Patient Rights for Medical Marijuana in Colorado.
Under the Colorado Constitution for the use of
The Colorado Department of Public Health and Environment (CDPHE) is the agency that approves or denies medical marijuana applications and issues medical marijuana registry cards. The CDPHE is required to verify the medical information contained in the patient’s written documentation and approve or deny the application within 30 days and notify the patient of the approval or denial within 5 days after the initial 30 day review period (approving or denying, and informing the patient of the approval or denial within 35 days).
At times the CDPHE is inundated with applications or otherwise behind with medical marijuana patient applications and unable to complete the above process in the 35 day time period. Article XVIII, Section 14 of the Colorado Constitution provides a criminal exception for patients that possess a valid medical marijuana registry card and to a patient that has applied for a medical marijuana registry card to the CDPHE and has not been approved or denied within 35 day period provided the patient has the appropriate paperwork (patient application, physicians statement, certified mail receipt). At one time it was taking the CDPHE up to 9 months to complete the verification process. If the patient is not notified within 35 days of the approval or denial, the patient is deemed approved until otherwise notified of any denial. The patient and the patient’s care-giver are required to have the original or copy of the application , the physician’s certificate and proof of mailing (certified or registered mail) and is accorded the same legal effect as a medical marijuana registry card until the patient receives notice that the application is denied.
However, the CDPHE is generally caught up and the application verification process should take no longer than 3 weeks. If a patient has not heard back from the CDPHE within 3 weeks the patient should contact the CDPHE at [email protected]
Common reasons a patient may not hear back from the CDPHE regarding the approval or denial of the medical marijuana registry card is that the patient may have moved prior to the issuance of the medical marijuana registry card. In this situation the medical marijuana registry card is returned to the Colorado Department of Health, which then files it away until they receive contact from the patient. There is also a possibility that the application was not received by the CDPHE.
Once the patient is approved or deemed approved as mentioned above, the patient may:
- Engage in the medical use of marijuana, with no more marijuana than is medically necessary to address a debilitating medical condition:
o Medical use is defined as: The acquisition, possession, production, use, or transportation of marijuana or paraphernalia related to the administration of such marijuana to address the symptoms or effects of a patient’s debilitating medical condition, which may be authorized only after a diagnosis of the patient’s debilitating medical condition by a physician or physicians, as provided in Section 14, article XVIII of the Colorado Constitution.
- Possess no more than two (2) ounces of a usable form of marijuana:
o Usable form of marijuana means the seeds, leaves, buds, and flowers of the plant (genus) cannabis, and any mixture or preparation thereof, which are appropriate for medical use as provided in Section 14, article XVIII of the Colorado Constitution, but excludes the plant’s stalks, stems, and roots.
Possess no more than six (6) marijuana plants, with three (3) or fewer being mature, flowering plants that are producing a usable form of marijuana.
For quantities of marijuana in excess of the above amounts, a patient or his or her primary care-giver may raise as an affirmative defense to charges of violation of state law that such greater amounts were medically necessary to address the patient’s debilitating medical condition.
o The patient and care-giver should consult with legal counsel of their choice before relying on an affirmative defense as discussed above and below this section. A person relying on the affirmative defense may still be charged and found guilty of serious criminal charges.
· A patient may have an affirmative defense for the use of marijuana discussed above when the patient:
o Was previously diagnosed by a physician as having a debilitating medical condition, and,
o The patient was advised by his or her physician, in the context of a bona fide physician-patient relationship, that the patient might benefit from the medical use of marijuana in connection with a debilitating medical condition, and,
o The patient and his or her primary care-giver or Medical Marijuana Center were collectively in possession of amounts of marijuana permitted.
· Confidential Registry: The CDPHE medical marijuana registry is confidential. The CDPHE cannot give out information about patients or care-givers to anyone seeking information except:
o Authorized employees of state or local law enforcement agencies shall be granted access to the information contained within the department’s registry only for the purpose of verifying that an individual who has presented a registry identification card to a state or local law enforcement official is lawfully in possession of such card, or
o The patient upon filing the appropriate form with the CDPHE.
· No patient shall;
o Engage in the medical use of marijuana in a way that endangers the health or well-being of any person; or
o Engage in the medical use of marijuana in plain view of, or in a place open to the general public.
· Fraudulent representation of a medical condition by a patient to a physician, state health agency, or state or local law enforcement for the purpose of falsely obtaining a registry card or avoiding arrest and prosecution is a criminal violation.
· Law Enforcement Contact
o A person should never operate a vehicle while under the influence or while impaired by alcohol, illicit drugs, prescription drugs, or medical marijuana;
o Medical marijuana (THC) may remain in the patients system for thirty (30) days after the last use, indicating that the patient may be under the influence when in fact the patient is not;
o A law enforcement officer needs reasonable suspicion to pull a person over, but this should not be argued to the officer;
o A law enforcement officer may request identification;
o A person that has law enforcement contact should always be polite to the law enforcement officer;
o A person should provide his/her name, address, phone number and other basic identification information to an officer when requested;
o A person is not required to answer any other questions by law enforcement;
o Any statements made can and will be used against the person for any violations of law or collateral attacks in a court of law;
o A patient is not required to disclose information regarding the last time the patient used any substance, including medical marijuana;
o A person is not required to participate in any roadside tests including, but not limited, to an eye test, walk and turn, one leg stand, alphabet, counting, the portable breath test;
o A person will have his/her driver’s license revoked for at least one (1) year for refusing to complete a blood, breath (non-portable), or urine test when requested by law enforcement.
This document does not constitute legal advice nor does it create an attorney-client relationship. The foregoing information is provided merely as a guideline regarding Section 14, Article XVIII of the Colorado Constitution, known as the Medical Marijuana Amendment. This document does not advocate or recommend violating any local, state or federal laws. Although the U.S. Department of Justice issued a memorandum dated October 19, 2009 stating that federal resources should not be used to go after individuals in states that allow medical marijuana as long as those individuals are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana - marijuana plants and marijuana in any form, amount, or for any use remains a violation of federal law. Individuals in violation of any criminal law may face harsh penalties, including, but not limited to, jail, prison, fines, penalties, a criminal conviction, probation, and parole. Any individual considering being a medical marijuana patient, care-giver or involved in a medical marijuana business should consult with an attorney that is knowledgeable in this area of law.