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10 Dec 2012

US Constitution Saves the Day: VOP For Positive Urinalysis Dismissed Because Client Had Medical Marijuana Registry Card

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MPD was residing in the State of Colorado, where he applied for and received a “Medical Marijuana Registry” card. This card permitted MPD to obtain and use marijuana in Colorado for medical purposes.

MPD traveled to St. Lucie County, Florida, to visit his family. He had the misfortune to be charged with DUI. He pled to the DUI, without the assistance of an attorney, and was placed on the standard terms of DUI probation. He was permitted to “mail in” his probation reports, since he was a resident of Colorado.

After returning to Colorado, MPD was contacted by his probation officer and told to submit for urinalysis at an approved Colorado facility. MPD did as instructed and, as expected, tested “positive” for marijuana.

Upon receipt of the urinalysis results, the probation officer advised MPD that a violation of  probation (VOP) would be forthcoming. At that point, MPD contacted Attorney Jeffrey H. Garland for representation on the anticipated VOP.

Attorney Garland reviewed the probation order which prohibited alcohol consumption and “drugs without prescription”. Condition 9 of the probation order also provided that MPD “shall not consume any controlled substances not lawfully prescribed to you nor visit any place where controlled substances are unlawfully sold, dispensed or used”.

Garland contacted the probation officer and provided copies of the relevant portions of the Colorado Constitution and medical marijuana law, as well as MPD’s Medical Marijuana Registry card. The probation officer agreed that the information was intriguing, but that he would process the VOP anyway, because MPD was positive for marijuana which, in Florida, is an illegal controlled substance.

Garland immediately filed a motion seeking to dismiss, recall and set aside the VOP warrant. The motion argued that MPD was specifically authorized to use medical marijuana under the laws of Colorado; that MPD used marijuana only in the State of Colorado; and that various provisions of the United States Constitution prohibited Florida from criminalizing activities which were perfectly legal in a sister state.

The motion made these arguments:
1. Article IV, Section 1, United States Constitution, requires that the State of Florida give full
faith and credit to the laws and acts of a sister state.

2. Article IV, Section 2, United States Constitution, requires that the citizen of one state receive all privileges and immunities in other states.

3. Due process under the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section 9, Florida Constitution, prohibit Florida courts from refusing to follow the valid laws of a sister state when an individual is actually in the sister state at the time of the commission of the allegedly improper act.

4. Double jeopardy, under the Fifth and Fourteenth Amendments to the United States
Constitution, and Article I, Section 9, Florida Constitution, would be violated by changing or modifying the probation order to prohibit all marijuana use after the sentencing hearing, and MPD was serving his sentence.

St. Lucie County Judge Phillip J. Yacucci set the motion for hearing on November 28, 2012, without first requiring MPD to surrender on the VOP warrant. This was a signal that the motion might be successful.

MPD voluntarily traveled to Fort Pierce from Colorado to appear at the hearing, where he showed Judge Yacucci his Medical Marijuana Registry card. Based upon the circumstances presented, Judge Yacucci followed the requirements of the United States Constitution and ordered that the VOP warrant be dismissed, because MPD’s marijuana use was lawful under the laws of the State of Colorado.

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