August 20, 2019

Archives for July 2, 2012

Spark the Discussion: No Love Supreme – Colorado Courts Continue to Rule Against Medical Marijuana Patients

“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

Leonard Charles Watkins has long suffered pancreatitis, which causes him debilitating chronic pain and for which he has been hospitalized three times. Watkins’ doctor recommended he use marijuana to reduce his suffering, so Watkins lawfully applied and qualified to be a medical marijuana patient. In February 2012, the Colorado Court of Appeals revoked Watkins’ ability to treat his illness with this state-approved medicine.

In 2008, Watkins pled guilty to a class three felony – unrelated to any controlled substances – for which he received six years’ probation. His probation conditions required that Watkins “not use or possess any narcotic, dangerous or abusable substance without a prescription,” and that he “not commit another offense” for the duration of his probation. However, after Watkins explained his medical condition to his judge, the trial court issued an order approving his use of medical marijuana.

The Arapahoe District Attorney filed a motion to reconsider, which the trial court denied in an extensive written order. The Prosecution then appealed the denial and the Court of Appeals reversed the trial court’s order, thus denying Watkins the use of this medicine.

Under Colorado law, trial courts are required to set as a condition of probation that probationers “not commit another offense.” C.R.S. 18-1.3-204(1). The Court of Appeals wrote in its opinion that “[t]he Colorado statute itself does not define the term [offense].” People v. Watkins, — P.3d —, 2012 WL 310776 (Colo. App. 2012). However, the Colorado Criminal Code – where the probation statutes can also be found – defines “offense” as “a violation of, or conduct defined by, any state statute for which a fine or imprisonment may be imposed.” C.R.S. 18-1-104(1). It is undisputed that Watkins’ use of medical marijuana was permissible within state law. Yet, despite this straightforward practice in statutory interpretation, the Court of Appeals expanded the meaning of “offense” beyond its unambiguous definition and determined that it included violations of federal law.

To be clear, this is not a broad determination that federal law preempts state medical marijuana laws – simply that the Court of Appeals interpreted one particular statute to take federal prohibition into account.

Relying heavily on its recent decision in Beinor, the Court of Appeals affirmed that marijuana could not be legally “prescribed,” and that therefore Watkins’ lawful medical use of marijuana was a violation of the condition that he not use or possess “any narcotic, dangerous or abusable substance without a prescription.” Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011). Without further reasoning, the Court of Appeals again echoed the Beinor opinion and held that Amendment 20, Colorado’s original medical marijuana law, did not extend a constitutional right to patients, but merely protected patients from criminal prosecution under limited circumstances.

Recently, the medical marijuana advocacy group, Sensible Colorado, teamed up with the ACLU to file an appeal on Watkins behalf. The Colorado Supreme Court denied this appeal and brandished Watkins, and other sick medical marijuana patients like him, probation violators if they use their doctor-recommended medicine. Specifically, the Watkins decision set forth a sweeping precedent that “neither Petitioner [Watkins] nor any other probationer in Colorado – regardless of the underlying offense, the circumstances of the probationer’s illness, or the trial court’s view – may use medical marijuana.” Petition for Writ of Certiori at 4, Watkins, — P.3d — (Colo. App. 2012).

Despite this seemingly bleak decision, medical marijuana patients are not always condemned to suffer while on probation. It is still the law that a trial court judge’s decision to not revoke probation cannot be appealed, regardless of any probation violations. It may be little comfort, but patients can still hope that sympathetic trial court judges will simply refuse to revoke their probation for medical marijuana use. The passage of Amendment 64, the Act to Regulate Marijuana Like Alcohol, which is on the statewide ballot this November, may further prompt the judicial branch to align their decisions with the will of the People.

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.

Running Past Our Limits (Part 2 of 6)

[If you haven’t read Part 1, go back and do it. This will make more sense. We’ll wait.]

I started to get faster and go further. About the time winter was arriving, I did 5 miles in 66 minutes, then at Christmas I did 7 in 82. One day I decided to go as long as I could, which turned out to be an hour and 45 minutes. I don’t remember how far I went. When I got home, my wife was frantic. I’d been gone so long, she thought the people at Bally Total Fitness must have sent me off in an ambulance.

One day when I was feeling really strong I decided to try to run a 5 minute mile, just to see if it was physically possible. The machine shook and wobbled – apparently I was pushing the limits of more than just me. I labored, but I did it. So now I knew it was theoretically possible to run 12 miles in an hour.

Around Christmas two terrific things happened. One day I was gliding along with my eyes shut, as I often did, when a pat on the back made me jump. It was our local Bally amazon. “Working hard!” was all she said. A couple weeks later I was limping toward the door after a workout (“Just limp,” my wife had advised. “You don’t look drunk that way.”), when a guy my age met my eyes. “Man, you work out hard,” he said. “Yes, I do,” I replied.

You can go a long way on encouragement like that.

What about my goal of 12 miles in 60 minutes? Um, not so much. Yes, it was theoretically possible, and I’d made great progress on both pace and distance, but that goal was shooting at the moon. Around mid-January, I gave up on it. There were still too many days when my legs just wouldn’t move anymore and I’d have to quit after a mile or so and go trudging home in despair.

Plus, as a healing modality, this hadn’t been my best idea. My feet and legs were getting worse, not better, although it was hard to tell if that was because of my new exercise regime or not – they’ve been getting worse for awhile. But despite that, I was feeling better – inside at least. My heart and lungs had to be loving it – especially my heart, in more ways than one. So I kept on.

And then one day, maybe a month or two after I gave up on my goal, I got a new idea – another totally crazy, wild hare idea:  “I wonder if I could run a marathon on this thing?”

[To be continued]

Five years ago, Kevin Rhodes left a successful 20+ years career in private practice to pursue a creative dream. He recently reopened his law practice, while continuing to write (screenplays and nonfiction) and lead workshops on change for a variety of audiences, including the CBA’s Job Search and Career Transitions Support Group. His latest workshop, Life in the Gap: Getting Over Your Inspiration Hangover and Translating Inspiration into Action, was held April 10, 2012. Watch for another program in the near future. This post originally appeared on his blog on June 27, 2012.

Tenth Circuit: Unpublished Opinions, 6/29/12

On Friday, June 29, 2012, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.

Oklahoma Corrs. Prof. Assoc., Inc. v. Doerflinger

United States v. Riggins

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