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October 30, 2012

California appeals court upholds probation condition prohibiting use of medical marijuana

This local article, headlined "Antioch man cannot use medical marijuana while on probation for pot sales, court rules," reports on an interesting ruling from a California intermediate appellate court. Here are the details:

A state appeals court ruled in San Francisco on Monday that trial judges can ban the use of medical marijuana in some cases as a condition of probation for people convicted of possessing the drug for sale.

A three-judge panel of the Court of Appeal unanimously upheld a sentence in which Contra Costa County Superior Court Judge Leslie Landau last year prohibited Daniel Leal, 28, of Antioch, from using medical marijuana during his three years of probation.

Leal was sentenced to the probation term as well as to nine months in county jail after being convicted of possessing marijuana for sale in two incidents in Antioch in 2008 and 2009 and carrying a concealed, loaded gun in the first incident. Leal, who has completed his jail sentence, appealed the probation condition barring him from using medical marijuana.

He argued the ban violated his right to use the substance under the state's voter-approved Compassionate Use Act of 1996, which allows patients with a doctor's approval to use marijuana for medical purposes. Leal, who had approval for marijuana treatment for high blood pressure, contended the probation condition wasn't related to his crimes and that there could have been a way to limit his use of medical marijuana without prohibiting it entirely.

But Justice Anthony Kline, writing for the appeals panel, said the ban on use of the substance was justified by "abundant evidence of need to rehabilitate Leal and protect the public."...

Kline wrote in Monday's decision that trial judges setting probation conditions must balance the need to protect the public with California residents' right to use medical marijuana. He said there could be cases in which a ban would not be justified if a defendant posed little threat to society and had proved a compelling need for marijuana to alleviate pain.

But the evidence in Leal's case didn't show an overriding medical need and did show "both rehabilitative and public protection value in interfering with Leal's medical use of marijuana while on probation," Kline wrote.

Leal's lawyer in the appeal, Donald Lipmanson of Sebastopol, said no decision has been made on whether to ask the California Supreme Court to review the case. Lipmanson said the decision was consistent with other state appeals court rulings on the issue, but said the panel's purpose in issuing the detailed 22-page opinion may have been "to send a very clear message that if you end up being convicted of possessing marijuana for sale, don't expect to be able to continue using medical marijuana."

The full opinion in California v. Leal, No. A131366 (Cal. 1st App. Oct. 29, 2012), is available at this link.

October 30, 2012 at 10:04 AM | Permalink


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Cannabis has medicinal value. If a doctor recommends its use for a patient, no hack in a black robe should be able to interfere.

If a person was convicted of unlawful distribution of prescription drugs, and placed on probation, would he/she be precluded from using a physician-prescribed prescription drug while on probation?

Posted by: No Drug War | Oct 30, 2012 1:11:10 PM

1. "If a doctor recommends its use for a patient, no hack in a black robe should be able to interfere."

I've forgotten how many times federalist has been criticized for referring to one judge or another as a "hack." I'll be interested to see whether the commenters who have been on federalist's case for that have anything to say about No Drug War's doing the exact same thing.

2. How many people think that Mr. Leal was toking up because (1) he had a legitimate medical need for pot, a need that could not be met by conventional, FDA-approved medicine, or (2) he just loves getting zapped.

To me, that is not a close question, but I want to use it as a gullibility ink-blot test.

Posted by: Bill Otis | Oct 30, 2012 1:38:32 PM

Any particular reason you are so personally preoccupied with this matter, Doc?

Posted by: Cheech Chong | Oct 30, 2012 2:32:28 PM

Why does Bill Otis think it is for him to decide whether Mr. Leal's use of marijuana is for legitimate medicinal purposes?

Mr. Leal has a doctor who has recommended that he use marijuana for medicinal purposes.

The doctor's opinion is the one that counts, not the opinion of some nutty marijuana prohibitionist.

Posted by: Harrison Payne | Oct 30, 2012 3:23:08 PM

Unfortunately, anyone can find a doctor "who has recommended that he use marijuana for medicinal purposes" as long as one can come up with the $175 "evaluation fee". Cash Only of course.

Posted by: mjs | Oct 30, 2012 4:09:03 PM

Harrison Payne --

"Why does Bill Otis think it is for him to decide whether Mr. Leal's use of marijuana is for legitimate medicinal purposes?"

Under federal law, which is supreme (check your Constitution), there is no such thing as a legitimate medicinal use of pot. Got a problem with that? Take it up with Harry Reid and Nancy Pelosi. They had federal law all to themselves for two full years. Do get back to me on how these liberal heroes changed the CSA.

In addition, as mjs says, the idea that these pro-pot "medical evaluations" are either medical or evaluations is simply naive. There's just no one left who doesn't know these storefront "doctors" are for sale.

Time -- indeed past time -- to give up all this pious blather about medicine. Want medicine? Get Marinol. The reason you won't is, as we all know, that it all has zip to do with medicine.

Posted by: Bill Otis | Oct 30, 2012 4:29:27 PM

The notion that any government official should interfere with the decisions made by a doctor and a patient to treat an ailment of the patient's with a naturally growing herb is a twisted and sick notion.

Posted by: Misty Mountain Hop | Oct 30, 2012 5:27:02 PM

Two observations with questions.

1. "Vincelet testified that, in his experience, nearly 90 percent of arrestees in marijuana sales cases ¡°possess either a marijuana patient.s recommendation or a card." p 3, 7 and 12.

The panel seems to rely on this "fact" and mentions it 3 times. So the panel is relying on a fact not found by the jury. Granted, this fact is not deemed an element of any offense, but it is a fact that enhances the sentence in terms of more restrictive probation. It probably isn't even a fact.

2. “Generally, „[a] condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .” p 13

How can "civil" restrictions that would not be allowed as conditions of probation, like the current Halloween restrictions, be enforced on those who long ago completed probation?

Posted by: George | Oct 30, 2012 7:05:23 PM

Well George that's easy. Our great treasnous nazi wannabee's on the Former United States Supreme Court have decided all's fair in love, war; and of course sex crimes.

This will continue till they are required to put thier asses where thier mouths have taken them

Posted by: rodsmith | Oct 30, 2012 8:15:21 PM

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