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Spark the Discussion: The Inevitability of Marijuana Legalization

January 17, 2012 By Leave a Comment
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

In an impressive step forward in citizen activism, advocacy groups in both Colorado and Washington recently turned in ample signatures to place marijuana legalization measures on the 2012 Presidential ballot in their respective states.  These measures, which seek to regulate marijuana like alcohol at the statewide level—limiting its use to those 21 and over and requiring sales to take place in strictly regulated stores—would shake the foundation of the nation’s long-standing and increasingly unpopular War on Drugs.  And here’s the kicker: these measures are likely to pass.

Both national and local polling shows the country trending toward marijuana reform.  For the first time in thirty years of polling, the Gallup poll showed a record-high 50% of Americans support making marijuana legal.  This data is matched by a series of regional polls that show western states, in particular, are ready to end the decades-old policy of marijuana prohibition.

Why this surge in support?  Increasingly, marijuana reform is being recognized as a pressing social justice issue that demands attention.  At a recent drug policy reform conference in Los Angeles, Ira Glasser, former head of the national ACLU, gave an impassioned speech citing the Drug War’s disparate impact of people of color and likening the nation’s drug laws with Jim Crow laws.  This sentiment has been echoed by the NAACP, who came out in support of a California measure to legalize marijuana in 2010 with Hilary O. Shelton, vice president of advocacy for the NAACP, saying “We are usually conservative in terms of the issues that we support, but disproportionate prosecution of [African-Americans for] drug-related offenses for marijuana has called us to fight for decriminalization in our community.”

Joining this call for reform are increasing numbers of Latinos, an important and growing section of the electorate, who are growing weary of racial profiling and the inescapable disproportionate racial impact of current drug laws.  Studies indicate that Latinos are arrested for marijuana possession at much higher rates than whites, despite their lower usage rate.  For major cities in California, the 2006-08 arrest rate for Latinos is two to three times higher than for whites.  In New York City, the rate is almost four times higher.  Minority communities are becoming increasingly weary of the collateral consequences experienced by those convicted of drug possession offenses, consequences like denial of federal student loan and housing benefits and lifelong difficulty in securing employment due to a lingering “criminal” record.

In Colorado, where 69% of people in state prisons for drug offenses are people of color, the pending Regulate Marijuana Like Alcohol Act is inspiring a coalition of supporters that includes leaders in the Latino community like Kim Cordova, president of the state’s largest union, and civil rights organizations like the ACLU and the Colorado Criminal Defense Bar.  Just last week, columnists from both sides of the political spectrum penned their support for legalization in both the conservative Colorado Springs Gazette and the mainstream Denver Post.

Together these groups represent the changing face of the drug policy reform movement with impacted parties, opinion makers, and civil rights defenders adding their voices to the call for systemic change.  Given national opinion trends and a growing and diverse coalition in support of reform, it seems increasingly likely that this targeted push back signals the beginning of the end of the failed policy of marijuana prohibition.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

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.
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Spark the Discussion: Broken Promises and Federal Threats – A Roller Coaster for the Medical Marijuana Industry

December 19, 2011 By Leave a Comment
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

By Christian Sederberg and Joshua Kappel

Medical Marijuana activists were ecstatic when President Barack Obama was elected in 2008 due to his campaign promises that an Obama administration would not use the U.S. Justice Department’s limited resources on circumventing state medical marijuana laws.

Shortly after President Obama’s inauguration, he appeared to be honoring that commitment. On October 19, 2009, then Deputy U.S. Attorney General David W. Ogden published a memorandum directing various U.S. Attorneys’ offices to not use “federal resources in [their respective] States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” In response, medical marijuana activists and patients in Colorado and around the country began to step out of the darkness in large numbers. In Colorado, tens of thousands of patients signed up to receive their state medical marijuana cards from the Colorado Department of Public Health and Environment and numerous individuals began opening up small businesses to help patients obtain the medicine that their doctor had recommended to them. Due in large part to the need to regulate this rapidly expanding industry, the Colorado state legislature passed strict laws in the 2010 legislative session that created a statewide regulatory scheme for medical marijuana businesses.  Several other states quickly followed suit, and the so-called “green rush” was in full force. After facing hundreds of raids under President Bush’s administration, there was a great sense that the future was bright for the nation’s medical marijuana community.

