Sentencing: California Appeals Court Upholds Ban on Probationer's Medical Marijuana Use

A California appeals court has ruled that a judge who forbade a defendant from using medical marijuana as a condition of probation acted within his powers. The 2-1 decision was harshly criticized by the dissenting justice, who said it undermines California's voter-approved medical marijuana law.

The ruling by the First District Court of Appeal in San Francisco came in People v. Moret, in which Fairfield resident Daryl Moret, then 19, was arrested in 2008 for carrying a loaded handgun he said he had found in the bushes. Moret pleaded no contest to illegal gun possession, and in an interview with a court probation officer indicated he had obtained a medical marijuana card to treat migraine headaches he had suffered since childhood.

At Moret's December 2008 sentencing hearing, Superior Court Judge Peter Foor said he didn't believe Moret's statements about how he obtained the gun or about medical marijuana. "Smoking dope isn't going to help any of this," the judge said, ordering Moret to surrender his medical marijuana ID card and abstain from marijuana if he wanted to be granted probation. Moret agreed to those terms, but appealed, saying the probation condition violated the medical marijuana law.

In rejecting Moret's appeal, the majority held since a defendant can choose to reject probation conditions and accept a prison sentence, California medical marijuana laws did not limit a judge's ability to forbid drug use as a condition of probation. Justice Paul Haerle wrot that Moret accepted probation voluntarily and offered no evidence to support his need for medical marijuana.

But in a lengthy and harsh dissent, Justice J. Anthony Kline said that a judge's demand that Moret forego medical marijuana or face prison for a non-drug-related offense violated the law's ban on criminal punishments for medical marijuana users. A judge "may disagree with the aims and directives of [the medical marijuana law], but... cannot defy them," Kline said.

A medical marijuana ID card is all the proof a patient needs under state law, said Kline. The sentencing judge could have held a hearing if he questioned the medical marijuana card's legitimacy. Merely because the defendant agreed under coercion to the restriction does not make the restriction legal, Kline added.

Moret and his attorney are considering whether to appeal to the state Supreme Court.