Amendment 20 regarding Medical Marijuana is a Valid Defense to Cultivation and Possession of Marijuana even without a License
*** These laws are very specific - the following information is a brief summary and is not meant to provide all necessary information for a specific situation. Before you put yourself at risk, sit down with a knowledgeable lawyer to discuss. ***
In Colorado, if a person suffers from a debilitating condition qualifying for medical use of marijuana. I recommend that person get a medical marijuana license. Just applying for a medical marijuana license provides a temporary safe harbor under the medical marijuana laws. Amendment 64 allows people over 21 years of age to possess and use marijuana for recreational purposes, but sales will be taxed at a higher rate. Some counties and cities will not allow recreational sales. Boulder will allow recreational marijuana sales, but at a higher tax rate.
But, if the person is charged with possession or cultivation of marijuana (among other charges) prior to getting a medical marijuana license, the person can still defend their case according to Amendment 20's Medical Marijuana provisions.
According to the Colorado Constitution, it is an affirmative defense to charges of possession and cultivation of medical marijuana. There is no registration requirement. A person who holds a medical marijuana license is exempt from the laws, but a person who does not may assert the affirmative defense.
Colorado Constitution, Article 18, Section 14
(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.
Special Offender Laws and Mandatory Prison
Among the problems with current law enforcement of medical marijuana cases is the nexus of the special offender law. CRS§18-18-407(1)(f), a special offender count subjecting a medical marijuana patient or caregiver to a minimum term of 8 years of prison up to 48 years of prison for using, displaying, possessing or having available for use a deadly weapon while committing the alleged felonies associated with medical marijuana. This applies to any felony drug charge. In addition, the definition of deadly weapon is extremely broad and could easily include a kitchen knife, as well as a gun, or even a bb gun, bottle, fist, foot, or shod foot.
If you could be accused of any felony drug charge, including cultivation of medical marijuana, possession of medical marijuana or distribution of medical marijuana, you should make certain that no guns are in the same area, meaning room, car and if possible building. I would also remove all knives and anything like a baseball bat.
That said, I believe that the District of Columbia vs. Heller case, along with other Colorado cases, provide for an unfettered right to self defense in the home, even if you have medical marijuana. I believe that this law is overbroad and is ripe for appeal. But, do you want to risk a minimum of 8 years in prison.
Other special offender laws involve prior felony conviction, public housing, proximity to schools. All of these increase your risk and expose you to mandatory prison time.
Are You a Drug Dealer?
There is a medical marijuana war occuring in Colorado right now. Sheriff's and other law enforcement agencies are calling licensed medical marijuana cultivators "DRUG DEALERS." They are arresting these licensed medical marijuana caregivers and seizing their medicine. These government officials are destroying the medical marijuana and offering no refund or medicine in return. If you cultivate medical marijuana or if you are a caregiver of medical marijuana, you need to have an attorney. This attorney can make sure that you are fully advised. This attorney can be ready to defend you as soon as you are arrested. This attorney can make sure that the defense investigation begins immediately.