Probation Condition Barring Prescribed Medical Cannabis

Attorney Answer

You are unlikely to succeed in suing your probation officer personally — but you probably do not need to. Utah Code § 78A-2-231(3) bars a probation condition that requires you to abstain from lawfully authorized medical cannabis, so the move is a motion in your existing criminal case asking the sentencing court to strike or modify that condition, not a lawsuit.

Under Utah Code § 77-18-105, it is the sentencing court — not the probation officer — that sets the conditions of probation, including broad authority to impose any other terms the court considers appropriate. The court also retains continuing jurisdiction over probationers. Officers with Adult Probation and Parole supervise compliance with the conditions the court has set; nothing in that section gives an officer independent authority to create or expand a condition. That matters here, because it means the place to resolve a conflict over a condition is in front of the judge who imposed it.

More importantly, the court's broad authority under § 77-18-105 is expressly overridden on this exact question. Utah Code § 78A-2-231(3) provides that "[n]otwithstanding Sections 77-18-105 and 77-2a-3, for probation, release, a plea in abeyance agreement, a diversion agreement, or a tendered admission under Utah Rules of Juvenile Procedure, Rule 25, a term or condition may not require that an individual abstain from the use or possession of medical cannabis, a cannabis product, or a medical cannabis device, either directly or through a general prohibition on violating federal law, without an exception related to medical cannabis use," so long as the use or possession complies with Title 26B, Chapter 4, Part 2 (Cannabinoid Research and Medical Cannabis) or Utah Code § 58-37-404(2) or (3). The Legislature added that subsection in S.B. 46 of the 2022 General Session, effective May 4, 2022. Two things follow for you. If you are a compliant cardholder, a condition ordering you to abstain from cannabis is not merely questionable — the statute says it may not be imposed. And the same is true of a generic "obey all federal law" or "commit no violations of law" term with no medical cannabis carve-out, which is the wording that most often produces this fight, because cannabis remains federally prohibited. Utah Code § 78A-2-231(2) puts the parallel duty on the judge and the court commissioner, so you are not asking for a discretionary favor; you are asking the court to conform your order to a statute that binds it.

Separately, Utah Code § 26B-4-211 provides that when an employee, officer, or agent of the state considers an individual's possession or use of cannabis, a cannabis product, or a medical cannabis device, they may not treat it any differently than the lawful possession or use of any prescribed controlled substance — provided the use complies with Utah's medical cannabis requirements. A state probation officer is an agent of the state, so if you hold a current Utah medical cannabis card and are using it within what the law allows, this provision is directly relevant and supports asking the court to reconcile your condition with your authorized medical use.

As for suing, the obstacle in Utah is the Governmental Immunity Act rather than the federal qualified immunity doctrine people usually have in mind. Utah Code § 63G-7-202(3)(a) makes an action against the governmental entity your exclusive remedy for an injury caused by an act or omission within an employee's scope of employment, and § 63G-7-202(3)(c) bars you from suing the employee personally on the same subject matter unless the employee "acted or failed to act through fraud or willful misconduct." An officer enforcing a condition the court wrote is very unlikely to meet that bar. There is also a hard deadline: under Utah Code § 63G-7-402, a claim is barred unless a written notice of claim is filed within 1 year after the claim arises. None of that is necessary to fix your actual problem, which is the condition itself.

What you can do

1. Confirm your Utah medical cannabis card is current and that your use complies with Title 26B, Chapter 4, Part 2 — including dosage form and your recommending medical provider's directions of use, which is what § 78A-2-231(3) conditions the protection on. 2. Read your probation order word for word and find the exact term at issue, including any general "obey all federal law" or "commit no violations of law" language — § 78A-2-231(3) reaches that wording too. 3. File a motion in your existing case asking the sentencing court to strike or modify that condition, citing Utah Code § 78A-2-231(3) and quoting it, and ask for a written medical cannabis exception on the face of the order so there is nothing left for your officer to interpret. 4. Provide your card and supporting medical documentation to your attorney and to the court. 5. Put your concerns to Adult Probation and Parole in writing rather than only verbally, so there is a clear record of the conflict. 6. Consult a Utah criminal defense attorney about both the probation condition and the underlying possession of a stolen motor vehicle charge — a motion under § 78A-2-231(3) is far more likely to solve the actual problem than a suit against the officer.