Marijuana has been used by human beings for thousands of years for therapeutic and recreational purposes. Over the last 30 years, nearly every serious scientific study or government investigation has concluded that marijuana is a useful medication for treating a variety of illnesses. Over 60 U.S. and international health organizations have expressed some degree of support for medical marijuana, including the American Public Health Association, the American Medical Association, and the American Nurses Association. For more information on the medical efficacy of marijuana, see the following websites: NORML, Dr. Robert Melamede, Chair of the Department of Biology at the University of Colorado at Colorado Springs, and our own Medicine and Marijuana page.  

 Seventeen states (Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia have approved medical marijuana programs either through citizen’s ballot initiative or through the legislature. The District of Columbia’s program recently went into effect in 2010.

 Colorado’s medical marijuana program is the result of a citizens’ ballot initiative in 2000 called Amendment 20. The ballot initiative amended the state’s constitution to recognize the medical use of marijuana and Colorado voters approved the measure by a majority of 54%. The law took effect on June 1, 2001. Click here for the full text of Amendment 20. check out Over 173,000 patients have applied for the Colorado Registry since 2001. Currently there over 93,000 patients licensed through the state Department of Public Health and Environment (“Health Department”). Over 900 physicians in Colorado have written recommendations for marijuana. For more statistics about Colorado’s medical marijuana community click here.

 However, there remain numerous inconsistencies and uncertainties under Colorado’s medical marijuana law. For example, the biggest issue is that medical marijuana remains illegal under federal law. Despite the protections to patients from state and local police, as discussed herein, medical marijuana patients remain subject to federal arrest and prosecution. It should be noted that federal prosecution is rare.

In addition, understanding of the medical marijuana law by state and local police varies throughout Colorado and police continue to harass medical marijuana patients on occasion.

In 2010, the Colorado Medical Marijuana Code, C.R.S. 12-43.3-101 et seq., was enacted. The Colorado Medical Marijuana Code (“Code”) created the country’s first for-profit state regulated system for distributing medical marijuana. The Code is far from perfect. Among other things, the Code permits local governments to bans state licensed businesses. Notably, these localities cannot ban caregivers or patients generally. For a history of Colorado’s medical marijuana laws click here. 

Other uncertainties under the state law include the rights of patients while on probation for a criminal offense, during employment, in child custody disputes, and to possess a gun or concealed and carry permit. For these reasons, Sensible Colorado supports efforts to clarify and strengthen Colorado’s medical marijuana law to better protect patients and their providers.

Your decision to seek a medical marijuana card could subject you and those close to you to many potential legal problems as discussed below. Before obtaining a medical marijuana card, you should develop a relationship with an attorney who can advise you on your rights and responsibilities as a medical marijuana patient. You should maintain a relationship with an attorney throughout the time you are a medical marijuana patient so that you can quickly obtain help from that attorney if any problems arise.

As discussed in more detail below, you should also discuss this issue with anyone you live with before moving forward. Your activities as a medical marijuana patient may subject your friends and family to the risk of getting entangled in the legal system, even if they have nothing to do with your medical marijuana activities. As you must understand, this is a very serious undertaking and extensive precautions discussed below should be taken at all stages of the process.

Colorado law allows Colorado residents to obtain a “Medical Marijuana Registry” identification card if they have a “debilitating condition” for which a doctor provides a “recommendation” that marijuana may alleviate that condition. Debilitating medical conditions include: Cancer; Glaucoma, and HIV. In addition, a doctor may recommend medical marijuana for other debilitating conditions if the condition produces one of the following conditions in the patient: Cachexia; Severe pain; Severe nausea; Seizures, including those that are characteristic of epilepsy; or persistent muscle spasms, including those that are characteristic of multiple sclerosis.

Patients who would like to obtain a recommendation for medical marijuana for a condition that is not explicitly covered by the state law should consult their doctor and attorney in advance of applying for a Medical Marijuana Registry card. Patients can petition the Health Department to add new debilitating conditions to the current list. Petitioning the Health Department requires significant scientific proof.  If a prospective patient makes an application to recognize a new condition, a special rulemaking proceeding in front of the Colorado Board of Health may be necessary to add a new condition to the list. The rulemaking process is very detailed and a prospective patient should do extensive work in advance of the  hearing by consulting with attorneys and doctors to make sure the application has the best chances for success. To date the Health Department has not approved a single petition. 

Colorado law allows seriously ill people to legally grow and use marijuana as medicine. There are two levels of protection under Colorado law for medical marijuana patients: (1) affirmative defense; and (2) exception to prosecution.  The affirmative defense is only a defense in court, thus law enforcement might arrest you and seize your belongings. Then, at trial you can argue that your use of marijuana is medical. If the jury or judge believes you, you will not be convicted. The better level of protection is the exception to prosecution. If you qualify for this level of protection Colorado law enforcement can neither arrest you nor charge you with a crime.

In order to qualify for the affirmative defense under Colorado law, a patient only needs a doctor’s recommendation or approval. In order to qualify for the exception to state prosecution, a patient must possess a medical marijuana registry card and be in possession of no more than two (2) ounces of usable marijuana and six (6) plants. 

Finding a Doctor for a Recommendation

First and foremost, be forthright with your current doctor. There is nothing wrong with using medical marijuana or discussing it with your doctor. A federal court has ruled that, under the First Amendment, doctors may not be punished by the DEA for recommending medical marijuana.

Specifically ask your doctor to help you obtain a medical marijuana recommendation. Print off the state medical marijuana application and bring it with you when you visit your Doctor.  This application is necessary for getting a medical marijuana patient registry card.

 If you are already medicating with marijuana on your own, tell your doctor specifically what condition or symptoms you treat with marijuana. Honestly describe the amount of marijuana you use, how often, and by what delivery method.

 If your doctor does not issue medical marijuana recommendations, you may need to visit a medical marijuana specialist.

Medical Marijuana Specialists

There are a number of Colorado physicians and clinics available for medical marijuana consultations. Before consulting a medical marijuana specialist, patients should already have medical records of diagnosis and treatment or a physician referral. Be aware that:

•                 Not all doctors are qualified to make recommendations.
•                 Most doctors will want to see your medical records.
•                 It can cost more than $100 to see a medical marijuana specialist.
•                 Paying the money does not guarantee that you will get a recommendation.