However, things started to change in the first two years of Obama’s presidency. In February of 2011, Melinda Haag, the United States Attorney for the Northern District of California, sent a memo threatening federal criminal enforcement in response to a proposal by the city of Oakland to license large scale medical marijuana cultivation facilities that seemed to be outside the scope of California’s medical marijuana laws. This sparked a flurry of similar memos from various U.S. Attorneys reaffirming their commitment to enforce the federal Controlled Substance Act (CSA), including a memo from the recently appointed Colorado U.S. Attorney John Walsh and another memo from the Deputy U.S. Attorney General, James Cole. All of these memos maintained that prosecuting patients and their immediate caregivers was not a high enforcement priority of the federal government, but emphasized that the federal government reserves the right to prosecute anyone who violates the CSA, particularly large-scale, commercial medical marijuana businesses.

During this tumultuous time, the Colorado medical marijuana industry remained hesitantly optimistic because the federal government had taken what appeared to be a “hands off” approach to the state’s closely-regulated medical marijuana industry.  On December 8, 2011, that optimism grew when U.S. Attorney General Eric Holder reaffirmed—while being questioned by Colorado’s Rep. Jared Polis– that targeting Colorado medical marijuana businesses conforming with state laws is not a high priority for the federal government.  Watch the video here.

In a striking turn, the following week various news agencies reported that a confidential federal official was claiming that the government was considering a “crackdown” in Colorado on any medical marijuana business located near a school, despite an express allowance in the Colorado Medical Marijuana Code, C.R.S. 12-43.3-101 et seq., permitting localities to allow such businesses within a 1000 feet of a school. The federal crackdown will reportedly take the form of “landlord letters”, similar to the letters sent to landlords in California earlier this year, demanding that the landlord evict their medical marijuana business tenants within 45 days or face federal asset forfeiture.

The most recent letters in California did result in many businesses closing their storefront operations or relocating, even though there has been little actual federal enforcement action.

Matt Cook, the former head of the Colorado Department of Revenue’s Enforcement Division and considered by some to be the father of Colorado’s Medical Marijuana Code, found a silver lining in the recent federal threats.  Mr. Cook told the Denver Medical Marijuana Work Group on December 14, 2011 that the federal government’s actions could be seen as an implicit endorsement of our highly regulated system, specifically as it relates to all medical marijuana businesses not within 1000 feet of a school.

If President Obama breaks his campaign promise to respect state medical marijuana laws and his local US Attorneys make good on their threats, the President risks losing the votes of over 88,000 Colorado medical marijuana patients, their families, and supporters– which could make his path to reelection much more difficult in this battleground state.

Christian Sederberg, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. Christian has focused his practice on representing small and medium sized businesses, with a primary focus on real estate, commercial and business transactions. In addition, he provides general guidance to medical marijuana businesses, ancillary businesses, and caregivers about local and state medical marijuana ordinances, regulations and laws.

Joshua Kappel, Esq., recently graduated in the top 10% of his class at the University of Denver, Sturm College of Law. While in law school, Josh received both the Patton Boggs Public Policy Fellowship and the Public Interest Law Clerkship to work for Sensible Colorado. Josh also  interned with the National ACLU’s Drug Law Reform Project in Santa Cruz and the Colorado Criminal Defense Bar. 

