April 26, 2017

Colorado Supreme Court: Amendment 64 Applies to Sentences for Crimes Being Appealed at Effective Date

The Colorado Supreme Court issued its opinion in People v. Boyd on Tuesday, January 17, 2017.

Amendment 64—Marijuana Legalization—Constitutional Amendment.

The Colorado Supreme Court considered whether Amendment 64 deprived the state of the power to continue to prosecute cases where there was a non-final conviction for possession of less than one ounce of marijuana and where there was a pending right to appeal when Amendment 64 became effective. The court concluded that Amendment 64 nullified the state’s authority to continue to prosecute respondent on appeal because the amendment superseded the underlying statutory authority for the prosecution. The court contemplated United States v. Chambers, 291 U.S. 217 (1934), in which the U.S. Supreme Court held that when a statute is rendered inoperative, no further proceedings can be had to enforce it in pending prosecution. Accordingly, the court affirmed the Colorado Court of Appeals’ judgment reversing respondent’s conviction.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Amendment 64 Deprives State of Power to Prosecute Crimes of Possession of Small Amounts of Marijuana

The Colorado Supreme Court issued its opinion in Russell v. People on Tuesday, January 17, 2017.

Expert Testimony—Amendment 64—Marijuana Legalization—Constitutional Amendment.

The Colorado Supreme Court considered whether a police officer’s testimony that defendant was under the influence of methamphetamine was properly admitted as lay testimony or should have been qualified as expert testimony. Because any error in admitting the officer’s testimony as lay testimony was harmless given the otherwise overwhelming evidence, the court declined to answer whether the trial court erred in admitting the testimony. The court also considered whether Amendment 64 deprived the state of the power to continue to prosecute cases where there was a conviction for possession of less than one ounce of marijuana pending on direct appeal when the amendment became effective. The court concluded that under People v. Boyd, 2017 CO 2, Amendment 64 nullified the state’s authority to continue to prosecute petitioner/cross-respondent during her appeal because Amendment 64 superseded the underlying statutory authority for the prosecution. Accordingly, the court affirmed the Colorado Court of Appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Amendment 64 Deprived State of Power to Continue Prosecutions of Small Amount Marijuana Offenses

The Colorado Supreme Court issued its opinion in People v. Wolf on Tuesday, January 17, 2017.

Amendment 64—Marijuana Legalization—Constitutional Amendment.

The Colorado Supreme Court considered whether Amendment 64 deprived the state of the power to continue to prosecute individuals for possession of less than one ounce of marijuana after Amendment 64 became effective. The court concluded that under People v. Boyd, 2017 CO 2, Amendment 64 nullified the state’s authority to continue to prosecute respondent at his jury trial because Amendment 64 superseded the underlying statutory authority for the prosecution. Accordingly, the court affirmed the Colorado Court of Appeals’ judgment vacating respondent’s conviction and sentence.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Retroactive Application of Marijuana Decriminalization Appropriate for Non-Final Sentences

The Colorado Court of Appeals issued its opinion in People v. Boyd on Thursday, August 13, 2015.

Marijuana—Possession—Presumption of Innocence—Burden of Proof—Voir Dire—Amendment 64—Retroactive Application.

An undercover police officer approached defendant and her boyfriend while they were in the boyfriend’s van. The officer purchased marijuana from the boyfriend. The boyfriend put the cash received from the officer on the van’s dashboard. Defendant and her boyfriend then drove away. Other police officers stopped the van and arrested defendant and her boyfriend. The officers found a small amount of marijuana and the cash from the undercover officer in defendant’s pocket. A jury convicted defendant of possession of marijuana and attempted distribution of marijuana.

Defendant contended, for the first time on appeal, that certain comments by the trial court during voir dire incorrectly instructed the prospective jurors, including those ultimately seated, regarding the presumption of innocence. Although the trial court’s comments were not a good statement of the law, they were not instructions and did not reflect adversely on defendant or on the issue of her innocence. The written jury instructions correctly stated the burden of proof and the presumption of innocence. Therefore, the comments did not constitute plain error in this case.

Defendant also argued that Amendment 64 applies retroactively to decriminalize her possession of marijuana, and consequently, her conviction for possession of less than one ounce of marijuana should be vacated. Section 16(3) provides that possession of one ounce or less of marijuana and certain other acts “are not unlawful.” Convicted criminal defendants are entitled to receive the “benefit of amendatory legislation which became effective at any time before the conviction became final on appeal.” Defendant was found guilty on August 8, 2012, and sentenced and convicted on November 14, 2012. Thus, because her appeal remains pending, her conviction for possession of less than one ounce of marijuana was vacated.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Convictions for Marijuana Charges Reversed Due to Application of Amendment 64

The Colorado Court of Appeals issued its opinion in People v. Russell on Thursday, March 13, 2014.

Marijuana Possession—Retroactive Application of Amendment 64—Police Officer Testimony—Lay Witness.