If you have more questions on finding a doctor, please visit our Doctor Page [need link] or  contact us. 

Obtaining a Registry Identification Card

The law provides that medical marijuana patients can apply for and obtain a registry identification card. To apply you and your qualified doctor must fill out in blue ink, then notarize and submit the following:

(1)    The most recent application and Doctor Certification form provided by the Colorado Department of Public Health: Medical Marijuana Registry.

(2)    A copy of your photo ID and proof of residency if you have a non-Colorado Id or driver’s license.

(3)    The $35 application fee or proof that you make less than 185% of the federal poverty level.

A minor's patient application must also include a parental consent form and a second doctor's form, both forms are provided by the Colorado Department of Public Health and Environment.

It is important to note that Medical Marijuana Registry requires strict compliance with their rules while filling out an application. Their rules are listed on the application form. If you do not follow even one of their most minor rules such as using blue ink, they could send your application back to you. Tips on how to submit a complete application can be found here. 

Mailing Your Application

All required application documents should be copied and the original should be mailed to the address on the application via certified mail. Please note, the Medical Marijuana Registry only accepts application where the doctor’s signature is less than 60 days old and only permits one application to be sent in per envelope.

Although the registry is currently processing applications within 45 days, the registry has been known to incur up to 9 month delays. A copy of your entire state application with all supporting documents and a certified mail receipt showing the application was submitted 35 days earlier is the legal equivalent to Colorado Medical Marijuana Registry Identification Card and should protect you from state criminal prosecution relating to your medical use of marijuana.

Qualified Doctor

Not all Colorado Doctor’s are allowed to fill out the Doctor Certification Form. First and foremost you should ask your Doctor if he has helped any patient in the past successfully receive a medical marijuana registry identification card. If he has not helped a patient in the past or if he is unsure if he is currently qualified, you can contact the Medical Marijuana Registry or check the Doctor’s licensing status here: http://www.dora.state.co.us/medical/. The registry does not approve applications certified by doctors with conditions or restrictions on their medical license (unless the doctor was licensed after 2011) . In addition, the doctor must have his DEA license on file with the Colorado Medical Marijuana Registry or your application will be sent back to you. 

In order to qualify, you must see a doctor, in person, with which you have a bona-fide relationship and who is good standing with an unrestricted license to practice medicine from both the State of Colorado and the Drug Enforcement Agency. The definition of bona-fide relationship requires the doctor to conduct a physical exam and offer follow up care. 

Further requirements on the doctor-patient relationship are being promulgated through administrative rule making throughout 2011 and 2012. Please contact ASA or Sensible Colorado for more information.

Renewals

You need to update your registration and pay another $35 every year (unless you qualify for the fee waiver) with updated copies of all documentation, including a new signed Doctor’s Certification Form, even if your condition has not changed. You should update your registration at least 45-60 days before your card expires in order to ensure that you will have uninterrupted protection from state criminal law and a constant supply of medicine. If there has been a change in your address, caregiver, or primary medical marijuana center you must notify the department of the change within 10 days using a change of address or change of caregiver form. Any documents mailed to the state should be copied first and with the original mailed via certified mail. Keep all copies.

Registry Card

Your medical marijuana registry identification card will show your name, address, date of birth, random registry ID number, and the name and address of your caregiver or primary center if one is designated. It does not list your medical condition. The registry is confidential. Police or government officials can only access the registry to check if you are a lawful patient by submitting a copy of your registry card or completed application. The Colorado medical marijuana registry will release your file to you if you fill out their request form and pay $.25 per page. You must carry your registry card with you whenever you possess medical marijuana

Medical marijuana patients may designate a “primary caregiver” who will have significant responsibility for managing the well-being of the patient using medical marijuana. Caregivers must be at least 18 years of age, but there is no requirement that caregivers have specific medical training or background. Therefore, any person who has significant responsibility for managing the well-being of a patient can be a caregiver. The Colorado Department of Public Health and Environment has defined significant responsibility as: 

"Significant responsibility for managing the well-being of a patient" means, in addition to the ability to provide medical marijuana, regularly assisting a patient with activities of daily living, including but not limited to transportation or housekeeping or meal preparation or shopping or making any necessary arrangement for access to medical care or other services unrelated to medical marijuana. The act of supplying medical marijuana or marijuana paraphernalia, by itself, is insufficient to constitute "significant responsibility for managing the well-being of a patient." [Link to regulations]

Caregivers can be designated on the initial application by the patient for a medical marijuana license. To select a caregiver after becoming a state-licensed Patient, the Patient must submit a Change of Address or Caregiver form to the Health Department’s Medical Marijuana Registry at the below address.  The Change of Address or Caregiver form can be found here. 

Caregivers are entitled to manufacture or possess medical marijuana in order to provide that medicine to the patient. After approval by the Health Department, both the patient and the primary caregiver should be protected from state or local prosecution for possession or cultivation of marijuana that is used solely for the medical purposes within the state guidelines for allowable quantities. However, as discussed below, caregivers and patients remain subject to potential federal prosecution despite state law allowing for medical marijuana use in Colorado.

Medical Marijuana Centers are businesses licensed by the state and local government to sell medical marijuana to patients with a current registry card. A patient may obtain their medicine from any medical marijuana center regardless of whether that patient has listed that center as their "Primary Center".

There are two ways to become a caregiver: (1) be listed on a patient's application; or (2) nominate your self to the voluntary patient registry. 

The more traditional method of becoming a caregiver is by being listed on a new patient's application or by having a patient designate you as their caregiver on a change of caregiver form. 

The second way to become a caregiver is to submit a Voluntary Caregiver Registration form. The Voluntary Caregivers Registry provides new patients with contact information for primary caregivers in their area. By law, a primary caregiver is a person other than the patient and the patient’s physician, who is 18 years of age or older and has significant responsibility for managing the well-being of a patient with a debilitating medical condition. Current and prospective primary caregivers may choose to have their contact information listed in the database. 

Recent legislation and rule making imposes certain requirements and restrictions on caregivers. House Bill 10-1284 & SB 10-109, passed in the summer of 2010, impose new regulations on patients and caregivers previously operating under Colorado’s Medical Marijuana Constitutional Amendment. For those who wish to remain clearly compliant with state law, following these new laws is an imperative.

