I believe it’s now legal for an Oklahoma medical marijuana license holder to consume marijuana while on probation. Some judges and district attorneys will disagree. The “Unity Bill” (Oklahoma Medical Marijuana and Patient Protection Act), which went into effect on August 30, 2019 protects medical marijuana patients from punishment for their use of marijuana. It states the following:
“A medical marijuana patient or caregiver in actual possession of a medical marijuana license shall not be subject to arrest, prosecution or penalty in any manner or denied any right, privilege or public assistance, under state law or municipal or county ordinance or resolution including without limitation a civil penalty or disciplinary action by a business, occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act.”
It seems pretty clear to me that an Oklahoma medical marijuana license holder can’t be subject to “arrest, prosecution or penalty in any manner” so long as they are using marijuana in accordance with Oklahoma’s medical marijuana laws. Revoking or accelerating someone’s probation certainly constitutes a penalty. Therefore, an Oklahoma medical marijuana license holder who is on probation should not be penalized for testing positive for marijuana. Furthermore, an Oklahoma medical marijuana license holder who is on probation should not be penalized for possessing marijuana in an amount allowed by our medical marijuana law.
Why won’t judges and district attorneys leave medical marijuana patients alone?
The problem is getting a judge and/or prosecutor to agree to that. District attorneys and judges generally still hate marijuana. Many were quite upset that Oklahoma’s medical marijuana law passed. Since the law went into effect, some DAs and judges have done everything they can to “stick it” to patients lawfully using medical marijuana.
The primary reasons judges and district attorneys use for revoking probation for a licensee testing positive for marijuana is that the licensee was “violating federal law” by possessing marijuana. A condition of probation is that the probationer will not violate any municipal, state, or federal laws. Even without the Unity Bill, this reasoning is a stretch. It’s intended to intimidate and unnecessarily punish marijuana patients. With the Unity Bill in effect, it’s clear that a judge may not punish a medical marijuana probationer for testing positive for marijuana because the state law overrides the probation condition. There’s no state law that says that probationers may not violate any municipal, state, or federal law. A judge can’t simply override a state law because they don’t like marijuana.
Examples of how medical marijuana licensee rights are violated
I’ve seen and heard about judges doing some questionable things with regards to probationers vis a vis medical marijuana. Some judges are requiring that a doctor appear in court to testify about the medical conditions the probationer has. The law doesn’t say the licensee “shall not be subject to arrest, prosecution or penalty in any manner … only when their doctor proves the licensee’s medical condition to the satisfaction of the judge.” Plus, information regarding a patient’s condition(s) isn’t even supposed to be released outside the OMMA. So, how does testimony on the record protect a patient’s privacy? There’s at least one judge telling people on probation that even getting a medical marijuana license is violating some law. I’m not aware of any federal law that prohibits people from getting a medical marijuana license–regardless of whether they actually use marijuana. If you’re aware of one, please let me know!
How will we know for sure?
So, how are we going to know for sure whether a medical marijuana license holder on probation can be punished for his or her lawful use of marijuana? I doubt all the district attorneys and judges will suddenly start turning a blind eye to positive marijuana tests by license holders. What it will likely take is for someone to challenge the revocation or acceleration of probation. A medical marijuana licensee must have their probation actually revoked or accelerated by a judge and then appeal that decision to the Court of Criminal Appeals. Then, the licensee would have to actually win at the Court of Criminal Appeals. In the meantime, the licensee would likely be in jail or prison. And appealing anything costs money. Not many people are willing to go through that pain to blaze the trail for everyone else.
The good news is that I haven’t seen a license holders’ probation get accelerated/revoked for testing positive for marijuana. That’s not to say it hasn’t happened–I just haven’t personally seen it. I’ve heard stories about probation officers not caring whether a licensee tests positive for marijuana. That’s a good sign because if the probation officer never reports that as a violation, then the district attorney and judge never get an opportunity to revoke/accelerate the probation. There are also some district attorneys who were not filing motions to revoke/accelerate before the Unity Bill went into effect. No doubt, there will likely be at least a few more now. And out of the hundreds of judges in Oklahoma, there are probably a few who will actually follow the law and leave medical marijuana patients alone.
Current as of October 27, 2019. Note: laws are subject to change at any time! Visit the sources for the most up to date law.
Sources: HB 2612, 63 O.S. 420, & 63 O.S. § 427.8