MEMORANDUM, FINDINGS, AND ORDER THAT DEFENDANTâS
POSITIVE TEST FOR MARIJUANA DID NOT VIOLATE HIS CONDITIONS OF
Kenneth W. Salinger, Justice of the Superior Court
Fraize tested positive for marijuana use while on probation.
The Court finds that this does not establish by a
preponderance of the evidence that Mr. Fraize violated the
probation conditions that he not consume illegal drugs and
that he obey all state and federal laws while on
probation. Although the Court finds that Fraize
has failed to pay the required probation supervision fee, it
agrees with the Probation Departmentâs recommendation that
all past and future supervision fees be waived because Fraize
is physically unable to work or to perform community service
and does not have the financial ability to pay those fees.
Fraize began a three-year term of probation when he was
released from the house of correction on September 14, 2016.
He served committed time for possessing a Class B controlled
substance in a school zone. He is on probation on two
indictments for distributing a Class B drug and one for
simple possession of a Class B drug. Fraize is now
thirty-four years old.
conditions of probation include that he not consume any
illegal drugs or alcohol, submit to random testing to ensure
compliance with that condition, and obey all local, state,
and federal laws and all court orders. The Court infers and
therefore finds that Fraize was never expressly ordered not
to use marijuana as a condition of his probation, and was
never told by the sentencing judge that use or consumption of
marijuana would violate his conditions of probation. No such
condition or admonition appears in the Order of Probation
Conditions signed by the sentencing judge and Fraize. Nor is
any such condition noted on the case docket.
is also required as a condition of probation to pay a monthly
probation supervision fee starting three months after his
probationary term began.
Fraize has stipulated that he tested positive for having
traces of marijuana in his body on June 22 and October 5,
2018. He has also stipulated that he has not paid any
probation supervision fee since March 2018.
Positive Tests for Marijuana.
Mr. Fraize twice tested positive for having marijuana
metabolites in his body, and the Court therefore infers and
thus finds that he had used marijuana or consumed something
containing a marijuana extract, that does not establish that
Fraize violated the conditions that he refrain from consuming
illegal drugs and that he obey all state and federal laws.
did not violate Massachusetts law by using marijuana. It is
now completely legal under Massachusetts law for people who
are at least twenty-one years old to use and possess small
quantities of marijuana. See G.L. c. 94G, § 7(a)(1). By
law "a person 21 years of age or older shall not be
arrested, prosecuted, penalized, sanctioned or disqualified
under the laws of the commonwealth in any manner, or denied
any right or privilege and shall not be subject to seizure or
forfeiture of assets for ... possession, using, purchasing,
processing or manufacturing 1 ounce or less of
marijuana[.]" Id. This statute was approved by
the voters on November 8, 2016, and took effect December 15,
2016, well before Fraize tested positive for marijuana. See
St. 2016, § 334, § 12.
use or consumption of marijuana does not violate federal law
either, absent some additional evidence supporting a
reasonable inference that the marijuana user also had legal
possession of the drug. Under Federal law, it is still a
misdemeanor to possess even a small amount of marijuana. See
21 U.S.C. § 844(a) (possession of controlled substance
may be punished by imprisonment of up to one year); 21 U.S.C.
§ 812, Schedule I, para. (c)(10) (marijuana is a
Schedule I controlled substance). But federal law only
criminalizes the possession of marijuana and other federally
controlled substances, not the use of the same drugs. See
State v. Harris, 646 S.E.2d 526, 529 ( N.C. 2007).
a positive drug test may suggest that a person has ingested a
controlled substance it is generally not enough, standing
alone, to establish that they violated the law by having
possession of such a substance. See Commonwealth v.
Pellegrini, 414 Mass. 402, 407 n.7 (1993) (discussing
but not deciding the issue). "The majority rule in other
jurisdictions seems to be that, absent other evidence, the
mere presence of a controlled substance in a personâs own
body will not constitute possession within the meaning of
criminal statutes." Id. (collecting cases);
accord, e.g., Harris, supra, at 528-529
(mere presence of marijuana metabolites in urine does not
establish that person had power and intent to control
substance before ingesting it, and therefore does not
establish possession); State v. Griffin, 584 N.W.2d
127, 131 (Wisc. Ct.App. 1998) (same).
marijuana possession remains illegal under federal law, the
probation condition against consuming any "illegal
drug" did not give Fraize fair notice that he would
violate that condition if he were to use or consume
marijuana. As noted, marijuana use is now completely legal
under Massachusetts law and does not constitute a federal
crime. In addition, the Massachusetts Cannabis Control
Commission is in the process of licensing marijuana
cultivators, marijuana product manufacturers, marijuana
testing facility, and retail marijuana stores pursuant to
G.L. c. 94G, § 4. The Court takes judicial notice of the
fact that in the very near future anyone who is at least 21
years old will be able to go into a licensed retail marijuana
store, purchase marijuana or products containing either an
extract of marijuana or marijuana itself, and consume or use
the product, all without violating Massachusetts law. Under
these circumstances, a probationer ordered not to consume
"illegal drugs" may reasonably not understand that
condition to bar marijuana use.
probationer has a constitutional due process right, under
both the United States Constitution and the Massachusetts
Declaration of Rights, to "receive fair warning of
conduct that may result in the revocation of probation."
Commonwealth v. Ruiz,453 Mass. 474, 479 (2009).
Probationers are entitled to "unambiguous guidance about
the conduct prohibited." Ruiz, supra. These due
process requirements apply whether a condition of probation