Use of Legalized Marijuana While on Probation in Michigan

Now that Michigan’s voters have spoken, and we are now among a handful of states that allow the legalized use of marijuana, how will this change in the law impact the terms and conditions of probation?  The answer is, it depends on the judge!

When a judge determines the conditions of probation for any crime, he or she is governed by Michigan Compiled Laws section 771.3, which sets forth all the mandatory conditions of probation.  This law does not specifically state that a judge can order a person to stop using drugs or alcohol, but there is a catch-all provision, and this indicates that a judge may impose any other lawful condition of probation as the circumstances of the case require or warrant or as in his/her judgment are proper.  Thus, it is very common for judges to order people to stop using alcohol, illegal drug or even legal drugs without a prescription. For those judges who believe that the circumstances of a case require the non-use of recreational marijuana, all the judge need do is order it as a condition of probation.

This issue has already been litigated as it relates to medical marijuana, and Michigan’s courts have found that the conditions of probation can include the non-use of lawfully prescribed medical marijuana.  There seems to be no good reason why the same would not be true of recreational marijuana.

Those judges with a relatively “liberal” attitude toward marijuana may, in the midst of legalization, decide to stop testing probationers for marijuana altogether.  Others may impose light sanctions or no sanctions at all for those probationers who violated their terms and conditions of probation through the recreational use of marijuana

Unfortunately, many judges who have been on the bench for long periods of time will want to continue doing things the same as always and will view this change in Michigan’s laws as no change at all.  They will continue to order the non-use of any kind of marijuana and will impose harsh penalties for those caught using marijuana “under their watch.” If you are on probation for any crime in Michigan and plan to use recreational marijuana, then it’s best to speak with a knowledgeable and experienced criminal defense lawyer who can advise you of your risks.