The Minnesota Lawyer continues….
The department has decided that persons on parole, supervised release or conditional release may use the drug in accordance with state law, which includes registration.
The DOC said through its spokesperson, Sarah Fitzgerald, that the change was a result of the change in state administration. However, the about-face came the day before a motion challenging the former policy was scheduled in Carver County District Court.
The suit was brought by Darrell Schmidt, who was released from the DOC on Intensive Supervised Release on March 2, 2017. He has been diagnosed with depression, post-traumatic stress disorder, anxiety disorder and insomnia. He was given a prescription for medical marijuana on April 4, 2018.
But, as a condition of parole, he is subject to random drug tests. His parole officer, defendant Jason Pauly, told him that if he tested positive for marijuana he would be revoked and sent back to prison. He did not use the prescription and thus his symptoms were unmedicated.
The defendants are discriminating against Schmidt and violating his rights under the Minnesota Medical Cannabis Therapeutic Research Act, Minn. Stat. Ch. 152, which provides that a patient enrolled in the registry program is engaged in the authorized use of medical cannabis, the lawsuit stated.
“[A] parole officer or other employee of the Minnesota Department of Corrections cannot hide behind a claimed danger of potential civil or criminal liability in allowing the usage [of medical marijuana] as the Act specifically exempts them from any civil and criminal liability or prescribing, allowing prescriptions, or allowing use by enrollees,” Schmidt’s complaint states.
In responding to the lawsuit, the state denied that the statute created a private cause of action. The plaintiff countered that the DOC’s jurisdiction is limited to the enforcement of “reasonable conditions and rules.”
Effective April 1, and not retroactively, use and possession of medical marijuana won’t be a parole or supervised release condition and may not be a basis for restructure or revocation of the terms of release, Fitzgerald said. Agents may proceed with testing for cannabis but the person will not be taken into custody if the positive result is the only reason for revoking the release, Fitzgerald said. The person has a reasonable period of time to provide the agent with verification that he is prescribed marijuana and on the medical registry, Fitzgerald added.
Fitzgerald pointed out that the same rules do not apply to probation. A person on probation who violates rules against the use of marijuana may be taken into custody unless there is a prior court ruling on the topic, she said.
Patrick Casey, one of Schmidt’s attorneys, said his client was elated. “We’re very happy with the result and appreciate that the new leadership took the time to look at this before it went to litigation,” he said.
Casey said that since word of this lawsuit got out, his office has received more than 100 calls from other people in the same situation as Schmidt, all over the state. He believes that as information about the new policy spreads, enforcement of it will not be an issue. Some of the calls were from people on probation, who have access to the court to have the issue heard, Casey said. “We’ve instructed them to have their court-appointed lawyer seek a motion,” he said.