CAN THE JUDGE TELL ME NOT TO SMOKE?
Many people go to court and can’t believe it when the judge tells them they’re not allowed to smoke marijuana. People ask me all the time whether the judge is allowed to do that. After all, marijuana is legal so the judge shouldn’t be able to stop you, right? And a lot of times, the marijuana doesn’t have anything to do with the crime. What if you were drunk but not high? Is that enough to stop you from smoking?
First of all, it must be made clear that the scientific research does not provide a clear determination as to whether marijuana is a factor in violent crime. A 2013 Rand Corporation study found that “marijuana use does not induce violent crime, and the links between marijuana use and property crime are thin.” But a 2019 article in the Journal of the Missouri State Medical Association stated that in psychotic people the way cannabis fuels violence “is through its tendency to cause paranoia.” In referring to this last article, it must be noted that it is well known that there is a tendency for people with psychotic illnesses to turn to marijuana in an effort to self-medicate, so its statistics use a skewed sample.
And we get back to the court’s decisions whether it is lawful for them to ban criminal defendants from the recreational use of marijuana. I have compiled some of the important California decisions and statutes on this issue.
The primary goal of probation is to ensure the safety of the public through the enforcement of court-ordered conditions of probation. (Pen. Code, § 1202.7.) Accordingly, the Legislature has empowered the court to impose any reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer. (Pen. Code, § 1203.1, subd. (j); People v. Olguin (2008) 45 Cal.4th 375, 379 .)
A condition of probation must (1) have a relationship to the crime of which the offender was convicted, (2) relate to conduct which is criminal, or (3) forbid conduct which is reasonably related to future criminality. (People v. Balestra (1999) 76 Cal.App.4th 57, 68-69.) An adult is legally permitted to use marijuana. (Health & Saf. Code, § 11362.1.) There must be more than just an abstract or hypothetical relationship between the use of marijuana and preventing future criminality. (In re Ricardo P. (2019) 7 Cal.5th 1113, 1121.)
Then the question is whether there is a connection between the crime itself and the use of marijuana. If a person was drunk at the time of a criminal offense, the courts have found that relationship so that they will ban you from using marijuana. Cases have recognized a connection between alcohol and drugs with respect to probation conditions, upholding alcohol prohibitions in cases where the defendant's offense related to drug use because of alcohol's similar effects in impairing judgment and the ability to control behavior.
People v. Smith (1983) 145 Cal.App.3d 1032, 1034-1035 commented on the similarity of effects of alcohol to effects of marijuana and other drugs, including the lessening of internalized self-control. People v. Lindsay (1992) 10 Cal.App.4th 1642, 1645 stated that the impairment of judgment due to alcohol consumption could reduce drug addict's willpower to refrain from drug use. People v. Beal (1997) 60 Cal.App.4th 84, 87 found that alcohol use was related to future criminality where the defendant had history of substance abuse. People v. Malago (2017) 8 Cal.App.5th 1301, 1308 felt that avoiding alcohol would increase defendant's ability to avoid drug use.
Conclusion: My take on this is that the judge should actually find a connection between a particular defendant’s use of alcohol and a basis for believing that any use of marijuana will likely result in an increase in criminality. Just a hypothetical relationship is not sufficient based on the cases. In order to prevent an otherwise legal activity, the judge cannot use abstract statistics or findings. Last, your attorney must object to that condition of probation. Many conditions have been upheld on no other basis than that the attorney for the defendant failed to speak up at the time of sentencing.