MEDICINAL MARIJUANA - PROBATION VIOLATION?

CUYAHOGA COUNTY COURT OF COMMON PLEAS

CLEVELAND, OHIO 

STATE OF OHIO

v.  

XXXXXXXXXXXXXX 

·MOTION TO DISMISS COMMUNITY CONTROL SANCTION VIOLATION & CLARIFY PROBATION TERMS

Defendant was diagnosed with malignant testicular cancer in XXXXXXX, resulting in the removal of his left testicle, which was the size of a softball. During the course of the ensuing year-long chemotherapy treatment the cancer spread to Defendant’s left kidney. Enough cancerous cells were killed by the chemo to render the kidney mass medically non-cancerous, but Defendant’s doctors decided to leave the mass in place to reduce the risk of releasing any remaining but undetected cancerous cells. During this time the Defendant also underwent surgery to insert a stent to aid in urination. 

Defendant began to experience lower left back pain when the kidney mass appeared; this pain has not subsided to this day. Defendant has been prescribed Percocet since XXXXX, which he took as prescribed. In XXXXXXX Defendant was incarcerated on the charges in the instant case while still on parole from Case No. XXXXXXXXX. While in jail Defendant went through Percocet withdrawal. Due to his medical conditions Ohio APA released their hold on the Defendant from Case No XXXXXXX in July XXXX. Defendant was then released from jail after posting bond in the instant case. Defendant subsequently plead guilty to the instant charges and was sentenced to probation. 

Immediately after being released from jail in XXXX Defendant applied and received a medical marijuana card from the Ohio Medical Marijuana Registry (current iteration and other document totaling 4 pages attached as Exhibit A and incorporated herein). Defendant notified his probation officer of this fact and requested approval for medical marijuana usage. The Probation Department notes allegedly indicate that Defendant’s request for use of medical marijuana at that time was “denied but not docketed.” (Statement of Defendant’s current Probation Officer XXXXXX XXXXXXX). Defendant has requested documentation of this denial from P.O. XXXXXXX but has not received same. In the ensuing two years defendant has used medical marijuana with full knowledge of his probation officer(s).

Defendant has not touched Percocet since XXXXXX. The medically approved reason for Defendant’s medical marijuana course of treatment is “pain that is either chronic or severe or intractable – cancer” (Exhibit A). Attached as Exhibit B and incorporated herein is the product label for the medical marihuana prescribed for Defendant. Defendant has been working as a full-time XXXXXXXX since XXXX. In XXXXXXX he married a long-time friend and nurse. 

Defendant has complied with the terms of this Court’s XXXX judgment entry and probation order (“Probation Order”), which reads in pertinent part as follows: 

“It is therefore ordered that the Defendant is sentenced to 36 months of community control under the supervision of the Adult Probation Department with the following conditions: Defendant to abide by rules and regulations of the Probation Department. Court orders Defendant to be supervised by: intensive special probation supervision unit submit random drug testing. Arrest if/on: positive or too dilute attend AA/NA/CA meeting.”

For the above equitable facts, and the following law and argument, Defendant moves this Court to dismiss this matter, and further to clarify the terms of his probation to permit medical marijuana usage.

LAW & ARGUMENT

As of late April 2021, the current patient and caregiver numbers for medical marijuana cardholders in Ohio are as follows*:

· 279,908 Recommendations

· 197,816 Registered patients

· 12,612 Patients with Veteran Status

· 13,870 Patients with Indigent Status

· 779 Patients with a Terminal Diagnosis

· 158,397 Unique patients who purchased medical marijuana (as reported to OARRS by licensed dispensaries)

· 21,989 Registered Caregivers

Ohio’s program allows any patient with a previous diagnosis of any of the 22 qualifying conditions access to dispensaries across the state for patients to purchase their medical cannabis in hopes to relieve their symptoms and side effects associated with their qualifying condition. *Source https://www.mymarijuanacards.com/ohio/ohio-medical-marijuana-laws-2020/.

This court’s XXXX Probation Order regarding the defendant’s probation is not specific as to which drugs will be tested for nor which drugs will constitute a positive drug test. The presumption is arguably “any and all illegal drugs.” However, is medically approved marijuana an illegal drug? Ohio law is silent on whether or not use of medical marijuana can be utilized by the Probation Department to violate a client who has medical authorization to utilize marijuana. As discussed below, Ohio Appellate Courts have touched upon the issue with a degree of circuity. This court should take a stand that accords with the legislative intent for the legalization of medicinal marijuana in Ohio, which is that medical marijuana is a valid treatment for certain conditions, such as the Defendant’s.

