Amendment 20-Leagalized Marijuana Part 1

Constitutional Amendment

Colorado Amendment 20 is a citizen initiated amendment to the Colorado Constitution. The initiative added Section14 to the Colorado Constitution and created an affirmative defense, under specific circumstances, to State marijuana criminal charges. The affirmative defenses only apply in circumstances where there is medical use of marijuana. To qualify for such use, a patient, as defined by the amendment, must first register as a medical marijuana user with the Colorado Department of Public Health and Environment. This is accomplished by providing the Department with his/her name, address, date of birth, social security number, his/her physician's name, address and telephone number, along with the name and address of the patient's primary care-giver, if one is designated at the time of application. The application includes the physician's recommendation that the patient suffers from a “debilitating medical condition” (as defined by the act) and that medical use of marijuana might benefit the patient

Debilitating Conditions

Debilitating medical conditions are defined as cancer, glaucoma and positive status for HIV and/or AIDS. Also included in the definition are any chronic or debilitating disease or medical condition which produces cachexia, severe pain, severe nausea, seizures (including epileptic), persistent muscle spasms (including those from MS) or any other medical condition approved by the state health agency. The physician's recommendation is sufficient because the physician would violate federal law by prescribing marijuana, even for medical use.

Medical Use of Marijuana

The constitutional amendment defines medical use of marijuana as the acquisition, possession, use or transportation of marijuana or paraphernalia related to the administration of marijuana to address the symptoms of effects of the patient's medical debilitating condition.

Physician's Role

A physician is defined as a doctor of medicine, properly licensed and in good standing in Colorado. The patient must have been previously diagnosed by a physician as having a debilitating medical condition. The patient must also be advised by the physician, in the context of a bona fide physician-patient relationship, that the patient, might benefit from the medical use of marijuana in connection with her/her debilitating medical condition. The amendment includes limits on the amount of marijuana that the patient and/or care-giver may possess.

Care-Giver's Role

A patient has the right to appoint a care-giver, defined as a person (not a business or other entity) other than the patient's physician, 18 years of age or older, who has significant responsibility for managing the well-being of a patient who has a debilitating medical condition.

While the term "significant responsibility" is not defined by the amendment, it was recently judicially interpreted in People v. Clendenin to mean more than providing marijuana. In fact, Ms. Clendenin's attorney unsuccessfully made that very argument in the appeal of her criminal conviction. While the appeals court declined to specify what additional activities it considered necessary to prove “significant responsibility for managing the well-being of a patient who has a debilitating medical condition,” it reviewed extra-territorial authorities that defined a primary care-giver as one who took responsibility for the patient's “housing, health or care” or one who has consistently assumed responsibility for the patient's “housing, health or safety.”

Defense to Criminal Marijuana Charges

A patient or care-giver charged with violating Colorado's criminal laws related to the medical use of marijuana is deemed to have established an affirmative defense to such allegations Provided the patient and his/her care-giver comply with all aspects of Amendment 20.

This Medical Marijuana Minute © is brought to you by Medical Cannabiz Consultants, LLC. For additional information, please contact Jan at 720 298 0113. The Medical Marijuana Minute © is marketing information only and not intended to serve as legal advise. You should consult with an attorney if you have any questions about medical marijuana law. For additional information or to obtain reprints please contact Jan at 720 298 0113.

Understanding Clendenin, Part 1 - Colorado Medical Marijuana Caregiver Conviction Upheld

On October 29, 2009, the Colorado Court of Appeals upheld the criminal conviction of Stacy Clendenin, a Longmont medical marijuana care-giver. Ms. Clendenin was originally tried in Boulder County District Court, where a jury found her guilty of marijuana cultivation, possession of marijuana with intent to distribute (8 ounces or more), possession of marijuana concentrate and possession of drug paraphernalia.

Factual Background

Stacy Clendenin was brought to the attention of Longmont police as a result of an anonymous tip that her residence had “come and go” traffic. Investigation revealed that her power usage was 4 times higher than surrounding residences and 3 times higher than the previous resident's. The investigating officer also located 3 marijuana stalks in her trashcan. This was sufficient evidence for a judge to issue a search warrant. Ms. Clendenin cooperated with the investigating officer and showed him 2 grow rooms where she was cultivating 44 marijuana plants. Both the trial court and the appeals court upheld the search warrant and denied her motion to suppress this evidence. Investigation also revealed that Ms. Clendenin had personal contact with some, but not all, of her medical marijuana patients.

Legal Analysis
Primary Care-Giver Defense

Ms. Clendenin based her defense on several legal theories, some of which are fairly technical. Of utmost importance is the trial court's and the appeal's court rejection of her reliance on the affirmative defenses of “primary care-giver” and “end user” as defined by Colorado's medical marijuana constitutional amendment.

Colorado Constitution, Article XVIII, sec. 14(2) defines a primary care-giver as a person, over the age of 18, other than the patient or the patient's physician, who has significant responsibility for managing the well-being of a patient who has a debilitating medical condition.

Ms. Clendenin argued, in a manner that the appeal court found circular and absurd, that she qualified as a primary care-giver because the act of providing marijuana itself constitutes the significant responsibility required to be a care-giver. The trial court concluded that the definition of a primary care-giver, by law, does not include one who has no personal contact with her medical marijuana patients.

The appeals court also concluded that Ms. Clendenin did not meet the legal definition of a care-giver. However, its decision was on significantly different grounds that the trial courts. The appeals court concluded that “to qualify as a 'primary care-giver' a person must do more than merely supply a person with a debilitating medical condition with medical marijuana.” It elaborated that “the primary-care giver affirmative defense does not apply 'where the provision of marijuana is itself the substance of the relationship.'” Unfortunately, the appeals court did not specify what activities it would consider sufficient proof of care-provider relationship. While this is likely to be clarified by our state legislature, for now, the only legal definition of medical marijuana care-giver is one who has significant responsibility for managing a patient's well being by doing more than merely supplying marijuana.

This judicial determination has significant impact for care-givers and dispensaries. To avoid the risk of prosecution, it is critical that medical marijuana patients, care-givers and dispensaries understand what is required to comply with all aspects of Colorado's medical marijuana law.

This Medical Marijuana Minute © is brought to you by Medical Cannabiz Consultants, LLC. For additional information, please contact Jan at 720 298 0113.