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.
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Spark the Discussion: Election Day 2011 – A Mixed Bag for Medical Marijuana in Colorado

November 16, 2011 By Leave a Comment
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

Election day has come and gone and, once again, numerous Colorado towns weighed in on marijuana policy.  Most notably, four communities rejected bans on medical marijuana businesses (Steamboat Springs, Oak Creek, Routt County, and Palisade) and three areas endorsed bans (Fort Collins, Yampa, and Brush).  A number of communities (Breckenridge, Commerce City, and Palisade) voted to enact higher taxes on medical marijuana sales.

Colorado has a rich history of tackling marijuana policy in the voting booth and most of these reform measures make their way to voters through the ballot initiative process.  Ballot initiatives are a form of “direct democracy” where a group of citizens gather signatures to place a measure on a local or state ballot.  The first Colorado community to use this process to shape marijuana laws was Breckenridge which passed a pro-medical marijuana initiative in 1994.  Next up was Amendment 20, Colorado’s landmark medical marijuana constitutional measure, passed by 56% of voters in the year 2000.  After that we saw campus initiatives which “equalized” marijuana and alcohol penalties under the student code of conduct pass in 2005 at both Colorado University and Colorado State University.  That same year Denver became the first city in history to legalize possession of small amounts of marijuana under its city code, while Telluride narrowly rejected a reform measure. Winding up the decade, both Breckenridge and Nederland passed progressive reforms relating to adult marijuana possession by wide margins.

We are now witnessing a backlash where, after almost two decades of voters passing pro-marijuana reform measures,  citizens in certain communities are banding together to advance anti-marijuana initiatives.  Most of these initiatives seek to ban dispensaries and other medical marijuana business from operating in the targeted community.   As noted above, these “prohibition measures” have been met with mixed feelings by voters.  As an example, last week’s vote to ban medical marijuana businesses in Fort Collins was stunningly close, with only 52% of voters supporting it.

Moving forward, we are likely to see more bans and medical marijuana taxes appear on local ballots as Colorado communities continue to grapple with this new policy topic.  However, the true pulse of Colorado voters will be measured by their support (or rejection) of the statewide marijuana legalization measure, the Initiative to Regulate Marijuana Like Alcohol.  Proponents of this initiative, of which I am one, believe that Colorado would be better off with marijuana being treated like alcohol—taxed, sold from licensed stores, and limited to use by adults 21 and older.  With about 118,000 signatures in hand (and a goal of 145,000) the campaign is poised to place the measure on the 2012 presidential ballot, thereby continuing Colorado’s vibrant conversation about marijuana policy.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

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.
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Spark the Discussion: Medical Marijuana Law and Policy

October 19, 2011 By Leave a Comment
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

I’ll start with a bold prediction: marijuana reform and same-sex marriage are the two policy areas in which young lawyers will see major movement in their lifetimes. These two “controversial” topics stand at the crossroads of a shift in society, with the younger generation pushing for increased tolerance of alternative lifestyles—whether it’s marriage choice or an individual’s decision to medicate—or recreate—with marijuana—and older Americans increasingly accepting that, at least with these two topics, change is inevitable.

This article will focus on medical marijuana law and policy—a dynamic field that an increasing number of Colorado lawyers are facing in their everyday practice. Currently, sixteen states (and the District of Columbia) have passed statewide medical marijuana laws, and a half-dozen others are poised to take similar action. What started largely as an area within criminal law practice—a small number of lawyers defending medical marijuana patients accused of criminal violations—has expanded into a cottage industry impacting nearly every area of legal practice. This column will highlight some of those areas and discuss the future of this hot topic.

Before reading further, please note that while medical marijuana is legal in Colorado and a growing number of states, and literally thousands of doctors recommend it every year for sick patients, it remains firmly illegal under federal law. Given these conflicting state and federal stances, it’s crucial that lawyers practicing in this area closely follow emerging trends and policies.

