July 20, 2019

Colorado Court of Appeals: Possession of Controlled Substance at Direction of Legal Owner Not Affirmative Defense

The Colorado Court of Appeals issued its opinion in People v. Martinez on Thursday, May 18, 2017.

Unlawful Possession—Prescription—Affirmative Defense—Prosecutorial Misconduct.

Defendant was charged with simple possession after the police found Percocet and Vicodin in her purse for which she did not have a prescription. At trial, defendant’s neighbor testified that she had prescriptions for both medications and that she had asked defendant to hold her prescriptions while they were out that evening because her purse was too small and she did not wish to leave the medications at home. A jury convicted defendant of possession and the trial court sentenced her to probation.

On appeal, defendant contended that she could lawfully possess the medications if she was “acting at the direction of the legal owner of the controlled substance,” and the trial court erred by failing to give the jury an affirmative defense instruction. The language defendant relies on in C.R.S. § 18-18-413 may present a defense to the crime of unauthorized possession of a prescribed controlled substance. However, C.R.S. § 18-18-413 is a separate offense, and it does not present an affirmative defense to unlawful possession under C.R.S. § 18-18-403.5, under which defendant was charged. Further, the trial court did not err in failing to tie the instruction to the elemental instructions given to the jury because the error would have to have been plain and obvious, which it was not. Thus, the trial court did not commit plain error by declining to adopt this construction sua sponte.

Defendant further contended that the trial court plainly erred by not giving an affirmative defense instruction based on the prescription exception in C.R.S. § 18-18-302(3)(c), which allows lawful possession by “[a]n ultimate user or a person in possession” of the medication “pursuant to a lawful order of a practitioner.” C.R.S. § 18-18-302(3)(c) is an affirmative defense to unlawful possession of a controlled substance. However, this affirmative defense did not apply to the charges against defendant because she did not have a valid prescription from a practitioner. Further, even assuming that the court erred in sua sponte failing to give this affirmative defense, such error would not be reversible error because it was not obvious and substantial.

Finally, defendant argued that the prosecutor committed reversible error by arguing that C.R.S. § 18-18-413 was not an affirmative defense to C.R.S. § 18-18-403.5 and by misstating the evidence in closing arguments. Because C.R.S. § 18-18-413 is not an affirmative defense to C.R.S. § 18-18-403.5, and the prosecutor’s statements were reasonable inferences drawn from the evidence presented at trial, the prosecutor’s arguments both during voir dire and closing argument were proper.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Mere Buyer-Seller Relationship Does Not Constitute Drug Distribution Conspiracy

The Colorado Court of Appeals issued its opinion in People v. Lucero on Thursday, July 14, 2016.

Rose Lucero’s coworker had prescriptions for several types of medications, including Tylenol with codeine. Ms. Lucero would occasionally request medications from the coworker, and would be given one pill for personal use for no compensation. The prosecution charged Ms. Lucero with conspiring with her coworker to distribute codeine and two counts of inducing her coworker to distribute the same substance. All of the charged offenses were class 4 felonies. At trial, the court granted Ms. Lucero’s motion for judgment of acquittal on the inducement counts but not the conspiracy count. The jury convicted Ms. Lucero of conspiracy and she was sentenced to one year of probation.

Ms. Lucero appealed her conviction, arguing that the prosecution produced insufficient evidence to prove that she conspired with her coworker. Ms. Lucero relied on the principle that evidence of a buyer-seller relationship, without more, does not constitute a conspiracy to distribute drugs. The court of appeals agreed with Ms. Lucero. The court of appeals held that the Colorado conspiracy statute exists to punish conspirators who have agreed on a common illicit purpose. The court held that such a conspiracy was not present in Ms. Lucero’s case, where she asked for painkillers for personal use and did not distribute them further. The court also held that by finding a conspiracy, the lower court contravened the General Assembly’s intent to punish conspiracy more heavily than simple possession.