Defendant and her husband (father) brought their infant son to the hospital, where he was diagnosed with a spiral fracture on his left femur. After suspecting abuse, a social worker from the Grand County Department of Social Services (DSS) interviewed defendant and subsequently obtained a court order to perform a urinalysis on her. Defendant tested positive for amphetamine, marijuana, and methamphetamine. The police searched defendant’s home pursuant to a warrant and seized several items, including drug paraphernalia, miscellaneous containers containing marijuana, marijuana concentrate, and methamphetamine. Following a jury trial, she was acquitted of the child abuse charge, but was found guilty of possession of one gram or less of a schedule II controlled substance (methamphetamine), possession of marijuana concentrate, and possession of less than one ounce of marijuana.

On appeal, defendant contended that Amendment 64 of the Colorado Constitution should be applied retroactively and that her convictions for possession of marijuana concentrate and possession of less than one ounce of marijuana should be vacated. The quantity of marijuana and marijuana concentrate possessed by defendant fell within the safe harbor established by § 16(3)(a) of Amendment 64. Because defendant’s convictions were pending appeal when Amendment 64 became effective, her convictions for possession of marijuana concentrate and less than one ounce of marijuana were reversed and vacated.

Defendant further argued that her methamphetamine conviction should be reversed because the trial court erred by allowing a police officer to testify regarding the physical effects of methamphetamine use without requiring that the officer be qualified as an expert pursuant to CRE 702. A lay witness may express an opinion as to whether a defendant was under the influence of drugs, provided that a proper foundation has been laid. As a lay witness, the officer was permitted to testify about his observations based on his eleven years of experience as a police officer. Although the officer didn’t base his testimony on any specialized training, any error was harmless because the officer’s testimony was cumulative of other evidence. Therefore, the trial court did not abuse its discretion in admitting the officer’s testimony.

Summary and full case available here.

DOJ: Amendment 64 Implementation can Proceed Without Federal Interference (For Now)

Bill_KyriagisBy Bill Kyriagis

On August 29, 2013, the federal government issued a long-anticipated policy statement regarding Amendment 64, which made clear that the federal government does not currently intend to interfere with Colorado’s efforts to implement a system to regulate the cultivation, distribution and sale of marijuana to adults for recreational purposes. Federal authorities also clarified their approach toward state-regulated medical marijuana industries.

Specifically, United States Deputy Attorney General James M. Cole issued a memorandum directed to all United States Attorneys, setting forth the Department of Justice’s (DOJ) policy toward marijuana businesses in states that have legalized marijuana for medical and/or recreational use. The memorandum is cast as guidance for prioritizing the “limited investigative and prosecutorial resources” available to the federal government.

Like the two previous federal memoranda addressing state-level efforts to liberalize marijuana laws, which were issued in 2009 and 2011, the new memorandum makes clear that marijuana remains illegal for all purposes under federal law, and that federal authorities will enforce federal drug laws where appropriate. Particularly, the memorandum highlights eight enforcement priorities that will guide federal authorities:

  • Preventing distribution of marijuana to minors;
  • Preventing revenue from marijuana businesses from going to criminal organizations;
  • Preventing diversion of marijuana from states where it is lawful to other states;
  • Preventing state-authorized marijuana activities from being used as a pretext for other illegal activity;
  • Preventing violence and use of firearms in the marijuana industry;
  • Preventing driving under the influence of marijuana and other adverse public health consequences associated with marijuana use;
  • Preventing cultivation of marijuana on public lands; and
  • Preventing marijuana possession or use on federal property.

While the memorandum stresses that it does not change federal law, and does not bind federal authorities, it makes clear that federal authorities are at least willing to allow Colorado and Washington state an opportunity to implement “strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests.” Federal authorities will watch the implementation of these regulatory regimes closely, and, if they fail to live up to expectations, federal authorities may act. If anything, this reinforces the importance of the process playing out at the state and local level in Colorado, as final regulations and procedures are developed and implemented to regulate the coming recreational marijuana industry.

The memorandum also provides clarifying guidance concerning medical marijuana businesses, noting that they should not be an enforcement priority, regardless of their size or commercial nature, provided that the operation in question “is demonstrably in compliance with a strong and effective state regulatory system.” This represents a reversal of policy guidance provided in the 2011 memorandum, which had drawn a distinction between medical marijuana patients and their caregivers, on the one hand, and large-scale, for profit commercial enterprises, on the other hand. In some states, U.S. Attorneys had seized on this distinction to justify targeting large-scale medical marijuana businesses. In Colorado, however, federal authorities have generally taken a hands-off approach toward state-regulated medical marijuana businesses, which seems even more likely to continue in light of the recent memorandum.

