9th Circuit Rules Doctor's Recommendation for Marijuana No Defense

Roshaja Harvey was found to have violated the terms of his supervised release for using marijuana. Harvey appealed, contending that because he had a doctor's recommendation to use marijuana in California pursuant to the California Compassionate Use Act of 1996, he did not violate the possession prohibition of the Federal Controlled Substances Act. He also argued a doctor's "order" was different than a "prescription."

The 9th Circuit has rejected his defense, affirmed the trial court's order, and added:

Whatever else “order” might mean under § 844(a) of the Controlled Substances Act, it does not include a mere recommendation from a physician pursuant to the Compassionate Use Act.


The issue: "Whether a practitioner may order or prescribe the use of marijuana under section 844(a), which does not explicitly differentiate among drug schedules."

The judge in Harvey relied on earlier Supreme Court cases holding that "Congress' express determination that marijuana had no accepted medical use foreclosed any argument about statutory coverage of drugs available by a doctor's prescription.

The decision is here. The trial court's ruling is here.

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    Good Gravy (none / 0) (#1)
    by ScottW714 on Fri Nov 04, 2011 at 03:29:27 PM EST
    Now doctor's orders can get you put back in the slammer.  

    These twists of logic are getting quite stooopid to say the least.  Give the man oxy and 12 pack and all is well, give him weed and off to jail.

    Wait a minute... (none / 0) (#2)
    by MileHi Hawkeye on Fri Nov 04, 2011 at 08:41:30 PM EST
    I thought the 9th was evil and out of control and therefore must be eliminated?  How can that be when they're helping put $ in the pocket of the prison industry {aka job creators)?

    I find it hard to believe that Rick Santorum would lead me astray.  

    Ironically... (none / 0) (#3)
    by diogenes on Sat Nov 05, 2011 at 11:06:16 PM EST
    If he had been prescribed Marinol, a schedule II  oral cannibinoid, off-label for whatever condition  he presumably had then he would not have been in violation of his parole conditions.  
    Does anyone know what the reason was for the doctor's "recommendation" of marijuana in the first place; what was the health problem?  Google is not much help.