The court of appeals vacated Ms. Lucero’s conviction and remanded for entry of judgment of acquittal.

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.

Colorado Court of Appeals: Termination Upheld for Quadriplegic Medical Marijuana User Because Marijuana Remains Illegal Under Federal Law

The Colorado Court of Appeals issued its opinion in Coats v. Dish Network, L.L.C. on Thursday, April 25, 2013.

Medical Marijuana—CRS § 24-34-402.5—“Lawful Activity”—Attorney Fees.

Plaintiff Brandon Coatsappealed the trial court’s dismissal of his complaint for failure to state a claim and its order awarding defendant Dish Networks, L.L.C.attorney fees. The judgment was affirmed and the order was reversed.

Defendant fired plaintiff after he tested positive for marijuana, which was a violation of defendant’s drug policy. Plaintiff is a quadriplegic and licensed by the state of Colorado to use medical marijuana pursuant to the Medical Marijuana Amendment (Amendment). Plaintiff alleged that he used marijuana within the limits of his license, never used it on defendant’s premises, and was never under the influence of marijuana at work.

Plaintiff claimed his termination violated the Lawful Activities Statute, CRS § 24-34-402.5, which prohibits an employer from discharging an employee for “engaging in any lawful activity off the premises of the employer during nonworking hours.” Defendant filed a motion to dismiss, arguing that plaintiff’s use of medical marijuana was not a “lawful activity” because it was prohibited under state and federal law.

The trial court agreed with defendant and dismissed the complaint for failure to state a claim. The court also granted defendant’s motion for attorney fees pursuant to CRS § 13-17-201.

The Court of Appeals noted that all marijuana use was, and remains, prohibited by federal law. The Court held that this renders medical marijuana use not “lawful activity” for purposes of CRS § 24-34-402.5, finding the term includes federal and state law.

CRS § 13-17-201 mandates an award of reasonable attorney fees to a defendant when a court dismisses, pursuant to CRCP 12(b), an “action[] brought as a result of . . . an injury . . . occasioned by the tort of any other person.” The trial court granted the motion because it determined plaintiff’s claim constituted a tort claim.

The claim was based on a violation of CRS § 24-34-402.5, which is an employment discrimination provision of the Colorado Civil Rights Act (CCRA). Plaintiff was seeking back pay and benefits. Defendant first argued this is the equivalent of an invasion of privacy tort. The Court rejected this argument, because the interest being protected by this statutory section is from discriminatory termination based on lawful, off-the-job activity and not against intrusion into privacy or discovery and disclosure of private information.

Defendant further argued that the claim asserted had enough tort-like characteristics to be considered a tort. The Court found that although there is no satisfactory definition of what constitutes a tort, the primary purpose of tort law is to compensate individuals for injuries wrongfully suffered at the hands of others. The Court found that, based on the statute’s language and legislative history, its purpose is not to compensate an individual for breach of a statutory duty, but to eliminate workplace discrimination based on lawful, off-the-job activity. In addition, most traditional tort remedies are not available for this claim; the damages would simply restore the plaintiff to the wage and employment position he or she would have had absent the unlawful discrimination. The judgment dismissing plaintiff’s complaint was affirmed and the order awarding attorney fees was reversed.

Summary and full case available here.

HB 13-1317: Implementing Major Provisions of Amendment 64 Regarding Legalization of Marijuana

On April 18, 2013, Rep. Dan Pabon introduced HB 13-1317 – Concerning the Recommendations Made in the Public Process for the Purpose of Implementing Retail Marijuana Legalized by Section 16 of Article XVIII of the Colorado Constitution, and, in Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

As introduced, the bill converts the medical marijuana enforcement division to the marijuana enforcement division and gives the division the authority to regulate medical marijuana and retail marijuana. The bill allows the division to receive moneys from the general fund. The bill deposits all of the application and licensing fees and sales, use, and special marijuana sales taxes from retail marijuana into a cash fund and permits supplementing the fund with moneys from the general fund to allow the division to operate. Once the division achieves a balance of cash funds sufficient to support the division, any excess revenue up to the amount of general fund moneys provided shall be transferred to the general fund. The bill sets the application fees for applicants who are current medical marijuana licensees or applicants at $500 and at $5,000 for new applicants. One half of the fee is transferred to the local jurisdiction. On Sept. 30, 2014, and each year thereafter, the state licensing authority must provide a report to the joint budget committee and the finance committees regarding the amount of revenue generated by retail marijuana and its regulatory work.