New Patient Restrictions:

•  Patients cannot use medical marijuana:
•  In a Medical Marijuana Center or other licensed facility;
• In a way that endangers the health and well-being of a person;
• In plain view or place open to the public;
• In a correctional facility or community corrections facility; or
• In a vehicle, aircraft, or boat.
• Patients and caregivers cannot possess marijuana on the grounds of a school (pre-12) or on a school bus.
• Patients and caregivers must have their paper work with them while in possession of medical marijuana.
• Patients can only have one caregiver at a time. (However, any patient 

For handout on HB 1284 click here: 

Recent legislation and rule making imposes certain requirements and restrictions on caregivers. House Bill 10-1284 & SB 10-109, passed in the summer of 2010, impose new regulations on patients and caregivers previously operating under Colorado’s Medical Marijuana Constitutional Amendment. For those who wish to remain clearly compliant with state law, following these new laws is an imperative.

New Caregiver Restrictions

• Caregivers are limited to serving 5 patients, except in exceptional circumstances. A patient may apply for a waiver by submitting a request on the Health Departments forms. 
• Caregivers will eventually have to register with the Medical Marijuana Enforcement Division.
• Caregivers must do something more than simply provide marijuana for their patients to be considered a caregiver. 
• Caregivers cannot “join together” to cultivate marijuana or “engage others to assist in providing medical marijuana to a patient.” However, married caregivers are allowed to cultivate in the same house provide the grow space is kept seperate. 
• A caregiver cannot also have a caregiver.
• Caregivers cannot “cultivate or provide” marijuana to anyone who is not their patient.
• Caregivers must maintain a list of the registry identification number for each of their patients.
• Caregivers cannot charge patients more than the cost of purchasing or cultivating marijuana, but can charge for caregiver services.
• There can be no financial connection between caregivers and doctors.
• Law enforcement will be able to confirm caregiver status with a new 24 hour database (not yet enacted.)

For handout on HB 1284 click here: 

Patients that make less than 185% of the federal poverty level can be classified as indigent. Indigent patients do not have to pay the annual $35 fee waiver or sales tax on their purchases of medicine. 

To be classified as indigent, a patient must provide the Health Department a certified copy of their state tax return for the previous year. This can be done at the time of applying for or renewing a registry card or anytime thereafter by submitting the request for Fee Waiver/Tax-Exempt Status form.

185% of the Federal Poverty Level

# in Family Annual Income
1...$ 20,146.50
2... $ 27,213.50
3... $ 34,280.50
4... $ 41,347.50
5... $ 48,414.50
6... $ 55,481.50
7 ...$ 62,548.50
8 ...$ 69,615.50
Each additional $ 7,067.00

You can request a certified copy of your tax return by completing form DR-5714 ‘Request for Copy of Tax Returns’ available here. The form must be completed, notarized and sent or brought to the Colorado Department of Revenue for processing.

Patients that are designated as homebound, may have a caregiver purchase medicine for them from a medical marijuana center. In order to be designated as homebound, the patient's doctor must designate the patient as such on the patient's application for a registry card or certify the patient as homebound at later date by completing the necessary forms. 

If you are an habitual user of a controlled substance, Federal Law prohibits you from purchasing a gun.  Marijuana is still considered a Schedule 1 controlled substance, so if you are a “habitual user” you cannot purchase a gun.  For a further explanation, please read the following  ATF memo: http://www.atf.gov/press/releases/2011/09/092611-atf-open-letter-to-all-ffls-marijuana-for-medicinal-purposes.pdf

Colorado law authorizes a patient who has been issued a Medical Marijuana Registry identification card, or that patient’s primary caregiver who has been identified on the patient’s Medical Marijuana Registry Identification card, to possess:

(a) No more than two (2) ounces of a usable form of marijuana; and
(b) Not more than six (6) marijuana plants, with three (3) or fewer being mature, flowering plants that are producing a usable form of marijuana.

It is an affirmative defense to prosecution under Colorado law if the patient possess additional amounts of marijuana if the additional amounts are medically necessary to treat his/her debilitating condition. 

1. General Exemption from Criminal Prosecution

Colorado law provides an exemption from state and local criminal prosecution for patients or caregivers with a Medical Marijuana Registry Identification card, AS LONG AS THE PATIENTS AND CAREGIVERS REMAIN WITHIN THE LIMITS FOR QUANTITY OF MARIJUANA UNDER THE STATE LAW AS DISCUSSED ABOVE.

2. Larger Amounts of Marijuana May be Grown and Still Protected Under State Law

However, if a patient or caregiver possesses more than the allowable limits of marijuana under the state law, Colorado law provides the patient or caregiver with an affirmative defense to any criminal charge if it can be shown that the increased amount of marijuana was medically necessary to address the patient’s debilitating condition. Despite this added protection, PATIENTS AND CAREGIVERS SHOULD GENERALLY ATTEMPT TO STAY WITHIN THE LIMITS ALLOWED BY STATE LAW IN ORDER TO AVOID STATE OR LOCAL PROSECUTION.

3. Defenses Available Under State Law for Patients With a Doctor’s Recommendation, but who Lack a Colorado Medical Marijuana Registry Identification Card

Finally, Colorado law provides protections to patients who already have received a doctor’s recommendation that medical marijuana would alleviate their debilitating condition, even if the patient has not obtained the Medical Marijuana Registry card from the state government. This provision creates an affirmative defense to state and local prosecution. Again, patients are encouraged to obtain a Medical Marijuana Registry card as soon as possible after obtaining the recommendation.

Despite the protections under state law, licensed Colorado medical marijuana patients and recreational marijuana users remain subject to potential federal prosecution. There have been several documented cases of federal prosecution in Colorado, and elsewhere, such as California. To date, medical marijuana patients have attempted numerous tactics to avoid federal prosecution without success in the Courts. In the 2006 case of Raich v. Gonzales, the US Supreme Court decided that the federal Controlled Substances Act may be enforced despite state medical marijuana laws, meaning patients licensed under state medical marijuana laws can be prosecuted by the federal government.

However, the Supreme Court has never decided if there might still be a medical necessity defense for individual patients possessing marijuana for medical purposes. Any patient prosecuted by the federal government should discuss using this defense with his/her attorney.

Patients should note that the Drug Enforcement Agency has repeatedly said that it has no intention of seeking out and prosecuting individual medical marijuana patients who possess or cultivate small amounts of marijuana. Colorado lawyers generally agree the DEA has an informal policy of not getting involved in cases involving less than 100 plants. Despite this informal policy, federal prosecution remains a possibility for all medical marijuana patients in Colorado.

