Ruling by Judge Illustrates Resistance in Yolo County to Recognizing State Laws on Medical Marijuana –
In many jurisdictions, law enforcement begins an approach for possession of marijuana with a question as to whether the individual has a medical marijuana card. That does not appear to be happening in Yolo County, in fact just the opposite, as law enforcement appears to arrest individuals and put the burden on them in a court of law to confirm that they have a legal right to possess the drug.
Defendant Jack Allen Pritchard appealed the trial court’s denial of his request to use physician-recommended marijuana while on probation. The trial court denied the request by stating, “I’m not going to confirm anybody’s need for medical marijuana.”
The 3rd DCA ruled that the trial court “abused its discretion in denying defendant’s request” and they remanded the matter back to the trial court for further proceedings.
According the facts of the case, “In 2008, defendant pled no contest to transporting marijuana and was placed on Proposition 36 probation, on condition he successfully complete a substance abuse program and abstain from the use or possession of illegal drugs, including marijuana.”
A subsequent probation search found marijuana, a medical marijuana card, and psilocybin mushrooms.
The individual pled no contest to possessing the mushrooms, and was placed on formal probation with terms and conditions that included “he complete a 90-day outpatient treatment program and that he abstain from the use or possession of illegal drugs, including marijuana.”
Before sentencing, defense counsel, Deputy Public Defender Teal Dixon, sought permission for defendant to use marijuana medicinally upon completion of his 90-day treatment program.
Ms. Dixon told the court, “From the probation report, the Court can see that he has a documented need. This is not an 18-year-old with an insomnia problem, he has great medical disabilities. That’s why he’s on SSI.”
She continued, “He did not know that he had to come back to court to ask for permission in order to use once he was out of the program. He’s asking that he get that permission.”
The judge responded, “Permission to do exactly what?”
Ms. Dixon responded, “To use marijuana medicinally once he’s completed his 90-day program. The reason that I ask, your Honor, is that if he does not, he will be taking Soma, Klonopin, and Vicodin. He has a liver problem. All of those drugs are more powerful and more dangerous than marijuana. He has documented — I’m sorry — I provided the doctor’s note.”
The judge then responded, “I don’t contest your analysis, although I have two problems with this. Number one, I’m not a doctor. I don’t have the right letters after my name and don’t decide what drugs or substances are or are not good for people’s medical conditions. Number two, the People of the State of California decided that it is appropriate for people to have medical marijuana.”
The judge continued, “That doesn’t mean I have to sign orders blessing it, and I’m not about to put my signature on anything.” And then added, “I’m not going to confirm anybody’s need for medical marijuana.”
Here is a case where even the DA’s Office agreed that it was appropriate for the individual to have medical marijuana under the current laws. Wrote the 3rd DCA, “Defendant contends, and the People agree, that the court abused its discretion in denying his request to use medicinal marijuana while on probation. We also agree.”
This is a really unique case in which even the DA’s Office is not contesting the defendant’s claims here.
Wrote the 3rd DCA, “From the record, it appears the trial court either failed to exercise its discretion, or did so arbitrarily; either circumstance constitutes an abuse of discretion.”
They continued, “The court’s only stated reason for denying defendant’s request to use medical marijuana while on probation did not consider defendant, his crime, or his individual circumstances.”
The court continued, “By declaring, ‘I’m not going to confirm anybody’s need for medical marijuana,’ the court indicated it would deny such a request without regard to the circumstances. That was an abuse of discretion.”
As we have noted a number of different times, abuse of discretion is an extremely high threshold for overturning a decision. But here it is rather clear-cut that, while the court has discretion, there must be a valid reason.
For instance, the 3rd DCA argued, “Of course, the trial court was not required to exercise its discretion by granting defendant’s request to be allowed to use the medicinal marijuana.”
However, they note that in the controlling authority, People v. Moret (2009) 180 Cal.App.4th 839, “the Court of Appeals found that the defendant’s conduct raised a genuine question about his honesty, as his acquisition of a medical marijuana recommendation was ‘extremely recent’; thus, the trial court ‘quite justifiably’ doubted defendant’s claim that he needed medical marijuana for self-purported migraine headaches.”
