A judge has ruled an Arizona woman may use medical weed while on probation for multiple charges, even though her plea agreement with prosecutors barred her from doing so.

Superior Court Judge Celé Hancock of Yavapai County ruled Oct. 22 that Jennifer Lee Ferrell, 43, may use the marijuana she needs. Ferrell had pleaded guilty to charges of drunk driving, aggravated assault on a police officer and resisting arrest, all stemming from a police stop in October 2012.

The plea agreement, reached between Ferrell and the Yavapai County attorney’s office, contained a provision that has become common in the county and presumably in other areas where medical marijuana is permitted.

JointOne of the “special conditions” contained in the agreement barred Ferrell from buying, growing, possessing, consuming or using marijuana in any form. The restriction applied regardless of her right to access medical pot under Arizona law.

Kevin Schiff, deputy county attorney, said his boss’ position was that defendants shouldn’t be able to selectively agree to conditions in a plea agreement.

“It’s a plea agreement,” Schiff said. “It’s not a plea smorgasbord. (The defendant) doesn’t get to pick and choose.”

But Ferrell’s lawyer, Jared G. Keenan, argued in court that prosecutors shouldn’t be able to prevent her from doing something she has a legal right to do. The provision was illegal, he said, as Arizona’s 2010 medicinal cannabis law allows her to use marijuana.

Keenan said prosecutors were “unwilling to negotiate” over conditions in the plea agreement, giving Ferrell no choice but to accept.

“The state has decided that it is going to place that (provision) in every plea agreement, take it or leave it,” he said.

Hancock ruled against prosecutors because she said the language in the agreement tried to bind the court, giving her no discretion to reject the marijuana condition or others like it.

Pressed by Hancock, Schiff agreed that if the judge accepted Ferrell’s plea, she would be required to impose the provisions pushed by prosecutors. That, Hancock replied, isn’t their prerogative.

“When you say ‘shall,’ you are interfering with the judicial branch,” Hancock said, referring to the language of the plea agreement. “It makes a condition of probation mandatory upon the court and prevents the court from modifying the condition of probation.”

That, she said, was “not legal under Arizona law.”

Though it remains to be seen what effect the ruling will have on other MMJ patients in Arizona – let alone those in other states – it may offer a glimmer of hope for others. Hancock insisted her ruling only applied to Ferrell’s case, but even decisions made by judges who try to limit their effect can help change the law over time. Perhaps next time there won’t be a prisoner denied medical marijuana.

Ferrell is sentenced to be scheduled in December. The Yavapai County attorney’s office has said it will appeal Hancock’s ruling.

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