It should also be noted that only 1% of the approximate 750,000 annual marijuana prosecutions nationwide come from federal agencies. Therefore, if you are a licensed medical marijuana patient under Colorado state law, your chances of being prosecuted by the federal government remain low.

Recently, the U.S. Attorney for Colorado has targeted certain medical marijuana centers, sending them letters telling them to shut down within 45 days. To date, all of the businesses receiving these letters have closed or relocated and none have been the subject of criminal or civil prosecution.

• The most likely reason you might ever be raided is that a neighbor or friend turns you in to police. For this reason, it is important to maintain cordial relationships with neighbors and friends if possible. The best policy is to tell as few people as possible what you are doing. The fewer people who know, the fewer people who can turn you in if your relationship goes sour.
• Refrain from any non-medical cultivation or distribution of marijuana. Another common way to draw law enforcement attention is by subsidizing your medical marijuana operation with the sale of marijuana to people for recreational purposes. This activity is illegal and makes it more likely that someone you sell it to may end up giving your name to the police to avoid, or lessen, criminal liability for themselves.
• Be discreet.  It is probably best to have an indoor garden in a location in your house that is not visible from the outside or to guests who visit your house. You should consider venting your garden room in such a way to avoid strong marijuana smells inside or outside the house.
• Stay within the plant and loose marijuana limits set by the state law. If you believe your condition, or the condition of a patient for whom you are a primary caregiver, requires more than the limits allowed by state law, you should ask your doctor to include something in his/her recommendation that such additional medicine is medically necessary. Even if your doctor recommends more,  you may still be criminally prosecuted if you possess more than 2 ounces or 6 plants. 
• Travel safely.  Do not smoke and drive or have marijuana visible in your automobile.  If you travel with marijuana, keep the marijuana concealed, preferably in your trunk.
• Promptly discard old plant material to avoid having police claim it is evidence of a larger operation.  Throw excess plant debris in a dark trash bag and place it in a public dumpster.  Do not put other trash- such as receipts or mail- which may indicate your identity in the same bag.
• Keep all medicine in containers clearly labeled, "MARIJUANA FOR MEDICAL USE ONLY UNDER COLORADO LAW." Labeling the marijuana also helps to inform police that your marijuana is for medical use if the police raid your home when you are not there.
• At the entrance to your garden, post a copy of your Colorado medical marijuana card and a copy of the state law to inform police who may be uneducated about the law that you are legally entitled to this medicine.
• Store the marijuana in as few containers as possible, to avoid having the police claim you were trying to sell or distribute the medicine.
• If you are a renter, you should seriously consider whether or not to tell your landlord what you are doing. While medical marijuana is legal under state law, it remains illegal under federal law. Thus, while your landlord may not have any concern about liability under state law, federal prosecution or asset seizure may remain a possibility. In laypersons terms, a landlord can only be held responsible for the illegal activity of his/her tenants if the landlord knew, or should have known with reasonable investigation, that the tenant was engaged in illegal activity. For this reason, in order to minimize the liability to the landlord, you may want to consider not telling the landlord and keeping your garden in a crawl space or other room not normally inspected by the landlord. So long as the landlord had no reason to know what you were doing, it is unlikely that the landlord could ever be subject to prosecution. You should also consider making sure that your landlord will always provide you with 24 to 48 hours notice before entering the dwelling. Most residential leases do not automatically include such a provision. Therefore, you will need to write such a provision into your lease and make clear to your landlord that you want advance notice in order to protect your privacy. The advance notice may provide you an opportunity to hide or remove your medical marijuana to maintain your privacy.
• Consider carefully who you invite to your house for routine maintenance. For example, appliance repair people, telephone or internet service people, and insect control people may observe or smell your garden and turn you into the police. Consider doing as many of these things yourself, or through a trusted friend, rather than taking the chance of drawing attention to your activities.
• Don’t flaunt it. Even though you are a licensed medical marijuana patient, Colorado law still prohibits public use. Public use at hemp rallies or other public events may make it more likely that law enforcement investigates your activity.
• Don’t allow friends or fellow patients to loiter around your house.  Domestic disputes and loud music can increase the chances of law enforcement investigation. 
• Do not keep medical marijuana or paraphernalia in plain or open view through windows. If marijuana is in plain view, police will not need a search warrant to come to your door and arrest you and search the house.

• Dealing with the Police can be stressful.  Remain calm and remember to assert your rights.
• If the police say "Do you mind if I look in your home, car, purse, or bag?"
  • You should say "I do not consent to a search."
  • If they continue to ask, you should continue to say "I do not consent to a search."
  • If they ask "Why not, do you have something to hide?"
  • You should say "I have a Constitutional right to privacy.  I do not consent to a search."
• Only tell the police your medical marijuana patient after they have found your medical marijuana. In this case, simply provide your medical marijuana registration card and say nothing more. Unless the police are federal agents, then do not tell them your a medical marijuana patient or show them your registry card. 

For more information on how to handle law enforcement encounters watch this video.

• First, make sure the police have a warrant to search your home or apartment. If the police do not have a warrant, do NOT give them consent to search your house.  If they present you with a warrant, make sure the warrant is accurate – check to make sure your name and address are correct and that the warrant has been signed by a judge. If the warrant is inaccurate, any evidence the police obtain may be inadmissible in court.  Even if the warrant is valid, you may still continue to say, "I do not consent to this search." The police may insist on searching anyway.  However, never physically resist a police officer, you may be charged with additional crimes by doing so.
• State law requires you to provide your name and identification if asked to do so by state or local police.
• However, you do not have to voluntarily engage in a long discussion or interrogation with the police before you are charged with a crime. If the police ask you to voluntarily talk to them about your possible marijuana use or cultivation, ask them if you have been charged with a crime. If you have not, politely tell them you do not want to talk to them without the presence of an attorney. Say, "I assert my right to remain silent."
• If you have been charged with a crime, such as possession or cultivation of marijuana, say, "I am a medical marijuana patient licensed under state law to possess, cultivate, and consume the marijuana in my possession." You may also show them your medical marijuana card from the state of Colorado or your doctor’s recommendation to use medical marijuana.
• You do not need to say anything else to police. If the police persist in asking you questions, ASSERT YOUR 5TH AMENDMENT RIGHT TO REMAIN SILENT. Do not voluntarily talk with the police about this issue once you have been charged with a crime because anything you say can and will be used against you in court.
• You should also post a copy of your medical marijuana card and a copy of the state law at the entrance of your garden to show police that you are a medical marijuana patient if they raid your home when you are not home.
• Similarly, you should advise any roommates to do the same things as explained above. You should be aware that non-medical marijuana patients may be at risk of being arrested by simply being present in your home during an arrest. Police rarely take time to figure out who is the "owner" of any medical marijuana, and police will often just arrest everyone present in the house for marijuana possession and/or cultivation. This means you should advise any non-medical marijuana patients or caregivers who live with you that they are risking arrest.
• Colorado law requires state and local law enforcement officers to keep the marijuana they seize from an alleged patient alive pending the resolution of the case. You should politely remind police of this fact. If they fail to do so, they could be held in contempt of court.

