Medical marijuana may be legal in Arkansas, but can probationers use it?
At long last, we can answer that question with a resounding … maybe.
In Arkansas, legislators are often asked to submit legal questions to the Attorney General’s office and we in Saline County are lucky to have a state senator that will do just that. Ark. State Senator Kim Hammer (R-33rd District) was kind enough to submit two questions to Arkansas Attorney General Leslie Rutledge at my request:
- should probation offices, prosecuting attorneys, probation offices and circuit courts — all state entities — take steps to revoke probation for individuals who test positive for marijuana in spite of the fact that they have medical marijuana cards issued by Arkansas pursuant to Amendment 98?
- Furthermore, are probation officers and other state officials under any obligation to report probationers who test positive for medical marijuana to federal authorities?
Click here to read Rutledge’s response to those questions.
In short, the problem that probationers with medical marijuana cards have is that they must refrain from violating federal law. The possession of marijuana is a federal crime, so a probationer with a medical marijuana card may not be able to benefit from it without risking violating his or her probation. Medical marijuana may be legal in Arkansas, but that doesn’t matter one whit when it comes to federal law.
According to Rutledge, probation offices, prosecuting attorneys and circuit judges have a lot of discretion when it comes to medical marijuana — they determine whether a probationer should be punished for using medical marijuana. Moreover, none of those officials are required to a probationer who uses medical marijuana to federal authorities.
I did have that issue come up in a case last year here in Saline County. Judge Gary Arnold ruled that my client — a convicted felon — was not allowed to violate his probation by using medical marijuana and violating federal law. Arnold did mention something intriguing in his ruling — plea bargains are negotiated and, as such, it is possible to address the medical marijuana issue at that point with the prosecuting attorney assigned to the case.
That ruling is very much in line with the guidance subsequently provided by Rutledge. The possession of marijuana still violates federal law, but there is an avenue for probationers to use medical marijuana. However, anyone with a valid Arkansas medical marijuana card who is hoping to enter a plea bargain needs to know up front whether they’ll be able to use medical marijuana or not.
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