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Can I really Smoke Pot on Probation With a Medical Card?

Years after legalization, Colorado is still working out some of the kinks with medical marijuana. A recent Colorado Supreme Court ruling clarified a 2015 law that allows the state’s 80,000+ registered medical marijuana users to continue to medicate while serving a sentence to probation unless prohibiting continued use is necessary and appropriate to accomplish the goals of the being sentenced to probation in the first place.

But who’s job is it to prove that use of medical marijuana is- or isn’t- appropriate? In Walton v. People, the Court determined that the law requires the government bear the burden of proving that prohibiting continued medical marijuana use is necessary. A person is presumed to be allowed to continue medical use while on probation, and only with evidence presented to the contrary that shows this will be a barrier to the legitimate purpose of their sentence to probation can use be barred. Rather than a person being sentenced to probation needing to prove why medical marijuana should be allowed, the prosecution needs to prove a legitimate reason why it should not.

The Court’s decision in Walton makes it much more difficult for prosecutors skeptical about medical marijuana to circumvent laws protecting the rights of medical marijuana users. The law is clear: there is no burden on a “red card” holder to satisfy a prosecutor’s questions about the legitimacy of their prescription or to prove to a judge that continued use is necessary while on probation. If a prosecutor thinks that medical marijuana use is an insurmountable barrier to success on probation, the burden is on them to prove it before any prohibition may be imposed.

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