A Mechanicville man who is on probation is suing Saratoga County, alleging he’s becoming denied access to prescribed healthcare marijuana.
Mark Scerbo, who is on probation following conviction for misdemeanor driving even though intoxicated in Albany County, claims the county Probation Division produced an “arbitrary and capricious” choice in telling him he can not use healthcare marijuana even though on probation. His probation sentence, which began in February, is for 3 years.
According to the lawsuit filed final week in state Supreme Court in Ballston Spa, Scerbo in January had a physician prescribe him healthcare marijuana as a replacement for opioids for the therapy of knee and ankle discomfort.
Even though healthcare marijuana is legal in New York state and is prescribed only in non-smokeable types, the Probation Department’s position is that possession of marijuana even for healthcare use remains a violation of federal law.
“Mainly because the use and/or possession of marijuana is a violation of federal law please be advised that, efficient promptly, your use and/or possession of marijuana is prohibited for the duration of your probation sentence regardless of whether or not it is prescribed for healthcare purposes,” the probation division wrote in an April two letter to Scerbo.
The implied threat is that Scerbo’s probation could be revoked for applying healthcare marijuana, which could imply he would be sent to jail. But the lawsuit stated that becoming denied healthcare marijuana would also place Scerbo’s well being at threat.
Scerbo, who is becoming represented by the E. Stewart Jones Hacker Murphy Law firm of Troy, contends that the Probation Division is exceeding its legal authority in overriding the 2014 New York state law that produced healthcare marijuana readily available, and acting as an agent of federal law.
“By in impact overruling each the Legislature and the Governor in this particular regard, respondent acts with no legal authority and in derogation of the established superiority of the legislature more than county government, and of the established law and policy of this state,” the lawsuit states.
Saratoga County officials have been not readily available for comment late Friday.