I. OHIO APPELLATE COURTS

A. THE 11TH DISTRICT HAS DISTINGUISHED MEDICAL MARIJUANA FROM SCHEDULE I CONTROLLED SUBSTANCE MARIJUANA

In State v. Donoho, 2018 Ohio 4950, the 11th Ohio Appellate District held:

Ohio Revised Code Chapter 3796, "Medical Marijuana," became effective on September 8, 2016. "Medical marijuana" and "marijuana" are distinct substances. "Medical marijuana" is defined as "marijuana that is cultivated, processed, dispensed, tested, possessed, or used for a medical purpose." R.C. 3796.01(A)(2). The definition of "marijuana" is adopted from R.C. 3719.01(O), which provides: "'Marihuana' means all parts of a plant of the genus cannabis, whether growing or not; the seeds of a plant of that type; the resin extracted from a part of a plant of that type; and every compound, manufacture, salt, derivative, mixture, or preparation of a plant of that type or of its seeds or resin."

"Medical marijuana" is a Schedule II Controlled Substance. R.C. 3796.01(B). "Marijuana," on the other hand, is a Schedule I Controlled Substance, as are hallucinogenics containing cannibinoids, THC, and synthetics or derivatives thereof. R.C. 3719.41 Schedule I (C)(19) & (27). Marinol is the brand name for a federally-approved medicine that contains "dronabinol," a synthetic form of THC and a Schedule III Controlled Substance. R.C. 3719.41 Schedule III (F)(1) ("Dronabinol (synthetic) in sesame oil and encapsulated in a soft gelatin capsule in a United States food and drug administration approved drug product").

Pursuant to R.C. 3719.06(A)(1)(a), a "licensed health professional authorized to prescribe drugs" may prescribe Schedule II and Schedule III controlled substances "if acting in the course of a professional practice, in accordance with the laws regulating the professional's practice, and in accordance with rules adopted by the state board of pharmacy[.]"

"Medical marijuana," a Schedule II controlled substance, is only permitted by law to be cultivated or processed in Ohio by an entity that is licensed by the department of commerce and is only permitted to be dispensed in Ohio at a retail medical marijuana dispensary that is licensed by the state board of pharmacy. R.C. 3796.09(A) & R.C. 3796.10(A). Further, "[p]atients and caregivers shall purchase medical marijuana only from a medical marijuana dispensary with an active certificate of operation issued by the state board of pharmacy, or where authorized pursuant to a reciprocity agreement established pursuant to section 3796.16 of the Revised Code." Ohio Adm.Code 3796:7-2-05(D) (emphasis added).

As a result, any positive result for THC on a drug test would be the result of appellant having used (1) "marijuana," a Schedule I controlled substance, which is a clear violation of Ohio law, or (2) Marinol, a Schedule III controlled substance, which requires a valid prescription from a licensed health professional, pursuant to R.C. 3719.06(A)(1)(a).

Appellant admits the trial court would be unable to distinguish whether a positive result for THC resulted from the use of Marinol, which may be permissible, or from the use of "marijuana," which is not permissible. Therefore, it was not an abuse of discretion for the trial court to deny a modification of appellant's community control. If appellant tests positive for THC and is charged with a violation of the terms of his community control, he is permitted at that time to raise the affirmative defense that he is using Marinol in accordance with a valid prescription. In that event, the trial court should include in the record what factors it considers in determining whether appellant has violated the terms of his community control.

Thus, in 2018, prior to the Probation Order in this matter, Ohio courts were on notice that a legal distinction existed between Schedule I marijuana and “potentially legal” Schedule II and III marijuana. While it may be understandable for courts to fail to consider the medical status of all probation candidates who appear before the court, and whether they might be authorized medicinal marijuana patients at the time of sentencing, it is certainly a ripe consideration that must be reviewed for a probationer who is facing a violation for the use of legally prescribed marijuana. 

B. THE 3RD DISTRICT HAS INDICATED A MARIJUANA PRESCRIPTION MAY BE AN “AFFIRMATIVE DEFENSE” TO A PROBATION VIOLATION

In State v Owens, 2021 Ohio 259, the Ohio 3rd Appellate District held:

Nevertheless, Owens' has not been found in violation of community control in this case for any use of a legitimate, "valid prescription" for medical marijuana. As the lead opinion stated in State v. Donoho, 11th Dist. Geauga No. 2018-G-0151, 2018-Ohio-4950, ¶ 19, Owens will still have an opportunity to challenge a purported violation of community control at a hearing wherein she could raise the "affirmative defense" that she was using "medical marijuana" pursuant to a valid prescription. Thus it could also be argued that Owens' claim is actually not ripe for appeal.