The bill creates the regulatory framework for retail marijuana. The bill allows an existing medical marijuana licensee or an existing medical marijuana applicant the opportunity to apply for a retail marijuana license with the option of converting its operation to a retail marijuana business or retaining a medical marijuana business and adding a retail marijuana business. The bill places a three-month moratorium on retail marijuana license applications from individuals who are not currently licensed for medical marijuana or an applicant for a medical marijuana license. The state licensing authority must act upon the applications no sooner than 45 days after receipt and no later than 90 days after receipt. The following businesses must be licensed to operate a retail marijuana business: retail marijuana stores, retail marijuana products manufacturers, retail marijuana cultivation facilities, and marijuana testing facilities. The bill allows the state licensing authority to issue a state license that is conditioned on the local jurisdiction’s approval.

The bill requires the state licensing authority to promulgate rules as required by the constitution and authorizes the state licensing authority to promulgate other rules with the assistance of the department of public health and environment.

The bill describes persons who are prohibited from being licensees and requires license applicants to undergo a background check. The bill also limits the areas where a licensed operation may be located. The state licensing authority may set fees for the various types of licenses it issues. The bill requires all officers, managers, and employees of a retail marijuana business to be residents of Colorado. All owners must be residents of Colorado for at least two years prior to applying for licensure. A licensed retail marijuana store and licensed retail marijuana products manufacturer may either grow its own marijuana or purchase it from a retail marijuana cultivation facility.

A retail marijuana store may only sell one-fourth of an ounce of marijuana to a nonresident during a single transaction. A retail marijuana store may not sell any retail marijuana product that contains nicotine or alcohol. A retail marijuana store must place each sold item in a sealed nontransparent container at the point of sale.

On April 26, the bill was amended and passed on 2nd Reading in the House.

Since this summary, the bill passed Third Reading in the House, and was assigned to the Senate Finance Committee.

HB 13-1121: Allowing Pharmacists to Substitute Biosimilar Drugs When Available

On January 18, 2013, Rep. Sue Schafer and Sen. Rollie Heath introduced HB 13-1121 – Concerning the Ability of a Pharmacist to Substitute a Biosimilar Product for a Prescribed Biological Product When Certain Conditions are SatisfiedThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law permits a pharmacist to substitute an equivalent drug product for a prescribed drug if the substituted drug is the same generic drug type as the prescribed drug, and the pharmacist determines that the substituted drug is therapeutically equivalent to and interchangeable with the prescribed drug. While a pharmacist may substitute chemical drugs, current law does not allow a pharmacist to substitute biological drug products.

The bill allows a pharmacist to substitute a biosimilar product if the federal food and drug administration (FDA) has determined the biosimilar product to be interchangeable with a prescribed biological product for the indicated use and if the practitioner has not indicated that the prescription must be dispensed as written. Once a substitution occurs, the pharmacist must notify the practitioner of the substitution, and the pharmacy from which the biosimilar product was dispensed must retain a record of the substitution for at least five years. A pharmacist may comply with the notice requirement by entering the substitution information in an electronic system between the prescribing physician and the pharmacist, including an electronic medical record. The requirement to notify the prescribing practitioner of the substitution of an interchangeable biosimilar product is repealed three years after the date on which the FDA first approves a biosimilar product as interchangeable with a specific biological product.

