Amendment 64: The Ripples Here at Home

By Joshua Kappel, Esq.

“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. Originally posted here.  

On Election Day, the voters of Colorado made history with the passage of Amendment 64—the Regulate Marijuana Like Alcohol Act of 2012.

Amendment 64, which received 55% of the vote, legalizes marijuana under Colorado law for adults over the age of 21. Specifically, it removes all civil and criminal penalties under Colorado law for the limited possession, use, and cultivation of marijuana by adults over the age of 21. This measure also requires the Colorado Department of Revenue to create a regulatory system for the production and distribution of marijuana in a manner similar to alcohol.

The passage of Amendment 64 made waves across the world — making headlines from England to India.  Just this week, a handful of Latin America leaders called for a review of international drug policy in light of these measures passing.  Politically, the 10 point passage of Amendment 64 has prompted other states to consider similar measures, and has even spurred bi-partisan action by Colorado’s congressional delegation to exempt states’ marijuana laws from the federal Controlled Substance Act.

This historic victory also made waves here in Colorado.  Colorado Governor Hickenlooper responded with his now infamous comments, telling voters not to “break out the Cheetos” yet because marijuana remains illegal federally.  The Governor’s comments hinted at a lack of interest in fighting on behalf of Colorado voters and led many to wonder what, if any, effect Amendment 64 will have here at home.

The state vs. federal nature of this law change will continue to be on great interest to both legal scholars and voters.  A full analysis of this issue will be saved for another post, but to be clear, the federal government cannot force our state to criminalize anyone – including those who use or produce marijuana.

The removal of criminal penalties for adults using, possessing and cultivating marijuana goes into effect once the election is certified (probably sometime around January 6^th), although retail stores won’t be able to open until late 2013 or early 2014.

We still have time before the measure goes into effect, but already, Amendment 64 is making ripples in our communities. This week both the Boulder District Attorney and the Denver District Attorney announced they will dismiss all marijuana charges related to actions that would have been protected by Amendment 64.  In the interest of justice, we hope more District Attorneys follow suit. According to long standing Colorado law, a change in a criminal law that reduces a sentence or eliminates the violation all together should apply retroactively in the interest of justice to all convictions not yet final. C.R.S. § 18-1-410(1)(f); Colo. Crim. P. Rule 35; People v. Thomas, 185 Colo. 395 (1974).  Even if a stubborn district attorney was lucky enough to convict an adult for possessing marijuana now, the case should be dismissed by the trial judge or on appeal once Amendment 64 goes into effect.

Although Amendment 64 is not yet in effect, for the adults currently caught in the system for marijuana offenses, the ripples of last Tuesday are already being felt.

Joshua Kappel, Esq. is the Associate Director of Sensible Colorado, the leading state-wide non-profit working to educate the public about sensible marijuana policy. Mr. Kappel is also the senior associate at Vicente Sederberg, the first nation-wide medical marijuana law firm. 

We did it. We made history. After 80 long years, Colorado has finally ended the failed policy of marijuana prohibition. Last Tuesday, Coloradans overwhelming passed Amendment 64 (55% to 45%)  which will regulate marijuana like alcohol statewide. Our historic work has made headlines across the world - from Japan to India to Belize.

We are forever thankful to the thousands of Coloradans who have supported us and the campaign over the years.

For those with questions about Amendment 64, please check out brand new Amendment 64 FAQ written by the primary authors of A64 (us). Our Amendment 64 FAQ has the option for you to send in your own questions about A64 that will be answered by a member of our team.

Our work is not yet over. In fact, it is just beginning.  We must prove to the rest of the country and the world that regulating marijuana like alcohol works. We emptied our rainy day fund educating the public about this historic initiative and now we need your support to make Amendment 64 work. Please join us as we continue to make history by becoming a member of Sensible Colorado today.

Recently the Colorado Court of Appeals issued a ruling in Watkins stating that individuals on probation cannot use medical marijuana. Sensible Colorado’s staff partnered with the ACLU to appeal this decision to the Colorado Supreme Court. The Colorado Supremes rejected our petition, even though two justices wrote specifically about their willingness to hear our appeal.

Despite this setback, Sensible Colorado and the ACLU have not given up on this important issue.  We firmly believe that sick patients should not be denied doctor recommend medicine under any circumstances, including while on probation.  If you are on probation and need to use medical marijuana, please tell us your story here.

We are looking for the perfect plaintiff to bring this issue back in front of the Colorado Court of Appeals. 

This November, Coloradans will have the chance to pass Amendment 64– which will make Colorado the first place on the planet to regulate marijuana like alcohol! Sensible Colorado has been a leading partner in this effort from the beginning. Amendment 64 makes personal adult use of marijuana legal, establishes a system in which marijuana is regulated and taxed similarly to alcohol, and allows for the cultivation of industrial hemp. 

Additionally, Fort Collins will also be voting this November to overturn a ban on medical marijuana dispensaries.  Sensible Colorado helped draft this important initiative which will bring back these community health centers.  Vote “yes” to bring safe access back to the Fort!

This November the world needs you. We can’t make history without your vote. Do your part and register to vote online today.

