If an Arkansas probationer with a medical-marijuana card tests positive for THC, can probation officers, prosecutors, or courts revoke probation, and do they have to report the positive test to federal authorities?

Plain-English summary

State Senator Kim Hammer asked two questions about the collision between Arkansas Amendment 98 (the 2016 medical-marijuana amendment) and a standard probation condition that probationers must not violate federal law. Federal law still classified marijuana as a Schedule I controlled substance, so an Arkansan using the drug under a state-issued card was still committing a federal offense.

The AG's answer to the first question was that nothing in state law required probation officers, prosecuting attorneys, or circuit judges to seek revocation of probation when a probationer tested positive for THC. Each of those actors had discretion. A judge could find a violation occurred (a positive test is circumstantial evidence of federal possession), but the response could range from a verbal warning, an intermediate sanction off the Department of Community Correction's sanctions grid, lengthening the probation period, or revoking outright. The AG declined to recommend how that discretion should be exercised, calling that question outside the scope of an opinion.

The answer to the second question was no: Arkansas had no law requiring probation officers, prosecutors, or judges to report a probationer's positive medical-marijuana test to federal authorities.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Was the standard "no federal-law violation" condition explicitly required by Arkansas law?
A: Not directly. But Ark. Code Ann. § 5-4-303(b) required courts to make it "an express condition of every suspension or probation that the defendant not commit an offense punishable by imprisonment." Marijuana possession is punishable by federal imprisonment under 21 U.S.C. § 844(a), so the standard condition followed.

Q: Does a positive THC test prove federal possession?
A: The opinion treated it as strong circumstantial evidence, citing federal cases (Hancox, Blackston) holding that use of a controlled substance constitutes possession. A court still has to make the finding by a preponderance of the evidence under Ark. Code Ann. § 16-93-308(d).

Q: What sanctions short of revocation were on the table?
A: Ark. Code Ann. § 16-93-309(a) listed several: continue probation, lengthen probation within statutory caps, increase the fine, impose a confinement period during probation, or add new conditions. The Department of Community Correction also used an "intermediate sanctions grid" under Ark. Code Ann. § 16-93-306(d).

Q: Could a federal prosecutor go after a state medical-marijuana cardholder?
A: Federal law was clear that Amendment 98 was no shield. The AG cited Gonzalez v. Raich, 545 U.S. 1 (2005), and United States v. Rosenthal, 454 F.3d 943 (9th Cir. 2006). Whether federal prosecutors actually pursue such cases is a separate enforcement-policy question.

Q: Can a probation officer voluntarily report to federal authorities?
A: The opinion only addressed whether anyone was obligated to report (no). It did not address whether a probation officer could choose to do so as a matter of policy.

Background and statutory framework

Amendment 98, the Arkansas Medical Marijuana Amendment of 2016, legalized possession and use of medical marijuana under state law for qualifying patients. The Controlled Substances Act, 21 U.S.C. §§ 841(a) and 844(a), continued to prohibit possession and distribution. Gonzalez v. Raich, 545 U.S. 1 (2005), confirmed that Congress's Commerce Clause power reached intrastate medical-marijuana use.

Probation conditions in Arkansas were governed by Ark. Code Ann. § 5-4-303, which gave judges broad discretion to fashion conditions and required, under subsection (b), an express condition that the defendant "not commit an offense punishable by imprisonment." Once a condition was in place, revocation followed the procedure in Ark. Code Ann. § 16-93-308(d): a court could revoke if it found by a preponderance of the evidence that the probationer had inexcusably failed to comply.

The opinion stressed that revocation was discretionary, not automatic, even where a violation was established. Judges, prosecutors, and probation officers all had latitude. Webb v. Harrison, 261 Ark. 279, 281, 547 S.W.2d 748, 749 (1977), described prosecutorial discretion in similar terms.

The AG also noted that the federal cases on supervised release (Hancox under 18 U.S.C. § 3583(g)(1), Blackston) had treated positive drug tests as evidence of possession, and saw no reason an Arkansas judge could not apply the same reasoning to 21 U.S.C. § 844(a).

Citations

• Ark. Const. amend. 98
• Ark. Code Ann. § 5-4-303 (probation conditions)
• Ark. Code Ann. § 5-4-303(b) (mandatory no-imprisonable-offense condition)
• Ark. Code Ann. § 5-4-306; § 5-4-201
• Ark. Code Ann. § 16-93-308(d); § 16-93-309(a) (revocation/sanctions)
• Ark. Code Ann. § 16-93-306(d)(1)–(3) (intermediate sanctions grid)
• Ark. Code Ann. § 25-16-706 (AG opinion authority)
• 21 U.S.C. §§ 841(a), 844(a) (federal Controlled Substances Act)
• 18 U.S.C. § 3583(g)(1) (federal supervised release)
• Gonzalez v. Raich, 545 U.S. 1 (2005)
• United States v. Rosenthal, 454 F.3d 943 (9th Cir. 2006)
• United States v. Hancox, 49 F.3d 223 (6th Cir. 1995)
• United States v. Blackston, 940 F.2d 877 (3d Cir. 1991)
• Webb v. Harrison, 261 Ark. 279, 547 S.W.2d 748 (1977)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2019-045
December 20, 2019

The Honorable Kim D. Hammer
State Senator
1201 Military Road PMB 285
Benton, AR 72015

Dear Senator Hammer:

This is in response to your request for an opinion concerning Amendment 98 to the Arkansas Constitution, which establishes the right of qualifying Arkansans to possess and use medical marijuana.

