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New Mexico inmates’ right to medical marijuana affirmed

Updated: Jan 5



A state district judge in Albuquerque ruled this week that Bernalillo County’s Metropolitan Detention Center must allow qualifying patients access to medical marijuana, in a victory for advocates that could have far-reaching implications for jails and prisons.


It was unclear whether correctional facilities statewide would voluntarily comply with the ruling. But state Sen. Jacob Candelaria, D-Albuquerque, an attorney who represented a defendant in the DWI case that led to the decision, said he intends to send notice to jails and prisons asking them to comply.


Candelaria said the ruling issued Tuesday creates a clear precedent that patients — even those who are incarcerated — must be allowed access to medical cannabis regardless of whether they’re at home or in a prison cell.


“There’s no discretion under the Medical Cannabis Act. You must allow this,” Candelaria said in an interview Thursday. “While the criminal industrial complex may have pushback or some concerns — take those to the Legislature. Because until such time as the Legislature changes the law, the law is clear: You must under existing law provide incarcerated persons with the ability to access medical cannabis free from penalty. That’s the law.”


The ruling from 2nd Judicial District Judge Lucy Solimon stems from a 90-day sentence of house arrest for Albuquerque resident Joe Montaño, who was convicted of drunken driving in 2019.

Montaño successfully completed a mental health treatment program through the court and was permitted to serve his jail sentence at home. One of the conditions was that he not use any illegal drugs.


Although New Mexico legalized marijuana for medicinal use in 2007 under former Gov. Bill Richardson, it is still illegal under federal law. Attorneys for Bernalillo County argued that because it’s still illegal federally, Montaño’s use of marijuana “was a violation of law contrary to his agreement to comply with all city, county, state and federal laws and ordinances.”


As a result, Montaño was jailed for over 30 days for violating the terms of his house arrest and nearly lost a commercial refrigeration repair business he started, according to Candelaria.

The attorney filed a motion in July seeking an order allowing medical cannabis use in the jail.

Bernalillo County Attorney Ken Martinez, who represented the county in the case, did not return a phone call Thursday.


Solimon sided with Montaño and went even further, ruling the ability to use medical cannabis does not apply only to people serving sentences under house arrest or who are on probation. The ruling applies to all incarcerated individuals in New Mexico, Candelaria said.


Candelaria said he’s prepared to launch legal battles against facilities that do not allow access to medical marijuana.


Candelaria added that any attempts from jails or prisons to “make things more difficult” when it comes to allowing medical cannabis patients access to the substance would be “disappointing, and the remedy will be more litigation.”


“As a lawyer, it’s not every day that a decision of this import and breadth happens in your career,” he said. “This is a big one.”


Eric Harrison, a spokesman for the Corrections Department did not return a phone call Thursday evening to comment on the case.


The state’s largest medical marijuana company, Ultra Health, also released a statement Thursday praising the ruling.


“This is a major victory not only for Mr. Montaño, but for every medical cannabis patient in New Mexico and across the United States,” Duke Rodriguez, CEO and president of Ultra Health, said in the statement. “This ruling exemplifies the spirit of the Lynn and Erin Compassionate Use Act: that cannabis is medicine and every patient deserves the legal right to access their medicine.”


Although the state Attorney General’s Office often represents state agencies in lawsuits, a spokesman, Matt Baca, declined to speculate on potential future lawsuits over the issue.

“Our office doesn’t oversee state prisons, so that would probably be better answered by the Department of Corrections,” Baca said.


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