For more information on your rights, see the KNOW YOUR RIGHTS information on the following websites:

NORML’s Know Your Rights Page: http://norml.org/index.cfm?Group_ID=3405

National Lawyers Guild’s Page: http://www.nlg.org/resources/know_your_rights.htm

ACLU’s Know Your Rights Page: http://www.aclu.org/Files/OpenFile.cfm?id=10042

Midnight Special Law Collective: http://www.midnightspecial.net/

• First, make sure they have a warrant to search your home or apartment. If the police do not have a warrant, do NOT give them consent to search.  Make sure the warrant is accurate. If the warrant is inaccurate, any evidence the police obtain may be inadmissible in court. Even if the warrant is valid, you may still continue to say, "I do not consent to this search." The police may insist on searching anyway.  However, never physically resist a police officer, you may be charged with additional crimes by doing so.
• You do not have to voluntarily engage in a long discussion or interrogation with federal agents before you are charged with a crime. If federal agents ask you to voluntarily talk to them about your possible marijuana use or cultivation, ask them if you have been charged with a crime. If you have not, politely tell them you do not want to talk to them without the presence of an attorney.
• If you have been charged with a crime, such as possession or cultivation of marijuana, you should, ASSERT YOUR 5TH AMENDMENT RIGHT TO REMAIN SILENT. DO NOT TELL FEDERAL AGENTS YOU ARE A MEDICAL MARIJUANA PATIENT BECAUSE IT REMAINS ILLEGAL UNDER FEDERAL LAW. Do not voluntarily talk with federal agents about this issue once you have been charged with a crime because anything you say can and will be used against you in court.

If you are arrested and taken to jail, you will likely need help from friends or family to get out of jail. You may want to consider preparing for this by memorizing or keeping handy the phone number of a trusted individual who you can call at any time to get help if you are arrested.

Once you get to jail, you will be booked and charged with whatever crime the police believe you committed. Once you have been arrested and charged, if you were arrested by state or local police, you should again assert that you are a licensed state medical marijuana patient. You should request that they keep your medicine alive as required by state law pending the resolution of the case. Beyond this, you should again refuse to talk with police voluntarily. You should not talk with police until you have had an opportunity to discuss the case with an attorney.

If you are arrested by federal agents, you should not discuss your status as a medical marijuana patient or engage in any voluntary dialogue with federal agents before talking with an attorney. No matter how rude it may feel, you must continue to say, "I assert my right to remain silent."

In order to get out of jail, you will need to post a bond. The bond may be as little as $500 for simple possession, or could be tens of thousands of dollars if you are charged with a serious marijuana crime. You can post bond by having your trusted friend get cash or a money order for the full amount of the bond. If you pay the full bond, and if you participate in all required court proceedings and hearings, you will get the full bond back at the resolution of the case (whether that is a dismissal, a conviction, or an acquittal).

If you cannot afford bond, you can post "bail" through a bail bondsman. A bail bondsman is someone who will pay your entire bond if you pay him/her around 10% of the bond. If you use a bail bondsman to post your bond for you, you will never get the 10% fee back. The bail bondsman keeps that money as profit.

If you cannot afford bail or bond, you will be allowed to have a bond hearing in front of  a judge, usually within 24 hours of your arrest. If possible, have an attorney come and represent you at that bond hearing. At the bond hearing, you can ask the judge to reduce your bond to a level you can afford to pay. In addition, you can request the judge to release you on your own "personal recognizance," which means you will be released without having to post any bond or bail. A "personal recognizance" bond is usually only authorized in minor cases where the accused has little or no criminal history. However, the judge is not required to release you on a personal recognizance bond. If you cannot post bond or bail, and you are not released on a personal recognizance bond, you will have to stay in jail until the matter is resolved in the Court system.

If you do not have money to hire an attorney, in most drug cases where there is a possibility of a jail sentence, you will be entitled to have the Court appoint an attorney to you at no cost. Court appointed attorneys are called Public Defenders, and generally they provide good representation. However, because Public Defenders are generally overworked, it is usually preferable to hire a private attorney if you have the money so that the private attorney can devote a significant amount of time to your case.

Sensible Colorado can provide referrals to criminal defense attorneys who specialize in defending patients under Colorado’s medical marijuana law. In addition, you can contact the Colorado Criminal Defense Bar at www.ccdb.org for a list of criminal defense attorneys in your area.

As soon as possible after the arrest, you should arrange for legal representation if possible. If there is the possibility of jail time for the crime charged, you will be entitled to be appointed a Public Defender. You may also hire a private attorney to handle your case.

After hiring an attorney, make a list of all the items that were seized by police during the raid of your house. In addition, for your lawyer’s benefit, you should write a detailed description of what happened during the raid, addressing the following issues: (1) Did the police have a warrant? Did they show it to you? (2) Did anyone in the premise consent to the search? (3) Did anyone voluntarily speak with police? and (4) What did the police say about why you were being arrested. Provide as much detail as possible, including descriptions of any abusive or racist language used by police, any physical force used by police, and other details that stand out in your memory.

You may also want to consider filing a complaint against the police through the internal affairs department of the arresting agency. Your complaint would essentially be that the police violated state law because you are a medical marijuana patient and medical marijuana is permitted under Colorado law. Some police agencies, such as Denver’s, have citizen’s oversight commissions that hear complaints about police conduct. Make sure to carefully follow the proper procedures when making a complaint to make sure it is considered by the appropriate reviewing agency. If possible, consult with an attorney before taking this action.

