Colorado - Update A New 2015 Law Says YES With Conditions
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In the state of Colorado when you accept a probationary sentence you are required to also accept a number of "standard" terms and conditions of probation. One of these is no controlled substances..
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H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
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