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Medical Marijuana Prescription Not an 'Order' to Smoke Pot

By Robyn Hagan Cain | Last updated on

Doctors' "orders" do not trump federal law and Supreme Court precedent.

The Ninth Circuit Court of Appeals ruled this week that a medical marijuana prescription is not an "order" to smoke pot, and does not excuse a releasee from Federal Controlled Substances Act (CSA) violations.

Roshaja Harvey served approximately 10 years in prison for armed bank robbery. Afterwards, he began a five year term of supervised release. Among the mandatory conditions of his supervised release, Harvey was ordered to "refrain from any unlawful use of a controlled substance."

In January 2011, Harvey tested positive for marijuana use and acknowledged having used marijuana. Soon after, U.S. Probation formally alleged Harvey had violated the conditions of his supervised release.

Harvey moved to dismiss the allegation. He argued he lacked adequate notice of the mandatory condition because it was vague, and that his use of marijuana pursuant to a “doctor’s recommendation” was lawful under both California and federal law.

The Ninth Circuit Court of Appeals disagreed.

The appellate court affirmed the district court’s “precise and accurate decision,” which noted that the Supreme Court has indicated that the CSA prohibits a practitioner from issuing a medical marijuana prescription. Accordingly, the doctor’s recommendation that Harvey use medical marijuana was not a valid prescription.

The Ninth Circuit’s one addition to the district court’s opinion? “Whatever else “order” might mean under § 844(a) of the CSA, it does not include a mere recommendation from a physician pursuant to the Compassionate Use Act.”

Lawyers, if you have a medical marijuana “prescription” client who is facing federal drug charges, you should discuss plea bargaining options with your client. The feds are not as progressive as the 17 marijuana-friendly jurisdictions; they will prosecute for medical marijuana cultivation and use, and the Ninth Circuit Court of Appeals won’t stop them.

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