PA: He Was Qualified For Medical Marijuana But Was Jailed Anyway

Photo Credit: David Zalubowski

A Pittsburgh medical marijuana patient was jailed last week after he tested positive for the drug and was unable to provide proof of his medical certification to an Allegheny County judge.

Samson L. Bailey Jr., 24, of Spring Garden, spent 10 days in jail after Common Pleas Court Judge Mark V. Tranquilli revoked his $1,000 bond on April 10. The judge ruled that the THC — the active ingredient in marijuana — in Mr. Bailey’s system was a violation of his bond, which prohibited criminal activity.

Although Mr. Bailey told the judge he used cannabidiol oil and was under a physician’s care, neither he nor his attorney, Assistant Public Defender Joseph S. Otte, were able to produce Mr. Bailey’s medical marijuana identification card in court or proof of the card in subsequent legal filings during the next week.

Mr. Bailey remained in jail until his doctor provided proof of his medical certification on Thursday, prompting Judge Tranquilli to order Mr. Bailey’s release. He was freed Friday.

“When they put me in handcuffs I was really confused, I didn’t understand what was going on,” Mr. Bailey said. “That was the hardest 10 days of my life.”

The case shows how heavily the courts and law enforcement must rely on medical marijuana patients’ identification cards to determine whether a person is a legal user of the drug, and suggests patients must take a proactive role in their own legal protection as the court system adjusts to the paradigm shift of legal medical marijuana.

“The only thing that will protect a medical cannabis patient is that card,” said attorney Patrick Nightingale, a partner at Cannabis Legal Solutions, who is not connected to the case.

In Pennsylvania, law enforcement officers cannot access the state’s database of medical marijuana patients. The only way a police officer can immediately verify a patient’s status as legal user is by viewing their medical marijuana ID card.

April Hutcheson, a Pennsylvania Department of Health spokeswoman, said Friday that officers could also call the department to verify a patient’s status, but said there is currently no dedicated phone line or established process for law enforcement to do so.

“I don’t know that it’s been an issue,” she said. “This is a new program and there will be things that come up that are unique.”

Although state records show Mr. Bailey was granted a medical marijuana card in February, he said Friday that he never received it and believes it may have been sent to an incorrect address. He said he does not smoke marijuana and instead relies on cannabidiol oils, which are legally available even without a medical marijuana card. People using the legal oils have been known to test positive for THC in some cases, Mr. Nightingale said.

Mr. Bailey said the oils improve his appetite, which allows him to take his medications without pain.

Mr. Bailey’s situation began last year when he was arrested and charged with credit card fraud.

According to court records, Mr. Bailey was accused of using fraudulent credit cards to make three reservations in his own name at Painting with a Twist, a business which offers group painting classes, on East Carson Street in November and December 2016.

After the credit card companies refused to pay for the charges, the store’s manager tracked down Mr. Bailey and matched his name and photographs of him taken during the classes.

The case was postponed on March 21, after Mr. Bailey said he would pay $475 to the studio. In exchange, the charges against him would be dropped. He has no other criminal history in the county, court records show.

However, when Mr. Bailey returned to court on April 10, he had paid only $120, and his attorney said he needed more time to pay the rest.

Judge Tranquilli denied the request for extra time and held a hearing, during which he asked Mr. Bailey if he’d used drugs or alcohol. Mr. Bailey said he’d been drinking alcohol at a bar the night before but denied using any other drugs, according to a court transcript.

“So if I call the probation office and I have them drug test you, it’s going to come back negative?” Judge Tranquilli said. “Or is it going to come back positive? And it’s important that you think about this, okay. Because here’s the way it works. If you tell me it’s going to come back negative, and they come up here and it comes back positive, then you will have lied to me.”

“Well,” Mr. Bailey said, “it may come up with marijuana.”

“Now, that is a violation of your bond,” Judge Tranquilli said. “Okay. You’ve been on bail for a number of months now. And you’re not allowed to use marijuana.”

“CBD oils?” Mr. Bailey said.

