Your freedom or your medicine? New ruling on Medical Marijuana and Probation

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Medical marijuana and probation 

Your freedom or your medicine?

Medical Marijuana and Probation or Parole.

  • Are you on probation or parole and have a medical marijuana card?
  • Are you charged with a crime and are on bail but being told that you can’t use medical marijuana although it was lawfully prescribed to you?
  • Concerned that if you are found guilty and sentenced for a criminal offense in Pennsylvania that you might have to choose between your medicine and jail?
New PA Supreme Court ruling on Medical Marijuana and Probation in PA

Up to this minute, these were legitimate fears: Your medicine or your freedom. The government was in your medicine cabinet and trying to keep you from your medicine. Now thanks to a brand-new opinion published today by the Supreme Court of Pennsylvania (SCOPA), the government can no longer force you to choose between your freedom or your medicine.

BUT THERE IS A MAJOR LOOPHOLE THAT EVERYONE NEEDS TO KNOW… see what it is at the end of the post.

A new decision in the Supreme Court of Pennsylvania has struck down a Lebanon County medical marijuana policy. The case of Gass v. Lebanon County, which was decided on June 18, 2020 has ruled that people on probation with valid medical marijuana licenses may use the lawful and authorized amount of marijuana (not simply self-medicating and/or smoking). In 2016, Pennsylvania passed a law that legalized medical marijuana. In the law, it has a part that says basically that the use of medical marijuana is legal except in circumstances where some other law says it is not.

Despite how clear the words of the law were, Lebanon County just set that aside. The judges of Lebanon County made a policy (that was followed by counties) that said even folks on ARD or folks on normal probation absolutely could not use medical marijuana. If anyone chose to use their medicine, the probation department said it would violate the person. This means they would sit in jail (without their medicine) until they got in front of judge days or weeks later. If they were found to have used their medicine (by drug test or admitting to it) then they would be re-sentenced to jail or more probation or both. The judges came up with this policy because they reckoned that

1. marijuana is still against federal law to possess even if it is prescribed by a state licensed doctor and under a state law. (Note one of the major conditions of probation in every case is for the person not to violate federal, state or local laws) and
2. due to testing methods and their limitations, it was impossible for the probation department to tell if the person was smoking marijuana (which is not allowed) or using it in the approved state manner.

The ACLU and the Lebanon County Public Defender’s Office stepped in.

The Supreme Court with this ruling told Lebanon County and its judges that they were flat wrong. The Supreme Court did this for 2 reasons:

  1. The Medical Marijuana Act passed by the legislature did not forbid this class of folks (probationers or parolees) from using the medicine. There are many parts within the law that limit who can and cannot use medical marijuana. For example, its use is prohibited within federal prisons. Despite these restrictions, nowhere in this act or any other Pennsylvania law is there a provision that says probationers may not use medical marijuana. The Court reasoned that if the legislature had intended for probationers and parolees to not use their medicine, it would have said so. But, as it did not, probationers and parolees are allowed under the law to use medical marijuana.
  2. The Supreme Court reasoned that Lebanon County’s argument about the violation of federal law holds no water. While it is important for individuals on probation, and individuals in general, to follow federal laws, this forbidding of medicine is not an enforceable one. The federal Controlled Substances Act does not require any state to enforce the federal Controlled Substances Act. This is why many states, including Pennsylvania, have been able to legalize medical marijuana despite it being a Schedule I drug federally. The Court said that the United States has a government built on federalism, certain powers are given to the federal government and some are given to the states. This is one of the powers given to the states. Because of this, Pennsylvania’s law allowing medical marijuana use holds more power than the federal law prohibiting it. Therefore, the Lebanon County policy must follow the specifics of the state law and allow probationers or parolees who have a legal medical marijuana license to use the drug for that purpose.

Before you raise the flag of victory there’s a major warning…

This does not mean that probationers/parolees are now able to use marijuana of any kind, whenever they want. Probation officers are still allowed to make reasonable inquiries into uses of the substance that they feel may be unlawful. These inquires must, however be backed up by some substantial reasons. It does mean that those who rely on medical marijuana for pain relief or other medically approved reasons may use it only as the law intended. So, if they say that the smoked marijuana (which is not allowed in Pennsylvania) then you are in potential trouble. If you use your medical marijuana in a manner that is not in keeping with the stated medical reason, then you are in potential trouble. Say you were approved for pain relief due to advanced cancer, but you told the agent you used it not for pain relief and in fact you had no pain, but you used it to get high, then you might be in some big trouble.

In conclusion, if you have a validly prescribed medical marijuana card in Pennsylvania and are under any form of court supervision (e.g., bail, pre-trial services, probation, parole), you can use your medicine and should not be in fear of being in trouble. But some agencies and judges may not want it to be that way. That’s where we come in. Put our name and number in your cell phone now in case you need it: The McShane Firm Hotline 717-657-3900. We are here to force them to follow the law. If you are expected to follow the law, they have to follow it too. This is a welcome relief to all of those who were lawfully prescribed and use lawfully medical marijuana in Pennsylvania. You now have your medicine and your freedom! Keep the government out of our medicine cabinets. #PAMedicalMarijuana #SCOPA

Additional recommended reading:

[Hat tip to Trevor Dennehy, law clerk extraordinaire]

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PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.