  • Business Law:
  • Colorado and several other states have medical marijuana laws with provisions allowing for retail stores known as dispensaries to sell marijuana to qualifying patients.  Budding entrepreneurs need guidance from attorneys who understand not only medical marijuana laws, but also traditional business law. All facets of corporate law, from drafting  operating agreements to negotiating commercial transactions, come into play with the operation of dispensaries.
  • Family Law:
  • An increasingly common theme in the family law realm is the presence of medical marijuana in custody battles or divorce proceedings. Often these disputes arise not from actual neglect or abuse, but merely from the presence of marijuana in the home. Patients need solid guidance to keep this—and all medicine—firmly away from children. There is a desperate need for lawyers who understand both medical marijuana law and family law and can advocate appropriately when the two areas overlap.
  • Elder Law:
  • As medical marijuana patients age they often end up in nursing homes or in-patient hospice care. When Maine’s medical marijuana law changed last November, the state expressly permitted nursing homes and hospice workers to act as registered medical marijuana caregivers for patients. Other states are silent on this issue. Large questions remain about federal funding for this type of care and how one patient’s possession of a federally-illegal substance could place others at legal risk.
  • Civil Law:
  • Legal medical marijuana businesses have the same problems as other, more mainstream businesses, and partnership disputes by owners of such stores are commonplace in Colorado. Some owners came out of a less-mainstream past, and built a million-dollar business without signing an operating agreement. In these messy situations, civil litigation is often the only remedy.
  • Election and Municipal Law:
  • The passage of a statewide medical marijuana law is invariably followed by conservative municipalities attempting to ban sales and cultivation within municipal borders. When Colorado passed a dispensary law in 2010, around 50 municipalities put measures on their local ballots to ban these retail shops in their communities. Whether through ballot initiative or action by a government body, there is a real opportunity for lawyers who understand election and municipal law to engage in this area.
  • First Amendment:
  • The most common complaint from community members about dispensaries is that they have offensive signage. While polls consistently show that roughly 80% of Americans support medical marijuana, most citizens don’t want it shoved in their face. Medical marijuana business owners need lawyers to explain their rights—and encourage discretion.
  • Intellectual Property Law:
  • “Can we patent the recipe for my marijuana cheesecake?” This question may seem peculiar, but my office gets several calls a week of this nature. As more patients turn to alternate forms of administering medical marijuana, such as through edibles or tinctures, interesting questions arise concerning protecting the manufacturer’s recipes and formulas.
  • Criminal Law:
  • As long as federal law continues to classify marijuana as a Schedule I Controlled Substance—the most dangerous and addictive class of drugs—there will be work for criminal defense attorneys representing medical marijuana patients and providers in federal court. On the state and local level, authorities continue to zealously target adults for marijuana crimes,  arresting over 750,000 citizens for possession of marijuana annually. That’s the equivalent of arresting every man, woman, and child in the state of Wyoming once a year!

As young attorneys in Colorado, we have an incredible opportunity in the field of medical marijuana law. Unlike property law or criminal law, this area is new and has very little case precedent. The young idealist attorney will fight out these important cases in the courtroom and establish laws that make sense both for the patient and the community.

Many lawyers initially chose this patient-centered line of work because they believed the time had come to pursue a more common-sense approach to marijuana and drug policy in America. Now, as lawyers from a diverse range of practice areas are entering this arena, let’s hope all remain true to the core principles that attracted most of us to this work:

Patients before politics; patients before profits.
Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.
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State Board of Health Amends Rules Regarding Medical Marijuana Indigency Qualification and Doctors’ Good Standing

October 12, 2011 By Leave a Comment

The Colorado State Board of Health has proposed amendments to the Medical Use of Marijuana rules. The amendments:

  • Modify the indigence standard to conform with HB 11-1043, to clarify how an indigent person can prove qualification; and
  • Clarify the definition of “in good standing” in accord with HB 11-1043, to better delineate the standard for when a doctor can prescribe medical marijuana to a patient.

A hearing on the amended rules will be held on Wednesday, November 16, 2011 at the Department of Public Health and Environment, Building A, Sabin-Cleere Conference Room, 4300 Cherry Creek Drive South, Denver, Colorado 80246, beginning at 10:00 am.

