Medical Marijuana Use Allowed While On Probation in Pennsylvania

Many people want to know whether or not medicinal marijuana can be used while a person is on probation or parole in Pennsylvania.  In the past, the answer depended upon what county was supervising the probation or parole.  Some counties allowed medicinal use of marijuana, but other county probation departments did not.

On June 18th of 2020, the Pennsylvania Supreme Court issued a decision that allowed for the use of medicinal marijuana across the state of Pennsylvania.  Technically, the decision held that Lebanon County’s prohibition of medicinal marijuana was illegal, but the decision will have an impact on medicinal marijuana use across the state of Pennsylvania.  County probation departments can no longer have a policy that prohibits the use of medical marijuana.

Federal Law Prohibits Marijuana Possession

While many states have legalized, decriminalized, or permit the lawful use of marijuana, marijuana possession remains a criminal offense under Federal law.  A standard condition of probation supervision prohibits a person from violating state or Federal law, so many probation departments prohibited medicinal marijuana use because marijuana possession violated Federal law.

The Pennsylvania medical marijuana law contains an immunity provision that generally prevents a medical marijuana user from being arrested and prosecuted.  More specifically, section 35 P.S. 10231.2103(a) states that a person using marijuana in accordance with the requirements and restrictions of the medical marijuana law cannot be “subject to arrest, prosecution or penalty in any manner, or denied any right or privilege, . . . solely for lawful use of medical marijuana.”  The Pennsylvania Supreme Court noted that the law did not deny people on probation or parole from lawfully obtaining medicinal marijuana.  Because such people were lawfully able to be approved for the lawful use of medical marijuana, then those people were also protected by the immunity provision.  The Court analogized the use of medical marijuana to the use of prescription drugs, basically saying that as long as a person had a lawful medical marijuana card, then the court system cannot prevent that person from taking his or her medication.

Drug Court and Marijuana Use

It is yet to be definitively determined whether or not this case will have an impact on marijuana use in Drug Courts and DUI Courts across Pennsylvania.  Such specialized or rehabilitative courts are designed to encourage people with drug and alcohol abuse issues to seek treatment.  Many people involved in treatment believe that complete abstinence from drugs is required, but other people believe that marijuana can be used to treat addiction to other drugs or deal with other mental health issues.  Such courts are voluntary, meaning participants must request permission to be accepted, and admission is often conditioned upon compliance with the rules.  Failure to accept or comply with the rules results in denial of admission or removal.  Many Drug Courts prohibit participants from using marijuana, even medicinal marijuana.

Some people believe that Drug and DUI Courts may continue to deny the use of medical marijuana to participants because the court is not punishing the person for use but is instead denying a privilege based upon use, basically saying that if you want the benefits of Drug Court, then you must comply with the rules.  I personally think that such a position will be tough to defend based upon the Supreme Court’s ruling.  By analogizing the use of marijuana to the use of prescription medications, the Court appears to have issued a general statement that probation department’s cannot prohibit a person from taking lawfully issued medication.  If a person is permitted to take prescription Oxycontin while in Drug or DUI Court, it would appear that a person can also take medicinal marijuana.