Judge: NM inmates can't be penalized for using medical marijuana

The order applies specifically to the Bernalillo County Metropolitan Detention Center


By Edmundo Carrillo
Albuquerque Journal

ALBUQUERQUE, N.M. — A state district court judge in Albuquerque has ruled that medical marijuana patients who are in custody or under the supervision of the Bernalillo County Metropolitan Detention Center should not be penalized for using marijuana.

The order by 2nd Judicial District Court Judge Lucy Solimon applies specifically to MDC, but a lawyer representing a man who was thrown in jail for having medical marijuana believes all jails and prisons in the state should voluntarily comply with the ruling and provide marijuana to licensed patients.

An MDC spokeswoman said the facility will comply with the order.

Joe Montaño, 49, pleaded guilty to one count of aggravated DWI and in October 2019 was sentenced to serve 90 days in MDC's Community Custody Program, which allows people to serve their sentence on house arrest instead of in jail, followed by 12 months of supervised probation. Montaño has had a valid medical marijuana card since 2015, court documents show.

In November 2019, CCP officers found marijuana in Montano's possession and forced him to serve the rest of his 90-day CCP sentence in MDC custody, according to court documents. He was released in January 2020.

In July, Montaño's attorney, Jacob Candelaria, filed a motion asking a judge to prohibit MDC from penalizing inmates with a valid medical marijuana card for using cannabis.

On Tuesday, Solimon issued an order that says MDC "shall comply with the Lynn and Erin Compassionate Use Act ... and shall not penalize persons in custody or under the supervision of the Metropolitan Detention Center, including those in the Community Custody Program, for conduct allowed under the Lynn and Erin Compassionate Use Act."

In her ruling, Solimon cited a 2019 amendment to the act, which governs medical marijuana in New Mexico, that says, "[a] person who is serving a period of probation or parole or who is in the custody or under the supervision of the state or a local government pending trial as part of a community supervision program shall not be penalized for conduct allowed under the Lynn and Erin Compassionate Use Act."

Candelaria, who is also a state senator, said the ruling makes it clear that all medical marijuana patients who are in custody should be able to use marijuana.

"(The order) makes no exception or distinction between persons under the custody of the state, whether or not they're on house arrest or within a jail or prison setting," he said.

Candelaria added that he wants state and county officials to begin developing policies to allow inmates to use marijuana. He also said the government should pay for medical marijuana the same way it pays for other medications.

"I absolutely do believe that jail and prison facilities have the responsibility to provide that medical care if it's ordered by a physician, period," Candelaria said.

A state Department of Corrections spokesman did not return an email or phone call from the Journal on Thursday.

MDC spokeswoman Julia Rivera said in an email that the jail will "follow the law," but declined to give further comment.

Bernalillo County Assistant Attorney Daniel Roberson previously argued in court filings that medical marijuana laws don't cover patients who are under post-conviction supervision.

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(c)2021 the Albuquerque Journal (Albuquerque, N.M.)

McClatchy-Tribune News Service

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