Court Upholds Probationer’s Right to Use Medical Marijuana

January 21, 2019

ORS 137.542(2) allows a person who is on probation to use medical marijuana if they hold a patient registry card under ORS 475B.785 to 475.949.  The Oregon Court of Appeals in two recent cases rukes that yes, the Legislature actually meant it when the said patients can use while on pre-triial release, probation, and post-prison supervision.  The law requires that it be treated the same as prescription medication.

In State v. Jerscheid, 294 Or App 564, 566, ___ P3d ___ (2018) the Court of Appeals ruled that the conditions of probation, no matter the offense the person was convicted of, (i.e. marijuana possession versus felon in possession of a firearm), “related to the use of usable marijuana and specified cannabinoid products must comply with the statute.” (ORS 137.542(2))

In State v. Kilgore, 295 Or App 602 (January 9, 2019), the Court of Appeals ruled that the Circuit Court must make an inquiry into whether the defendant has a medical marijuana card before imposing a ban on the use of medical marijuana. In this case the trial judge never inquired and the “special condition of probation” appeared for the first time in the Judgment.  This matter was remanded to the trial court for hearing on whether or not the defendant has a medical card.

These cases upholding the rights of people on probation to use maedical marijuana like others use prescription narcotics is one of the reasons we worked hard to draft and pass Measure 91.  Cannabis is becoming more “normalized” on a daily basis.

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