As noted, marijuana use, possession, cultivation, or distribution for non-medical purposes is illegal under state and federal law. Depending on the quantity of marijuana possessed, penalties at the state and federal level range from minimal penalties for simple possession under state law (usually $200 fine and community service) to multiple years in prison. In general, the state penalties are less severe. However, under both state and federal law, cultivation of more than (6) plant is classified as a serious criminal offense, called a felony. A felony conviction can have serious consequences on people’s lives, including the denial of  voting rights, denial of access to public benefits like food stamps, suspension of driver’s licenses, and limitations on work options. In addition, any marijuana conviction will result in convicted parties being ineligible for federal student financial aid for a certain period of time.

You should also note that state and federal law may significantly increase the potential punishment for any drug offenses in close proximity to schools or any drug offenses where the accused also possesses a gun. If you want to possess or cultivate medical marijuana, you should seriously consider these potential penalties before proceeding.

For details on Colorado’s marijuana sentencing laws for non-medical possession, see NORML’s informative webpage at: http://norml.org/index.cfm?Group_ID=4526&wtm_view=penalties.

For details on the federal sentencing guidelines for marijuana offenses, see: http://www.pbs.org/wgbh/pages/frontline/shows/dope/laws/feds.html

DISCLAIMER: The discussion of the Court Process in this section is strictly a discussion of the state court process. While the federal court process is similar, it is not always identical. Discuss the federal legal system with a qualified attorney if you are charged under federal law.

A. Arraignment

When you are released from jail, the Court will set an arraignment date. An arraignment is a hearing where the Court explains the formal charges against you and explains your rights to be represented by an attorney. If you have an attorney by that time, the attorney will attend, and you will normally enter a plea of guilty or not guilty. In medical marijuana cases, it is normally advisable to plead not guilty and request a jury trial in order to preserve these rights for later.

If you do not have an attorney at the first arraignment date, you may want to request a continuance to give you more time to obtain the help of an attorney. If possible, do not enter a plea without first consulting an attorney. If the judge insists that you enter a plea at that first arraignment, it is usually best to enter a plea of not guilty and request a jury trial.

Finally, at the arraignment, you or your attorney should also request a pre-trial conference with the District Attorney’s office to discuss the case.

B. Pre-trial Conference

A pre-trial conference is an opportunity to explain your case in detail to the District Attorney’s Office. The District Attorney’s office has the power to dismiss the case "in the interests of justice." You and your attorney should prepare for the pre-trial conference by making copies of your Colorado medical marijuana card and copies of the state law. Assuming your activities were within the limits allowed by the Colorado law, the District Attorney should agree to dismiss the case.

A pre-trial conference is also an opportunity to explain why the police search may have been illegal. For example if the warrant was invalid, or the police had no reasonable suspicion to suspect that you were engaging in illegal activity, all the evidence obtained by the police in the raid may be inadmissible in Court.  If the search was illegal, you may consider asking the Court to suppress the evidence. The Court may grant a hearing on this issue alone, called a motions hearing, to determine if the search was proper.

Depending on the facts of the case, the District Attorney may also offer you a plea bargain during the pre-trial conference. For example, if you were initially charged with the most serious type of crime called a felony, the District Attorney may offer to reduce that charge to a less serious crime called a misdemeanor. Consult with your attorney to determine if accepting a plea bargain is in your best interest. In some cases, such as where a patient may have had more plants or loose marijuana than allowed by state law, it may be wise to accept a plea bargain to avoid the possibility of a more serious penalty at trial. Plea bargains must be approved by the Court at a future court date.

C. Trial

If your case is not dismissed by the District Attorney, or if you do not accept a plea bargain, you have the right to go to trial. If you are a legitimate medical marijuana patient, you should discuss with your attorney the possibility of using the trial process to draw media attention to your case. Media attention and public outcry may convince the District Attorney to drop the case before trial.

At trial you have the right to testify, but the burden is on the state to prove that you violated the law. You do not have to testify. You have the right to present witnesses, including medical experts, to show that you are a legitimate medical marijuana patient. The case may be tried in front of a judge or jury, depending on the severity of the charges (only crimes that entail a possibility of over one year in jail entitle you to a jury trial). A trial ends with a verdict of guilty, not guilty, or a hung jury. If you get a hung jury, the District Attorney could decide to re-try the case.

The Judge is responsible for imposing a sentence if you are found guilty. Before sentencing, you or your attorney will have another chance to make a plea for leniency based on the fact you are a medical marijuana patient. This presents an opportunity to pack the courthouse with sympathetic people and media to raise awareness of the issue.

If the charges are dropped before trial, or if you are found not guilty at trial, you have a right under Colorado law to a return of all property seized from you by the police during the raid. If the case is dismissed, the District Attorney should normally request that the police return all seized property. Make sure to ask the District Attorney to specifically request the return of your property if the case is dismissed. Be sure to read Sensible Colorado’s Instructions for Filing a Motion for Return of Property as available in the Brief Bank section of this website.

After your property is returned, make sure everything that was taken was returned. If something is missing, or if the police refuse to return certain items, you or your attorney will need to make a motion to the Court to order the police to return your property. If the police refuse to comply with the Court’s order, the Court can hold them in contempt. In addition, if the police destroy your property (such as the marijuana plants) and are unable to return them, you should discuss with your attorney the possibility of a civil lawsuit against the police for your damages caused by the police destroying your property.

As a general matter, if you are a properly licensed medical marijuana patient or caregiver under Colorado law, your property should not be subject to seizure and forfeiture by state or local police. In addition, your landlord’s property should also not be subject to seizure or forfeiture by state or local police because the landlord is not sanctioning or assisting an illegal activity under state law. However, as noted above, it is possible that you or your landlord could remain subject to asset forfeiture from the federal government because any use of marijuana remains illegal under federal law. Before deciding to start a medical marijuana garden in a home you own or rent, you should consult an attorney to determine the potential risk of such activity.

