The Colorado Court of Appeals issued its opinion in People v. Sexton on February 16, 2012.
Possession—Medical Marijuana—Doctor–Patient Confidentiality—Waiver—Affirmative Defense—Medical Use—Search Warrant—Veracity—Probable Cause—Motion for Acquittal—Right to Remain Silent.
Defendant appealed from the judgment of conviction entered on a jury verdict finding him guilty of possession of eight ounces or more of marijuana. The judgment was affirmed.
Defendant argued that the trial court erred in holding that CRS § 13-90-107, rather than CRS § 18-18-406.3, governs a medical marijuana patient–defendant’s waiver of doctor–patient confidentiality during criminal trial proceedings and that defendant’s written waiver was required for the physician to testify. CRS § 13-90-107(1)(d) protects a patient from unauthorized invasions into his or her private medical affairs. CRS § 18-18-406.3(5) deters those with lawful access to the medical marijuana patient registry from using it for unlawful purposes. By raising the affirmative defense of medical use, defendant validly waived his privilege under CRS § 13-90-107(1)(d). Thus, the physician’s rebuttal testimony concerning his conversations with defendant was a lawful disclosure under CRS § 13-90-107(1)(d). Accordingly, the written waiver requirements of CRS § 18-18-406.3(5) simply did not apply.
Defendant argued that the search warrant was void for lack of veracity and absence of probable cause. The search warrant did not lack veracity or probable cause, because the allegations of possible illegal activity in the affidavit were based solely on the detective’s aerial observations, and the affidavit reflected that the detective had fifteen years of experience and training in identifying marijuana grow operations. Further, the fact that the affidavit concluded that defendant’s grow operation was only “potentially” illegal did not undermine the finding of probable cause.
Defendant also contended that the trial court erred by denying his motions for acquittal. However, the evidence presented was insufficient to reach the conclusion that defendant’s extended plant count was medically necessary.
Finally, defendant contended that one of the witnesses improperly commented on his right to remain silent. However, defendant’s refusal to answer one question did not invoke his right to remain silent as to all questions asked of him.