The court overturned 18th Judicial District Judge Carlos Samour's decision to allow Leonard Charles Watkins, who was sentenced to six years probation for felony sexual exploitation of a child, to use medical marijuana.
Senior Deputy District Attorney David C. Jones of the 18th Judicial District appealed Samour's decision.
"We conclude that the trial court erred in approving such use by defendant," wrote appeals court Judge Robert Kapelke.
The appeals court found that Colorado's Medical Use of Marijuana Amendment does not permit a court to exempt a probationer from complying with federal law, which outlaws possession and use of marijuana.
Read the full report on The Denver Post.
Previously, 9NEWS has reported on the confusing definitions of medicinal-marijuana use during probation.
Of the 22 judicial districts in Colorado, four allow people on probation with medical marijuana cards to smoke all the pot they want.
In six other judicial districts, judges have ruled that no marijuana is allowed. In the 12 remaining districts, judges are deciding on a case-by-case basis who is sick enough to smoke.
"It's a Mickey Mouse operation. There's no definitions, it's just not done right," Sandy Chrisman said.
Her son has a letter from his neurologist saying he needs medical marijuana to treat his frequent grand mal seizures and reduce the side affects of his other seizure medications.
Chrisman wants judges to have one uniform, state-wide policy for probationers after learning there is no such system in place.
Chrisman's son, Matt Dedrick, began having epileptic seizures when he was about 13 years old. He says had at least two seizures a month until he tried smoking marijuana last year and they stopped.
Even with his medical marijuana card, Dedrick can not legally smoke pot. That is because Dedrick is on probation in the 1st Judicial District (Jefferson and Gilpin Counties) for a driving while ability impaired charge in 2007, and a judge has ruled he is not allowed to smoke marijuana while on probation. If he had committed his crime in the 3rd Judicial District (Huerfano and Las Animas Counties) a judge would allow him to light up.
If he lived in the 2nd Judicial District (Denver), a judge might have ruled in his favor that he could use pot while still serving his sentence.
"I'm probably going to be back to having seizures and the side effects of my medications are going to hit harder," said Dedrick, who worries he could go to jail if he smokes marijuana and fails his drug tests.
Chief Judge Brooke Jackson of the 1st Judicial District ruled on Sept. 23, 2009 that anyone who accepts probation cannot possess or use medical marijuana.
District Attorney Scott Storey agrees with the chief judge and believes it would break federal law to allow people on probation, like Dedrick, to smoke medical marijuana while still serving their sentences.
"Probation is a privilege. Frankly, you commit a felony, your presumptive sentence is the Department of Corrections. But we have other alternatives to the Department of Corrections, one of which is probation," Storey said. "But it is a privilege, not a right. If you're going to take advantage of that privilege, you have to follow the rules."
While probationers can not light up in the 1st District, 9Wants to Know has learned in the 18th District, a judge is allowing child molester Leonard Watkins to smoke marijuana for his old injuries and is letting Joshua Swanson, who assaulted a police officer, use the drug for his migraines.
"It helps me so I can sleep at night. And pretty much without it, I would be waking up in the middle of the night with a terrible migraine, have to run to the bathroom to throw-up," Swanson said. He got his card in December. "Now I barely get them anymore, so it works."
Swanson is also facing charges in Jefferson County, where he will not be allowed to use medical marijuana. However, for his probation in Arapahoe County, a judge ruled Swanson is allowed to smoke all the pot he wants.
Watkins chose not to comment for this story. He was convicted of three counts of sexual assault on a child in 2005 and is currently on probation in Arapahoe County.
Judge John L. Wheeler allowed Watkins to smoke marijuana for his old injures while on probation, over the protests of District Attorney Carol Chambers.
In an e-mail to 9NEWS, Chambers wrote, "Does anyone think it's a good idea to allow a convicted sex offender to get high? People on probation have admitted to violating the law. There are different public safety concerns and different laws that apply to them than apply to the rest of the community."
None of the judges in this story agreed to talk to 9Wants to Know. The Office of the State Court Administrator also declined all on-camera interview requests.
District Attorney Frank Ruybalid disagrees with the ruling in the 3rd Judicial District which allows all probationers with medical marijuana cards to smoke pot.
"A significant number of them on probation are drug abusers and we are trying to get them sober. Their abuse is contributing to their behavior and we are trying to modify their behavior so they're not intoxicated all the time," Ruybalid said. "The fact that they have medical marijuana cards allows them to sidestep the objective to lead sober lives."