In this case, the need for marijuana, given Mr. Pritchard’s liver problems which were documented by a medical doctor, is overwhelming. It is appalling this judge, while not a doctor, would ignore the advice of doctors in this matter.
This should be an illustrative case for those against medical marijuana, and the alternative in this case would be much stronger and more inhibiting drugs. He would either take marijuana medicinally or he would take, “Soma, Klonopin, and Vicodin.” These are more powerful drugs that people become addicted to and abuse.
The bottom line in this case is that the judge did not have the authority to ignore medical marijuana laws simply because of disagreeing with them.
—David M. Greenwald reporting
I’ve gone over the article several times, and I’m not finding the name of the judge. Did I miss it, or was it intentionally omitted?
The name of the Judge was not listed in the opinion – so we’ll have to look it up in the computer on Monday.
Style comment: it seems to me that the word “judge” shouldn’t be capitalized unless it’s at the beginning of a sentence or as part of a title (e.g. “Judge McAdam”). Every time I saw “The Judge” in the article, I envisioned a 1968 GTO.
This is very disturbing. Clearly an abuse of authority. Didn’t Arnold de-criminalize Marijuana before he left office??
Thank you, Jim. I thought I caught them all…and our intention is to leave the capitalized word only when it is within a quote, when used with a name (as a title)or in a legal document – where it is customary to capitalize words such as Judge, Court, Defendant and Plaintiff.
Thank you, Jim. I failed to catch most of them today…our intention is to capitalize only when used with a name (as a title), when contained as such within a quotation or when within a legal document (where it is customary to capitalize words such as Judge, Court, Defendant or Plaintiff).
Or, yes, at the beginning of a sentence!
dmg: “In many jurisdictions, law enforcement begins an approach for possession of marijuana with a question as to whether the individual has a medical marijuana card. That does not appear to be happening in Yolo County, in fact just the opposite, as law enforcement appears to arrest individuals and put the burden on them in a court of law to confirm that they have a legal right to possess the drug.
The Third District Court of Appeals (3rd DCA) has overturned the judgment of yet another Yolo County judge.”
The medical marijuana law is fairly recent, and so it is not surprising to me that some mistakes will be made. Case law like this will flesh out the do’s and don’ts of this new statute that allows the medical use of marijuana.
Frankly, it makes no sense to me to insist the defendant stay off all drugs, including marijuana, for his 90 day treatment – then turn around and start him on marijuana again, once he is done treatment for the express purpose of staying off drugs. Am I missing something here? If it is good for him to stay off marijuana for 90 days, why is it good for him to go back on marijuana after 90 days has elapsed?
Also, I can understand where the judge is coming from. He didn’t think he had the power to give “permission” for the defendant to begin the use of marijuana after his 90 day treatment program was completed – bc the judge does not hold a medical license. The “permission” eminates from the medical profession. The permission originates and should be obtained from the doctor, not the courts. I assume what the appellate court ruling indicates is that once a doctor gives permission, a judge then must “acknowledge” the legal right to use marijuana…altho I still don’t see why the judge should have to give “permission”. The defendant should be able to just use medical marijuana… since he received a doctor’s prescription.
Furthermore, there is no guarantee the appellate court is right in this situation, either, just bc they overruled the trial court. IMHO, anyone who doesn’t see the judge’s predicament is so heavily in favor of legalizing drugs they cannot see the forest for the trees…
since there is a federal ban on pot, the real culprit is the state – there is no legal basis for so-called “medical use” of marijuana to begin with.
thus to get up in arms about the county ignoring state law is quite the pot calling the kettle black – since the state decided to ignore federal law when medical marijuana was voted on.
To Musser: Very good point – I hadn’t thought of that angle…
To ERM
While I agree with your interpretation on all legal points, I would like to address this from the medical perspective.
