Dorothy Vaccaro told the 21-year-old woman that at her age she probably wasn’t suffering from post-traumatic stress disorder or cancer and, therefore, shouldn’t use medical marijuana.
When the woman said she uses it to calm her anxiety, Vaccaro told her that anxiety wasn’t a sufficient reason to take the drug.
Vaccaro advised the woman that she should instead consider Xanax, a drug that many consider more powerful, with widely known side effects.
But Vaccaro isn’t a doctor. She’s a Pinellas County judge. And the woman before her during this spontaneous consultation wasn’t a patient. She was a defendant in a misdemeanor DUI case.
The exchange, in a recording from a Jan. 12 hearing obtained by the Tampa Bay Times, underscores that seven years after medical marijuana was made legal in Florida, the drug is still met with resistance from the highest perches of the criminal justice system.
Even as more than 800,000 patients across the state have been allowed by doctors to take the drug, Vaccaro rejected the woman’s use of medical marijuana while setting the terms of her probation and suggested a more potent alternative.
Judges are granted wide latitude to weigh in on pressing societal issues. And this exchange is just one example of this privilege. But on this day, for this case, did Vaccaro overstep?
Florida’s drug laws
Florida’s medical marijuana law, passed in 2016, allows a qualified physician to authorize medical marijuana for patients for a variety of physical and mental conditions. Judges and legal experts say that the use of medical marijuana is often allowed for people on probation.
But during the Jan. 12 hearing, Vaccaro ordered a drug test and threatened to arrest the woman without bond if she kept using marijuana. (People on probation are typically barred from using drugs or alcohol except for prescriptions.)
Three times during the 14-minute exchange, Vaccaro, who was appointed to the bench in 2002 by Gov. Jeb Bush after serving as a state prosecutor, said that she thought the woman was too young to use medical marijuana.
“Anxiety can be done a different way, through alprazolam, right? Xanax,” Vaccaro said, suggesting the woman go to a primary care doctor. “So they can deal with that that way, and there’s a drug that they can give you.”
The judge said she might reconsider her decision if the woman got “all wiggy” on Xanax, or if another doctor wrote a letter in support of the woman using marijuana.
The woman’s lawyer told the judge his client would get on Xanax. The Times could not reach the woman who appeared before the judge and chose not to name her to protect her medical history.
Xanax is the brand name for alprazolam, which is used to treat anxiety. It’s a benzodiazepine, which works by slowing down the central nervous system and decreasing brain activity, according to the U.S. Centers for Disease Control and Prevention.
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Jaggers Keene, a primary care physician in Largo, said Xanax can have dangerous side effects for some people, including seizures and thoughts of suicide. Noting that the court case was about probation for drunken driving, he said alprazolam can be fatal when mixed with alcohol.
Stephen Thompson, a spokesperson for the 6th Judicial Circuit, where Vaccaro presides, said the judge was simply suggesting alternatives to the woman’s medical marijuana use. (Thompson said Vaccaro could not comment on the case directly because of judicial rules.)
“She didn’t order the defendant to take those drugs,” Thompson wrote in a statement.
He said anxiety doesn’t qualify someone to use medical marijuana while on probation. Florida law does not name anxiety among permissible reasons to get medical marijuana, but does list other health issues such as post-traumatic stress disorder. And the law gives doctors discretion in whom they administer it to.
Thompson said Vaccaro approves medical marijuana use in some cases. He said other judges in the 6th Judicial Circuit were also sometimes denying the use of medical marijuana to people on probation. He said that having a medical marijuana card “does not suffice,” nor does documentation from a medical marijuana doctor.
Judge William Burgess, who also serves in the 6th Circuit, said he can speak about his courtroom only, but that he allows the use of medical marijuana cards and treats them the same as other medication prescribed by doctors.
In Hillsborough County, public information officer Mike Moore said he doesn’t know of any judge in the 13th Judicial Circuit who has a policy against people using medical marijuana on probation. ”If something is prescribed, that’s up to the doctor, not the judge,” Moore said.
The fact that marijuana is still illegal at the federal level can make it tricky for judges to navigate, Thompson said.
But federal law shouldn’t make a difference in county court, where medical marijuana is legal, said attorney Craig Whisenhunt, partner at Pinellas Park law firm Ripley Whisenhunt PLLC.
“If you’re going to interpret the law that way, why isn’t the state attorney’s office raiding all of the medical marijuana dispensaries?” Whisenhunt said.
A judge’s role
While medical marijuana creates a legal gray area, some experts question Vaccaro’s actions during the hearing with the defendant.
It’s not unusual for a judge to ask questions in court and make decisions on the fly, said Charles Geyh, a professor in the Maurer School of Law at Indiana University Bloomington, where he teaches and writes about judicial conduct, ethics and accountability.
But Geyh raised concerns that Vaccaro “basically trumped the judgment of a physician without gathering all the facts.”
He said judges have a responsibility to stick to what can be proven and not make decisions based on their own preferences.
“The judge was leaving her lane,” he said.
Bob Jarvis, a law professor at Nova Southeastern University who has written about Florida’s judicial rules, said Vaccaro shouldn’t have mentioned the woman’s age as a reason to deny her use of medical marijuana.
He referenced Florida’s judicial canons, which are the rules that judges are sworn to follow. Canon 3 says that a judge can’t discriminate against a person for any reason, including age.
Jarvis said that when a judge decides on sight that someone is too young to need a type of medication, it’s a slippery slope.
“What’s to stop the judge from making all kinds of other assumptions?” Jarvis wondered. “And then the whole system falls apart.”