Most germane in Owens is that the trial court specifically ordered the defendant not to use marijuana after learning that she had a medical marijuana card:

The trial court asked Owens where she got her card, and she responded, "Over in Fayette from some little place over there I think it was Redi-Medi or something like that. It was a place in Fayette. An LPN the one that prescribed me my meds she gave me the number to it." (Id.) The trial court acknowledged that Owens had been diagnosed as bipolar, then stated that she "no longer will be smoking dope."2 (Id. at 8). The judgment entry in this matter memorializing Owens' sentence placed her on community control with the special condition "The Defendant shall NOT be permitted to use Marijuana[.]" (Emphasis added.) Owens now argues on appeal that the trial court's condition related to marijuana was overbroad due to her possession of a "card" with a valid "prescription" for medical marijuana.

In sum, Owens' argument touches on an interesting issue that will have to be addressed when it is properly supported by evidence, namely, whether a trial court can restrict the use of a controlled substance that is part of a valid prescription as part of community control. However, we have no actual evidence that Owens has a valid prescription and Owens can always challenge an alleged community control violation at the time it is filed, if it is filed.

C. THE 8TH DISTRICT HAS HELD THAT ADMITTING TO A PROBATION VIOLATION VITIATES USING MEDICAL MARIJUANA AS AN AFFIRMATIVE DEFENSE IF THE TRIAL COURT ENTRY CLEARLY STATED “NO DRUGS.”

In State v. Sanchez, 2021 Ohio 1585 (Ohio App. 2021) the Ohio 8thDistrict has held:

Sanchez argues that the trial court violated his due process rights because it failed to notify him that he would be punished if he consumed medical marijuana. He maintains that the trial court informed him that he could not use "illicit drugs" and that even his probation officer was not certain whether medical marijuana was prohibited. The parties briefed detailed arguments regarding the trial court's discretion to prohibit medical marijuana and the adequacy of the trial court's inquiry into Sanchez's medical marijuana use. However, we cannot reach the merits of Sanchez's due process argument because Sanchez conceded at the March 2020 violation hearing that his medical marijuana use violated his community control conditions.

{¶ 18} Even though the March 2020 hearing was set in response to a status report, Sanchez knew, or reasonably should have known, that the hearing was for a violation of his community control sanctions that could result in the revocation of his judicial release. The trial court's docket called the hearing a "community control sanctions violation hearing" and a "hearing on alleged probation violation." Sanchez retained counsel for the hearing. The trial court opened the hearing by stating, "We're here today for a probation violation hearing." During the hearing, Sanchez admitted to the violation. Defense counsel said, "Well, judge, he did it." Defense counsel explained that he told Sanchez "no drugs" meant just that, and Sanchez was "willing to accept" the trial court's punishment. Sanchez himself conceded that when he used medical marijuana, he did not follow the "absolute underlying word" of his community control conditions [emphasis added], and he didn't think "things through." Sanchez explained that using medical marijuana was a "mistake" and an "incompetent" decision.

{¶ 19} Sanchez discussed his medical marijuana card, physician's letter, and medical conditions to mitigate his punishment. He did not argue that medical marijuana was or should have been permissible under the conditions of his community control, and he did not contend that he lacked notice that medical marijuana use would be a violation. Instead, he admitted to the violation and sought mitigation.[emphasis added].

{¶ 20} We find that the trial court did not err in finding substantial proof that Sanchez had violated the conditions of his community control. Although the trial court had told Sanchez at the judicial release hearing that he could not use "illicit drugs," the judgment entry stated, "no alcohol or drugs," and the probation department's standard terms include a "no tolerance" policy regarding drug use. During the hearing, Sanchez's probation officer explained that Sanchez tested positive for marijuana, and Sanchez admitted that he used medical marijuana in violation of his community control sanctions. The admissions were substantial proof of the violation. See, e.g., State v. Kinser, 5th Dist. Licking No. 2020 CA 00032, 2020-Ohio-5308, ¶ 24 (appellant's admission of the violations presented the trial court with "substantial proof and competent credible evidence" that appellant had violated her community control sanctions).