Ruybalid hopes lawmakers will pass a law that says if criminals are on probation, they cannot smoke medical marijuana.
State Sen. Chris Romer (D-Denver) has drafted legislation that would put a stop to probationers smoking pot until a judge, working with an independent doctor, can determine if it is really medically necessary.
"There are doctors who are now increasingly specializing in which people really are chronically ill. Not the doctors who work at doc-in-the-box dispensaries, but real doctors who really know chronic illness," Romer said. "And the court can easily refer that person to that doctor to confirm that someone has a chronic illness that justifies, in the rare cases, that justifies medical marijuana on probation."
It is not clear how much a court-assisted doctor would cost or who would pay for the extra medical advice under Romer's legislation.
While probation officers are not allowed to keep statistics on the number of criminals applying for or who already have medical marijuana cards, several told 9Wants to Know they are "alarmed" at the numbers they have seen and are "very concerned" that people are just getting them to legally get high while they're still on probation. Usually, someone on probation who tests positive for a substance like marijuana would be sent back to jail or prison.
"If I'm on probation and I like to smoke pot recreationally, wouldn't it be nice to have a 'Get out of jail free card' called my medical marijuana card?" Romer asked.
Chrisman, who wants to prevent her son from having any more seizures, just wants a judge to give her son a break for his special condition.
"Seizures can kill you, OK? But medical marijuana - I don't think it's going to kill you," Chrisman said.
On Wednesday, Chrisman's son went before Jefferson County District Judge Susan Fisch for a probation revocation hearing. After Dedrick pleaded guilty to not attending drug-education and treatment classes and to not submitting to any required drug testing, the judge revoked his probation and sentenced him to 45 days in jail. However, the judge is allowing him to serve the time in home detention.
Since Dedrick is no longer on probation, but serving a jail sentence at home where he will not be monitored for marijuana usage, the ruling effectively allows Dedrick to keep smoking medical marijuana for his epileptic seizures. While he could not smoke pot on probation, Dedrick can now use medical marijuana while serving his sentence in the 1st Judicial District.
"I'm just glad I'm still going to be able to use it for my seizures and my side affects," Dedrick said Wednesday immediately after his sentencing. "I know if the judge would have decided to put me in jail, then I probably wouldn't have been able to do that. So, I'm very glad she took that into consideration. So, yeah, I'm still going to use it."
If you have any news tips, please e-mail 9Wants to Know Investigative Reporter Deborah.Sherman@9NEWS.com.
Here is 9Wants to Know's list of Colorado's 22 judicial district probation and marijuana rulings:
1st Judicial District - (Gilpin, Jefferson) - Not allowed
2nd Judicial District - (Denver) - Case by case
3rd Judicial District - (Huerfano, Las Animas) - Case by Case basis (this was changed from Allowed to case by case by the Chief probation officer on 02/09/10)
4th Judicial District - (El Paso, Teller) - Not allowed
5th Judicial District - (Clear Creek, Eagle, Lake, Summit) - Case by case basis
6th Judicial District - (Archuleta, La Plata, San Juan) - Case by case basis
7th Judicial District - (Delta, Gunnison, Hinsdale, Montrose, Ouray, San Miguel) - Allowed
8th Judicial District - (Jackson, Larimer) - Not allowed
9th Judicial District - (Garfield, Pitkin, Rio Blanco) - Case by case
10th Judicial District - (Pueblo) - Case by case
11th Judicial District - (Chaffee, Custer, Fremont, Park) - Case by case
12th Judicial District - (Alamosa, Conejos, Costilla, Mineral, Rio Grande, Saguache) - Case by case
13th Judicial District - (Kit Carson, Logan, Morgan, Phillips, Sedgwick, Washington, Yuma) - Not allowed
14th Judicial District - (Grand, Moffat, Routt) - Case by case
15th Judicial District - (Baca, Cheyenne, Kiowa, Prowers) - Case by case
16th Judicial District - (Bent, Crowley, Otero) - Not allowed
17th Judicial District - (Adams, Broomfield) - Not allowed
18th Judicial District - (Arapahoe, Douglas, Elbert, Lincoln) - Case by case
19th Judicial District - (Weld) - Allowed
20th Judicial District - (Boulder) - Case by case
21st Judicial District - (Mesa) - Case by case
22nd Judicial District - (Dolores, Montezuma) - Allowed
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