There is a growing body of evidence that for many people, marijuana used for management of pain is a safer alternative than either NSAIDS
Or narcotic based pain medications. While there are very valid points on both sides of the debate for the general legalization of marijuana, I think there is little to support a ban on prescription marijuana. So, from a doctor’s point of view, what is needed is a change in federal law to reflect the growing medical consensus that there is a place for prescription marijuana in our armamentarium for pain management.
Addressing a few points here.
First, the appellate court does me no favors on capitalization by capitalizing THE JUDGE, THE COURT, and other words. I figure HIGH BEAM can sort it all out after the fact.
Second, the state courts have already ruled on the legality of medical marijuana in the state, so it is irrelevent for the purposes of their ruling what the feds have done.
Third, the Judge is not a doctor, but they already have medical opinions from physicians. If this were a mental case, do you think the judge would refuse to remand the defendant to medical care when both the people and the defense agree? Not a chance. But the Judge is not more a psychiatrist than he/ she is a doctor.
Bottom line here, the judge ignored the settled for now law of the land to impose his/ her own personal values and was rightly slapped down for an abuse of discretion.
medwoman: I appreciate you making that point because we seem very willing to allow much worse and more powerful medication because of some paranoia about marijuana.
“Second, the state courts have already ruled on the legality of medical marijuana in the state, so it is irrelevent for the purposes of their ruling what the feds have done.”
wrong. It means the Yolo County courts have a legal obligation – a higher duty to the federal govt which means they must obey federal law first and foremost, before the wishes of the state, which MAKES POT FOR ANY PURPOSES ILLEGAL. I’m sorry that you object to the results of the Civil War. If the South had won, then the state would be the higher authority. I’m sorry, but pot use for any purpose, until the ban is altered at the federal level is illegal. Facts are facts.
so I’ll repeat it again: Dope for medical purposes (quite the irony when you think about it) is unlawful until the federal ban is lifted, period. So the state is in no position to get self righteous about having its laws ignored, since it decided it could ignore the federal government.
Musser: You are incorrect and you do not cite case law. You are attempting to argue that the supremacy clause means that state law must adhere to federal law. That is not a correct interpretation of the supremacy clause.
In Gonzales v. Raich, the US Supreme Court ruled that under the Commerce Clause of the United States Constitution, the United States Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal purposes.
However, marijuana remains legal under California State law and illegal under federal law. The court did not strike down the state law. The state court is bound to enforce state law, not federal law. And if the federal government wishes to enforce federal law, they must do so using the DEA and federal courts, not state court.
dmg: “In Gonzales v. Raich, the US Supreme Court ruled that under the Commerce Clause of the United States Constitution, the United States Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal purposes.
However, marijuana remains legal under California State law and illegal under federal law. The court did not strike down the state law. The state court is bound to enforce state law, not federal law. And if the federal government wishes to enforce federal law, they must do so using the DEA and federal courts, not state court.”
LOL I would say this is splitting hairs.
medwoman: “So, from a doctor’s point of view, what is needed is a change in federal law to reflect the growing medical consensus that there is a place for prescription marijuana in our armamentarium for pain management.”
But are doctors in agreement that marijuuna use has any medical benefits. It was my understanding, and correct me if I am wrong, is there is a definite divide in the medical community as to the efficacy of marijuana use for medical purposes. Can you shed some light on this?
dmg: “If this were a mental case, do you think the judge would refuse to remand the defendant to medical care when both the people and the defense agree?”
First, there would have been testimony from medical experts at trial about what was best for the defendant. Second, there would have been sufficient precedent and case law to lay the foundation for what the judge is expected to do. Thirdly, there would not have been the complication of the federal law making the medical treatment sought illegal under federal law.
“LOL I would say this is splitting hairs. “
Not in the least, that is why this case was thrown out by the 3rd DCA.
“First, there would have been testimony from medical experts at trial about what was best for the defendant. “
Unless it’s a trial generally it is just a report by the examining psychiatrist. That is what happened in this case as a doctor wrote a report.