It is important to emphasize that the August 29 memorandum is nothing more than a statement of current policy. It is not law, and it binds no one. U.S. Attorneys in various states may have differing interpretations of the policy guidance, which could lead to variations in enforcement from state to state. If state-level regulatory regimes fail to live up to federal scrutiny, federal authorities could quickly change their approach. Indeed, nothing prevents federal authorities from issuing new policy guidance down the road, which could reverse course. For example, when a new presidential administration comes into office in 2017, it could choose to completely ignore the Obama administration’s approach, and instead aggressively enforce federal marijuana laws.

That said, the significance of the August 29 memorandum cannot be understated. The previous two DOJ memoranda on state-sanctioned marijuana activities have had an enormous impact on the development of medical marijuana industries in a number of states. In removing the most significant potential barrier to the full implementation of Amendment 64 (and Washington state’s similar measure), the recent memorandum will likely have a similarly profound impact.

The legal situation relating to marijuana in Colorado is thus complex and confusing, but recreational marijuana businesses are going to become a part of the landscape in Colorado soon.  This will present business lawyers with new challenges and opportunities. Learn more about advising marijuana businesses at the Colorado Business Law Institute on October 16 and 17 at the Grand Hyatt in Denver. Click here to register for the live program, or click here to order the homestudy.

Bill Kyriagis represents business and real estate clients in litigation, bankruptcy and land use matters. In the land use context, Bill counsels clients on a variety of local government issues, including posturing land use matters for potential litigation and pursuing claims when necessary. Bill has also developed expertise regarding the issues faced by landlords and  property owners related to Colorado’s medical marijuana industry. Bill has worked on a number of pro bono cases, including a successful First Amendment challenge to local government land use regulations, and assisting tenants in landlord/tenant disputes. Bill contributes to his firm’s blog, where this post originally appeared.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

U.S. Justice Department Announces Update to Marijuana Enforcement Policy

On August 29, 2013, the U.S. Department of Justice announced an update to its federal marijuana enforcement policy in light of recent state ballot initiatives that legalize, under state law, the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale.

In a new memorandum outlining the policy, the Department makes clear that marijuana remains an illegal drug under the Controlled Substances Act and that federal prosecutors will continue to aggressively enforce this statute. To this end, the Department identifies eight (8) enforcement areas that federal prosecutors should prioritize.  These are the same enforcement priorities that have traditionally driven the Department’s efforts in this area and include preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, or cartels and preventing marijuana from being diverted from a state where it is legal to a state where it is not.

For states such as Colorado and Washington that have enacted laws to authorize the production, distribution and possession of marijuana, the Department expects these states to establish strict regulatory schemes that protect the eight federal interests identified in the Department’s guidance. These schemes must be tough in practice, not just on paper, and include strong, state-based enforcement efforts, backed by adequate funding. Based on assurances that those states will impose an appropriately strict regulatory system, the Department has informed the governors of both states that it is deferring its right to challenge their legalization laws at this time.  But if any of the stated harms do materialize—either despite a strict regulatory scheme or because of the lack of one—federal prosecutors will act aggressively to bring individual prosecutions focused on federal enforcement priorities and the Department may challenge the regulatory scheme themselves in these states.

A copy of the memorandum, sent to all United States Attorneys by Deputy Attorney General James M. Cole, is available here.

Spark the Discussion: Amendment 64 — What a Long, Strange Trip It’s Been

Spark the Discussion” is a  Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.

In November of 2012, 55% of Coloradans voted in favor of Amendment 64, making the personal use, possession, and limited home-growing of marijuana legal for adults 21 years of age and older under state law. Additionally, Amendment 64 creates a state-wide system of regulated retail marijuana establishments that can grow, sell, produce, and test marijuana and marijuana products. Under this system, local governments have wide discretion in determining whether and how to regulate marijuana establishments. However, they do not have the power to re-criminalize the limited adult use, possession, and cultivation of marijuana as permitted by the amendment.

Governor Hickenlooper signed a series of marijuana bills into law on May 28, 2013. Chief among them were House Bill 13-1317 and Senate Bill 13-283. HB 13-1317, along with SB 13-283 create the regulatory framework governing retail marijuana, including directing the Department of Revenue to enforce comprehensive “seed to sale” regulations and a robust licensing scheme. HB 13-1317 includes a nine-month transition period during which time only certain existing medical marijuana businesses can apply for a retail marijuana license. An applicant can either: (1) surrender his or her current medical marijuana license and apply for a retail marijuana license; (2) convert his or her medical marijuana license into a retail marijuana license; or (3) keep his or her current medical marijuana license and add a new retail marijuana license.  For a summary of the marijuana bills that were passed this legislative session, please see the table below.

It is important to note that Amendment 64 is self-executing, which means that certain activities are now legal without further government action. For example, even if a locality decides not to allow retail marijuana establishments in their community, individuals over the age of 21 still cannot be prosecuted under any state or local law for cultivating or possessing limited amounts of marijuana in compliance with the amendment. So, while certain elements of the retail licensing system have yet to go into place, other provisions of the law are already in effect.

