However, Bernalillo County jail officials claim the New Mexico law is clear– people who are on house arrest, on parole or those who are incarcerated are not allowed to use marijuana. 

Montano spent a month behind bars because of the violation.

Montano still believes he has the right to use medical marijuana. His attorney, state Senator Jacob Candelaria is petitioning the court to decide whether his client can use or not.

“In 2019, the legislature enacted a statute that a good faith reading says very clearly that in a state where cannabis is medicine, simply because you are under the supervision of the state, meaning you are under house arrest, you are not in jail you are under house arrest, on probation or parole– yes you have the right to use adequate medicine and yes you have the right to use medical cannabis,” Candelaria said.

Bernalillo County jail officials told KOB 4 that they will continue to adhere to what they believe is the law, but they added that they will comply with whatever the judge rules.

No court date has been set.