Even if you are registered, please update and double-check your registration status before the October 9th, 2012, deadline!  

On August 3rd, the Colorado U.S. Attorney’s office sent 10 more letters to state licensed Colorado medical marijuana businesses. These businesses were ordered to shut down within 45 days. So far, 57 state-approved businesses have been shut down by the federal government this year. 

These medical marijuana centers are operating in full compliance with state and local laws and ordinances. Since 2009, the Obama administration has said repeatedly, and as recently as December 2011 during testimony by Attorney General Eric Holder before the U.S. House Judiciary Committee, that it would not use its limited resources to go after individuals acting in compliance with state law. It is inexplicable and offensive that the administration sat back and allowed owners of medical marijuana centers in Colorado to invest tens of thousands of dollars in order to comply with state regulations and *then* decided to seize their properties.

Sensible Colorado continues to organize the opposition to these closures. Weekly, Sensible Colorado holds coalition meetings with leaders and stakeholders to devise and implement a strategy to slow down–or stop–these closures. To help us fight back against the feds, please sign up to volunteer or   make a donation today.   

Leonard Charles Watkins suffers from pancreatitis, which causes debilitating chronic pain and for which he has been hospitalized three times. Watkins’ doctor suggested he use marijuana to alleviate his suffering, so Watkins applied for and qualified to be a Colorado medical marijuana patient. In February 2012, the Colorado Court of Appeals revoked Watkins’ ability to use this state-approved medicine.

A few years back, Watkins pled guilty to a class three felony – unrelated to any controlled substances – for which he received over five years’ probation. His probation conditions required that he “not use or possess any narcotic, dangerous or abusable substance without a prescription,” and that he “not commit another offense” for the duration of his probation. After Watkins explained his medical issues to the judge, the trial court judge issued an order approving his use of medical marijuana.

The Arapahoe District Attorney then filed a motion to reconsider, which the trial court judge denied in a written order. The Prosecution then appealed the denial and the Court of Appeals reversed the trial court, thus denying Watkins the use of this medicine.

Under Colorado law, trial courts are required to set as a condition of probation that probationers “not commit another offense.” C.R.S. 18-1.3-204(1). The Court of Appeals wrote in its opinion that “[t]he Colorado statute itself does not define the term [offense].” People v. Watkins, — P.3d —, 2012 WL 310776 (Colo. App. 2012). However, the Colorado Criminal Code – where the probation statutes can also be found – defines “offense” as “a violation of, or conduct defined by, any state statute for which a fine or imprisonment may be imposed.” C.R.S. 18-1-104(1). It is undisputed that Watkins’ use of medical marijuana was permissible within state law. Yet, despite this straightforward practice in statutory interpretation, the Court of Appeals expanded the meaning of “offense” beyond its unambiguous definition and determined that it included violations of federal law.

To be clear, this is not a broad determination that federal law preempts state medical marijuana laws – simply that the Court of Appeals interpreted one particular statute to take federal prohibition into account.

Relying heavily on its recent decision in Beinor, the Court of Appeals affirmed that marijuana could not be legally “prescribed,” and that therefore Watkins’ lawful medical use of marijuana was a violation of the condition that he not use or possess “any narcotic, dangerous or abusable substance without a prescription.” Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011). Without further reasoning, the Court of Appeals again echoed the Beinor opinion and held that Amendment 20, Colorado’s original medical marijuana law, did not extend a constitutional right to patients, but merely protected patients from criminal prosecution under limited circumstances.

Recently, the medical marijuana advocacy group, Sensible Colorado, teamed up with the ACLU to file an appeal on Watkins behalf. The Colorado Supreme Court denied this appeal and brandished Watkins, and other sick medical marijuana patients like him, probation violators if they use their doctor-recommended medicine. Specifically, the Watkins decision set forth a sweeping precedent that “neither Petitioner [Watkins] nor any other probationer in Colorado – regardless of the underlying offense, the circumstances of the probationer’s illness, or the trial court’s view – may use medical marijuana.” Petition for Writ of Certiori at 4, Watkins, — P.3d — (Colo. App. 2012). Sensible Colorado is currently looking for potential plaintiff’s that are interested in helping us re-litigate these issues. If you are on probation and need to use medical marijuana please contact us here.

Despite this seemingly bleak decision, medical marijuana patients are not always condemned to suffer while on probation. It is still the law that a trial court judge’s decision to not revoke probation cannot be appealed, regardless of any probation violations. It may be of little comfort, but patients can still hope that sympathetic trial court judges will simply refuse to revoke their probation for medical marijuana use. The passage of Amendment 64, the Act to Regulate Marijuana Like Alcohol, which is on the statewide ballot this November, may further prompt the judicial branch to align their decisions with the will of the People.

This article was published first on the Colorado Bar Association Blog. 

             Beinor suffers from severe migraine headaches – a lasting consequence of a prior assault. Like almost a hundred thousand other Coloradans, Beinor is a lawful medical marijuana patient, and  uses marijuana in an off-work capacity to ameliorate his suffering.  Unfortunately for Beinor, a random drug test in February 2010 came up hot, costing him his job.

