June 10, 2020

State judge denies petition for medical cannabis use while on house arrest

A state district judge denied a petition asking the court to force Bernalillo County and its Metropolitan Detention Center to allow those on house arrest to use medical cannabis if they have a medical cannabis card.  

Second Judicial District Judge Erin O’Connell ruled from the bench during a telephone hearing on Tuesday. She said she denied the petition on the basis that it was out of her jurisdiction and that if she granted the petition it would conflict with the judges decision in a tangential criminal case. 

“The criminal court took the plea in this case and sentenced the petitioner and issued conditions of release based on that plea,” O’Connell said. “The court therefore has concern that granting relief would potentially result in conflicting orders with the criminal court.

The criminal case O’Connell referred to was that of Joe Montaño. In 2019, Montaño was convicted of drunk driving and, due to a plea agreement, was sentenced to drug court and Bernalillo County’s Community Custody Program, also known as house arrest. 

Montaño previously spoke to NM Political Report about his past criminal convictions which ultimately resulted in him spending more than two decades in and out of prison. 

Montaño didn’t hide the fact from county CCP officers that he used medical cannabis and during a home visit they found cannabis and paraphernalia. Montaño was then ordered to finish his time in the county detention center. 

Montaño has since finished his sentence.

In January, Albuquerque attorney Jacob Candelaria, who is also a state senator, filed a petition on Montaño’s behalf, asking the court to compel Bernalillo County to allow others in Montaño’s position the use of medical cannabis. 

Daniel Roberston, the attorney who represented the county in the hearing, argued that a post-conviction stint in CCP, while served in a home, is still considered under the custody of Metropolitan Detention Center where cannabis is banned. Robertson also argued that the state law that allows cannabis use while in custody is only for those in CCP while awaiting trial. 

“In this case, the use of CCP was not pending trial,” Robertson said. “It was a part of the sentence, it was post trial.” 

Robertson also argued the case was irrelevant as Montaño is already out of CCP and is now serving 12 months of probation where he is allowed by state law to use medical cannabis. But the argument that seemed to sway O’Connell was that the matter should be taken back to the criminal judge who originally sentenced Montaño. 

Leading up to her ruling O’Connell said since a criminal judge sentenced Montaño to CCP, it should be that criminal judge who makes a ruling on the issue. 

Candelaria immediately issued an oral motion to reconsider, which O’Connell quickly denied. Candelaria argued that the policies prohibiting cannabis in jails or CCP are not related to the plea agreement and that nothing in the plea specified that Montaño was not allowed to use medical cannabis. 

“There is nothing involved in the criminal sentencing, the plea, anything that gives rise to the issue here today,” Candelaria said as part of his motion to reconsider. “This is purely a challenge of a policy by Bernalillo County.”

Now, Candelaria said, he and Montaño plan to challenge the ruling in the state Court of Appeals and also file a federal civil rights suit against the county for allegedly submitting Montaño to cruel and unusual punishment. 

Candelaria added that he was disappointed that O’Connell avoided the issue instead of ruling on the merits of the case. 

“With all due respect, the district court decided to punt the issue today,” Candelaria said. “While my client respects their ruling, there’s nothing in the record to suggest that this court did not have jurisdiction and wasn’t fully able to grant the relief.”