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BRIEF REVIEW OF CURRENT LEGAL ISSUES REGARDING MEDICAL MARIJUANA IN THE STATE OF COLORADO

2000

In the November 2000 general election Colorado Voters passed Amendment 20 allowing patients with a qualifying medical condition to use medical marijuana.  The Colorado Department of Health and Environment is the state agency that is assigned to administer the Medical Marijuana Registry.

2001

In March of 2001 the State of Colorado Board of Health approved the Rules and Regulations pertaining to the administration of the program.  In June of 2001 the Registry began accepting and processing applications for Registry Identification cards.

2004

Colorado Department of Health conducted a closed meeting and set the limit of patients a care giver could have to 5.

2007

July 10, 2007, The Honorable Judge Naves issued an injunction suspending the Colorado Department of Health and Environment's limitation on the number of patients a caregiver.  Basically stating that the Department of Health did not get enough public input.

Judge Naves scolded government officials for holding meetings in secret and arbitrarily denying the constitutional rights of patients. Judge Naves also indicated the defendants (State of Colorado, Govenor Bill Ritter, Health Department Director James Martin, and Rondald Hyman, chief for the department’s medical marijuana program) did not rely on scientific evidence to determine the limit, stated “It’s very unfair to these plaintiffs” and that his decision was not even close holding that the State had made a “capricious decision” to impose the limit.  Judge Naves added in that the closed-door decision served as an “abuse of discretion” in violation of Colorado law.

July 20, 2009

Colorado Department of Health held a meeting and allowed input from the public including law enforcement, district attorneys, attorneys, Medical doctors, Care-givers, patients and anyone else that wanted to address the issues.  The Colorado Department of Health voted to:

  • Not put a limit on the number of patients a care-giver could have,
  • Change the definition of care-giver to be a person that only had to provide medicine to a patient
  • Require applications and change forms be notarized.

One of the concerns of the Department of Health had was if they could create rules that would circumvent the constitution.

These rules went into affect August 30, 2009.

October 19, 2009

The Department of Justice, U.S. Attorney Ogden issues a memo to clarify and provide guidance to federal prosecutors in states that allow medical marijuana .  This memo is now known as the Ogden memo .

Subject: Authorizing the medical use of Marijuana

          Prosecuting individuals using marijuana for qualifying medical conditions         and their care-givers would not be an efficient use of federal resources when those patients and care-givers are following state law.

October 29, 2009

People v. Clendenin

Ms. Clendenin’s home was raided in 2006.  Ms. Clendenin was charged with cultivation of marijuana.  The trial court refused to allow her patients to testify if they had not previously met Ms. Clendenin.  She was subsequently convicted.  Her Attorney appealed the conviction to the Court of Appeals.

The Colorado Appeals Court ruled that a person designated as a medical marijuana caregiver must do more than supply the medicine to patients and that the Care-giver must know her patients.  The Court of Appeals affirmed the trial court’s ruling.

Ms. Clendenin was charged and convicted when the Colorado Department of Health’s rule was that a Care-giver had to do more than provided medical marijuana to a patient in order to be a care-giver.  This case will likely be appealed to the Colorado Supreme Court.

The Colorado Department of Health and Environment changed its rule July 20, 2009.  According to the new rule, a care-giver only needs to provide medical marijuana to be classified as a care-giver.  

November 3, 2009

The Colorado Department of Health conducted an “emergency meeting,” changing the definition of care-giver back to a person that must provide more than medical marijuana and removing the language that the care-giver has “significant responsibility for managing the well-being of a patient.”  The Department informed the audience that they were not going to taking public input regarding the rule changes.  These rules were scheduled to go into effect December 16, 2009.

Some of the examples of additional services are transportation, meal preparation, or house cleaning.

November 5, 2009

          An injunction was filed against the Colorado Department Health and Environment regarding the rule changes.

November 10, 2009

          Judge Naves ruled that the Colorado Department of Health broke the law when if changed the definition of care-giver requiring that a care-giver provide more than just medical marijuana.  Judge Naves said "There was no consideration of how the plaintiffs and others who are in need of medical marijuana would obtain it.  "The board's action November, 3 violated the law and is, therefore, invalid and void."  The Judge also awarded attorney fees to medical marijuana advocate attorneys Brian Vicente and Rob Corry.

January 13, 2010

The Colorado General Assembly takes up the issue of Colorado's Medical Marijuana law for the legislative session.  Sen. Chris Romer (D-Denver) is the bill's main sponsor in the Senate, and Rep. Tom Massey (R-Poncha Springs) is going to be the House sponsor of the bill.

June 7, 2010

Governor Ritter signs HB 10-1284, creating Medical Marijuana Centers, Optional Premises Cultivation Centers, and Medical Marijuana-Infused Product Producers and limiting what Caregivers are permitted to do.

The Colorado Department of Revenue, Medical Marijuana Enforcement Division is designated as the governmental agency that will regulate and enforce the industry.

Governor Ritter signs Senate Bill 10-109 which is the regulations regarding  physicians who sign medical marijuana recommendations.

April 26, 2011

United States Attorney for the District of Colorado, John Walsh, responds with a memo, requested by Colorado Attorney General John Suthers regarding the Federal Government’s position of Medical Marijuana.

The memo attempts to clarify the memo from United States Attorney Ogden issued on October 9, 2009.

Walsh’s memo points out that marijuana is illegal under Federal law Tilte 21 of the United States Code.  It attempts to clarify the Ogden Memo indicating the Federal Government does not think the best use of its limited Federal resources is to go after serious ill-patients and the people that care for them.

The Walsh memo states that going after businesses involved in marijuana, including medical marijuana remains a core priority of the Federal Government.  The memo suggest that Colorado Governmental employees are also at risk of prosecution for regulating medical marijuana businesses.  Likewise, property associated with the use of medical marijuana is subject to civil forfeiture.

Similar memo’s have been distributed in other states that allow the use of medical marijuana:        

  • February 1, 2011 - United States Attorney for the Northern District of California, Melinda Haag, issues the “Haag Memo” to the City of Oakland,
  • April 12, 2011 - United States Attorney for the District of Hawaii, Florence T. Nakakuni issues a memo to the State of Hawaii,
  • April 14, 2011 - United States Attorneys for the District of Washington, Jenny Durken U.S. Attorney for the Eastern District and Michael C. Ornsby U.S. Attorney for Western District issue a memo to the State Governor.
  • April 20, 2011 United States Attorney for the District of Montana, Michael W. Cotter issues a memo to the Senate President and Speaker of the House of Representatives

June 7, 2011

Governor Hickenlooper signs House Bill 11-1043 further regulating medial marijuana businesses.

July 1, 2011

The majority of HB10-1284 takes effect.  The Colorado Department of Revenue, Medical Marijuana Enforcement has promulgated 73 pages of rules that Medical Marijuana Businesses must comply with.

Exploring patient/caregiver rights? Black & Graham can help.

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