Judge in Pinellas says medical marijuana shouldn’t be banned for defendants

In a rare move, a Pinellas-Pasco Circuit Court judge issued a bench memorandum to his colleagues and lawyers advising that defendants on probation should not be prohibited from using medical marijuana.

The nonbinding legal statement from Judge William Burgess comes months after a Tampa Bay Times story about Pinellas County Judge Dorothy Vaccaro, who told a woman in her courtroom that she couldn’t use her medical marijuana card while on probation for a misdemeanor DUI charge. Vaccaro instead suggested the woman consider Xanax for her anxiety.

Burgess said Wednesday that his memo wasn’t a “direct reaction” to that incident but said it was meant as a “continuing conversation with lawyers in my division” as the issue of medical marijuana is discussed in courtrooms.

Citing previous case law, Burgess wrote in his Aug. 10 memorandum that a court cannot impose a special condition of probation that “effectively prohibits the defendant from participating in a state medical marijuana program.”

A court also “cannot require a defendant” to prove the reason that a doctor allowed use of medical marijuana, Burgess wrote. The judge pointed to a Florida statute that protects the use of medical marijuana when authorized by qualified physicians.

A Florida court can violate a person’s probation for breaking a law that is illegal on both the federal and state level, Burgess wrote. However, “it cannot revoke a defendant’s probation for conduct that is illegal under federal law but legal under state law.” Marijuana possession and use is still illegal at the federal level.

Floridians in 2016 voted to approve medical marijuana, allowing qualified physicians to authorize patients to use it for a variety of physical and mental conditions. Since then, more than 800,000 Floridians have obtained medical marijuana cards.

There are special conditions when a court can question whether or not a defendant should be using certain types of drugs, Burgess wrote in his memo.

A judge can consider a defendant’s history or pattern of drug abuse, but only if there is evidence that the abuse is “recent, and significant or chronic.”

Determining if medical marijuana should be barred during probation takes a three-step process, according to the law, Burgess wrote.

First, the validity of the medical marijuana card must be determined. Next, the court should determine if the drug had a substantial relationship to the crime for which the defendant is being sentenced. Finally, the court should consider if restricting the drug is consistent with public policy, and if the public would be protected by the defendant not being allowed to use the drug.

Lawyers in the county said it’s uncommon for judges to issue memorandums regarding ongoing issues in a judicial circuit. Burgess said he has made it a practice throughout his career to comment on legal topics.

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Burgess is a member of the Florida Bar’s Board of Legal Specialization and Education, where he oversees education programs for lawyers.

Burgess’ bench memorandum is meant to be used as a reference for lawyers in the county, including in instances where an attorney may be arguing in court whether a defendant should be allowed to use medical marijuana while on probation.

Stephen Thompson, spokesperson for the 6th Judicial Circuit, wrote in an email that Burgess’ memorandum “memorializes his view of the use of medical marijuana and the court system.”

“Judges within our circuit will continue to apply the law as appropriate,” Thompson wrote.

Attorney Haydee Oropesa, who practices in Pinellas and other Florida counties, told the Times that Burgess’ bench memo is an “excellent analysis” on the issue.

“It can definitely serve to inform attorneys in this jurisdiction when representing defendants who either have a medical marijuana card or need to obtain one prior to sentencing or after,” Oropesa said. “I have been for some time now waiting for the right case to appeal.”