“Second, there would have been sufficient precedent and case law to lay the foundation for what the judge is expected to do.”
Read the opinion that the court wrote, they rely on authorities here.
“Thirdly, there would not have been the complication of the federal law making the medical treatment sought illegal under federal law. “
That’s irrelevant to the issue, and federal law was never mentioned in the decision or opinion.
Something to consider is the fact that medicinal use of marijuana [b]actually works and provides relief to people in pain[/b]. I think number of the above posts reflect concern over possible abuse of the program rather than the real benefit to those unfortunate people who need it.
My next door neighbor had colon cancer which ultimately killed him. The cancer was identified at stage 3 and it slowly progressed over a four year period. During that period he had four surgeries, had so much radiation treatment his body could take no more and for the last two years he had to deal with a colonstomy bag. Toward the end, they cut open the side of his neck to remove cancerous growth that was progressing throughout his body. During the last year his doctor at Stanford Hospital told him to try marijuana to help overcome the pain and nausea. Ray was just a nice guy who needed help and marijuana gave him that – he just wanted a way to bear living the remainder of his life.
I have never tried marijuana and probably never will, but I have the compassion to understand that some people need the stuff. Laws concerning medicinal drug use should be based on science and facts rather than political positions.
Sorry, David – you really didn’t rebut anything I said.
“However, marijuana remains legal under California State law and illegal under federal law. The court did not strike down the state law. The state court is bound to enforce state law, not federal law.”
State Courts are bound by parameters of federal law – since when are they not?
“State Courts are bound by parameters of federal law – since when are they not?”
If that were the case, then the federal courts would have invalidated Prop 215. They have not. They have allowed the federal government to prosecute medical marijuana, but they never struck down Prop 215. If you claim is correct, then why would the SCOTUS not have just struck down Prop 215?
“If that were the case, then the federal courts would have invalidated Prop 215. They have not. They have allowed the federal government to prosecute medical marijuana, but they never struck down Prop 215. If you claim is correct, then why would the SCOTUS not have just struck down Prop 215?”
they have prosecuted medical marijuana because 215 is not valid. In response to not striking down 215, I think they didn’t do it for political reasons – it would not look good politically to formally srike down 215 – but that does not make 215 legitimate. 215 was illegally passed – CA HAD NO RIGHT TO DO IT.
You realize you are factually correct. Nothing has invalidated Prop 215, it remains on the books, that is why you can carry a medical marijuana card and not be prosecuted, and that is why the court threw this out. You are trying to argue something that doesn’t exist.
[url]http://www.safeaccessnow.org/article.php?id=2638[/url]
“The DEA, like local enforcement agencies, can choose how to make the best use of its time. Ideally, the DEA will leave medical marijuana patients and their caregivers alone. But federal law does not yet recognize medical marijuana, and the DEA is currently allowed to use the Controlled Substances Act to arrest people for its use.”
“In People v. Tilehkooh (2003), the court found that California courts “long ago recognized that state courts do not enforce the federal criminal statutes.” The same court also stated “the federal criminal law is cognizable as such only in the federal courts.” In People v. Kelly (1869), it was determined that “State tribunals have no power to punish crimes against the laws of the United States as such. The same act may, in some instances, be an offense against the laws of both, and it is only an offense against the State laws that it can be punished by the State, in any event.””
To ERM
There is a definite divide in the medical community but I do not believe that it is about the effectiveness of marijuana for a limited number of conditions. There is strong evidence that marijuana is effective in the treatment of anorexia/cachexia (wasting syndrome) in patients with AIDS,
As an adjunct in pain management in patients with advanced cancer and in patients with multiple sclerosis. I believe that the division is about whether or not marijuana should be legalized due to other concerns such as doctors prescribing for other indications and it’s obvious potential for recreational use. However these same considerations
would apply to many medications ( drugs) whose use is legal. For example, oxycontin,which has strong central nervous system effects, is far more dangerous than marijuana both in terms of it’s potential for addiction and lethality in the case of an overdose is legal and widely prescribed.
