by Ed Bruder
In full disclosure, I am a Trustee for the Town of Lyons, a patient advocate member of the Department of Revenue’s (DoR) Medical Marijuana Working Group, I am a patient myself, a caregiver, and a current business license holder. At this time I have NO financial interest in any medical marijuana business. I write this as an individual member of these various communities. I don’t speak for the Board of Trustees (BOT), and I don’t speak for anyone else but myself.
This week I am going to focus on some of the key points of Amendment 20 - the amendment to the Colorado State Constitution that provides protections and guidelines related to
the medical use of marijuana. I will highlight the provisions specific to patients and caregivers, the debilitating medical conditions for which medical marijuana can be recommended and it’s legal protections.
Here are some useful terms, definitions and details from ARTICLE XVIII - Section 14. “Medical use of marijuana for persons suffering from debilitating medical conditions.”
As used in this section, these terms are defined as follows:
(a) “Debilitating medical condition” means:
(I) Cancer, glaucoma, positive status for human immunodeficiency virus, or acquired immune deficiency syndrome, or treatment for such conditions;
(II) A chronic or debilitating disease or medical condition, or treatment for such conditions, which produces, for a specific patient, one or more of the following, and for which, in the professional opinion of the patient’s physician, such condition or conditions reasonably may be alleviated by the medical use of marijuana: 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; or
(III) Any other medical condition, or treatment for such condition, approved by the state health agency, pursuant to its rule making authority or its approval of any petition submitted by a patient or physician as provided in this section.
(b) “Medical use” means the acquisition, possession, production, use, or transportation of marijuana or paraphernalia related to the administration of such marijuana to address the symptoms or effects of a patient’s debilitating medical condition, which may be authorized only after a diagnosis of the patient’s debilitating medical condition by a physician or physicians, as provided by this section.
(d) “Patient” means a person who has a debilitating medical condition.
(f) “Primary care-giver” means a person, other than the patient and the patient’s physician, who is eighteen years of age or older and has significant responsibility for managing the well-being of a patient who has a debilitating medical condition.
(i) “Usable form of marijuana” means the seeds, leaves, buds, and flowers of the plant (genus) cannabis, and any mixture or preparation thereof, which are appropriate for medical use as provided in this section, but excludes the plant’s stalks, stems, and roots.
This section defines the conditions required for the legal protection of the patients and caregivers.
(2) (a) Except as otherwise provided in subsections (5), (6), and (8) of this section, a patient or primary care-giver charged with a violation of the state’s criminal laws related to the patient’s medical use of marijuana will be deemed to have established an affirmative defense to such allegation where:
(I) The patient was previously diagnosed by a physician as having a debilitating medical condition;
(II) The patient was advised by his or her 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 a debilitating medical condition; and
(III) The patient and his or her primary care-giver were collectively in possession of amounts of marijuana only as permitted under this section.
This affirmative defense shall not exclude the assertion of any other defense where a patient or primary care-giver is charged with a violation of state law related to the patient’s medical use of marijuana.
(b) Effective June 1, 2001, it shall be an exception from the state’s criminal laws for any patient or primary care-giver in lawful possession of a registry identification card to engage or assist in the medical use of marijuana, except as otherwise provided in subsections (5) and (8) of this section.
In Amendment 20 it is clearly stated that this protection is limited to the medical use of marijuana only; Notwithstanding the foregoing provisions, no person, including a patient or primary care-giver, shall be entitled to the protection of this section for his or her acquisition, possession, manufacture, production, use, sale, distribution, dispensing, or transportation of marijuana for any use other than medical use.
One area that differs between Amendment 20 and HB-1284 is how law enforcement must handle the property (marijuana plants, medicine, or related paraphernalia) of a patient or caregiver, as opposed to the handling requirements when the entity involved is licensed pursuant to HB-1284.
In the event a Medical Marijuana Center’s (MMC) live plants are seized, there is no requirement in HB-1284 that law enforcement must maintain the plants through out the investigation or trial. In fact, it goes one step further and states that “(2) Final judgment of conviction in such proceedings, or any other final civil, criminal, or administrative judgment establishing that there is no valid claim of medical marijuana in relation to such property, shall be a bar to any suit for the recovery of any such property so seized or the value of the same or for damages alleged to arise by reason of such seizure or detention.”
HB-1284 doesn’t even bother to address what happens if the plants are wrongfully seized. The foundation for this authority is located in 43.3-907 “A. Notwithstanding the provisions of section 14 or Article XVIII of the State Constitution, there shall be no property rights of any kind in any medical marijuana, edibles, tinctures, oils or other substances containing medical marijuana, vessels, appliances, fixtures, bars, furniture, implements, wagons, automobiles, trucks, vehicles, contrivances, or any other things or devices used in or kept for the purpose of violating any of the provisions of article 43.3 of title12, C.R.S.”
Amendment 20 extends specific protections to the patients and caregivers property, and directs law enforcement how to act. This provision of Amendment 20 is of particular concern for law enforcement and their corresponding municipalities, because it holds them financially responsible for any harm that comes to a patient’s or caregiver’s plants if they are seized.
