Medical Marijuana has No Meaning Under Federal Law and is Illegal.
WARNING: MEDICAL MARIJUANA IS ILLEGAL UNDER FEDERAL LAW. While the voters in Colorado approved the use of medical marijuana in Colorado in 2000 and created an exception from the state's criminal laws for the medical use of marijuana, they did nothing to change Federal Law. It is true that Deputy Attorney General David W. Ogden in a recent memo has told United States Attorneys that in their enforcement of the Controlled Substances Act, they "should not focus federal resources in (their) States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana," but this memo does not carry the force of law. It is merely a description of priorities and the Department of Justice could, at any time, change its enforcement priorities.
Under the Colorado Constitution, People Suffering from Debilitating Medical Conditions Can Possess and Use Medical Marijuana
There are a limited number of reasons a person can use medical marijuana and all the reasons revolve around suffering from debilitating medical conditions. In Colorado, debilitating medical conditions include cancer, glaucoma, positive status for human immunodeficiency virus, or acquired immune deficiency syndrome, or treatment for such conditions. They also include any chronic or debilitating disease, medical condition or treatment, which produces, cachexia, severe pain, severe nausea, epileptic or non-epileptic seizures, or persistent MS or non-MS muscle spasms. Upon application by a doctor or patient, and at the discretion of the Colorado Department of Public Health and Environment (CDPHE), some other condition may be authorized to use medical marijuana, but to the author's knowledge, not such use has ever been authorized. According to the CDPHE, the most common reason patients use medical marijuana is for severe pain.
There is a Lack of State Laws Outlining How Constitutionally Protected Medical Marijuana Use Can be Lawfully Conducted.
Although the Colorado constitution stated that not later than April 30, 1999, the General Assembly should have define such terms and enact such legislation as was necessary for implementation Medical Marijuana, as of April 2010, with the exception of C.R.S. 25-1.5-106 (creating a fund for the program) and C.R.S. 18-18-406.3 (outlining the classifications of registry fraud and card theft), there is no implementative legislation regarding medical marijuana. This means that the law with respect to medical marijuana is confined to case law (law created by courts), Agency Regulations, Local Regulations and the Colorado Constitution.
Use of Medical Marijuana
The state constitution allows a patient to use the medical marijuana necessary to address a debilitating medical condition. A patient and his or her care-giver may collectively possess up to two ounces of a usable form of marijuana and six marijuana plants, with up to three mature, flowering plants. If more than these quantities of marijuana are possessed, a patient or his or her primary care-giver may raise an affirmative defense to charges that such greater amounts were medically necessary to address the patient's debilitating medical condition.
Limitations on the Use of Medical Marijuana
Under State law Medical Marijuana is not unlimited. A patient cannot use medical marijuana in a way that endangers the health or well-being of any person. Nor may he or she use medical marijuana in plain view of or in a place open to the general public. There is nothing in the Colorado Constitution or anywhere else that requires an employer to allow patients to use medical marijuana at work. No insurance provider is required to cover the medical use of marijuana.
Colorado has Created a Health Registry
The CDPHE has developed a confidential registry of patients who have applied for and have a registry identification card. It issues registry identification cards. Access to any information about patients in the CDPHE's confidential registry is limited. Law enforcement verify if a registered card is legitimate.
Applying for a Card
To get a registry identification card, patients must submit an application form, a physician's certification, a copy of patient's and, if applicable, care-giver's IDs, and a $90 fee.Within thirty days, the CDPHE verifies the medical information and notifies the applicant if he or she was denied. Otherwise, not more than five days after verifying such information, the CDPHE issues one registry identification card to the patient. In most cases if CDPHE, within thirty-five days of receipt of an application, fails to issue a registry identification card or fails to issue a denial, the application is deemed to have been approved. A patient who is questioned by any state or local law enforcement should provide a copy of the application and proof of the mailing date, which has the same legal effect as a registry identification card, until the patient receives notice that the application has been denied. Keep in mind that a registry identification card must be renewed each year.
