Marijuana DUI, do’s and dont’s

During the holidays DUI enforcement increases dramatically. Unfortunately, this large net will inevitably capture cannabis users who were not driving while impaired. As most of you know, in a last minute political compromise, the Colorado legislature passed a marijuana DUI law that creates an inference that a person with 5 ng. of THC in their blood is DUI. Such levels are common, even considered low, for regular cannabis users.

Moreover, the 5 ng. threshold is dubious science at best and, in many scientific circles completely wrong. These cases are defensible on many levels including attacking the science of a 5 ng. threshold and also whether cannabis even impairs driving at all.

However, an ounce of prevention is worth the expense of mounting a defense. Here are some tips to help you or your friends who use cannabis:

1. Do not travel with cannabis in the car. The smell of cannabis is the most likely cause of the police officer’s suspicion;
2. If you do travel with cannabis in the car, place it in a scent proof container (glass or other such container) in the trunk. It is illegal to have cannabis in an open container in the car and the police have a right to search your car if arrested;
3. Do not smoke in the car;
4. Do not consent to a search of the car;
5. Do not admit to consuming cannabis. If the officer presses you, tell him or her,“I have friends that are attorneys and they have told me not to answer these types of questions.” Do not lie. Simply repeat this phrase. Most juries will hold the lie against you, but may also have heard you should not answer these types of questions;
6. Do not do roadside tests. They are voluntary and you will not lose your license if you refuse. This includes the “following the pen with your eyes test.” The police will not be fair in evaluating your performance and it will be used against you; and
7. You do not have to do the blood test. However, if you refuse the DMV will take action against you for refusing. This action includes two months of no driving (not for work, the doctor or any other reason). You will get your license back after two months, but you must have an ignition interlock on your vehicle for two years. It only tests for alcohol, but it is expensive and a real pain in the rear. Additionally, you will need SR-22 insurance for one year and you will have to complete 12 alcohol and drug classes. Finally, please be advised that if you refuse the blood test the fact that you refused CAN be used against you at trial.

Finally, there is one important and creative way to protect yourself if you regularly use cannabis. Go to your primary care doctor and request a blood test that includes testing for THC. Then take the results back to your doctor and ask him or her if they believed you to be impaired when you made the request. Let the doctor know you just came from work or some other task in which you were fully functional. See if the doctor will confirm, in writing, that despite your positive result for THC you were not impaired in their medical opinion. This will provide you with a baseline for your normal THC level and that you were not impaired at that level. Then, if you take a blood test in the context of a DUI charge, you will have a baseline upon which to defend yourself. Perhaps you could ask a co-worker or friend to confirm that you were not impaired in the time just before or after the blood test.

No more state moratorium and the procedure for new medical marijuana business licenses

As of 7/1/12, there is no more state moratorium for new medical marijuana business licenses. This means a new medical marijuana business can be formed and licensed. It also means that existing businesses can now expand, add another OPC, open a new MMC, or add a MIP.

According to MMED, the procedure for new licenses will be similar to “change of ownership.” This means that you will be provided with a checklist of items to be completed and documents to be provided to the state. Once the list is complete, it is necessary to schedule a meeting with either Mr. Lewis Koski or Mr. John Seckman to review the documents. Be advised that both the application and licensing fees are due at the time of application. MMED anticipates that there will be few such applications. Yeah, right!

Next, be reminded that you need local approval of any such business application. Be sure to check with the local authorities regarding their acceptance of such applications. If they won’t, the state won’t. If they will, the state will. For instance, the City of Boulder passed a 9-month moratorium. Mr. Seckman advises that state and local processing of the license can happen at the same time.

Additionally, new applications will be handled on a “first come, first serve” basis. No preference will be given to existing businesses. However, as a practical matter, MMED would already have a file on the business and a lot of the processing work may already be done.

Finally, be reminded that each MMC must have its own OPC. You cannot simply add a retail and attach your existing OPC to it. You may be able to subdivide your OPC into two OPCs, but local and state approval would be required. Of course, you can add more than one OPC to an existing MMC.  However,  unless and until the new license is granted by both local and state officials, YOU CANNOT START OPERATING!. You can only operate after both licenses are issued.

