Judge May Prohibit Medical Marijuana for One on Probation
Steven Hughes was convicted of cultivating marijuana (a violation of California Health & Safety Code § 11358), possession of marijuana for sale (a violation of California Health & Safety Code § 11359), and transportation of less than 28.5 grams of marijuana (a violation of California Health & Safety Code § 11360).Why This Article Matters: A judge can impose certain terms and conditions of probation that may seem to restrict one’s legal rights. This can include a rule that the probationer not use marijuana. This is legal and enforceable, much to our client’s surprise.
Hughes appealed the probation condition, on grounds that his medical use of marijuana is lawful under California Health and Safety Code § 11362.5 (The Compassionate Use Act of 1996).
The Fourth Appellate District, in People v. Steven Ebbert Hughes (2012 DJDAR 1153), affirmed the trial court. Its analysis began with noting that Judge Freer asked Hughes’ counsel his position on such a probation condition. Hughes’ counsel replied that such a condition would be appropriate for someone using their license to sell dope on the street, however, he argued that Hughes’ case was “entirely different.”
Judge Freer then expressed concern about the adequacy of the medical evaluation Hughes’ doctor performed prior to issuing Hughes a medical marijuana prescription. In the trial court’s view, the evaluation was “most cursory.” Freer stated on the record that he thought there was no “real physical examination, no blood work, anything of that nature.”
In reviewing the trial court’s condition of probation, the Appellate Court noted that a trial court has broad, but not unlimited, discretion in setting the terms and conditions of probation. On appeal, the higher court must find an abuse of discretion to overturn the trial court.
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