Originally Posted by GreenSurfer

Ruling favors medical marijuana users
By TRISTAN SCOTT of the Missoulian

Advocates of Montana's medical marijuana law hailed a Montana Supreme Court decision that safeguards the rights of sick probationers and parolees who are prescribed marijuana for pain relief.

In a 6-1 decision Tuesday, the high court said a district court judge in Pondera County exceeded her authority by sentencing a qualifying medical marijuana patient to three years of probation with the stipulation that he could not use medical marijuana.

The patient, Timothy S. Nelson of Conrad, uses medical marijuana to alleviate chronic pain from a car accident. Nelson suffers from a degenerative disc disorder and has had four surgeries on his back. He was thrown from a pickup truck in an accident involving a drunken driver, according to the decision, which was written by Justice Patricia O. Cotter.

Nelson was charged in May 2006 after authorities searched his house and discovered evidence of a marijuana-growing operation. He pleaded no contest to criminal possession or manufacture of dangerous drugs, and received a three-year deferred imposition of sentence. Among the 20 conditions of his probation was an order that he not possess or use marijuana, except in pill form.

Nelson argued successfully on appeal that the sentencing condition ignored the intent of Montana's Medical marijuana Act, which was passed by voters in 2004.

“The District Court unlawfully denied Nelson the right and privilege to use a lawful medical treatment for relief from a debilitating condition under the Medical marijuana Act,” according to the court's decision. “When a qualifying patient uses medical marijuana in accordance with the MMA, he is receiving lawful medical treatment. In this context, medical marijuana is most properly viewed as a prescription drug.”

Tom Daubert, of Patients and Families United, a medical marijuana advocacy group, called the decision “a big victory for Montana patients as well as Montana voters. It reflects a common sense and accurate interpretation of our law, and recognizes the voters' intent.”

Daubert said the order limiting Nelson's medical treatment to Marinol, a synthetic version of the active ingredient in marijuana, flies in the face of the voter-passed initiative. Daubert says, and many patients agree, that the synthetic treatment is not as effective because it mimics just one substance in the cannabis plant, when a combination of substances may be what helps relieve the pain.

The law also provides that a qualifying patient may possess up to six marijuana plants and one ounce of marijuana.

“In limiting Nelson to the ingestion of marijuana in pill form, and requiring him to have a physician's prescription to do so, the District Court ignored the clear intent of the voters of Montana that a qualifying patient with a valid registry identification card be lawfully entitled to grow and consume marijuana in legal amounts,” according to the decision.

Colin Stephens, a Missoula attorney who represented Nelson on appeal, said the decision reinforces the legal rights of medical marijuana patients.

“I think that this case basically solidifies the rights of qualifying medical marijuana patients,” Stephens said. “I don't think right now that probation officers can stop a patient from using medical marijuana as prescribed by a physician. I think it's pretty clear in the case law.”

In May, the state Department of Corrections backed down from a proposed rule that would have barred anyone on parole or probation from obtaining medical marijuana without a judge's approval. Proponents of the medical marijuana law argued that the law does not allow any penalty for using medical marijuana, regardless of a person's criminal history.

Daubert said Nelson's is the first substantive case relating to medical marijuana to reach Montana's Supreme Court, and the first case taken on by his advocacy group.

The American Civil Liberties Union of Montana and Patients and Families United worked jointly to defend Nelson.