Whenever an individual is placed on supervised felony probation, his or her probation terms are always set out in writing. Although the wording varies slightly from county to county, without fail, there is always a specific mandate that the defendant not possess or use any drugs or medication “without a valid prescription.” Thus, for most of my years as a criminal defense attorney in Arizona, my clients could not legally consume marijuana because, until recently, marijuana was not legal in our state. Yet now, with the advent of Arizona’s Medical Marijuana Act (herein the “AMMA”), the rules of the supervised probation game have been seriously altered.
Because we live in what was once the “Wild West,” it is somewhat fitting that a county attorney would get involved in an old-fashioned stand-off with a superior court judge. Not long ago, Sheila Polk, the Yavapai County Attorney, adopted a policy that all plea agreements in her county must contain the following marijuana provision: “Defendant shall not buy, grow, possess, consume, or use marijuana in any form, whether or not Defendant has a medical marijuana card issued by the State of Arizona.” Much to Ms. Polk’s chagrin, the Honorable Celé Hancock declared that anti-marijuana provision to be illegal because Arizona voters had adopted the AMMA. As a result, Judge Hancock ordered the marijuana provision stricken from all plea agreements in her court. In a fit of legal frustration, Ms. Polk petitioned the Arizona Court of Appeals to intervene and command that Judge Hancock play by her rules.
On February 18, 2014, the Court of Appeals declared that neither the county attorney nor Judge Hancock was entitled to an all-or-nothing approach. Prevailing law mandates that trial judges give “individualized consideration” to any plea agreement before accepting or rejecting it. In like manner, all prosecutors have a “duty to make an individualized determination of what is reasonably beneficial to the public good given the nature of the specific defendant and crimes.” See Polk v. Hancock, 2014 WL623701 (Div. 1 2014). In the facts reviewed by the court of appeals, the defendant had been driving under the influence of both alcohol and marijuana. Given those facts, the marijuana provision could have a reasonable public safety rationale that might not exist in every case.
What I find fascinating is how medical marijuana continues to be treated as something evil by prosecutors throughout the state. Over the years, I have defended many clients who had valid prescriptions for all types of physical and mental ailments and other disorders. When one of these individuals is placed on probation, the prosecutor never seeks to deprive that person of their medication. Not a single county imposes a “Hydrocodone,” a “Depokote” or a “Xanax” provision. More often than not, these individuals are ordered to take their medication each day as prescribed.