If you need our help, particularly in your meeting with MMED, please contact us.

Medical Marijuana and Probation

Well, it finally came to pass. On February 2, 2012, the Colorado Court of Appeals issued a decision on the use of medical marijuana on probation. Unfortunately, the Court of Appeals determined that probations CANNOT use medical marijuana while on probation. The case, People v. Watkins, 2012CA15, was decided on the basis that a probationer cannot violate any law during probation.

The Court of Appeals reasoned that the phrase “cannot violate any law during probation” includes violation of federal law. As you should all know by now, any use, possession, sale, or cultivation of marijuana, medical or otherwise, continues to be a violation of federal criminal law.

It is curious that the Court of Appeals fell back on federal criminal law to resolve this question. The Colorado state courts, including the Court of Appeals, do not have the authority to enforce federal criminal law. It would seem that, in order to rely on federal criminal law, it would be necessary to have a contemporaneous federal criminal case.

Additionally, it stands to reason that Colorado courts are limited to enforcing Colorado criminal laws. As you know, Amendment 18/20 creates an exception to criminal law where patients and/or their primary caregivers are acting within the parameters of the Amendment. Probation is a creature of Colorado criminal law. As such, it is arguable that the Colorado court cannot impose any restrictions on compliant medical marijuana activities as a condition of probation – again, a creature of Colorado criminal law.

It appears that things are going to get worse before they get better for medical marijuana patients. Colorado courts are now relying on federal law to justify their limitations on medical marijuana activities, rather than enforcing Colorado laws using Colorado statutes and constitutional amendments. I suggest you contact your U.S. congress person and U.S. senator to let them know that a federal change is needed if Colorado medical marijuana laws are to have any meaning or protection.

City of Boulder Moratorium/Federal Threat

At last night’s Boulder City Council meeting, the Boulder City Attorney requested a six month moratorium for medical marijuana businesses. On the surface, this sounded like a good idea – keep new businesses from coming in for six months. However, the reality was that the proposed moratorium was intended to prevent existing businesses from bringing on investment, transfer the business to a new owner, expand the existing business or transfer to a new location. With the very real threat of Federal prosecution looming over the industry, the moratorium would prevent medical marijuana businesses from being able to move out of harm’s way.

In response, I drafted a letter to the City Council and, in particular, Councilperson K.C. Becker. I proposed that the moratorium not include existing businesses. Councilperson Becker took the letter and crafted a new ordinance that excluded existing businesses. After several hours of wrangling and heartfelt testimony from myself and several medical marijuana business owners, employees and patients, the City Council adopted the Becker Ordinance, City of Boulder Ordinance Number 7834. The ordinance permits existing businesses to proceed as usual.

In the waning moment of the public hearing, the moratorium was amended, as follows:

1. The moratorium for new businesses was extended until 11/9/12;
2. Existing businesses will be able to move forward with expansion, investment, sale and relocation after 3/8/12; and
3. New fees we added for change of business entity ($2,000), addition of financiers ($2,000), modification of premises ($3,000) and change of business manager ($150).

Finally, approximately 21 medical marijuana centers were identified as being in harm’s way of Federal prosecution. Those centers located within 1000 ft. of licensed day cares, schools (including the University of Colorado) and public housing units are a risk. Accordingly, I suggest that if you, or anyone you know, is within this danger zone the business should immediately obtain a new location before Federal prosecution visits the City of Boulder. I know this is a tough situation, but the prospect of federal prison should be incentive enough.

Update on Colorado Medical Marijuana, final meeting with Dan Hartman

Dear Friends,

As you know, Mr. Dan Hartman was removed from his position as Director of the Medical Marijuana Enforcement Division due primarily to the efforts of our Attorney General, John Suthers. On the last day as Director, I met with Mr. Hartman to answer many of the questions posed by our clients and colleagues:

1. Q: If a MMB that was locally banned (i.e., Fort Collins, Longmont, etc.) withdraws its application and then moves to a favorable jurisdiction, when can they begin operation?