D. THE 8TH DISTRICT AND CRUEL & UNUSUAL PUNISHMENT DOCTRINE

In State v. Hutchings, 2014 Ohio 4675 (Ohio App. 2014), the 8th Ohio Appellate District also held that [the defendant] was prohibited from using medical marihuana (by a valid trial court entry stating so) and indicates that such a prohibition is not unconstitutional limit on necessary medical treatment:

{¶16} In his third and fourth assignments of error, appellant argues that the trial court's condition prohibiting his use of marijuana violates his right to medical care under the Eighth Amendment to the United States Constitution and Article I, Section 9 of the Ohio Constitution.

{¶17} The Eighth Amendment of the United States Constitution and Article I, Section 9 of the Ohio Constitution each provide: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." {¶18} In Estelle v. Gamble, 429 U.S. 97, 104-105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court of the United States recognized, pursuant to the Eighth Amendment, "the government's obligation to provide medical care for those whom it is punishing by incarceration."

{¶19} Without determining whether appellant's community control sanctions are the functional equivalent of an "incarceration," we find that the condition prohibiting appellant's use of marijuana did not constitute a deliberate indifference to appellant's serious physical needs or an unconstitutional limit to his access to necessary medical treatment. Although appellant was prohibited from using medical marijuana, he is free to receive alternative medical treatments for his claimed ailments. Moreover, we cannot say that marijuana, an illegal drug under federal law, constitutes a "necessary medical treatment," and appellant has provided this court with no authority to state otherwise.

However, the defendant in the instant case is not “free to receive alternative medical treatments for his claimed ailments.” He has a history of opiate addiction. With all that Ohio families and communities have suffered, and with all the burdens and costs placed upon the State of Ohio health care providers, police, prosecutors, and courts in trying to stem the scourge of opiate addiction, it is simply unconscionable to force a functioning and rehabilitated member of society back onto opiates when medical marijuana has proven to be not only a legal but an effective course of treatment for this defendant. (It should be noted that this 8th District opinion was written in 2014, prior to medical marijuana being legal. It would be interesting to see where Ohio appellate courts now stand on legal medicinal marijuana as an alternative to opiates.)

II. LACK OF NOTICE & WAIVER

This defendant was not placed on specific notice by his probation judgement entry that medicinal marijuana, which he began using after it became legally available, would be a probation violation, or more importantly, what the sanction for a positive marijuana test would be. In fact, defendant requested permission to use medicinal marijuana from his probation supervisor at the beginning of his supervision but there is no record that his request was granted or denied. 

The actual judgment entry of probation in this matter states only: “Arrest upon positive…” ORC 2929.19(B) provides that, if the sentencing court decides that a community control sanction is appropriate, the court “shall notify the offender that, if the conditions of the sanction are violated . . . the court . . . may impose a prison term on the offender and shall indicate the specific prison term that may be imposed as a sanction for the violation, as selected by the court from the range of prison terms for the offense pursuant to section 2929.14 of the Revised Code.” State v. Davis, 2010 Ohio 5126 (Ohio App. 8th District, 2010). In this matter neither the violation nor the prison term are specified with any degree of certainty in the court’s judgement entry. 

Ohio Appellate courts have upheld community control violations only when specific notice has been provided: “The trial court imposed a five-year community-control sanction and included conditions tailored to address Duckett's substance abuse issues. Among those conditions was the requirement to enroll and successfully complete the Star Program, complete a drug/alcohol assessment by the Adult Probation Department, and not consume any alcohol and non-prescribed drugs.” [emphasis added], State v. Duckett (Ohio App. 4th District 2021).

In the two years since the defendant requested permission to use medicinal marijuana he has been informed by his probation officers that several of his urine tests have tested positive for marijuana use, but to date has never been violated for such tests. 

All of the above facts and analysis constitute a failure to notify Defendant 1) that testing positive for medicinal marijuana would be a probation violation, 2) that the probation department would not recognize his medically approved usage of marijuana, 3) what punishment the defendant would be subject to other than “arrest” if found to have committed a probation violation, and 4), constitute a waiver of any positive marijuana test being a probation violation.

CONCLUSION

Defendant requests this court to dismiss this action prior to the probable cause hearing and to modify the terms of his probation to permit medical marijuana usage. 

/s JAMES SIDNEY JONES (64099)

_____________________________ 

JAMES SIDNEY JONES, LPA

5455 N. MARGINAL ROAD, SUITE 215

CLEVELAND, OHIO 44114

attorneyjamessidneyjones@gmail.com

(216) 797-9520