Many medications are controversial within the medical community. We have one provider in my group who will not prescribe birth control pills since contraception is against his personal religious beliefs. While I absolutely defend his right to practice within the confines of his moral beliefs, I do not feel that my prescribing options should be limited by his beliefs.
I am a firm believer in the practice of evidence based medicine. While I have never prescribed marijuana myself as there is no proven efficacy for it in my specialty, the evidence now available clearly indicates that it is useful in limited situations and I do not believe these patients should have access denied to a beneficial medication due to theoretical concerns about increased recreational use or someone’s moral objections.
medwoman: “While I have never prescribed marijuana myself as there is no proven efficacy for it in my specialty, the evidence now available clearly indicates that it is useful in limited situations and I do not believe these patients should have access denied to a beneficial medication due to theoretical concerns about increased recreational use or someone’s moral objections.”
I would tend to agree w you, and it is the reason I stupidly voted for the medical marijuana use law. Had I known to what extent the law would be abused, and used as a foothold to legalize drugs, I never would have voted for this legislation. So my next question is this: Is there any way for the medical profession to get marijuana declared as medically efficacious at the federal level for certain specific medical situations, such as for perhaps end stage cancer to releive pain and nausea? Or is the federal gov’t unwilling to do this for political reasons?
“You realize you are factually correct. Nothing has invalidated Prop 215, it remains on the books, that is why you can carry a medical marijuana card and not be prosecuted, and that is why the court threw this out. You are trying to argue something that doesn’t exist.”
correction: nothing has VALIDATED 215. Just because it is on the books does not make it valid. You are trying to argue the supremacy clause is irrelevant – it is not. The only reason people do not go to jail for medical marijuana is lack of enforcement. THe feds could tear the house down at anytime, throw all so called “medical patients” in prison. all that is needed is to push the button. You don’t simply pretend Federal Law does not exist because you do not like it. And federal Law is just as legitimate for marijuana as it is for civil rights. You do not get to pick and choose which Federal Laws should be obeyed and which ones do not.
If you go down that road, you are treading on dangerous ground, because your political rivals are free to do what you do, ignore the law. And maybe next time, it won’t be for marijuana, maybe it will be for something else and you will not like it.
so these medical patients are breaking the law.
To EMR
Sadly, I think there is little chance that the federal law will change in the foreseeable future for political reasons. I personally cannot think of a medically valid reason that many more dangerous drugs than marijuana legal are prescribed daily while marijuana remains illegal.
in case anyone was still wondering the Judge was Kathleen White.
http://appellatecases.courtinfo.ca.gov/search/case/trialCourt.cfm?dist=3&doc_id=1939965&doc_no=C064706
Docs,(including the JDs) there are no legal ‘prescriptions’ for marijuana, in CA.
BTW, when probationers with standard drug treatment terms are told to obey all laws (or similar conditions) it would seem federal laws would be included.
Oh yea, what’s wrong with ‘prescribing’ the drug, Marinol?
EMR, you hit on a good point. It is nonsensical to permit a drug user to use marijuana, post drug treatment, while on probation. Thoughts, feelings, urges, and relapse (being a part of rcovery) must be considered.
It seems to me that the crux of the matter dealt with the jurist’s ‘on the record’ statements.
See Cal. Health and Safety Code Section 11362.795 Which states in relevant part: “a) (1) Any criminal defendant who is eligible to use
marijuana pursuant to Section 11362.5 may request that the court
confirm that he or she is allowed to use medical marijuana while he
or she is on probation or released on bail.
(2) The court’s decision and the reasons for the decision shall be
stated on the record and an entry stating those reasons shall be
made in the minutes of the court.
(3) During the period of probation or release on bail, if a
physician recommends that the probationer or defendant use medical
marijuana, the probationer or defendant may request a modification of
the conditions of probation or bail to authorize the use of medical
marijuana.
(4) The court’s consideration of the modification request
authorized by this subdivision shall comply with the requirements of
this section.