According to the Colorado Constitution a care provider is a someone eighteen years of age or older who is not the patient's physician but has significant responsibility for managing the patient's well-being. According to the CDPHE, "significant responsibility for managing the well-being of a patient" means "assisting a patient with daily activities, including but not limited to transportation or housekeeping or meal preparation or shopping or making any necessary arrangement for access to medical care or services or provision of medical marijuana." See below for questions about dispensaries.
A Patient or His or Her Care-giver Can Have Affirmative Defense
Either a patient or a primary care-provider may established an affirmative defense to Colorado's criminal laws related to the patient's medical use of marijuana, if they can establish three things: First, the patient was previously diagnosed by a physician as having a debilitating medical condition; second, 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 finally that the patient and his or her primary care-giver were collectively in possession of amounts of marijuana permitted by the Constitution.
Colorado's affirmative defense applies only to patients and primary care providers and it only applies to state law. There is no affirmative defense to Federal Charges. It may not be the only defense to Colorado's criminal laws.
Registry Identification Card
Another exception from the state's criminal laws for any patient or primary care-giver is lawful possession of a registry identification card to engage or assist in the medical use of marijuana. In order to be on the medical marijuana registry, a patient must reside in Colorado and submit an application form. If a person willfully violates the constitutionally protected use of medical marijuana, the CDPHE revokes for one year the patient's registry identification card. Once a Patient gets a registry identification card, he or she must notify the CDPHE within ten days of any change in the name, address, physician, or primary care- giver. If a patient initially had no primary care-giver, he or she may later select a primary care-giver at any time during the effective period of the registry identification card, by notify the CDPHE within ten days of any change. Cards should be renewed annually by the patient 30 days before they expire.
Patient Under Eighteen Years of Age Are Treated Differently
Children who are medical marijuana patients must have two physicians diagnose him or her as having a debilitating medical condition and one of the physicians has to explain the possible risks and benefits of medical marijuana to the patient and any parent living in Colorado. A patient's parents in Colorado must consent in writing to the CDPHE and agree in writing to serve as a patient's primary care-giver, meaning the parent submits an application for a registry identification card. In the case of a juvenile the parent controls the acquisition of such marijuana, its dosage and frequency.
Physicians Cannot Prescribe Medical Marijuana, But Have Some Protection Under the Federal and Colorado Constitution
Federal Law declares that Marijuana is a Schedule I Drug, meaning that it has a high potential for abuse and no known medical value. Because it is labeled as a Schedule 1, it cannot be proscribed by a doctor. However, physicians may recommend its use to patients under First Amendment guarantees of the Federal Constitution.
Under the Colorado Constitution, any physician, under an exception from the state's criminal laws, can advise a patient whom the physician has diagnosed as having a debilitating medical condition, about the risks and benefits of medical use of marijuana or that he or she might benefit from the medical use of marijuana, provided that such advice is based upon the physician's contemporaneous assessment of the patient's medical history and current medical condition and a bona fide physician-patient relationship; or provide a patient with written documentation, based upon the same.
Responsibilities of Law Enforcement Upon Seizure of Alleged Medical Marijuana
If a patient's medical marijuana is seized by law enforcement, it cannot constitutionally be harmed, neglected, injured, or destroyed while connection with the claimed medical use of marijuana. Only as part of a sentence imposed after conviction or entry of a plea of guilty can property interests be forfeited. If the district attorney determines that the patient or primary care-giver is entitled to the protection of the Constitution, the medical marijuana should be returned immediately.
Dispensaries & Growers
The Colorado Medical Marijuana amendment to the constitution does not address the issue of dispensaries. Recently, because of a change in the federal government's position, a number of Medical Marijuana businesses opened across Colorado. While it seems likely that by the summer of 2010 there will be state regulations, currently state statues regarding medical marijuana dispensaries or growers exist. Colorado's Attorney General has said that sellers of medical marijuana are obliged to pay state sales tax. According the Colorado Court of Appeals, to qualify as a "primary care-giver" a person must do more than merely supply a patient who has a debilitating medical condition with marijuana. People v. Clendenin. In Clendenin, the Court of Appeals specifically passed on whether someone who solely provided marijuana qualified as a "primary care-giver" under CDPHE's definition and whether that new definition was constitutional.
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