Colorado DA Wantsa Clarification on Definition of Medical Marijuana

Boulder DA: Seeking clarity on medical marijuana

By Stan Garnett
(Stan Garnett is the Boulder County District Attorney)

Posted: 09/20/2009 01:00:00 AM MDT

As District Attorney for the 20th Judicial District, I am committed to
having the most progressive approach to medical marijuana of any DA`s
office in the state. Although it has been reported that I am commencing
a "war on MM patients," nothing could be further from the truth. I have
been raising issues that must be clarified. I would like to see these
issues clarified outside of the context of a criminal prosecution,
unlike many of my more conservative elected DA colleagues across the
state who are preparing to approach the issue quite aggressively by
prosecuting dispensaries and seizing grow operations. As anyone who has
thought about these issues knows, it does no good to put our heads in
the sand about how confusing the law is.

Amendment 20, which I voted for, passed in 2000. Amendment 20 authorizes
two things: licensees to obtain a MM license from a physician for a list
of ailments, some of which are fairly general and, some would say,
somewhat subjective. And, it authorizes a "caregiver" to provide the
marijuana. It says nothing about dispensaries and, other than permitting
a licensee to presumptively possess a small number of plants or amount
of marijuana, it says nothing at all about where the licensee is to
obtain the marijuana or whether it is legal to engage in large scale
commercial grows. There are respectable arguments that dispensaries are
legal under Amendment 20, and there are also respectable arguments that
they are not and, until the courts, or a new constitutional amendment
clears it up, the debate between lawyers and legal scholars will
continue.

Medical marijuana proceeded on a small scale in Colorado, over the last
several years, until two things happened this year:

1. The Obama administration announced that it would not prosecute
possession and small scale sale of marijuana in states that had a
medical marijuana law (a decision I support), even though the federal
law continues to prohibit it; and

2. The Department of Health did not adopt regulations at a hearing in
July, which hasn`t cleared anything up. (Their previous effort to adopt
regulations was found to conflict unconstitutionally with the terms of
Amendment 20.)

We are now seeing a proliferation of dispensaries in Boulder County.
However, since there are no regulations requiring dispensaries to
register, it is hard to know how many. There are at least two on
University Hill, and an estimated 14 in the county. Many are trying very
hard to be responsible business owners and at least three have had their
lawyers meet with me. I have assured them that I will not prosecute
dispensaries since I don`t want the obvious lack of clarity about their
operations to be resolved in a criminal context. The BOCO Drug Task
Force agrees with me.

Here are some questions I have regarding Amendment 20:

1) Is large scale commercial growing legal? We have received notice
of an operator wanting to put a large grow in a warehouse across from a
middle school in Longmont. Is this legal? This was the operation that
caused me to wonder aloud to the Daily Camera whether a declaratory or
injunctive action could help clear things up without putting anyone at
risk of a felony conviction, an idea that was well received by a number
of MM lawyers, though not by others, who accused me of a "war on
patients." The dispensaries argue that if they are entitled to dispense
the marijuana legally, they implicitly have the right to get it from
somewhere. This is an argument that could be made in a civil court of
law.

2) Are dispensaries legal? How large can they be? Who regulates to
make sure that they are dispensing the right amounts to the right
people? Who regulates their advertisements (e.g., the back page of the
Boulder Weekly, about which I have had many complaints. Many
dispensaries quite openly offer kickbacks and incentives to potential
licensees (particularly CU students) that would be totally illegal for a
pharmacy or other business.

3) If dispensary owners are "caregivers" what needs to be done to
assure that their employees can handle and dispense marijuana legally?
Are the employees caregivers as well? Many have interpreted "caregiver"
under Amendment 20 as someone providing other services to the patient,
not just the supplier of MM.

Because of the high cash value of marijuana and the large amount of cash
on the premises of some of the dispensaries, the Drug Task Force is
concerned about threats of violence and other crime around the
dispensary operations, many of which are in residential areas. We have
already had one robbery out of a dispensary.

Colorado continues to have sweeping anti-marijuana laws on the books,
prohibiting the sale, use and possession of marijuana (many of which
conflict directly, until the courts, or somebody sorts them out, with
the current dispensary and grow operations). If the legislature doesn`t
step forward, either to legalize marijuana entirely, or to otherwise
clear up the confusion, what role is law enforcement to take in
enforcing these laws?

These are all interesting issues to me, and under the Constitution, it
is part of my job to raise and publicly discuss areas where the law is
unclear, which is why I have raised these issues about medical
marijuana.

Stan Garnett is the Boulder County District Attorney.

http://www.dailycam era.com/ci_ 13368308