January 20, 2009, Decided

NOTICE: SUMMARY DISPOSITIONAL ORDERS OF THIS COURT DO NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED. SEE HAWAII RULES OF APPELLATE PROCEDURE FOR GUIDELINES RESTRICTING PUBLICATION AND CITATION OF SUMMARY DISPOSITIONAL ORDERS.

SUBSEQUENT HISTORY: Reported at State v. Vincent, 119 Haw. 467, 198 P.3d 730, 2009 Haw. App. LEXIS 265 (Haw. Ct. App., 2009)

PRIOR HISTORY: [*1]
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT. Cr. No. 04-1-433.

DISPOSITION: Affirmed.


CASE SUMMARY

PROCEDURAL POSTURE: Defendant appealed a judgment by the Circuit Court of the Third Circuit (Hawai'i) that convicted and sentenced him for, inter alia, first-degree commercial promotion of marijuana, a violation of Haw. Rev. Stat. § 712-1249.4(1) (1993); defendant claimed that a probation condition prohibiting him from using marijuana interfered with the physician-patient relationship by denying him a legitimately prescribed course of treatment.

OVERVIEW: The circuit court received into evidence, over the State's hearsay objection, a letter from defendant's physician stating that defendant qualified for a medical marijuana certificate. The appellate court found, inter alia, that the letter did not strictly comply with the specific requirements of Haw. Rev. Stat. § 329-122(a) (Supp. 2007) because the physician did not certify in writing that, in his professional opinion, the potential benefits of defendant's medical use of marijuana would likely outweigh the health risks for him. Instead, the physician stated that defendant preferred to minimize his use of narcotic pain medications and preferred to use medical marijuana, which was his legal right. In addition, defendant cultivated and possessed more than the minimum amount of marijuana allowed by Haw. Rev. Stat. §§ 329-121, 329-122(a)(3). Therefore, the evidence belied defendant's argument that the marijuana cultivated and possessed by him was for personal and medical use by him and his wife. Accordingly, defendant's conviction under Haw. Rev. Stat. § 712-1249.4(1) (1993) and the probation condition were proper.

OUTCOME: The judgment was affirmed.


CORE TERMS: marijuana, qualifying, patient, debilitating, pain, medical condition, marijuana plants, severe, substance-abuse, probation, mature, plant, knee, adequate supply, sentencing, chronic, height, professional opinion, potential benefits, health risks, legal right, medical-marijuana, bilaterally, medications, promotion, diagnosed, possessed, outweigh, syndrome, immature

LexisNexis® Headnotes Hide Headnotes


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Healthcare Law > Treatment > General Overview
HN1Go to the description of this Headnote. Under the medical-marijuana statute, a qualifying patient, defined in Haw. Rev. Stat. § 329-121 (Supp. 2007) as a person who has been diagnosed by a physician as having a debilitating medical condition, is permitted to keep an adequate supply of marijuana for personal consumption under certain conditions.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Healthcare Law > Treatment > General Overview
HN2Go to the description of this Headnote. See Haw. Rev. Stat. § 329-122(a) (Supp. 2007).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Healthcare Law > Treatment > General Overview
HN3Go to the description of this Headnote. Unless the requirements in Haw. Rev. Stat. § 329-122(a) (Supp. 2007) are met, a qualifying patient is not permitted to use marijuana for medical purposes.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Healthcare Law > Treatment > General Overview
HN4Go to the description of this Headnote. See Haw. Rev. Stat. § 329-121 (Supp. 2007).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Criminal Law & Procedure > Sentencing > Alternatives > Probation > Conditions
Healthcare Law > Treatment > General Overview
HN5Go to the description of this Headnote. Although the medical-use-of-marijuana law, codified at Haw. Rev. Stat. ch. 329, pt. IX, allows a qualifying patient to assert the medical use of marijuana as an affirmative defense to any prosecution involving marijuana use under pt. IX or Haw. Rev. Stat. ch. 712, it does not prohibit a court from imposing conditions prohibiting marijuana use on a person sentenced for a drug offense.