For a general explanation of asset forfeiture laws under federal and state law, see the Drug Policy Foundation’s report at: http://www.drugpolicy.org/docUploads/Asset_Forfeiture_Briefing.pdf

For an explanation of asset forfeiture law under Colorado state law, see CCJRC’s website, at: http://www.ccjrc.org/leg-2002-1404.shtml

Some medical marijuana patients are convicted of other criminal offenses that require them to be put on probation. A common condition of probation is that the person on probation refrain from drug or alcohol use during the period of probation. Drug tests are commonly used to determine if the person is complying with probation. A violation of probation can result in the person being sent back to jail. Medical marijuana patients may encounter problems with their probation officers if they test positive for marijuana while on probation. Probation officers around Colorado have different degrees of understanding of the medical marijuana law. 

Recently, the Colorado Court of Appeals in People v. Watkins ruled that a judge may never permit a medical marijuana patients to use medical marijuana on probation. This case is currently on appeal to the Colorado Supreme Court by the American Civil Liberties Union with Sensible Colorado's own Brian Vicente and Joshua Kappel working as cooperating ACLU attorneys. 

If you are currently on probation and use medical marijuana, you may be subject to probation revocation. Notably, a judge is not required to revoke your probation due to your medical marijuana use, but is permitted too. A judge's decision not to revoke an individual's probation cannot be appealed by the District Attorney. 

Colorado’s medical marijuana laws also authorize certain individuals to cultivate and sell medical marijuana to any patient or produce medical marijuana infused product that can be sold at any licensed retail outlet. Lawfully operating such a business requires compliance with over 150 pages of state laws and regulations in addition to any local laws and regulations. It is highly recommended that anyone interested in opening such a business consult with an attorney experienced in Colorado’s Medical Marijuana Code.

Notably, at this time, only two year residents of Colorado can own a medical marijuana business or work at a medical marijuana center. In addition, anyone with a drug felony, any felony conviction in the last five years, or bad moral character cannot own a medical marijuana business.

Nonetheless, the sale or distribution of marijuana remains illegal under federal law, even for strictly medical purposes and even by those with state and local licenses to operate such a business.

In U.S. v. Oakland Cannabis Buyers’ Cooperative, the federal government challenged the ability of medical marijuana distribution centers to provide patients with marijuana. In 1999, the Ninth U.S. Circuit Court of Appeals ruled 3-0 that “medical necessity” is a valid defense against federal marijuana distribution charges if a distributor can prove that the patients it serves are seriously ill, face imminent harm without marijuana, and have no effective legal alternatives. In 2001, the US Supreme Court overturned the 9th Circuit and held there is no medical necessity defense for marijuana manufacture and distribution. However, as noted, the Supreme Court did not decide if there might still be a medical necessity defense for individual patients possessing marijuana for medical purposes.

In 2006, in Gonzales v. Raich the US Supreme Court held that the federal government could enforce the Controlled Substance Act even in states where medical marijuana was permitted under state law. 

Parties interested in starting a medical marijuana business should consult with an attorney or Sensible Colorado for more information. There are numerous legal pitfalls that make such an endeavor ripe with problems. Carelessly starting a medical marijuana business  could subject the operators of such an establishment to serious state and federal felony prosecution, regardless of whether the operators are licensed medical marijuana patients.

Caregivers can only purchase medicine from a medical marijuana center on behalf of a patient if that patient is designated as homebound. Caregivers may  purchase clones from a medical marijuana center even if their patients are not designated as homebound. Caregivers can purchase medicine at a medical marijuana center if they are also a patient. 

Sensible Colorado provides the following legal briefs and motions for educational purposes only. Parties must consult with an attorney or Sensible Colorado before attempting to use these briefs in their cases. The following briefs and motions are intended to be used by criminal defense attorneys to help defend medical marijuana patients. Sensible Colorado provides no guarantees that the following briefs and motions will be successful in any individual case. Every case is different and patients and their attorneys are strongly encouraged to individualize the following briefs or motions before submitting them to the Court.

1. Motion to Dismiss Marijuana Charges – Download PDF or Download Word Document
2. Instructions for Filing a Return of Property Motion – Download PDF or Download Word Document
3. Motion for Return of Property – Download PDF or Download Word Document
4. Order for Return of Property – Download PDF or Download Word Document
5. Letter to Clerk for Return of Property – Download PDF or Download Word Document
6. Motion for Contempt – Download PDF or Download Word Document
7. Motion for Sanctions – Download PDF or Download Word Document
8. Motion to Suppress – Download PDF or Download Word Document
9. Motion to Clarify Probation Rights – REMOVED PENDING A DECISION BY THE COLORADO SUPREME COURT IN PEOPLE V. WATKINS. 
10. Jury Instructions – Download PDF or Download Word Document

Finding a doctor is the first and most important step in becoming a legal medical marijuana patient. Sensible Colorado feels the safest and most responsible thing to do is to talk with your current doctor about medical marijuana. You should consider approaching your doctor in the following manner.

1. Explain to the doctor your condition and that you qualify for medical marijuana under state law. Tell your doctor that you are suffering from one of the illnesses or symptoms that allow you access to medical marijuana in Colorado. 
2. Tell your doctor about your experiences using conventional medicine (not marijuana) and how those medicines did not help. Tell the doctor (if appropriate) that you have used marijuana before and it has helped with your condition.
3. Present your doctor with a copy of Colorado’s medical marijuana constitutional amendment. 
4. Ask your doctor to write you a recommendation for medical marijuana. This recommendation form can be printed off at the Health Department's website. 

If you have further questions or would like more information about medical marijuana and your illness please contact Sensible Colorado here.

Sensible Colorado can help direct you towards a doctor, however, we do not refer people to caregivers or dispensaries. To find a medical marijuana doctor specialists click here.

Colorado law does not explicitly address the issue of patients joining together to form cannabis collectives or cooperatives to more effectively grow and dispense medicine to patients. However, Colorado law does explicitly ban caregivers from coming together to form cooperatives or collective, or hire anyone to help them distribute or cultivate medical marijuana to their five patients.

In, 2009 the U.S. Department of Justice issued a memorandum stating ("Ogden Memo") that it was not a wise use of resources to prosecute medical marijuana patients and caregivers who were in “clear and unambiguous” compliance with state law. Patient cooperatives are not addressed in our law so it is difficult to imagine how operating such a collective could be in "clear and unambiguous" compliance with state law. 