(e) Any property interest that is possessed, owned, or used in connection with the medical use of marijuana or acts incidental to such use, shall not be harmed, neglected, injured, or destroyed while in the possession of state or local law enforcement officials where such property has been seized in connection with the claimed medical use of marijuana. Any such property interest shall not be forfeited under any provision of state law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense or entry of a plea of guilty to such offense. Marijuana and paraphernalia seized by state or local law enforcement officials from a patient or primary caregiver in connection with the claimed medical use of marijuana shall be returned immediately upon the determination of the district attorney or his or her designee that the patient or primary care-giver is entitled to the protection contained in this section as may be evidenced, for example, by a decision not to prosecute, the dismissal of charges, or acquittal.
The sanctity of patient confidentiality is specifically addressed in Amendment 20.
(a) No person shall be permitted to gain access to any information about patients in the state health agency’s confidential registry, or any information otherwise maintained by the state health agency about physicians and primary care-givers, except for authorized employees of the state health agency in the course of their official duties and authorized employees of state or local law enforcement agencies which have stopped or arrested a person who claims to be engaged in the medical use of marijuana and in possession of a registry identification card or its functional equivalent, pursuant to paragraph (e) of this subsection (3). Authorized employees of state or local law enforcement agencies shall be granted access to the information contained within the state health agency’s confidential registry only for the purpose of verifying that an individual who has presented a registry identification card to a state or local law enforcement official is lawfully in possession of such card.
This often misunderstood fact speaks to the number of plants a patient or caregiver may legally have in their possession;
(4) (a) A patient may engage in the medical use of marijuana, with no more marijuana than is medically necessary to address a debilitating medical condition. A patient’s medical use of marijuana, within the following limits, is lawful:
(I) No more than two ounces of a usable form of marijuana; and
(II) No more than six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana.
(b) For quantities of marijuana in excess of these amounts, a patient or his or her primary care-giver may raise as an affirmative defense to charges of violation of state law that such greater amounts were medically necessary to address the patient’s debilitating medical condition.
Beyond the aforementioned protections contained in Amendment 20, there are also circumstances and potential violations that will have ones registry card revoked, and lead to a lawful arrest.
(5) (a) No patient shall:
(I) Engage in the medical use of marijuana in a way that endangers the health or well-being of any person; or
(II) Engage in the medical use of marijuana in plain view of, or in a place open to, the general public.
(b) In addition to any other penalties provided by law, the state health agency shall revoke for a period of one year the registry identification card of any patient found to have willfully violated the provisions of this section or the implementing legislation adopted by the general assembly.
(6) Notwithstanding paragraphs (2) (a) and (3) (d) of this section, no patient under eighteen years of age shall engage in the medical use of marijuana unless:
(a) Two physicians have diagnosed the patient as having a debilitating medical condition;
(b) One of the physicians referred to in paragraph (6) (a) has explained the possible risks and benefits of medical use of marijuana to the patient and each of the patient’s parents residing in Colorado;
(c) The physicians referred to in paragraph (6) (b) has provided the patient with the written documentation, specified in subparagraph (3) (b) (I);
(d) Each of the patient’s parents residing in Colorado consent in writing to the state health agency to permit the patient to engage in the medical use of marijuana;
(e) A parent residing in Colorado consents in writing to serve as a patient’s primary care-giver;
(g) The state health agency approves the patient’s application and transmits the patient’s registry identification card to the parent designated as a primary care-giver;
(h) The patient and primary care-giver collectively possess amounts of marijuana no greater than those specified in subparagraph (4) (a) (I) and (II); and
(i) The primary care-giver controls the acquisition of such marijuana and the dosage and frequency of its use by the patient.
(a) Fraudulent representation of a medical condition by a patient to a physician, state health agency, or state or local law enforcement official for the purpose of falsely obtaining a registry identification card or avoiding arrest and prosecution;
(b) Fraudulent use or theft of any person’s registry identification card to acquire, possess, produce, use, sell, distribute, or transport marijuana, including but not limited to cards that are required to be returned where patients are no longer diagnosed as having a debilitating medical condition;
(c) Fraudulent production or counterfeiting of, or tampering with, one or more registry identification cards; or
(d) Breach of confidentiality of information provided to or by the state health agency.
(h) A patient who no longer has a debilitating medical condition shall return his or her registry identification card to the state health agency within twenty-four hours of receiving such diagnosis by his or her physician.
Additionally, it is incumbent on law enforcement to report violations to the medical marijuana registry.
(g) Authorized employees of state or local law enforcement agencies shall immediately notify the state health agency when any person in possession of a registry identification card has been determined by a court of law to have willfully violated the provisions of this section or its implementing legislation, or has pled guilty to such offense.
As you can see, there are serious problems for any municipality looking to restrict the lawful conduct of a patient, or a caregiver, protected by Amendment 20. However, there are already enforceable measures, with serious consequences that can be taken against individuals acting outside the boundaries of what is allowed.
This week’s fun fact
In 1999, the U.S. Government’s Institute of Medicine reported that cannabis has medicinal value. Then, in 2003 the U.S. Government, as represented by the Department of Health and Human Services, was awarded a patent on cannabinoids as antioxidants and neuroprotectants. (U.S. Patent 6630507)