Criminal Law & Procedure > Sentencing > Alternatives > Probation > General Overview
HN6Go to the description of this Headnote. Probation has historically been regarded as a matter of grace or privilege and not a matter of right.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Healthcare Law > Treatment > General Overview
HN7Go to the description of this Headnote. Under Haw. Rev. Stat. §§ 329-122(a)(3) and 329-121, a person who qualifies to use marijuana for medical purposes is not allowed to have more than three mature plants, four immature plants, and one ounce of usable marijuana per each mature plant.


COUNSEL: On the briefs:

Phyllis J. Hironaka, Deputy Public Defender, State of Hawai'i, for Defendant-Appellant.

Jason M. Skier, Deputy Prosecuting Attorney, County of Hawai'i, for Plaintiff-Appellee.

JUDGES: By: Watanabe, Presiding J., Fujise, and Leonard, JJ.

OPINION
SUMMARY DISPOSITION ORDER

Defendant-Appellant Mallory D. Vincent (Vincent) appeals from the judgment entered by the Circuit Court of the Third Circuit 1 (circuit court) on April 27, 2005, convicting and sentencing him for: (1) commercial promotion of marijuana in the first degree, a violation of Hawaii Revised Statutes (HRS) § 712-1249.4(1) (1993); and (2) acquiring a firearm without a permit, a violation of HRS § 134-2(a) (Supp. 2003). In sentencing Vincent to serve concurrent terms of probation of ten years and one year, the circuit court imposed various conditions, including special conditions prohibiting Vincent from possessing marijuana, being in any vicinity where marijuana is being used, and requiring Vincent to undergo substance-abuse assessment, substance-abuse treatment (if required), and periodic urinalysis (special conditions).

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1 The Honorable Greg K. Nakamura [*2] presided.

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On appeal, Vincent contends that the circuit court abused its discretion in imposing the special conditions because: (1) he was legally authorized to possess marijuana for medical use; (2) he obtained a substance-abuse assessment prior to sentencing that showed he did not have a substance-abuse problem requiring treatment; (3) the evidence presented to the circuit court showed that his cultivation and possession of marijuana were not for commercial purposes; and (4) the circuit court wrongly concluded that his medical-marijuana usage would result in his commission of the same or similar crime. Vincent also argues that in imposing the probation condition that prohibited him from using medical marijuana, the circuit court applied the wrong "no reasonable alternative method of treatment" standard and unreasonably interfered with the physician-patient relationship by denying him his physician's legitimately prescribed course of treatment.

We affirm.

A.

HN1Go to this Headnote in the case.Under the medical-marijuana statute, a "qualifying patient[,]" defined in HRS § 329-121 (Supp. 2007) as "a person who has been diagnosed by a physician as having a debilitating medical condition[,]" 2 is permitted to keep an "adequate [*3] supply" 3 of marijuana for personal consumption under certain conditions. HRS § 329-122(a) (Supp. 2007) specifically states:

HN2Go to this Headnote in the case.Medical use of marijuana; conditions of use. (a) Notwithstanding any law to the contrary, the medical use of marijuana by a qualifying patient shall be permitted only if:

(1) The qualifying patient has been diagnosed by a physician as having a debilitating medical condition;

(2) The qualifying patient's physician has certified in writing that, in the physician's professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for the particular qualifying patient; and

(3) The amount of marijuana does not exceed an adequate supply.

(Emphases added.) Therefore, HN3Go to this Headnote in the case.unless the foregoing requirements are met, a qualifying patient is not permitted to use marijuana for medical purposes.


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2 Pursuant to HRS § 329-121, "[d]ebilitating medical condition" means:

(1) HN4Go to this Headnote in the case.Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions;

(2) A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following:

(A) Cachexia [*4] or wasting syndrome;

(B) Severe pain;

(C) Severe nausea;

(D) Seizures, including those characteristic of epilepsy; or

(E) Severe and persistent muscle spasms, including those characteristic of multiple sclerosis or Crohn's disease; or

(3) Any other medical condition approved by the department of health pursuant to administrative rules in response to a request from a physician or potentially qualifying patient.