As with the substitution of a chemical drug, the pharmacist substituting a biosimilar product for a prescribed biological product must notify the purchaser orally and in writing and may only substitute a biosimilar product if the substituted product costs less than the prescribed biological product, unless the prescribed biological product is not in stock and the purchaser consents to the higher-priced biosimilar product.

The bill requires the state board of pharmacy to maintain a link on its web site to the FDA resource that identifies biosimilar products approved as interchangeable with specific biological products. On Feb. 26, the bill passed 3rd Reading in the House.

Tenth Circuit: No Fourth Amendment Violation in Search and Seizure of Defendant’s Home and Vehicle

The Tenth Circuit published its opinion in United States v. Jones on Tuesday, December 18, 2012.

Officers of the Missouri State Highway Patrol conducted surveillance of a hydroponics store in Kansas City, Missouri. Defendant-Appellant Mr. Jones (“Jones”) arrived at the store.  After he entered the store, Sergeant Blunt requested a computer check on the license plate of Mr. Jones’s truck. The records indicated that his driving privileges had been suspended in Missouri, and that he was on parole in Missouri for a prior drug offense. Mr. Jones drove from the store in Kansas City, Missouri, to his residence in Kansas City, Kansas. The officer approached Mr. Jones in the alley behind his house, where the Officer told Jones he was conducting a drug investigation, and that he was there for Mr. Jones’ marijuana plants.

Without explicitly saying so, Sergeant Blunt indicated that he wanted to search Mr. Jones’s residence.  Sergeant Blunt never explicitly told Mr. Jones that he could refuse consent. Mr. Jones never told the officers that he did not want them to search his residence. At some point, Mr. Jones walked toward his residence. Once inside, Mr. Jones unlocked another door, grabbed a gun, and shot Sergeant Blunt.  Trooper Tyrrell wounded Mr. Jones and the officers retreated to their vehicles.

The officers radioed dispatch, who notified the officers that they were in fact in Kansas City, Kansas.  The Kansas City, Kansas, Police Department responded to the location and took command.

The Kansas City, Kansas, Police Department got search warrants to search Mr. Jones’s residence and vehicle, which resulted in the seizure of evidence related to marijuana and firearms possession.

Mr. Jones was indicted and filed a motion to suppress, arguing that the evidence obtained from Mr. Jones’s home and truck was obtained as a result of an unlawful detention of Mr. Jones, and a warrantless entry into his home without consent. The district court denied the motion. Jones appealed.

On appeal, Mr. Jones makes five arguments:

First, Jones argues that because the Missouri officers were acting outside of their jurisdiction (in Kansas), their seizure of Mr. Jones effected a Fourth Amendment violation. There is no dispute that the interaction with Mr. Jones and the Missouri officers was outside of their jurisdiction. However, in federal prosecutions, the test of reasonableness in relation to the Fourth Amendment protected rights must be determined by federal law even though the police actions are those of state police officers. Accordingly, Mr. Jones’s argument is mistaken.

Second, Jones contends that the Missouri officers’ conversation with him in the alley amounted to a seizure. A Fourth Amendment seizure does not occur simply because a police officer approaches an individual and asks a few questions. Accordingly, under the totality of the circumstances, a reasonable person in Mr. Jones’s position would have felt free to terminate his encounter with the Missouri officers outside of his home.

Third, Mr. Jones contends that there was not reasonable suspicion for the officers to take his driver’s license and detain him. The government admits that what began as a consensual encounter became an investigative detention once the agents received Mr. Jones’ driver’s license and did not return it to him. However, there were a number of facts available to the Missouri officers at the time they took Mr. Jones’s license that would have justified their objectively reasonable suspicion that Mr. Jones was engaged in criminal activity, warranting his detention for further investigation.

Fourth, he maintains that he did not consent to the Missouri officers’ entry into his home. There can be no doubt that Mr. Jones’s actions here—though nonverbal—could have been reasonably interpreted by the Missouri officers as communicating Mr. Jones’s consent to their accompanying him into his home.