Right now, the Marijuana Enforcement Division is crafting initial regulations for retail marijuana establishments. These regulations will include rules governing applications for new licenses, security requirements, labeling requirements and advertising restrictions, among others. These rules are being drafted on an emergency basis, and they will be published on or before July 1, 2013. This initial rule-making phase will not be open to additional input from the public. The permanent rule-making process will begin after July 1, 2013, and the public is encouraged to review the temporary emergency rules and participate in the permanent rule-making process.

After the permanent rule-making process is complete, the rules will be published and codified on or before October 1, 2013. Also, after October 1, 2013 local governments must appoint a local licensing authority to accept retail marijuana applications, provided, however, the locality has decided to allow retail marijuana establishments in their jurisdiction. As mentioned above, existing medical marijuana centers will have the choice to surrender their license or retain it.

In November of this year, there will be a statewide vote on an excise tax at 15% and a retail sales tax that can be up to 15% but will start at 10% with 15% of that 10% (1.5%) shared back to local governments where the business is located. This will allow local governments to receive a share of the revenue generated from retail marijuana establishments, but only if the local government allows retail marijuana establishments in its jurisdiction.

The first date a retail marijuana establishment can be licensed is January 1, 2014. This means that until that time, no retail marijuana stores will exist because it would be illegal to operate a retail establishment without a license. The first nine months of 2014 will allow existing medical marijuana businesses the opportunity to become licensed for retail operations. Remaining persons who would like to open a retail establishment can file a notice of “intent to apply” starting on January 1, 2014, but they will have to wait nine months in order to formally apply for a license.

In other marijuana related news, the state legislature also enacted House Bill 13-1325, which created a tougher DUI standard for driving while impaired. The passage of this legislation has been a long time coming in the eyes of many Colorado legislators, some of whom have been pushing for harsher DUI standards for driving while impaired for the past two legislative sessions, including last year’s special session.

Taken together, the recent bills passed by the Colorado legislature will help regulate and control marijuana responsibly. This is a crucial time for Colorado, as states across the county and places around the world are focused on our ability to regulate recreational marijuana. The legislature did a great job passing these laws, but it is up to the people of Colorado, both elected and unelected, to help implement a robust regulatory framework that will allow Colorado to be a model for drug policy change around the world.

Philip Snow is currently an associate at Vicente Sederberg LLC where he represents clients in licensing and transactional matters. 

SB 13-283: Developing Regulations for the Implementation of Amendment 64

On Monday, April 22, 2013, Sen. Cheri Jahn introduced SB 13-283 – Concerning Implementation of Amendment 64. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill permits a local government to prohibit the use of a compressed flammable gas as a solvent in residential marijuana cultivation.

The bill allows retail marijuana businesses to participate in the medical marijuana responsible vendor program.

The bill declares that it is public policy of the state that a contract related to a marijuana business is not void.

The bill creates the crime of illegal possession of retail marijuana by an underage person to mirror the same crime for alcohol.

The bill amends the offenses related to marijuana and drug paraphernalia to conform to the legal structure of amendment 64 and creates crimes for the gaps not covered by current law based the legal quantity and age limit for marijuana.

The bill authorizes the governor to designate the appropriate state agency to:

  • Create a list of banned substances in marijuana cultivation;
  • Work with a private organization to develop good cultivation and handling practices;
  • Work with a private organization to develop good laboratory practices;
  • Establish an educational oversight committee for marijuana issues;

The bill requires peace officer training to include advanced roadside impairment driving enforcement training.

The bill requires the division of criminal justice in the department of public safety to undertake or contract for a scientific study of law enforcement activities related to retail marijuana implementation.

The bill requires the department of public health and environment to create a marijuana destruction program for marijuana that cannot be legally sold by licensed businesses.

The department of public health and environment must monitor the emerging science and medical information regarding marijuana through a panel of health care experts. The panel must report its findings every two years.

Current law prohibits the use of all tobacco products on school property. The bill adds lawful retail marijuana products to the prohibition.

The bill adds marijuana to the Colorado clean indoor air act.

The bill allows the license of a child care center, children’s resident camp, cradle house, day treatment center, family child care home, foster care home, guest child care facility, homeless youth shelter, medical foster care, neighborhood youth organization, public services short-term child care facility, residential child care facility, secure residential treatment center, and specialized group facilities to be denied, suspended, or revoked if retail marijuana is consumed or cultivated onsite.

The bill prohibits the cultivation, use, or consumption of marijuana at a community residential home or regional center.

Federal law prohibits deducting certain business expenses related to the sale of marijuana to calculate the federal tax owed. The bill would permit those deductions to be used to calculate the state tax owed.

The bill creates an open container offense for marijuana to mirror the open container offense for alcohol.