Full text of the proposed rule changes including line edits can be found here. Further information about the rules and hearing can be found here.

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Colorado Court of Appeals: Employee Terminated after Marijuana Test May Be Denied Unemployment Benefits Even If Possessed Lawfully and Used Medically

August 22, 2011 By Leave a Comment

The Colorado Court of Appeals issued its opinion in Beinor v. Industrial Claim Appeals Office on August 18, 2011.

Unemployment Compensation Benefits—Medical Marijuana—Zero-Tolerance Policy—Colo. Const., art. XVIII, § 14.

Petitioner Beinor appealed the final order of the Industrial Claim Appeals Office (Panel) disqualifying him from unemployment compensation benefits. The order was affirmed.

Petitioner contended that he was entitled to benefits because he legally obtained and used marijuana for a medically documented purpose and consequently had a right to consume the drug. This case raises a question of first impression: whether an employee terminated for testing positive for marijuana in violation of an employer’s zero-tolerance drug policy may be denied unemployment compensation benefits even if the worker’s use of marijuana is “medical use” as defined in Colo. Const., art. XVIII, § 14.

The medical use of marijuana by an employee holding a registry card under Colo. Const., art. XVIII, § 14 is not pursuant to a prescription, and therefore does not constitute the use of “medically prescribed controlled substances” within the meaning of CRS § 8-73-108(5)(e)(IX.5). Accordingly, although the medical certification permitting the possession and use of marijuana may insulate claimant from state criminal prosecution, it does not preclude him from being denied unemployment benefits based on a separation from employment for testing positive for marijuana in violation of an employer’s express zero-tolerance drug policy.

Petitioner also contended that the evidence did not establish that he violated employer’s policy, which required claimant to notify employer of his use of marijuana if he was operating any machinery or driving any vehicles for employer, which he was not. Employer’s separate zero-tolerance policy, however, prohibited the presence of any “illegal drugs” in claimant’s system during working hours, regardless of whether he was operating any machinery or driving any vehicles for employer. Although Colorado’s medical marijuana provision may protect claimant from prosecution under Colorado’s criminal laws, the amendment has no bearing on federal laws, under which marijuana remains an illegal substance. Because there was substantial evidence that petitioner had a controlled substance in his system that was not medically prescribed, the Panel did not err in finding that he was not entitled to unemployment benefits.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

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Amy Bellman: So Your Hotel Guest Is Permitted To Use Medical Marijuana . . .

August 5, 2011 By Leave a Comment

Medical marijuana has been legal in Colorado since voters passed Amendment 20 in 2000.  As of June 2011, the Colorado Department of Public Health and Environment (“CDPHE”) had issued over 125,000 ID cards under the Medical Marijuana Registry program.  CDPHE statistics indicate that those holding ID cards are primarily male, have an average age of 40, and are far more likely to suffer from muscle spasms (20%) or severare pain (94%) than from cancer (2%) or glaucoma (1%).

CDPHE statistics do not discuss the travel habits of those holding ID cards.  But presuming that the muscle spasms subside enough to allow for some rest and relaxation, a person holding a medical marijuana ID card may presume that he can smoke on hotel/timeshare resort property.  If the hotel or timeshare resort is in Colorado, here are a couple things for the operator to consider when faced with this scenario.

