April 18, 2019

Archives for June 20, 2012

Tenth Circuit: Unpublished Opinions, 6/19/12

On Tuesday, June 19, 2012, the Tenth Circuit Court of Appeals issued two published opinions and nine unpublished opinions.

United States v. Adame-Torres

United States v. Reyes-Marquez

Jackson v. Diversified Collection Service

Spry v. McKune

McKnight, Jr. v. White

Jech v. Dep’t of Interior

United States v. Burgdorf

Barrett v. Workman

United States v. Kaufman

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Corrective Order Issued for New Procedural Time Calculation Rules that Become Effective in July

Back in 2011, the Colorado Supreme Court announced significant changes across the board for procedural time calculations. The changes conform the various court rules to the “rule of 7″ for procedural time periods, adopting multiples of a week. The rule changes were implemented in two phases: the contents of Rule Change 2011(18) were implemented on January 1, 2012, and the contents of Rule Change 2011(19) are set to become effective on July 1, 2012. This later date reflected the need for some rules changes to be approved and passed by the Colorado legislature.

On June 20, 2012, the Court released a Corrective Order to revise the procedural time calculations for some Colorado Rules of Procedure that become effective in July. Namely, time periods for filing certain documents with the court have been extended in the following rules:

  • Rule 103 and Rule 403 Garnishment (extension of certain deadlines from 7 to 14 days)
  • Rule 411 Appeals (extension of certain deadlines from 14 to 21 days)

The specific changes to the rules can be reviewed in the redlined document below.

Supreme Court Rule Change 2011(19) Corrective Order

Spark the Discussion: Supreme Court Leaves Patients Behind

“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 Brian Vicente, Esq. and Rachelle Yeung

Jason Beinor was a street sweeper, assigned to sweep the 16th Street Mall with a broom and dustpan. He had a clean employment record, with no written reprimands or warnings. Yet he was fired from his job and disqualified from receiving unemployment benefits.

Beinor suffers from debilitating migraine headaches – a lasting, painful consequence of a prior assault. Like 96,000 other Coloradans, Beinor is a legal medical marijuana patient, and occasionally uses this substance in an off-work capacity to ameliorate his suffering. Unfortunately for Beinor, a random drug test in February 2010 tested positive for marijuana, costing him his job.

Beinor never used or possessed marijuana while on the job, and his private medical use never interfered with his job performance. However, under his employer’s zero-tolerance policy, the residual, non-psychoactive THC in Beinor’s system was considered an illegal drug, and Beinor was immediately terminated. Because Beinor believed he had been fired through no fault of his own – his marijuana had been doctor-recommended and lawfully-obtained – he filed for unemployment compensation benefits. He was denied, the Colorado Court of Appeals upheld the decision. Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011). Recently, the Colorado Supreme Court denied to review the case.

Under Colorado statutes “[t]he presence in an individual’s system, during working hours, of not medically prescribed controlled substances” disqualifies that employee from benefits. Beinor had THC metabolites, the non-psychoactive reside of marijuana – in his system during working hours. But he thought he was safe because it had been medically recommended to him. Unfortunately, the written documentation physicians provide their patients recommending medical use of marijuana is specifically not a “prescription”. This is where federal law comes into play.

Doctors across the country must be registered with the Drug Enforcement Administration (DEA) in order to lawfully prescribe medication. However, because of marijuana’s classification as a Schedule I drug under the federal Controlled Substances Act, registered doctors cannot prescribe marijuana, but only recommend it. Indeed, their recommendations must clearly state, “[t]his assessment is not a prescription for the use of marijuana.” Thus, Beinor’s medical marijuana was considered “not medically prescribed.”

In the grand scheme of things, legal technicalities such as whether a doctor’s written recommendation is considered a “prescription” wouldn’t matter if Beinor and other patients had a constitutional right to use marijuana. However, the majority of the Colorado Court of Appeals in Beinor did not interpret Amendment 20, Colorado’s original medical marijuana law passed in 2000, to grant that right. Instead, it determined Amendment 20 only created limited exceptions to state criminal laws for patients, primary caregivers, and physicians concerning the medical use of marijuana.

The Court pointed specifically to a clause in Amendment 20 that reads: “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.” As Judge Gabriel, who dissented from the majority, astutely pointed out, Beinor never used marijuana in his work place, and that provision does not logically include “the presence of marijuana in one’s blood after the lawful use of medical marijuana at home.” Judge Gabriel further observes that, under such an interpretation of the law, “many patients who are eligible to use medical marijuana would likely abandon their right to do so, because even lawful use at home would put their benefits, and perhaps even their jobs, at risk.”

The majority’s decision has significantly deteriorated the rights and protections that medical marijuana patients believed they had. On a positive note, there is another case before the Colorado Supreme Court, regarding a patient whose probation was revoked due to his lawful, medical use of marijuana. If the Supreme Court grants review to that case, it may be able to begin reversing a dangerous growing trend of discrimination against medical marijuana patients, perpetuated by the Court of Appeals.

Another way to solidify the rights of patients would be the passage of Amendment 64, the Act to Regulate Marijuana Like Alcohol, which Coloradans will vote on in November. Unlike the medical marijuana amendment, whose ambiguous language left it vulnerable to manipulation, Amendment 64 clearly declares adult use of marijuana to be legal, thereby circumventing any restrictive interpretation such as was seen in the Beinor.

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.