Landlords may attempt to evict licensed medical marijuana patients from their rental homes or apartments based on growing or possessing medical marijuana even though such activities are legal under state law. In addition, local city attorney’s have the power to attempt to coerce landlords to evict medical marijuana patients based on a theory that such activities create a public nuisance. Under federal law, ANY marijuana use in federally subsidized housing is prohibited. However, HUD has issued a memorandum stating that each local housing authority has the discretion as to whether or not they will evict patients due to their use of medical marijuana. 

 When negotiating whether you will be renting a house or apartment, you do not need to alert your landlord to your patient status because of your right to medical privacy (just as you would not need to alert your landlord to prescription medication). However, it is wise to ask about your neighbors and their lifestyles, so that you can get a sense of whether they are likely to be offended by the smell of smoke and whether there are children in close proximity to your prospective apartment.

Also, when examining a lease, if you see a provision requiring you to obey all state and federal law, you may want to try to change it so that it only requires compliance with state law. You probably do not want to try to insert explicit language into the lease allowing you to possess or cultivate medical marijuana, as it creates more risk for you and your landlord, and some landlords will actively balk at such a provision and may decide to lease to a non-patient. Ultimately, you should think about inserting a provision in the lease that says, “There shall not be a breach of this contract if the tenant is complying with Colorado state law,” which is less obvious, but should hopefully extend you some protections.

As discussed above, you will need to decide whether or not to be honest with your landlord about your activities. If you decide not to tell your landlord, you should consider making sure that your landlord will always provide you with at least 24 to 48 hours notice before entering your rented premise. Most residential leases do not automatically include such a provision. Therefore, you will need to write such a provision into your lease and make clear to your landlord that you want advance notice to protect your privacy.

Patients experiencing the threat of eviction should consult with an attorney or Sensible Colorado to determine the appropriate course of action.

Colorado law does not provide any special protections or rights for medical marijuana patients in relation to their employment. Employment in Colorado is generally on an “at-will” basis, meaning that employers generally have the right to fire employees at any time for any reason (other than for discriminatory or retaliatory reasons). In addition, many employers have drug testing programs. Even if you are a licensed medical marijuana patient, an employer may still require you to take a drug test, and may still fire you for a positive test. Some employees are hired with employment contracts. Employment contracts can be negotiated to protect a medical marijuana patient from being fired based on use of their medicine.

Currently, a number of cases have been brought forward to find protection for Colorado patients under Colorado's Lawful Off Duty statute, C.R.S. 24-34-402.5. This statute was enacted in the earlier 1990s to protect smokers from discrimination by their employers. To date, no Colorado court has ruled that the lawful off duty statute applies to medical marijuana.  For more information on employment and MMJ check out an employment attorney, Kim Ryan's blog.

Currently, the awarding of unemployment benefits to a medical marijuana patient who was fired due to their status as medical marijuana is an unanswered question in the Colorado courts - one case is currently in front of the Colorado Supreme Court, Beinor v. ICAO. Regardless, numerous fired patients have received unemployment benefits.

If you have questions about this issue, consult with Sensible Colorado or your own attorney for more information.

With medical marijuana permitted in 16 states, it is often confusing what other states, if any, permit Colorado MMJ registry cardholders to use the medicine their doctor recommends. In fact, every Colorado MMJ registry card states that it is “valid only in Colorado.”  This issue is further clouded with the rumors that various airports allow medical marijuana cardholders to fly with their medicine (Oakland, LAX, DIA etc.). 

 First: a little clarity on airports. Currently, it appears the Transportation Security Administration’s (TSA) position is to refer all marijuana related incidents to the local authorities.  In states where medical marijuana is permitted, many patients find success flying out of their local airport with their medicine. However, other patients are not so successful.

 Traveling across state lines with an illegal substance is extremely risky for a number of reasons. Interstate drug trafficking, by its very nature, stokes the ire of the federal government; not to mention, TSA officials are federal employees and technically could refer you to federal law enforcement authorities. Some state drug laws also include harsher sentences for bringing in drugs from out-of-state.  More importantly though, medical marijuana is not legal in most states and even in the states that do permit it, only a few recognize a Colorado MMJ registry card. Patients are routinely arrested in states that permit medical marijuana, but do not recognize out-of-state medical marijuana registry cards. 

 Some states, like Rhode Island and Michigan do permit Colorado medical marijuana patients to use their medicine, provided the patient is in possession of their Colorado Registry Card and follow the limitations of that state’s medical marijuana law. Arizona law protects out-of-state registry cardholders from arrest, but prohibits them from obtaining their medicine at any state licensed business.  In short, each state’s law is different, and it’s crucial that patients learn these laws before travelling

 Below is a list of the states that recognize Colorado medical marijuana registry cards. It’s worth noting that laws change routinely, so please read the most current versions of state laws before you try to bring or buy your medicine there.

 States that Provide some Protection for Colorado MMJ Patients

 Arizona, Delaware, Maine, Michigan, Rhode Island

States that Do Not Recognize  CO MMJ Registry Cards:

 Alaska, California, Hawaii, Montana, Nevada, New Jersey, New Mexico, Oregon*, Vermont, Washington,

District of Columbia

*Out of state residents may apply for state MMJ registry card

The best solution to end the conflict between federal and state medical marijuana laws would be for Congress to change federal law to allow states to legalize the medical use of marijuana free from federal prosecution. To date, all such legislative efforts have been unsuccessful.

For several years, Congress has been considering the Hinchey-Rohrabacher Amendment, which would order the DEA to stop arresting and imprisoning state licensed medical marijuana patients. You should consider contacting your local US Congressperson to share your views on this issue.

Another option would be for the federal government to reschedule marijuana to something lower than a Schedule I drug. A Schedule I drug is a drug defined as having a high potential for abuse or addiction and no known medical value. Doctors cannot prescribe Schedule I drugs. Medical marijuana is the exact opposite of a Schedule I drug: it is rarely addictive and has many medical uses. However, the federal government has resisted rescheduling marijuana for years. US Representatives Jared Polis has introduced multiple bills to reschedule marijuana to Schedule II to allow it to be prescribed by doctors. You could consider calling your US Congressperson and expressing your position on marijuana rescheduling. 

To change any information on your Colorado Medical Marijuana Registry Card, including your name, please complete Medical Marijuana Form 1003. 

There is no requirement that you provide the doctor with a copy of your card.  However, you could go to his office and show him your card. In this way, you would not be duplicating the card and you would probably satisfy his request. Generally, its fine to make a black and white copy of your card, just do not attempt to create a new one for someone else to use.