Colorado Supreme Court Rules People On Probation Can Use Medical Marijuana

Brennan Linsley/AP
Budtender Miles Claybourne sorts strains of marijuana for sale into glass containers at The Station, a retail and medical cannabis dispensary, in Boulder, Colo., Thursday, Aug. 11, 2016.

The Colorado Supreme Court sided against a judge who required that defendants bring a doctor to court to testify in support of their medical marijuana use. The state high court found that such asks violate the Colorado constitution.

The decision stems from the case of Alysha Walton. She pled guilty in El Paso County court in 2017 to driving under the influence of alcohol and speeding. She agreed to probation, but the judge in that case — Judge Karla Hansen — deferred to what the El Paso District Attorney’s office called a “standing procedure” that required medical marijuana enrollees to bring a doctor to court “to help determine if there is appropriate authority for the use of medical marijuana.”

Walton’s state-issued medical marijuana card was not considered enough evidence, and because she couldn’t get her doctor to testify, she was ultimately ordered to stop using medical marijuana for the term of her probation.

The justices wrote today that they “disapprove” of this decision, and said the state law “creates a presumption that a defendant who is sentenced to a term of probation may use medical marijuana.” Since Walton had already completed her probation, the justices did not move to reverse the lower court decision.

There’s only one condition to the court’s decision, that medical marijuana can be restricted for someone who may need to come off of marijuana to complete their sentencing goals. But in these situations, the court said, the burden is on the prosecution to prove it, and a decision must be made based on “material evidence.”

Colorado passed a law in 2015 allowing for probationers to use medical marijuana, asking judges to decide whether that would interfere with their probation based on “material evidence.” However, that law largely left it up to judges to determine what that evidence may be.

While the issue of medical marijuana use during probation is a murky one — Denver-based criminal attorney Jay Tiftickjian said he gets calls from people in similar situations “every single day” — the high court decision still leaves a lot of unanswered questions, questions that it will need to consider in the future.