Metropolitan News-Enterprise


Tuesday, October 30, 2012


Page 1


Ban on Probationer’s Use of Medical Marijuana Upheld


By a MetNews Staff Writer


A trial judge may bar a probationer from smoking marijuana for medical purposes, the First District Court of Appeal ruled yesterday, if the reason for the restriction is not overridden by the defendant’s need for the drug.

Div. Two affirmed a Contra Costa Superior Court judge’s order barring a convicted marijuana seller from using the drug, even for medical reasons, as a condition of three years’ probation.

Daniel Leal was arrested by undercover detectives at a park in Antioch. The officers said he jaywalked in front of their vehicle, causing several vehicles—including theirs—to swerve or slow to avoid hitting him. When they identified themselves and ordered him to stop, they reported, he ran toward a restroom and threw what turned out to be a semiautomatic weapon, with live ammunition, into some bushes.

The officers arrested him and found marijuana, along with other items typically possessed by dealers, including a scale, on his person as well as a state medical marijuana user’s card and a card identifying him as a member of medical marijuana collective. He was found guilty of possession of the drug for sale and of weapons charges.  

The conditions of probation, besides the no-marijuana restriction, included 270 days in jail.

Presiding Justice J. Anthony Kline said that before a medical marijuana user may be denied that right as a condition of probation, the court must use a three-part test. First, it must determine whether the defendant has a valid authorization to use the drug under Proposition 215; if so, it must find whether there is a valid nexus between the crime, or the deterrence of future criminality, and the proposed restriction; and finally, it must consider whether the defendant’s medical need is so great as to override the legitimacy of the restriction.

In this case, Kline wrote, there was reason to question the legitimacy of Leal’s medical marijuana authorization, since it appeared to be simply a cover for dealing. He cited testimony by one of the arresting officers that in his experience, about 90 percent of people arrested for selling marijuana have medical user cards.

But even assuming that Leal’s user authorization was valid, the jurist wrote, the probation condition can be upheld under the second and third steps of the analysis.

Leal’s willingness to use medical need “as a front for illegal sales of marijuana, sales partly carried out with a loaded semiautomatic handgun in a public park occupied by mothers and their young children,” was a sufficient reason to impose the condition, Kline said. And since there was only vague evidence as to what condition required Leal to smoke marijuana, the presiding justice added, the defense did not meet its burden of showing overriding need.

The case is People v. Leal, 12 S.O.S. 5513.


Copyright 2012, Metropolitan News Company