January 1, 2021

NM judge rules medical cannabis use allowed while on house arrest

Joe Gratz


A New Mexico state district judge ruled this week that detainees in Bernalillo County’s house arrest program are allowed to use medical cannabis while serving out their sentence.  

In her ruling, Second Judicial District Judge Lucy Solimon wrote that Bernalillo County’s Community Custody Program (CCP) is, in effect, the same as parole. New Mexico’s Lynn and Erin Compassionate Use Act, as of 2019, allows medical cannabis patients who are on parole or probation to continue their use of medical cannabis. 

“Although CCP is not specifically mentioned in the Compassionate Use Act, [Bernalillo] County fails to demonstrate that CCP should be treated differently than probation or parole,” Solomon wrote. “Therefore, it appears as though the Compassionate Use Act does apply to defendants on CCP as it does to defendants on probation or parole.

The issue of whether medical cannabis patients on house arrest can use medical cannabis goes back to 2019 when Albuquerque resident Joe Montaño was sentenced to the Community Custody Program after his seventh drunk driving conviction. Montaño, who was already a registered medical cannabis patient, previously told NM Political Report that he didn’t hide his cannabis use from his case worker during a home visit. His case worker and the Bernalillo County Metropolitan Detention Center saw his use of medical cannabis at home as a violation since house arrest is seen by the county as the same serving time in the actual county jail.  

Montaño, who runs his own refrigeration repair business, finished out his sentence in county jail and transitioned into probation. Soon after he was released from jail, Albuquerque-based attorney and state Senator Jacob Candelaria took the issue to state district court. A civil court judge ruled that it was not in her purview to rule on the case and that the issue would have to be decided by the criminal court where Montaño was originally sentenced. 

Candelaria called Solimon’s order “broad-sweeping in its scope” and may be the first of its kind. 

“This is the first, from what I can tell, state court which is affirmatively holding that a person who is incarcerated has the right to access medical cannabis under the medical cannabis act,” Candelaria said. “That’s a huge statement.”

Duke Rodriguez, the president and CEO of medical cannabis producer Ultra Health, previously told NM Political Report that his company paid for Montaño’s legal bills. 

Going back to April 2019, Rodriguez has claimed that protections for medical cannabis patients on probation or parole extend to all detainees in custody, although Solimon’s ruling stops short of specifically allowing medical cannabis in the physical jail building. 

Rodriguez said the ruling is just one more step towards normalizing the therapeutic use of cannabis.   

“When you lay these decisions out over the last few years they point to one consistent conclusion: cannabis is medicine,” Rodriguez said. “Which will eventually result in mandating equal treatment on matters such as gross receipts taxation similar to prescription drugs, equal treatment for medical coverage by insurers similar to workers comp and finally, force the New Mexico Department of Health to meet its statutory duty to ensure an adequate supply of affordable medicine for all medical cannabis patients.”

Through legal filings, lawyers for Bernalillo County argued that the issue was moot as Montaño was already on probation when the case was filed. But county lawyers also stated in court records that the county would not push back with an appeal if a judge ruled in favor of Montaño.

Representatives from Bernalillo County and the Metropolitan Detention Center did not respond to requests for comment.  

But Candelaria said he’s not done with the case. 

“We do intend to file a motion seeking damages,” Candelaria said. “My firm is also preparing a civil rights lawsuit that we will be bringing in the U.S. District Court of New Mexico, alleging claims of cruel and unusual punishment, the denial of medical care, which in this case is medical cannabis, and will also be asserting claims for false arrest and false imprisonment, in violation of Joe Montaño’s rights as protected by the U.S. Constitution.”