Finally, because the Kansas search warrants for his home and car were based upon information improperly unearthed by the Missouri officers in violation of the Fourth Amendment, the evidence secured by the warrants is tainted and thus inadmissible. However, the Tenth Circuit already concluded that the Missouri officers’ lack of authority under Kansas law was of no import to the Fourth Amendment seizure analysis. Therefore, the evidence that the Missouri officers obtained during their investigation could properly form the basis for the warrants secured by the Kansas officers.



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.

Governor Hickenlooper Signed Amendment 64 Proclamation – Marijuana Legal in Colorado for Private, Personal Use

On Monday, December 10, 2012, Governor Hickenlooper signed an Executive Order that formalizes Amendment 64 as part of the Colorado Constitution. The Executive Order makes legal personal use and possession of small quantities of marijuana, as well as limited home-growing. It is still illegal to buy or sell marijuana, use it in public, or use it in a way that endangers others.

In addition to the Executive Order formalizing Amendment 64, Governor Hickenlooper signed another Executive Order to create a task force on the implementation of Amendment 64. The task force will create and enforce a regulatory structure. There will be 24 members of the task force, who were named by the governor in the Executive Order. The task force will be chaird by Jack Finlaw, the governor’s chief legal counsel, and Barbara Brohl, the Executive Director of the Colorado Department of Revenue.

The task force will address many issues related to the continuing regulation of marijuana, such as amending current laws regarding marijuana possession, sale, and distribution to reflect its legality; creating laws regarding security and labeling requirements for marijuana establishments; education efforts to address long-term health consequences of marijuana use; and the impact of Amendment 64 on employers and employees. The task force is expected to report back to the governor, the General Assembly, and the Attorney General by February 28, 2013.

The task force will also attempt to reconcile Colorado law with federal law so that the Colorado government and its employees will not be subject to prosecution. Governor Hickenlooper and Attorney General John Suthers wrote a letter to Eric Holder, the United States Attorney General, regarding the federal government’s position on Amendment 64, but the state has not yet received a response. Governor Hickenlooper stressed that he will attempt to retain as much flexibility as possible in order comply with federal laws.

For the governor’s complete press release, click here. To hear a panel discussion about the implications of Amendment 64 for Colorado, come to the live CLE program on December 18.

CLE Program: Marijuana and Hemp Law in Colorado – Amendment 64

This CLE presentation will take place on Tuesday, December 18, at 9:00 a.m. Click here to register or call (303) 860-0608. Can’t make the live program? Click here to register for the webcast.


Amendment 64 Passed in Colorado: Now What?

On Tuesday, November 6, 2012, Colorado voters approved Amendment 64, and Washington state voters approved Initiative 502. In enacting these ballot measures, Colorado and Washington become the first states in the country to decriminalize marijuana outside of the medical marijuana context.

What does Amendment 64 mean for Colorado?

Amendment 64 has two basic parts: (1) within certain defined parameters, it decriminalizes adult possession, use and cultivation of marijuana for recreational purposes; and (2) creates a framework for the establishment of a regulated and taxed retail marijuana industry, which would include cultivation, marijuana-infused products manufacturing, and retail sales. Respectively, these can be described as the “decriminalization,” and “regulation” components of Amendment 64.

As an initial matter, it is important to note that Amendment 64 does not affect the federal prohibition on marijuana. Marijuana remains illegal for all purposes at the federal level, and possession of any amount can lead to serious federal civil and criminal penalties. Thus, it will still be a federal crime for adults in Colorado to possess, cultivate, or distribute marijuana. Indeed, Colorado law would be irrelevant, and likely inadmissible, in a federal criminal prosecution or asset forfeiture proceeding arising from federal marijuana charges.