Your request states that a standard condition of probation in Arkansas for felony offenders is that they cannot violate federal law. When that condition is in place, Arkansas probationers are unable to utilize their medical marijuana cards without fear of facing the potential revocation of their probation. In this regard, you have asked the following questions:

1. In those instances, should probation offices, prosecuting attorneys' offices and circuit courts (all state entities) take steps to revoke probation for individuals who test positive for marijuana in spite of the fact that they have medical marijuana cards issued by Arkansas pursuant to Amendment 98?

2. Furthermore, are probation officers and other state officials under any obligation to report probationers who test positive for medical marijuana to federal authorities?

RESPONSE

If, in your first question, you are asking whether the law compels probation officers, prosecuting attorneys, and circuit courts to take steps to revoke probation in the situation you describe, the answer is "no." Those entities have discretion in how they choose to address probation violations. If, on the other hand, you are asking how I believe they should exercise their discretion, such a question does not involve interpretation of state law, and as such, it falls outside the scope of an opinion from this office. Therefore, insofar as your first question is concerned, this opinion will be limited to a discussion of the relevant law.

In response to your second question, no, there is no legal obligation for probation officers, prosecuting attorneys, or judges to report probationers who test positive for medical marijuana to federal authorities.

DISCUSSION

A general overview of the applicable law may be helpful before turning to your specific questions. Amendment 98 to the Arkansas Constitution, the Arkansas Medical Marijuana Amendment of 2016 ("Amendment 98"), legalized the possession and use of medical marijuana under state law for certain qualifying individuals. The federal Controlled Substances Act ("CSA") prohibits the possession and distribution of marijuana, and there is no exception for marijuana used for medical purposes. Therefore, Amendment 98 is not a shield to federal criminal prosecution under the CSA.

Regarding conditions of probation, you write that a standard condition of probation in Arkansas for felony offenders is that they do not violate federal law. Judges have broad discretion to fashion such conditions as they believe are appropriate in a given case. Thus, in some cases, a judge may explicitly state that a probationer shall not violate federal law. However, you may also be referring to Ark. Code Ann. § 5-4-303(b), which states, "The court shall provide as an express condition of every suspension or probation that the defendant not commit an offense punishable by imprisonment during the period of suspension or probation." Although § 5-4-303(b) does not explicitly mention federal law, the effect, of course, is that probationers cannot violate most federal laws without also violating a condition of their probation.

With this general overview of the law in mind, I turn to your specific questions.

Question 1: In those instances, should probation offices, prosecuting attorneys' offices and circuit courts (all state entities) take steps to revoke probation for individuals who test positive for marijuana in spite of the fact that they have medical marijuana cards issued by Arkansas pursuant to Amendment 98?

Whether or not a person's probation can or should be revoked is highly dependent on the factual circumstances of the individual case. That said, I can speak generally about the law as it applies to the scenario you have described.

If a probationer tests positive for tetrahydrocannabinol (THC), the principal psychoactive ingredient in marijuana, a court could make a determination that the probationer had possessed marijuana in violation of federal law. Possession of marijuana is a federal offense punishable by fines and imprisonment. Therefore, regardless of whether the condition in place expressly forbade violation of federal law or whether it prohibited the probationer from committing an offense punishable by imprisonment, a court could find that a probationer who tested positive for THC had violated a condition of his or her probation.

However, even if a court determines that a probationer has violated a condition of his or her probation, revocation of probation does not automatically follow. A court has wide discretion in dealing with probation violations, and there are a number of potential sanctions the court could impose. The court may continue the period of probation, lengthen the period of probation within the limits set by Ark. Code Ann. § 5-4-306, increase the fine within the limits set by Ark. Code Ann. § 5-4-201, impose a period of confinement to be served during the period of probation, or impose any conditions that could have been imposed upon conviction of the original offense. Of course, revocation of probation is also an option if the court finds by a preponderance of the evidence that the probationer has inexcusably failed to comply with a condition of his or her probation, in this case, the condition not to violate federal law or to refrain from committing any acts punishable by imprisonment.

I should also point out that the court is not the only entity you mention that is entitled to exercise discretion. Like the court, prosecuting attorneys are generally vested with discretion in handling prosecutorial matters. Probation officers also have flexibility and some discretion in dealing with probation violations. For instance, the Department of Community Correction (DCC) has the authority to sanction probationers administratively without utilizing the revocation process. The DCC uses an intermediate sanctions grid, which guides probation officers in determining the appropriate response to probation violations. Thus, if a probationer tested positive for THC in violation of a condition of probation, the probation officer could consult the grid to determine the appropriate course of action. There are a number of intermediate sanctions available to the probation officer, including those listed in Ark. Code Ann. § 16-93-306(d)(3). It is my understanding that probation officers use the grid, court guidance, and direction from their supervisors to guide their decisions.

Thus, if a probationer uses marijuana in violation of federal law, probation officers and prosecutors could take steps to initiate the probation revocation process, and a judge could ultimately decide to revoke probation. Such decisions, however, fall within those entities' discretion.

Question 2: Furthermore, are probation officers and other state officials under any obligation to report probationers who test positive for medical marijuana to federal authorities?

No. I am not aware of any law that requires probation officers or other state officials to report to federal authorities Arkansas probationers who test positive for THC because of their use of medical marijuana pursuant to Amendment 98.

Sincerely,

LESLIE RUTLEDGE
Attorney General