On April 22, the bill was introduced and assigned to the Business, Labor, & Technology Committee; the committee amended the bill and referred it to the Appropriations Committee on April 24. The bill is on the Appropriations Committee schedule for Monday, April 29 at 7:30 a.m.

Since this summary, the bill was passed with amendments on Second Reading in the Senate.

Spark the Discussion: Colorado Marijuana Industry 2.0 (Beta Version)

By Shawn Coleman

Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.

As our shortest month draws to a close, so does the Amendment 64 Task Force.  While earnest work has been accomplished by the Task Force, there is still more to do.

The Governors A64 Task Force

Overall, the Task Force has tackled some fascinating issues, with a lot more to come. The Task Force has already adopted recommendations to maximize localities’ control over adult use marijuana establishments, establish consumer protections, and encourage our Congressional delegation to address banking and tax treatment for marijuana-related businesses. The Task Force has also recommended that the regulatory model for medical marijuana should be adopted for adult use marijuana. More importantly though, the Task Force recommended that out-of-state residents be allowed to purchase marijuana in Colorado from our regulated market—but only in small quantities.

Despite previous consensus from the Criminal Law Work Group that marijuana DUID would be impractical to consider, the main Task Force rejected that recommendation, instead supporting the DUID legislation introduced in the state house, HB 13-1114. The bill, introduced by Representatives Waller and Fields, is a revised version of a proposal that has been previously rejected by the General Assembly. Previous versions created a per se standard; this year’s bill instead establishes a permissible inference for individuals whose blood tests positive for 5 nanograms or more of THC. The bill also removes the presumption for alcohol DUI in cases of vehicular assault or homicide. Apparently the bill sponsors are taking “regulate like alcohol” seriously. A first hearing on the legislation was postponed because of the Judiciary Committee’s, and the entire House’s, focus on pending gun control legislation.

Currently on deck are over 20 Task Force recommendations, including recommendations related to marketing, establishing the enforceability of marijuana-related business contracts, and setting the excise tax rate. We fully expect the Task Force to find resolution on these issues.

From Capitol Hill to Capitol Hill

At the State of the State Address, the Governor Hickenlooper proclaimed, “As we regulate this industry, and any industry, let’s be sure we are fair, rational and science based.” Of course, he was specifically referring to the oil and gas industry; however, “any industry” should include the second edition of Colorado’s medical marijuana industry, also known as the Colorado Marijuana Industry 2.0.

As we all revisit marijuana regulation, the discussion must be rationally informed by the existing regulatory framework and the businesses that have complied with it. A fair, rational, and science-based approach makes sense, and is most easily accomplished by assessing the strengths and weaknesses of our current marijuana industry—the ongoing, and relatively successful, experiment known as the Colorado Medical Marijuana Code, C.R.S. §§ 12-43.3-101, et seq.

The General Assembly is tasked with building the fledgling marijuana industry while keeping Colorado’s best interest in mind. While the specter of federal intervention remains present, recent events may give lawmakers confidence to find solutions that work for Colorado.

Congressman Jared Polis (D-CO) has introduced H.R. 499, the Ending Federal Marijuana Prohibition Act, which would create the Bureau of Alcohol, Marijuana, Tobacco and Firearms to regulate marijuana federally while allowing states to continue marijuana prohibition within their borders. This bill has managed to get 11 co-sponsors of both parties representing every region of the nation. Meanwhile, medical or adult use marijuana legislation has been introduced in a growing number of states, in addition to the 18 states and Washington, D.C., where it is already legal. This evidences strength for the argument that civil matters, including marijuana, same-sex rights, and gun safety, will likely—as ought to—be resolved in state capitols.

Additionally, the president has spoken publicly of the need to harmonize state and federal laws, and the Department of Justice appears willing to wait and see. To that end, lawmakers here in Colorado must consider responsible regulations—possibly ones that even limit production—to guard against overproduction of marijuana. However, the only production within the state’s control is that which is produced by regulated businesses. Preventing unregulated large-scale production that could float across state lines is a challenge that is best addressed by moving deliberately on creating a consumer culture of acquiring marijuana through regulated stores, thus depriving the black market of a consumer base. Much like home brewing beer, the sooner marijuana for adults is available retail, the sooner home cultivation will be relegated to hobbyists and connoisseurs.

The passage of Amendment 64 by over 10 percentage points settles two important questions for the members of the 69th Colorado General Assembly:

  1. Marijuana reform is popular and politically safe.
  2. Marijuana as a regulated business is the intent of the voters.

During the legislative debate for the Colorado Medical Marijuana Code (originally HB 10-1284), a common reason to add heavy-handed regulations or vote against establishing the code was “the voters didn’t buy an industry with Amendment 20.” Now three years later, with the experience of marijuana storefronts, voters “bought” Amendment 64 with an industry as standard equipment. Interestingly, many of the counties with the most medical marijuana storefronts were greatly supportive of Amendment 64. November’s vote gave legislators a green light to enact sober and practical rules moving forward.