It Is Unlikely that the DOJ Would Pursue an Americans With Disabilities Claim if a Hotel/Timeshare Resort Prohibited a Guest from Smoking Medical Marijuana

Many hotels and timeshare resorts are concerned that they could be subject to ADA liability for prohibiting a guest from smoking medical marijuana.  Although this issue is not entirely free from doubt, the Department of Justice (“DOJ”) (the agency that enforces the ADA) has issued two memos (one in October 2009 and the other in June 2011) generally addressing medical marijuana laws.  In the 2009 memo, the DOJ took the position that although medically prescribed marijuana is still an illegal drug under federal law, it is not going to waste resources chasing small-time legitimate medical users in states where such use is permitted.  In the 2011 memo (issued only one month ago), the DOJ reiterates that it won’t pursue small-time legitimate users, but warns that it will prosecute large scale, commercial medical marijuana growers.  Based on these memos, we think it unlikely that the DOJ would pursue a course of action that would require hotels and timeshare resorts to accommodate this activity, absent special circumstances.

Under Colorado Law, Hotels & Timeshare Resorts Are Not Required to Accommodate a Guest’s Use of Medical Marijuana

The Colorado Clean Indoor Air Act, which prohibits smoking in certain public places and gives owners/managers the right to prohibit smoking in their facilities, does not distinguish the smoking of medical marijuana from the smoking of cigarettes, cigars, pipes or other tobacco products.  Accordingly, managers of hotels and timeshare properties should be free to prohibit the smoking of medical marijuana in the same way that they prohibit the smoking of tobacco products.

In addition, FAQs published on CDPHE’s website provide that a patient is only legally permitted to smoke medical marijuana in his or her home; it is illegal to smoke medical marijuana in plain view of, or in a place open to, the general public.  Presuming that the resort does maintain a public designated smoking area, the CDPHE policy would not permit guests to smoke medical marijuana in that area.

Amy Bellman is an associate at Baker Hostetler who focuses her practice on both real estate and hospitality law. She contributes to the firm’s Hospitality Lawg, where this post originally appeared on August 1, 2011.
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Colorado Court of Appeals: Disqualification from Receiving Unemployment Insurance Benefits Requires an Employer to Show the Presence of a Controlled Substance through a Drug Test Conducted by a Licensed or Certified Facility

July 11, 2011 By 1 Comment

The Colorado Court of Appeals issued its opinion in Sosa v. Industrial Claim Appeals Office of the State of Colorado on July 7, 2011.

Unemployment Benefits—Marijuana—Drug Test—CRS § 8-73-108(5)(e)(IX.5).

Claimant sought review of a final order of the Industrial Claim Appeals Office (Panel) disqualifying him from receiving unemployment benefits under CRS §8-73-108(5)(e)(IX.5). The order was set aside.

Swift Beef Company (employer) discharged claimant for testing positive for marijuana while at work. A deputy of the Division of Employment and Training disqualified claimant from receiving unemployment insurance benefits for violating the company’s zero tolerance policy. Although the hearing officer determined that claimant “tested positive for marijuana,” he also found that claimant was not impaired at work on August 10; that claimant had a valid medical marijuana license; and that employer failed to prove that the drug test was performed at a certified laboratory. The Panel reversed the hearing officer’s decision that claimant was not at fault in connection with his separation from employment.

On appeal, claimant contended that the Panel erred as a matter of law by imposing a disqualification under CRS § 8-73-108(5)(e)(IX.5), given the hearing officer’s finding that employer failed to prove the testing laboratory was licensed or certified. To support a disqualification, § 8-73-108(5)(e)(IX.5) expressly requires an employer to show the presence of a controlled substance through a drug test conducted by a facility or laboratory licensed or certified to conduct drug testing. There was no evidence that the laboratory performing claimant’s drug test was licensed or certified as expressly required under § 8-73-108(5)(e)(IX.5). Because claimant neither stipulated to the licensed or certified status of the facility or laboratory nor stipulated to having drugs in his system during working hours, the Panel’s disqualification order was set aside and the case was remanded with instructions to reinstate the hearing officer’s decision.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on July 7, 2011, can be found here.

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Governor Hickenlooper Names Brohl as Executive Director of the Department of Revenue

July 1, 2011 By Leave a Comment

On Thursday, June 30, 2011, Governor John Hickenlooper announced that Barbara J. Brohl will become Executive Director of the Department of Revenue. She will replace the interim director of the department, Roxy Huber.

