Medical marijuana while on probation? Mechanicville man seeks access, sues Saratoga County

A Mechanicville man who is on probation is suing Saratoga County, alleging he’s being denied access to prescribed medical marijuana.

Mark Scerbo, who is on probation following conviction for misdemeanor driving while intoxicated in Albany County, claims the county Probation Department made an “arbitrary and capricious” decision in telling him he can’t use medical marijuana while on probation. His probation sentence, which started in February, is for three years.

According to the lawsuit filed last week in state Supreme Court in Ballston Spa, Scerbo in January had a doctor prescribe him medical marijuana as a replacement for opioids for the treatment of knee and ankle pain.

While medical marijuana is legal in New York state and is prescribed only in non-smokeable forms, the Probation Department’s position is that possession of marijuana even for medical use remains a violation of federal law.

“Because the use and/or possession of marijuana is a violation of federal law please be advised that, effective immediately, your use and/or possession of marijuana is prohibited for the duration of your probation sentence whether or not it is prescribed for medical purposes,” the probation department wrote in an April 2 letter to Scerbo.

The implied threat is that Scerbo’s probation could be revoked for using medical marijuana, which could mean he would be sent to jail. But the lawsuit said that being denied medical marijuana would also put Scerbo’s health at risk.

Scerbo, who is being represented by the E. Stewart Jones Hacker Murphy Law firm of Troy, contends that the Probation Department is exceeding its legal authority in overriding the 2014 New York state law that made medical marijuana available, and acting as an agent of federal law.

“By in effect overruling both the Legislature and the Governor in this specific regard, respondent acts without legal authority and in derogation of the established superiority of the legislature over county government, and of the established law and policy of this state,” the lawsuit states.

Saratoga County officials were not available for comment late Friday.