And it seems that members of the General Assembly have gotten the message.

The regulatory, excise tax, and criminal law bills to fully enact Amendment 64 may prove controversial yet; however, to date, the only thing more popular on the ballot than marijuana reform is marijuana legislation at the Capitol. The Colorado House has taken up two marijuana industry bills so far. The first, HB 13-1042 relating to state income tax (Rep. Kagan, Sen. Guzman), passed the Finance Committee unanimously. The second, HB 13-1061, the Responsible Vendor Bill, also passed unanimously in committee and has already passed the House on a vote of 55-9.

The Task Force is the beta test for Colorado Marijuana Industry 2.0. The legislature has the opportunity to experiment with this version and will hopefully be able to address any problems that arise. There is optimism that responsible marijuana laws may be the most sober conversation under the dome this year.

Shawn Coleman began working in cannabis policy as a Legislative Assistant for U.S. Representative Jared Polis in Washington D.C. He subsequently handled government affairs for Colorado Springs State Bank and served as Executive Director of the Cannabis Business Alliance. Shawn is currently a registered lobbyist with 36 Solutions and serves on the Board of Directors of the Colorado Youth Symphony and the U.S. Civil Rights Commissions Colorado Advisory Committee. 

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Spark the Discussion: The “Amendment 64 Implementation Task Force”

Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.

By Joshua Kappel, Esq. and Rachelle Yeung

When Governor Hickenlooper signed Amendment 64 into law, proclaiming marijuana legal to use, possess and purchase for adults 21 years-old or older in Colorado, advocates barely paused to celebrate their victory – and opponents barely recognized their defeat.

Instead, all sides immediately began working on implementing this historic initiative through the Governor’s “Amendment 64 Implementation Task Force.” The Task Force, created by an Executive Order of the Governor, is comprised of 26 members, which were selected for their wide range of interests and expertise – from representatives of the Attorney General’s Office and the Department of Revenue to medical marijuana industry groups and other stakeholders.[1]

The Task Force is assisted by committees, or “Working Groups,” each of which is co-chaired by a member of the Task Force and made up of additional stakeholders and members of the public. The five Working Groups are:

  1. Regulatory Framework
  2. Local Authority and Control
  3. Tax/Funding and Civil Law
  4. Criminal Law
  5. Consumer Safety and Social Issues

The various Working Groups have discussed a large range of issues, some of the issues are already addressed in the text of Amendment 64 while other issues appear almost unrelated. A full list of all the issues discussed, agendas, meeting times, and audio recordings are available on the Department of Revenue’s Amendment 64 Task Force website. The Task Force is scheduled to make its recommendations to the Governor, the State Legislature, and the Department of Revenue by the end of February.

During its first meeting, members of the Criminal Law Working Group came to a consensus that they should avoid tackling issues of driving under the influence of drugs (DUID) and industrial hemp.  Despite being tasked with these issues, the Working Group decided discussing these would be a waste of valuable time and resources.  In fact, Brian Connors, co-chair of the Working Group and representative of the Public Defender’s Office, noted, revisiting the DUID issue would be not only time-intensive, but redundant. The legislature and the Colorado Commission on Criminal & Juvenile Justice have been researching the question for well over two years, and have developed far more familiarity with the topic. In fact, a marijuana related DUID bill was recently introduced in the state legislature that appears to strike a compromise between the various stakeholders.

Instead, the Criminal Law Working Group will focus on determining legal definitions and confronting law enforcement issues. For example, can evidence of marijuana alone be the basis for probable cause? In the event of a dismissal or ‘not guilty’ verdict, do law enforcement agencies have a duty to maintain seized marijuana plants? This Working Group has also veered off path to discuss completely unrelated issues such as requiring drug tests for all minors who apply for a driver’s license.

The Tax/Funding and Civil Law Working Group, among other things, addressed the issue of banking for state licensed marijuana businesses. Because marijuana is still illegal under federal law, most banks are fearful of handling funds related to marijuana. However, all parties involved, from marijuana business owners to representatives of the Colorado Bankers Association agreed that the fledgling marijuana industry could not depend entirely on cash transactions. Unfortunately, the Working Group was faced with a serious shortage of viable alternatives, and in the end, resolved only to write to the Federal Government, requesting further guidance.

The Regulatory Framework Working Group kicked off its first meeting by examining existing regulatory frameworks and deciding which framework to model recreational marijuana on – specifically, whether to base it on our medical marijuana code or our alcohol/liquor code. Amusingly, one of the first issues to come up was whether to require vertical integration, which the medical marijuana code mandates, or prohibit it, which is the case with liquor.

One suspect issue was also brought up by the Regulatory Framework Working Group: whether to recommend a residency requirement for those who are going to purchase marijuana from a licensed store.  This issue caught many people by surprise as Amendment 64’s personal protection clause makes clear that “possessing, using, displaying, purchasing, or transporting marijuana” is now legal under state law for persons over the age of 21. The plain language of Amendment 64 applies to all adults aged 21 or older.