Brohl is an attorney with more than twenty-four years of experience in business; she served as Corporate Counsel for Qwest Corporation in Denver since 2003 and had previously worked for US WEST since 1983.

In 2005, Brohl was elected to the Regional Transportation District Board, responsible for overseeing multi-billion dollar budgets, setting policy on all transit issues, and matters for the metropolitan area, meeting with the Colorado Delegation to obtain support and funding for transit projects.

Brohl was also a law clerk for Colorado Supreme Court Justices Gregory J. Hobbs, Jr. and William H. Erickson.

As Executive Director, Brohl will be the principal officer for Colorado’s Tax Division and the Division of Motor Vehicles. Included under her oversight and responsibility are the Divisions of Gaming, Tobacco and Alcoholic Beverages, Lottery, Racing, Hearings, and the recently added Division of Medical Marijuana.

The entire Department has more than 1,500 employees and brings in more than $11 billion in fees and taxes for the state on an annual basis.

Brohl earned a bachelor’s degree from Regis University and her law degree from the University of Denver College of Law.

The full press release from the Governor’s Office concerning Brohl’s appointment can be found here.

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Bill Setting Marijuana DUI Levels Clears the House, Moves to the Senate

March 25, 2011 By Leave a Comment

On Wednesday, March 23, the Colorado House of Representatives passed HB 11-1261 on its Third Reading. The bill establishes blood-THC levels to determine what constitutes driving under the influence of marijuana. The bill is a bipartisan proposal, introduced by Reps. Claire Levy, D-Boulder, and Mark Waller, R-Colorado Springs; it will now make its way to the Senate where it is has also found bipartisan support, being sponsored by Sens. Steve King, R-Grand Junction, and Betty Boyd, D-Lakewood.

The Colorado bill sets a limit of five nanograms of tetrahydrocannabinols, or THC, marijuana’s psychoactive ingredient, that may be present in an individual’s system at the time of driving or within two hours of being pulled over.

It is currently illegal to drive while under the influence of marijuana in Colorado, and twelve states have zero-tollerance laws for blood-THC levels, according to the Denver Post. Two states, Nevada and Ohio, have a two-nanogram limit.

Read more coverage of Colorado’s evolving medical marijuana law here.

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HB 11-1250: Prohibiting Medical Marijuana-Infused Consumable Products Manufacturing and Sale

March 25, 2011 By Leave a Comment

On February 9, 2011, Rep. Cindy Acree, R-Aurora, and Sen. Scott Renfroe, R-Greeley, introduced HB 11-1250 – Concerning prohibition on ingestible medical marijuana-infused products. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law permits a medical marijuana-infused products licensee to produce edible products. The bill would prohibit medical marijuana-infused consumable food and beverage product manufacturing and sale. On March 15, the Judiciary Committee amended the bill and referred it to the Finance Committee.

The amended bill has removed much of the language banning medical marijuana edible products, as reported by Legal Connection last week. Read more coverage of Colorado’s evolving medical marijuana law here.

Summaries of other featured bills can be found here.

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Edible Medical Marijuana Products Ban Removed from House Bill

March 17, 2011 By 1 Comment

On Tuesday, Rep. Cindy Acree, R-Aurora, withdrew her proposal to ban pot-infused products for medical marijuana users, reports The Denver Post. Instead, the House Judiciary Committee approved HB 11-1250 by a vote of 7-3 after it was amended to allow state regulators to call for tamper-proof packaging standards for the sale of edible products at dispensaries. No edible products were banned by the bill, but language remained banning medical marijuana-infused ointments and tinctures.

The Committee also removed limits on marijuana advertising after concerns over free-speech challenges. References to “food and drink” were also removed, with language added to exclude such products from consideration as food or drug for the purposes of the “Colorado Food and Drug Act.”

Read more coverage of Colorado’s evolving medical marijuana law here.

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