West Virginia News reports..
The West Virginia Supreme Court upheld that probationers cannot use medical marijuana if it violates federal law or court-imposed probation conditions.
Judges have broad discretion to impose reasonable probation conditions, including prohibiting otherwise lawful medical cannabis use.
The ruling clarifies that the West Virginia Cannabis Act doesn’t override probation laws or conditions aimed at rehabilitation and public protection.
CHARLESTON, W.Va. (WV News) — Probationers who believe the West Virginia Cannabis Act gives them an ironclad workaround to use marijuana while on alternative release are out of luck.
The West Virginia Supreme Court this fall issued a ruling that found a Berkeley County man’s rights weren’t abridged when a judge nixed his right to use weed via a medical card he’d obtained after getting a PTSD diagnosis from an OB/GYN doctor.
The judge had deployed a 12-question vetting process before making that decision, and that, too, was OK with the justices.
A key point in the opinion, which was authored by Justice Haley Bunn, is that judges have to abuse their discretion — that’s a tough standard for someone on probation to prove — before a decision on probation rules will get overturned by the high court.
In this case, the Berkeley County probationer and his attorney, Berkeley County Assistant Defender Jonathan O’Dell, had relied on the premise that the West Virginia Cannabis Act supersedes a judge imposing a restriction of medical marijuana use.
Deputy Attorney General Andrea Nease-Proper, who represented the state, had centered her argument around the contention that marijuana use remains a violation of federal law, and that probationers, under state law, cannot violate federal law.
The justices sided with Nease-Proper’s interpretation, but also gave other reasons why the circuit court’s decision should be affirmed.
As for the federal marijuana law, “West Virginia Code § 62-12-9(a)(1) requires, in plain language, that ‘[r]elease on probation is conditioned upon the following: (1) That the probationer may not, during the term of his or her probation, violate any criminal law of this or any other state or of the United States.” (Emphasis added). The federal Controlled Substances Act prohibits the possession of marijuana for any reason. … Because [the defendant’s] possession of medical cannabis would violate federal law, the possession would also violate the probation condition imposed by West Virginia Code § 62-12-9(a)(1),” Bunn wrote.
The decision underscores circuit judges’ ability to impose probation conditions that dovetail with the aims of the criminal justice system.
“West Virginia Code § 62-12-9(a)(1) to (6) sets out mandatory conditions for probation, and West Virginia Code § 62-12-9(b) permits a circuit court to impose other conditions ‘which it may determine advisable.’ … Imposing a probation condition pursuant to this authority does not criminalize the subject of the condition or otherwise conflict with statutes or even constitutional provisions providing that those activities are lawful. Courts regularly impose conditions on probation that forbid otherwise lawful conduct and even invade a probationer’s constitutional rights,” Bunn wrote.
Bunn added that the West Virginia Cannabis Act’s language isn’t a silver bullet that probationers can use to be able to smoke weed.