In addition to the issues covered by the other Working Groups, the Local Authority and Control Working Group is working to resolve:  What can local jurisdictions regulate? What will be the local controls regarding advertising?  What/who is the local authority over fines and licensing?  Lastly, the Consumer Safety/Social Issues Working Group is working to resolve issues associated with: advertising and marketing to minors; product labeling and packaging; product testing; and consumer, public, and industry education.

Surprisingly, a significant number of vocal marijuana opponents managed to secure positions on the Governor’s Task Force and in the working groups; however, the Task Force is not supposed to debate the merits of Amendment 64 or impede its implementation. Additionally, not all issues discussed by the Task Force will or should become recommendations of the Task Force, let alone a bill or regulation. The Task Force should only make recommendations that are both legally sound and good public policy. For example, a residency requirement on marijuana purchases, although discussed by one of the working groups, would be bad public policy because it would only perpetuate another black market and derive the state of tax revenue – exactly what the voters of Colorado wanted to prohibit with Amendment 64. Additionally, such a significant statutory limitation on Amendment 64 may not withstand legal scrutiny.[2]

Considering the Task Force has a mandate from the 55% of our electorate that voted for Amendment 64 and that they have less than a month now to make their recommendations, we can only hope that the proponents and opponents of marijuana reform can work together, stay on track, and focus on implementing the will of the voters. Nonetheless, we will all have to wait and see on what the Task Force actually recommends.


[1] It is worth noting that the Task Force really doesn’t have to address any issues besides funding the Department of Revenue to make rules because Amendment 64 is self-executing.

[2] Generally in Colorado, self-executing initiatives cannot be narrowed, impaired, or limited by the legislature. Yenter v. Baker, 126 Colo. 232, 236-237 (Colo. 1952); See also Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo. 1996).

Joshua Kappel, Esq. is the Associate Director of Sensible Colorado, the leading state-wide non-profit working to educate the public about sensible marijuana policy. Mr. Kappel is also the senior associate at Vicente Sederberg, the first nation-wide medical marijuana law firm.

Rachelle Yeung is currently in her third year at the University of Colorado School of Law and a law clerk at Vicente Sederberg LLC.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Spark the Discussion: Top Five Myths About the Drug-Free Workplace Act

Kimberlie Ryan Head ShotSpark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.

By Kimberlie Ryan, Esq.

Headlines screamed across the country when Colorado became the first state to recognize the Constitutional right to use marijuana for any reason by adults ages 21 and older.

One headline reported a CEO’s panic that “legal pot will make it hard to hire, devastate the economy.”  This CEO claimed that “if you sell to the federal government or state government, you are required to certify that you have a drug-free workplace,” so “if you smoke pot, I still can’t hire you.”

These statements confirm a fundamental misunderstanding of the federal Drug-Free Workplace Act of 1988 (DFWA), and such proclamations perpetuate unfounded myths about this law.

Myths like these could deprive unwitting employers of excellent employees – and might give rise to legal claims against companies that violate workers’ rights.  Due to space constraints this article is limited to a discussion of the DFWA, so let’s get to it and set the record straight.

Before we get to the myths and the realities, a brief background on the DFWA is in order.  President Reagan signed the Drug-Free Workplace Act nearly 25 years ago in 1988.  The Act defines a “drug-free workplace” as a site for the performance of work done by a federal contractor or grantee in connection with a specific federal contract or grant at which employees are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession or use of any controlled substance.  At this time “controlled substance” still includes marijuana.  But that is not the end of the analysis.

By definition, the DFWA limits the “workplace” to the work site for certain “covered” employers and by its terms does not include any other location where work for the contract is not performed. It does not allow employers to prohibit the use of marijuana completely, and it does not apply to all employers or employees.  Now to the myths.

1. Myth #1 – The DFWA applies to all private employers.

Reality:  The DFWA only applies to certain federal contractors and grant recipients.  A company is subject to the Act only if the value of a single contract is more than $100,000, or if it has any federal grant.  Individuals with grants or contracts from any U.S. Federal agency are covered by the Act, regardless of dollar volume.  Last year, only 21.7% of federal contracting dollars went to small businesses.  Unless employers meet the specific requirements for coverage, the DFWA does not apply to them.  The Act does not apply to those that do not have contracts or grants from the federal government, and it does not apply to employees who are not directly engaged in the performance of the covered contract or grant.

2. Myth #2 – The DFWA requires employers to drug test employees. 

Reality: The DFWA does not require or authorize drug testing.  In fact, the legislative history of the Act indicates that Congress did not intend to impose any additional requirements beyond those set forth in the Act, which are very limited as discussed below. Specifically, the legislative history precludes the imposition of drug testing of employees as part of the implementation of the Act.