3 "Adequate supply" is defined in HRS § 329-121 as

an amount of marijuana jointly possessed between the qualifying patient and the primary caregiver that is not more than is reasonably necessary to assure the uninterrupted availability of marijuana for the purpose of alleviating the symptoms or effects of a qualifying patient's debilitating medical condition; provided that an "adequate supply" shall not exceed three mature marijuana plants, four immature marijuana plants, and one ounce of usable marijuana per each mature plant.


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At a [*5] hearing held on May 11, 2005 regarding the special-probation condition prohibiting Vincent's use of medical marijuana, the circuit court received into evidence, over the State's hearsay objection, a letter from Dr. James Berg (Dr. Berg), which stated as follows:

I evaluated [Vincent] on December 22, 2004. At that time, I determined that he qualified for his medical marijuana certificate. [Vincent] has had surgery on both of his knees in the past, and remains with chronic, severe debilitating knee pain bilaterally. He also has debilitating low back and hip pain. He prefers to minimize his use of narcotic pain medications and prefers to use medical marijuana, which is his legal right by the State of Hawaii. His current medical marijuana certificate is issued from January, 2005 through January 31, 2006.

(Emphasis added.) Vincent's counsel, after making an offer of proof that Vincent was self-employed and had no medical insurance or drug coverage, argued that the circuit court was not authorized to prohibit Vincent's medical use of marijuana.

The letter from Dr. Berg that Vincent relies on for permission to use medical marijuana does not strictly comply with the specific requirements of HRS § 329-122(a). [*6] Although Dr. Berg states in the letter that Vincent had knee surgery "and remains with chronic, severe debilitating knee pain bilaterally" and "also has debilitating low back and hip pain[,]" Dr. Berg did not certify in writing that in his professional opinion, "the potential benefits of the medical use of marijuana [by Vincent] would likely outweigh the health risks for [Vincent.]" Instead, Dr. Berg stated that Vincent "prefers to minimize his use of narcotic pain medications and prefers to use medical marijuana, which is his legal right by the State of Hawaii." Therefore, Vincent did not meet the statutory conditions for medical use of marijuana and we need not decide whether the circuit court abused its discretion in imposing the special conditions of probation that Vincent complains of on appeal.

B.

We observe, moreover, that HN5Go to this Headnote in the case.although the medical-use-of-marijuana law, codified at HRS chapter 329, part IX, allows a qualifying patient to "assert the medical use of marijuana as an affirmative defense to any prosecution involving marijuana use under [part IX of HRS chapter 329] or [HRS] chapter 712," 4 it does not prohibit a court from imposing conditions prohibiting marijuana use on [*7] a person sentenced for a drug offense. Additionally, HN6Go to this Headnote in the case.probation has historically been regarded as "a matter of grace or privilege and not a matter of right." State v. Bernades, 71 Haw. 485, 489, 795 P.2d 842, 844 (1990).

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4 HRS chapter 712 describes penal offenses against public health and morals, including offenses related to prostitution, obscenity, gambling, drugs and intoxicating compounds, and nuisance.

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C.

Vincent argues that the special conditions imposed on him by the circuit court were unreasonable because the evidence showed that the marijuana cultivated and possessed by him was for personal and medical use by him and his wife, Peggy G. Nielsen, and not for commercial purposes. The record belies Vincent's argument.

Vincent pleaded guilty to and was convicted on Count I for commercial promotion of marijuana in the first degree. In its "Amended Findings of Fact, Conclusions of Law Regarding the Imposition of the Condition of Prohibition Against the Use of Marijuana" entered on May 13, 2005, the circuit court found that Count I arose out of the seizure from Vincent's residence of 329 marijuana plants, six inches in height; 54 marijuana plants, one inch in height; 117 marijuana cuttings [*8] with rooting systems; 20 marijuana plants, two to three feet in height; and 4.06 pounds of dried processed marijuana. Vincent has not challenged the circuit court's finding on appeal, and HN7Go to this Headnote in the case.under HRS §§ 329-122(a)(3) and 329-121, a person who qualifies to use marijuana for medical purposes is not allowed to have more than "three mature plants, four immature plants, and one ounce of usable marijuana per each mature plant."

Affirmed.