The status of federal marijuana law will have a significant impact on what happens in Colorado, but the effect of the conflict between Colorado and federal law will likely play out differently with respect to different components of Amendment 64. Decriminalization will go into effect as soon as the results of the election are made official (which could take several weeks). At that time, Colorado law enforcement authorities will no longer be able to arrest or prosecute adults possessing small amounts of marijuana, or growing up to six plants for personal use, provided they are otherwise acting in compliance with the requirements of Amendment 64. Accordingly, though it is inaccurate to say that marijuana is “legal” in Colorado in light of continued federal prohibition, as a practical matter, Amendment 64 largely eliminates the risk that any adult acting within the limits of the amendment would be arrested or convicted of marijuana crimes in Colorado. There are simply not enough federal law enforcement authorities on the ground in Colorado to deter adult recreational use of marijuana, and federal authorities cannot force Colorado authorities to enforce federal law. This reduced practical risk of prosecution will certainly have an effect on people’s behavior, and there is likely little that federal authorities will be able to do to meaningfully enforce marijuana prohibition as it relates to adult personal use of the drug.

Regulation, however, is likely a different matter, and its success hinges greatly on the federal attitude and approach toward the creation of the first state-regulated recreational marijuana market in the country. Because of federal forfeiture laws, the implications of regulation will be of particular concern to real estate owners, landlords and real estate lenders who may be faced with the opportunities to provide industrial and retail space to this new industry. In a future post, I will discuss some of the real estate-related issues that will arise from regulation.

The critical period will be the next year or so, while the state enacts regulations, and possibly statutes, to control a newly created recreational marijuana industry. Implementing regulations are supposed to be approved by July of 2013, and it would likely be late 2013 or early 2014 before licenses would be issued to new marijuana businesses. Thereafter, licensed businesses would be able to cultivate marijuana, produce marijuana-infused products, and sell marijuana to persons 21 and over at retail stores. Until then, Colorado adults will have the benefit of decriminalization, and will be able to grow their own without violating Colorado law, but will not be able to purchase marijuana at a retail establishment for recreational use, nor will marijuana be taxed.

Given the uncertain federal reaction to Amendment 64, it remains to be seen whether such a regulated marijuana industry will even get off the ground in Colorado. Whereas federal efforts to mitigate personal marijuana use would likely be futile in light of state-level decriminalization, federal authorities would have very effective tools at their disposal if they were inclined to prevent the establishment of a regulated and taxed recreational marijuana market in Colorado.

As a legal matter, it is well-established that state law changes to marijuana laws have no effect on federal marijuana laws, and nothing prevents federal authorities from prosecuting what might appear to be otherwise law-abiding marijuana businesses. This power is already on display in the context of medical marijuana in Colorado. Colorado’s existing medical marijuana industry currently survives solely due to Department of Justice and the United States Attorney for Colorado’s restrained exercise of prosecutorial discretion. These federal authorities have generally not taken any action against licensed medical marijuana operations that are in compliance with Colorado’s extensive medical marijuana industry regulatory regime. However, earlier this year, the Colorado U.S. Attorney’s Office made a determination that its restraint in exercising its prosecutorial discretion would only go so far. Specifically, Colorado U.S. Attorney John Walsh has determined that his office will not tolerate the continued operation of medical marijuana businesses located near schools. Since the decision, his office has been successful in systematically shutting down such businesses merely by making threats of criminal prosecution and asset forfeiture.

In the circumstances, it is entirely reasonable to question whether federal authorities will allow the development of a regulated market for marijuana outside of the medical context. If national or Colorado-based federal authorities decide to draw a line in the sand on this issue, it could set up a significant conflict. Alternatively, if Colorado’s medical marijuana experience is any guide, federal authorities may decide to simply weigh in at the margins, thereby constraining the retail recreational marijuana industry in Colorado, without entirely foreclosing its development.

Colorado’s governor appears to recognize this distinction between the effect of decriminalization and regulation. Following the announcement of the voters’ approval of Amendment 64, Governor Hickenlooper made a statement strongly affirming Colorado’s intent to push forward with decriminalization, while expressing skepticism about the prospects for regulation:

I think the federal government is probably going to come down just like in prohibition–you can’t do it by state by state–but I think at the very minimum we should work aggressively to decriminalize it; make sure kids don’t get felony records. I mean, the voters–the voters are pretty clear what they feel and what they want, so within the limits of federal law and whatever the federal government will permit, we have to figure out what’s a–how are we going to go forward.

