DISCLAIMER: This information is intended for educational purposes only. No reliance, expressed or implied, may be made on the information on this page or on any of its links. Any persons considering applying for a medical marijuana card in the State of Colorado should consult an attorney first. This webpage and its related links do not advocate that anyone violate state or federal law. Sensible Colorado is not responsible for any damages incurred as a result of your reliance on the educational information on this page.

Legal Information

ALLOWABLE AMOUNTS OF MARIJUANA FOR PATIENTS AND CAREGIVERS UNDER STATE LAW

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.

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PROTECTIONS IN THE LAW FROM STATE OR LOCAL PROSECUTION

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.

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POTENTIAL FOR FEDERAL PROSECUTION

Despite the protections under state law, licensed Colorado medical marijuana patients 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 recent case of Raich v. Gonzales, the US Supreme Court decided that the federal Controlled Substances Act supercedes all 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.

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BEING A GOOD PATIENT – BASIC PRECAUTIONS TO LESSEN YOUR CRIMINAL LIABILITY

• 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.
• 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.

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WHAT TO DO WHEN POLICE STOP YOU OR SHOW UP AT YOUR DOOR.

1. Dealing with the Police can be stressful.  Remain calm and remember to assert your rights.
2. 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."

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WHAT TO DO IF YOU ARE RAIDED BY STATE OR LOCAL POLICE - KNOW YOUR RIGHTS

• 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/

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WHAT TO DO IF YOU ARE RAIDED BY FEDERAL AGENTS - KNOW YOUR RIGHTS

• 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.

Download CCSA’s Emergency Response Handbook: Responding to a DEA Raid [PDF]

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WHAT HAPPENS IF YOU ARE ARRESTED

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.

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IMMEDIATELY AFTER THE ARREST

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.

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STATE AND FEDERAL PENALTIES FOR NON-MEDICAL POSSESSION CULTIVATION OR DISTRIBUTION OF MARIJUANA

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 $100 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 only one (1) 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 loans.

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

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THE COURT PROCESS

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.

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RETURN OF YOUR PROPERTY

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.

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ASSET FORFEITURE

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/leg20021404.htm

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CAN I USE MEDICAL MARIJUANA WHILE ON PROBATION?

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. If your probation officer insists on seeking to punish you for using medical marijuana, you may need to file a motion with the court to order the probation officer to allow you to use the medical marijuana. Consult Sensible Colorado or a criminal defense attorney for more information on this issue. You can also see Sensible Colorado’s Brief Bank for examples of motions to the Court on this issue.

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