             Jason Beinor never used marijuana on the job, and his private, medical use never interfered with his job performance. However, under his employer’s zero-tolerance policy, the left-over, non-psychoactive THC in Beinor’s system was considered an illegal drug, and Beinor was immediately fired. Because Beinor believed he had been fired through no fault of his own – his marijuana had been doctor-recommended and lawfully-obtained after all – he filed for unemployment compensation benefits. He was denied, the Colorado Court of Appeals upheld the decision. Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011). Recently, the Colorado Supreme Court denied cert.

              Under Colorado statutes, “[t]he presence in an individual’s system, during working hours, of not medically prescribed controlled substances” disqualifies that employee from benefits. Of course, Beinor had marijuana – or at least non-psychoactive THC – in his system during working hours. But he believed he was safe because it had been medically prescribed to him. Unfortunately, the written documentation physicians provide their patients recommending medical use of marijuana is specifically not a prescription. This is where federal law comes into play.

           Doctors across the country must be registered with the Drug Enforcement Administration (DEA) in order to lawfully prescribe medication. However, because of marijuana’s classification as a Schedule I drug under the federal Controlled Substances Act, registered doctors cannot prescribe marijuana, but only recommend it. Indeed, their recommendations must clearly state, “[t]his assessment is not a prescription for the use of marijuana.” Thus, Beinor’s medical marijuana was considered “not medically prescribed.”

            In the grand scheme of things, legal technicalities such as whether a doctor’s written recommendation is considered a “prescription” wouldn’t matter if Beinor and other patients had a constitutional right to use marijuana. Unfortunately, the majority of the Colorado Court of Appeals in Beinor did not interpret Amendment 20 to grant that right. Instead, it determined that Amendment 20 only created limited exceptions to state criminal laws for patients, primary caregivers, and physicians concerning the medical use of marijuana.

         The Court pointed specifically to a clause in Amendment 20 that reads: “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.” As Judge Gabriel, who dissented from the majority, astutely pointed out, Beinor never used marijuana in his work place, and that provision does not logically include “the presence of marijuana in one’s blood after the lawful use of medical marijuana at home.” Judge Gabriel further observes that, under such an interpretation of the law, “many patients who are eligible to use medical marijuana would likely abandon their right to do so, because even lawful use at home would put their benefits, and perhaps even their jobs, at risk.”

To read the full article go to: http://cbaclelegalconnection.com/category/spark-the-discussion/

Since the passage of HB10-1284, Colorado’s historical medical marijuana regulation legislation, current marijuana use among high school students in Colorado has dropped from 24.8%  to 22.0% according to the  Federal Government’s Centers for Disease Control and Prevention Youth Risk Behavior Surveillance Assessment. You can view the 2011 report here and the 2009 report here.  These findings are consistent with a recent report published by Professor Mark Anderson that shows no noticeable link between increased youth marijuana use and states legalizing medical marijuana.  In fact, the reports show that marijuana use among teens in Colorado is slightly below the national average.

Although some have reported an increase in drug related suspensions in Colorado high schools, it appears those suspensions may correlate better with an increase in detection efforts by school officials than an actual increase in youth marijuana usage.

Also in the CDC survey, significantly more teens in the United States are using marijuana than cigarettes. Just more than 23 percent of high school students nationwide reported using marijuana within 30 days of taking the latest survey, up from 20.8 percent in 2009. Meanwhile, 18.1 percent reported past-30-day cigarette use, down from 19.5 percent in 2009.

Previous studies have shown that cigarette use and availability among teens, which had been sharply increasing in the early 1990s, began steadily declining shortly after the 1995 implementation of the “We Card” program, a renewed commitment to strictly restrict the sale of tobacco to young people.

By putting marijuana behind the counter, requiring proof of age, and strictly controlling its sale, we could make it even harder for teens to get their hands on it.

Veterans Bob Wiley, Joseph Hatcher, Wanda James and others line up behind Sensible Colorado Executive Director Brian Vicente as he addresses the media. Photo provided by Cannabis Business Alliance

 The momentous occasion culminated in about 40 supporters and several camera crews cramming into the department lobby, and watching silently as retired Air Force Major Bob Wiley handed the hefty petition to an employee of the health department. The petition included over 100 studies showing marijuana’s alleviating effects on many of PTSD’s symptoms.

Air Force Major Bob Wiley (retired) submits the petition on behalf of veterans and others suffering from PTSD. Photo provided by Cannabis Business Alliance

This is the second such petition filed in two years by Sensible Colorado – the first one was rejected by the health department in 2010. But Executive Director Brian Vicente believes the state owes a moral duty to veterans to reconsider their previous decision. Over 6,500 veterans die by suicide every year, and significant progress in scientific research has been made since 2010. The Health Department has not accepted a single petition to add a debilitating medical condition treatable by medical marijuana since the enactment of the Colorado Medical Marijuana Code in 2000.

Check out these related stories:

• Marijuana Activists Try Again On PTSD Petition (CBS 4)
• Marijuana Activists Try To Regain PTSD Petition (NBC 9)
• CannaBiz: Another Try for PTSD (Colorado Springs Independent)