Medical Marijuana: Montana Supreme Court Okays Use By Probationers, Parolees

The Montana Supreme Court ruled Wednesday that courts there cannot order medical marijuana patients to refrain from using their medicine as a condition of probation or parole. The ruling came in the case of State v. Nelson, in which Timothy Nelson was convicted of growing marijuana and as a condition of his probation, was barred from using medical marijuana.

Nelson was not certified under Montana's medical marijuana law when arrested, but obtained that certification before sentencing. But after local prosecutors told the trial judge the state Department of Corrections would not allow him to use medical marijuana while under its supervision -- only synthetic Marinol -- the judge imposed the following condition (among others) on Nelson:

The Defendant will not possess or use illegal drugs or any drugs unless prescribed by a licensed physician. Although the Defendant states he has a medical use exception which allows him to possess marijuana, the Defendant may not possess marijuana except in pill form and only then by prescription from a licensed physician. The prescription may not be more than 6 months old. The Defendant may not have a prescription older than 6 months in his possession. The Defendant will not be in control of or under the influence of illegal drugs, nor will he have in his possession any drug paraphernalia.

Nelson appealed, and on Wednesday, the state Supreme Court agreed, finding that the trial judge had overstepped her authority. "The District Court unlawfully denied Nelson the right and privilege to use a lawful medical treatment for relief from a debilitating condition under the Montana Medical Marijuana Act," Justice Patricia Cotter wrote in the majority opinion.

The court also found that "when a qualifying patient uses medical marijuana in accordance with the (Medical Marijuana Act), he is receiving lawful medical treatment. In this context, medical marijuana is most properly viewed as a prescription drug."

The court also rejected the state's argument that limiting probationers to prescribed medications was appropriate. "The District Court ignored the clear intent of the voters of Montana, that a qualifying patient with a valid registry identification card be lawfully entitled to grow and consume marijuana in legal amounts," Cotter wrote.

"This is a very big and important victory, both for patients and Montana voters," Tom Daubert, founder and director of Patients and Families United, a support group for patients who use medical marijuana, told the Great Falls Tribune after the decision. "Montana voters clearly decided that Marinol is not the equivalent of medical marijuana," Daubert said. "The court recognizes in its decision that the so-called pill form of marijuana is not marijuana. It's really a common-sense interpretation of our law."