3.  Myth #3 – The DFWA requires employers to fire employees who use marijuana at home as authorized by Colorado Constitutional Amendments 20 and 64.

Nothing in the DFWA requires employers to fire workers for exercising their Constitutional rights to use marijuana while off-duty and outside the workplace.  The law requires only that in case of a conviction for a criminal drug offense resulting from a violation occurring in the workplace, the employer may take one of two types of action. The employer may take disciplinary action, which may be a less severe penalty than termination, or may refer the employee for rehabilitation or drug abuse assistance program. The choice of which basic course to choose, as well as the specific discipline or treatment option, is left to the employer’s discretion and may be made on a case-by-case basis, provided all state and local laws are followed.  “Conviction” is defined by the Act as limited to afinding of guilt, including a plea of no contest, or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or state criminal drug statutes.

4. Myth #4 – The DFWA requires employers to report positive drug tests to the federal government.

The Act does not require employers to report positive drug tests to the federal government.  The only reporting requirement is triggered solely if an employee is convicted of a drug offense occurring at the workplace.

5.  Myth #5 – The DFWA preempts state and local laws.

The requirements of the Act “coexist with state and local law,” according to the United States Department of Labor.  Colorado does not have any state statute governing drug testing in employment, and adults have a Constitutional right to use marijuana in Colorado.  The City of Boulder Ordinance 5195 prohibits employee drug testing except in clear cases of probable cause, and where a written policy has already been provided to the work force.  In general, Colorado employers should update their drug testing policies to account for the Constitutional right, or expect legal challenges.

6.  Bonus Myth #6 – Employers who recognize Colorado’s Constitutional right of employees to use marijuana at home while off duty will automatically lose federal contracts.

Nothing in the DFWA governs the use of marijuana outside of the covered workplace for companies.  A company that is covered by the DFWA will be subject to penalties only if: 1) it fails to implement the six steps required to establish a drug-free workplace; or 2) the head of the agency determines that the company employs a sufficient number of individuals convicted of a criminal drug offense occurring in the workplace to indicate that the contractor has failed to make a good faith effort to provide a drug-free workplace.  Even then, the head of the agency may waive any possible penalties in certain circumstances, and violations may not result in contract termination or loss of payments.

What does the DFWA actually require?  Only 6 steps. Covered employers must:

  1. Publish and give a policy statement to all covered employees informing them that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the covered workplace and specifying the actions that will be taken against employees who violate the policy.
  2. Establish a drug-free awareness program to make employees aware of a) the dangers of drug abuse in the workplace; b) the policy of maintaining a drug-free workplace; c) any available drug counseling, rehabilitation, and employee assistance programs; and d) the penalties that may be imposed upon employees for drug abuse violations.
  3. Notify employees that as a condition of employment on a Federal contract or grant, the covered employee must a) abide by the terms of the policy statement; and b) notify the employer within five calendar days if he or she is convicted of a criminal drug violation in the workplace.
  4. Notify the contracting or granting agency within 10 days after receiving notice that a covered employee has been convicted of a criminal drug violation in the workplace.
  5. Impose a penalty on – or require satisfactory participation in a drug abuse assistance or rehabilitation program by—any employee who is convicted of a reportable workplace drug conviction.  The “penalty” is up the discretion of the employer, and it may consist of a disciplinary warning – termination of employment is not uniformly mandated to comply with the DFWA.  Employers should evaluate penalties on a case-by-case basis and seek legal counsel to avoid violating state law or the Americans with Disabilities Act in imposing any discipline.
  6. Make an ongoing, good faith effort to maintain a drug-free workplace by meeting the requirements of the Act.

Employers have wasted millions of dollars on ineffective, invasive, and unnecessary drug testing that is not required by the DFWA.  Drug tests cannot show impairment, if any, or even when marijuana use occurred. Many employers have relied on information provided by drug testing promoters who have an inherent conflict of interest on the topic.  It has long been recognized that widely cited cost estimates of the effects of drug use on U.S. productivity are based on questionable assumptions and weak measures, according to a report of the National Academy of Sciences.  It is a challenge to locate a single case that has imposed liability on a private employer for opting out of drug testing, and despite beliefs to the contrary, the preventative effects of drug testing programs have never been adequately demonstrated.

The use of marijuana is a Constitutional right in Colorado.  Companies should join employers who are embracing a more sensible approach to drug policies today and seek to understand what the Drug-Free Workplace Act really does – and does not – require.  Only then can they release the unfounded myths of yesterday and work with their employees for a more productive tomorrow.

Kimberlie Ryan is the founding member of Ryan Law Firm, LLC, where she practices all aspects of employment law and has represented workers and advised employers regarding medical marijuana and the workplace.  In addition to her law practice, she serves as a television legal analyst and is frequently called upon to write and speak about cutting-edge employment issues.  This article is for educational purposes only, and it should not be construed as legal advice for a particular situation.  Consult with competent legal counsel for specific questions.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.