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.

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