Appeals Court To Decide If Probationers Can Smoke Medical Marijuana

[bobandtorey]

A Royal Oak attorney and his client, a thrice-convicted drunk driver, want the courts to pay medical marijuana laws more respect.

An upcoming state Court of Appeals ruling could make it legal for convicts and the criminally charged to smoke or otherwise possess and consume marijuana while on parole, bond or probation, so long as they're registered medical marijuana patients.

Currently, it's at judges' discretion whether defendants or convicts are allowed to use medical marijuana on probation or bond. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Royal Oak-based attorney David A. Rudoi believes judges who prohibit medical cannabis use as a condition of probation are in violation of the 2008 Michigan Marijuana Act, which says, "anyone who has been issued and possesses a registry identification card" is allowed to possess and consume marijuana.

While the law outlines certain prohibitions, such as possessing or consuming marijuana in a school zone or public space, "what it expressly doesn't list is you can't use marijuana on probation," Rudoi said. "A judge does not have the authority to usurp the Michigan Medical Marijuana Act."

The appellate court will decide whether that's true.

The issue before the court stems from a third-offense drunk driving case out of Oakland County.

Rudoi's client, Dennis R. Magyari, was convicted of third-offense operating while intoxicated in 2014 and sentenced to 60 days in jail followed by 36 months of probation.

A condition of the probation prohibited Magyari from smoking marijuana, despite being a registered patient with type II diabetes, insomnia, high blood pressure, vertigo, fibromyalgia, thyroid issues and neck fusion, according to court sentencing records. 

Rudoi, who took the case pro bono, said he filed a motion to remove the marijuana prohibition, but it was denied by Oakland County Circuit Court Martha D. Anderson. 

Rudoi appealed. 

The Oakland County Prosecutor's Office said Magyari violated probation three times after his conviction. Magyari was found guilty of violating probation and is currently in prison serving an 18-month to 5-year sentence.

Rudoi claims the probation violations weren't related to marijuana, but his client's failure to complete community service, unpaid fees and fines and failing an alcohol test. 

Because the appellant is now in prison, where use of medical marijuana is prohibited, the probation argument was "rendered moot" and "not right for a legal decision," Oakland County Chief Assistant Prosecutor Paul Walton said. 

Additionally, "probation is not a right, it's a privilege," he said. "And if you violate the privilege of probation, then you face the consequences of the court."

Walton argues that there are numerous restrictions placed on probationers by the courts that would otherwise be legal, such as forbidding use of alcohol.

The distinction, Rudoi counters, is that marijuana can be legally considered medicine. 

Court records indicate 63-year-old Magyari admitted to drinking between four and eight beers and smoking about two bowls of marijuana each day since he was 18, up until his most recent conviction. 

Oakland County Assistant Prosecutor Danielle Walton is arguing on behalf of Oakland County. 

"Defendant never showed that 'serious harm' would result if he could not use marijuana," the prosecution's response to the appeal says. "He also failed to show that by barring use of marijuana to defendant who had a long history of illegal substance abuse, who manifested current signs of addiction, and who could be treated if necessary with prescription drugs, the judge was acting in reckless disregard of a substantial risk of serious harm ... "

Without marijuana, Rudoi said, Magyari is forced to take highly addictive and deadly opiate painkillers to treat his ailments. 

This isn't the first time Rudoi has fought probation limitations on marijuana. The attorney said he's fought similar restrictions in about 50 cases, and has been successful about 75 percent of the time.

Rudoi believes about 25 percent of judges agree with him that prohibition of medical marijuana violates state law, 50 percent feel it's at their discretion and the final 25 percent have a strict no-marijuana probation policy. 

It changes from judge to judge and county to county, he said. 

While Magyari is not necessarily the ideal face for the cause, Rudoi said he felt the time was right for an appellate court to set a precedent on the topic.

His confidence was bolstered after Arizona, a state with medical marijuana laws similar to Michigan, ruled it is illegal for judge's to prohibit medical marijuana use there. 

 

http://www.mlive.com/news/detroit/index.ssf/2017/01/attorney_hopeful_ruling_will_a.html

[Restorium2]

http://law.justia.com/cases/michigan/court-of-appeals-unpublished/2017/327798.html