“CBD oils? I mean, you are not allowed to use marijuana on bond,” the judge said.

Mr. Bailey then took a drug test, which showed the presence of THC, and Judge Tranquilli revoked his bond, noting that defendants need to be clear-headed when they appear in court.

“He was obviously high,” Judge Tranquilli said in an interview.

Mr. Bailey said Friday that he was not high during the hearing.

“Honestly, my contacts were irritating me,” he said. “I had just woke up and I was running late.”

During the April 10 hearing, Mr. Otte told the court that his client qualified for medical marijuana, Judge Tranquilli said, but he provided no proof. And, the judge continued, even in Mr. Otte’s motion seeking to reinstate Mr. Bailey’s bail, there was still no proof of his medical certification.

Instead, Mr. Otte wrote that his client is under a physician’s care and that that doctor is licensed to provide medical marijuana in Pennsylvania. The filing noted, though, that Mr. Otte was unsure if Mr. Bailey had yet been granted a medical marijuana card. Mr. Otte declined to comment for this story.

“People come in here and say that all the time,” Judge Tranquilli said. “I don’t have a truth machine.”

On Thursday afternoon, the judge was provided proof of Mr. Bailey’s medical marijuana certification and reinstated his bond.

“If he has a prescription for it, that’s a different story,” Judge Tranquilli said. “I would think you’d carry your card with you.”

Mike Manko, spokesman for Allegheny County District Attorney Stephen A. Zappala Jr., said the office understands that medical marijuana will be treated like any other prescription for the purposes of bail — if a defendant can provide proof that the substance is being taken legally, then bond should not be revoked.

“For example, if someone comes to court and gets tested and shows positive for methadone, but they produce documentation that they are on a methadone maintenance program, their bond will not be revoked,” Mr. Manko. “Same if they test positive for opioids and can show a valid prescription.”

Mr. Nightingale said he has represented three clients in Allegheny, Washington and Butler counties who were entering probation and were also medical marijuana patients. The judges in each case, he said, agreed to allow the defendant to use medical marijuana while on probation on the condition the defendant first obtained their medical identification cards.

None of those defendants had their cards at the time the judges granted the condition, Mr. Nightingale said.

Handling such situations on a case-by-case basis seems to be sufficient for now, because the medical marijuana program is so new, he said.

Stacy Lane, Mr. Bailey’s physician, said her patients have been able to get their medical marijuana for only about a month in Pittsburgh. She said that already two patients have run into problems with the legal system or with their employers.

“This is ridiculous,” she said. “The law has to recognize that these people have these certified conditions.“

Medical marijuana patients are required by law to keep their identification cards on them when they have medical marijuana in their possession, but are not required to keep the card on them at all times.

Dr. Lane said some of her patients feel the card is too valuable and difficult to replace to carry around 24/7.

“It’s like carrying around your passport,” she said.

However, because law enforcement officers in Pennsylvania rely solely on the card, Mr. Nightingale said he suggests patients keep the card on them, especially if they are under any sort of court supervision or anticipate undergoing a drug test.

“That is the only proof and protection you have,” he said.

Not all states take the same approach. In Florida, where medical marijuana has been legal since 2016, law enforcement officers can check a database of medical marijuana patients, said Devin Galetta, a spokesman for the Florida Department of Health.

“Law enforcement users are able to view a patient profile and review if they have a valid identification card, and what forms and types of marijuana their qualified ordering physician has ordered for them,” he said.

Mr. Galetta said he is not aware of any reports of Florida patients being jailed for legal medical marijuana use, and said part of the state’s law requires that law enforcement officers go through an initial four-hour training course and a two-hour continuing education course on the state’s medical marijuana laws.

Tom Gross, executive director of the Pennsylvania Chiefs of Police Association, said his organization is fielding a variety of questions from law enforcement agencies about medical marijuana.

“I hear from police chiefs that they still have a lot of questions about how you verify the cards, whether the person has a fraudulent card, the rules around transport,” he said. “So we are still at the beginning stages of our level of awareness as far as law enforcement. It’s new territory.”