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Medical marijuana use while on probation in Hawai'i

 
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SacredPlants
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Joined: 15 Apr 2006
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PostPosted: Fri Dec 15, 2006 5:53 am    Post subject: Medical marijuana use while on probation in Hawai'i Reply with quote

Aloha all! Very Happy

I've been issued a medical marijuana permit by the State of Hawai'i Department of Public Safety, Narcotics Enforcement Division.

I'm also on probation for a class C (least serious) felony (non-cannabis or drug related) that I did not commit but could not defend against.

There is nothing in the Hawai'i law that states that people on probation cannot be issued a medical marijuana permit and then use medical marijuana legally. In fact, changes to the Hawaii law disallowing people on probation from having medical marijuana were proposed during the last State legislative session and were voted down:

http://www.hawaii.gov/psd/documents/admin_rules/Proposed_Chapter_23-202.pdf

The Hawai'i medical marijuana law states only that a qualified and registered doctor may recommend medical marijuana to a qualified patient and that "the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient."

It is not required by Hawaii State law that the medical marijuana must be a "last resort"..

(See HRS 329-122, "Medical use of marijuana; conditions of use." -

http://www.capitol.hawaii.gov/hrscurrent/Vol06_Ch0321-0344/HRS0329/HRS_0329-0122.htm )

however:

The judge in my case is saying that I cannot use medical marijuana while on probation unless a doctor says it is my "last resort". I feel this is illegal and beyond the scope of the judge's scope/purview/discretion. Confused

He's stated what is a very flimsy reason for denying my use of medical marijuana while on probation: he says it's illegal under the Federal law, and that general conditions of probation require the person on probation to abide by all Federal and State laws; however in actual fact, the Hawaii Revised Statutes (HRS) only state that general conditions of probation include the condition that the person on probation not commit any Federal or State crime during their term of probation, not that all (conflicting!) laws of both state and Federal jurisdictions be abided by (an impossibility, and of course I am not facing any Federal charges of violating the Controlled Substances Act for having used medical marijuana under State permit)

(See HRS 706-624, "Conditions of probation" :

http://www.capitol.hawaii.gov/hrscurrent/Vol14_Ch0701-0853/HRS0706/HRS_0706-0624.htm )

;

U.S. Attorney Ed Kubo, Jr. has already publicly stated that no patients (or doctors) would be prosecuted for using medical marijuana (which is in line with the HRS regarding protections against prosecution for medical marijuana patients), so the possibility of prosecution merely for abiding by the Hawai'i medical marijuana law via a permit doesn't even exist:

(See Maui News, Tuesday, June 07, 2005 1:18 PM -

http://www.mauinews.com/story.aspx?id=9500 )


I've been recently told by the judge that I must 'test clean' for cannabinoids until the judge says I can use medical marijuana while on probation, and the Deputy Prosecuting Attorney has stated that if I test positive for cannabinoids, she will recommend that my probation be revoked, meaning that I would go back to jail to serve a term of from approximately 7 1/2 months to 18 months of imprisonment, based on published sentencing guidelines.


Is this the intent of the medical marijuana law? To make people (regardless of probation status) imprisoned criminals for using legally permitted cannabis? I think not Exclamation
:

(See HRS 329-0125, "Protections afforded to a qualifying patient
or primary caregiver." at

http://www.capitol.hawaii.gov/hrscurrent/Vol06_Ch0321-0344/HRS0329/HRS_0329-0125.htm )



Does the judge have the right to do this to me? The charge against me has nothing to do with marijuana or any 'controlled substance', and my medical needs are a factor that must be considered when imposing a sentence, including any discretionary terms of probation.

Any "discretionary" conditions of probation must be reasonably related to the "Factors to be considered when imposing a sentence".

(See HRS 706-624, "Conditions of probation." at

http://www.capitol.hawaii.gov/hrscurrent/Vol14_Ch0701-0853/HRS0706/HRS_0706-0624.htm, and HRS 706-606, "Factors to be considered when imposing a sentence", at

http://www.capitol.hawaii.gov/hrscurrent/Vol14_Ch0701-0853/HRS0706/HRS_0706-0606.htm ).


The judge has asked my attorney to motion the court for a "change in terms and conditions of probation". This is scheduled for next week, just a few days away. The doctor who signed off on my medical marijuana permit application was unwilling to state that it's my "last resort", stating that I had to try all sorts of therapies (whether or not I could afford them or not) first before he could feel comfortable in stating that medical marijuana is my last resort. In order to try to exhaust my legal remedies, I am now consulting with three doctors, soon to become four, in order that one of them will see that considering all the issues, it is unreasonable for me to have to try any more remedies (I have tried approximately 50 different holistic approaches already) before a doctor will state it is my last resort.

I feel my rights are being violated and that the judge is actually not allowing me to abide by the State law Exclamation

I also don't understand how having medical marijuana as a "last resort" somehow changes the situation of medical marijuana being illegal under the Federal law (as it is in the judge's view) and therefore he should not allow me to use it. Are you confused at this point too? Well, you should be! Rolling Eyes

4 years and 2 months of probation without my needed medicine is at stake. Daily misery (and possible internal bleeding) due to me avoiding use of needed medical marijuana, even after receiving a medical marijuana permit, is not a viable option and neither is up to 18 months in jail for using permitted medical marijuana under State law Exclamation

Maybe my case will set a precedent in Hawai'i similar to the one I just read about that was posted to this site about the 'Medical Marijuana victory for patients in California' posted around December 8, 2006?

I am interested in intelligent and useful input especially from those familiar with the use of medical marijuana in accord with Hawai'i state law, regarding whether or not I should publicize my case, the possibility of acquiring the services of a good lawyer knowledgable in these areas, the best approach(es) to use in order to be allowed to use my medicine without fear of punishment and any other related topics, and
in particular would like to discuss this with others here in Hawai'i who are on probation and using medical marijuana, whose case is similar to mine. I am entitled to equal protection under the State law.



You may instant message me through this board and/or via the links in my profile if you would like to respond to me privately.

Smile Smile Smile Smile Smile Smile Smile

Here's for making '2007' a healthy, happy, Yes-I-Can-nabis year!!

With much respect and aloha,

SacredPlants
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