He continued, acknowledging the difficulties involved in regulation of marijuana:

If the federal government says its going to be illegal and they’re going to prosecute, we don’t have much of a voice there. We’re not going–we’re not going to secede from the union. But, we do recognize that the public has spoken loudly and we’re going to communicate that to our friends in Washington.”

It will be very interesting to see how this plays out over the next weeks and months.

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.

Colorado Court of Appeals: Defendant who Sold Drugs to Undercover Agent Must Return Agent’s Drug Money as Restitution

The Colorado Court of Appeals issued its opinion in People v. Juanda on September 27, 2012.

Restitution—Pecuniary Loss—Victim—Law Enforcement.

Defendant Joseph L. Juanda appealed from an order requiring him to pay restitution. The order was affirmed.

On four occasions, Juanda sold oxycodone to an undercover agent of the Drug Enforcement Administration (DEA). After Juanda pleaded guilty to two drug offenses, the People sought an order of restitution requiring Juanda to return the “buy money” ($11,600) that he had received from the DEA’s agent, which the court granted.

Juanda contended that the court erred in ordering him to pay restitution. “Restitution” means “any pecuniary loss suffered by a victim.” Qualifying pecuniary losses include (1) “money advanced by law enforcement agencies,” and (2) “extraordinary direct public . . . investigative costs.” Here, the money was advanced by the DEA to its undercover agent, who then used the money to buy drugs from Juanda. Therefore, the DEA’s buy money qualifies as “money advanced by [a] law enforcement agenc[y]” under CRS § 18-1.3-602(3)(a), and the trial court’s order was supported by the restitution statute.

Summary and full case available here.

Colorado Court of Appeals: Defendant’s Sentence as a Habitual Offender Does Not Deny Him Equal Protection as to His Parole Eligibility

The Colorado Court of Appeals issued its decision in People v. Dean on June 21, 2012.

Second-Degree Murder—Habitual Offender—Equal Protection—Evidence.
Defendant appealed the judgment of conviction entered and the sentence imposed on a jury verdict finding him guilty of second-degree murder. The judgment was affirmed and the case was remanded for correction of the mittimus.

After beating his friend to death and disposing of the body, defendant was charged with first-degree murder and six habitual criminal counts. Defendant was convicted of second-degree murder, a class 2 felony, which carries a presumptive maximum sentence of twenty-four years.

On appeal, defendant contended that the trial court erred by ruling that he could be sentenced as a habitual offender under CRS § 18-1.3-801, because that statute, as applied to him, denied him equal protection of the laws as to his parole eligibility. Because none of defendant’s prior felony convictions were for class 1 or class 2 felonies, or class 3 felonies that were crimes of violence, defendant was ineligible for sentencing under CRS § 18-1.3-801(1), for which he would have received a mandatory sentence of life imprisonment and been eligible for parole after serving “at least forty calendar years.” Instead, defendant was adjudicated a habitual offender under CRS § 18-1.3-801(2) for having sustained three prior convictions for any felony. Accordingly, the court sentenced defendant to four times the presumptive maximum sentence for second-degree murder, or ninety-six years. He will be eligible for parole after completing 75% of his sentence, which equates to seventy-two years. Defendant’s equal protection claim failed because the two statutory subsections at issue do not apply to identical conduct, and the habitual offender act, as applied to defendant, has a rational basis.

Defendant also contended that the trial court abused its discretion and committed reversible error by admitting evidence of his prior drug use. Evidence of defendant’s prior crack cocaine use, as well as defendant’s 2001 beating of the victim over the perceived theft of a small amount of crack, was admissible under CRE 404(b) to show defendant’s motive and identity.

Summary and full case available here.