A: The local authority must approve the business, then MMED will move forward with state approval. The MMB will receive preference in the processing of the application.

2. Q: Can a MMC sell to a primary caregiver?

A: Only if the primary caregiver’s patient is homebound and the appropriate home delivery request has been approved by MMED.

3. Q: Can a MMC sell to a patient who has valid paperwork on file with the MMC?

A: No. A valid MMJ registry card must be presented every time, including patients that have assigned the MMC as their primary center.

4. Q: Can MMCs trade an equal amount of MMJ with another MMC without implicating the 70/30 rule?

A: No. There are no “trades” permitted. Payment from one MMC to the other MMC is required and there must be paperwork evidencing the transaction.

5. Q: Can a MMC sell kief hash and/or bubble hash wholesale to other MMCs without implicating 70/30?

A: The answer was not clear. Mr. Hartman acknowledged that hash does not count against allowable inventory and is treated like other infused products. However, he stated that it counts against 70/30. At this point, Mr. Hartman advised that hash is a problematic issue and will be addressed in future rule making. Stay tuned.

6. Q: Does a homebound patient have to assign the MMC as their primary center in order to receive a home delivery?

A: No. See #2 above. The sale is to the patients primary caregiver, who will deliver the medicine pursuant to authorization by MMED. This means that any homebound patient must assign a primary caregiver.

7. Q: Does hash count against allowable inventory?

A: No. See #5 above.

8. Q: Does the sale of trim count against 70/30?

A: This is complicated. If the trim is provided to a MIP and the MIP uses the trim to create an infused product, which product is then provided back the MMC only and not sold to any other MMCs, then it does not count against 70/30. However, if the trim is used by the MIP and the MIP sells the infused products to any MMC other than the MMC that provided to trim, it counts against the selling MMC’s 70/30.

9. Q: Can employees of a MMJ Vendor (i.e., has a MMED Vendor license) be under 21?

A: Not if the employee will be in a restricted access area for any reason.

10. Q: Will the 7/1/12 moratorium be extended?

A: Not in Mr. Hartman’s opinion. Mr. Hartman stated that MMED will not request it and the legislature “is in no mood to hear anything else about MMJ” at this point.

City of Boulder Medical Marijuana Business Moratorium

The Boulder City Attorney, Mr. Thomas Carr, recently requested and was granted a moratorium regarding medical marijuana businesses in the City of Boulder. The moratorium is expected to be extended for 6 months. I suspect this is a prelude to a request from Mr. Carr that the City Council enact a “cap” on the number of medical marijuana businesses in the City.

This is highly problematic. The moratorium affects existing businesses, not just new businesses. Under the current ordinance, the City requires a new license in the event the business wants to, or needs to, change locations. A new license is also required in order to transfer the business to a new owner. By contrast, the State of Colorado amends the existing license for both scenerios and does not require a new license.

In view of the recent Federal threat of criminal prosecution and civil forfeiture for landlords and medical marijuana businesses located within 1000 feet of a school, this is quite terrifying. For instance, if a medical marijuana business is within 1000 feet of a school (CU?, a day care?), the Feds require the business to move within 45 days. The City of Boulder moratorium makes this impossible.

Finally, the City’s actions demonstrate veiled hostility and fear toward the medical marijuana industry. The moratorium is likely only a first step. It is incumbent on all City of Boulder medical marijuana businesses to band together and oppose any further interference with medical marijuana businesses, which are the most regulated businesses in the history of the State of Colorado. City officials need to be reminded that they are representatives of the citizens of Boulder and personal political agendas have no place in representative government. If they are unwilling to support the industry, they need to be replaced with people who support local and state law regarding medical marijuana. Please attend the 2/7/12, 7:00 p.m., public hearing and let the Council know that further regulation, including the proposed moratorium, will not be tolerated.

Federal crackdown on Colorado Medical Marijuana

As you may know, the Federal Government is now attempting to crack down on Colorado medical marijuana dispensaries and other medical marijuana businesses. Last week, the Feds sent letters to several medical marijuana businesses that were located within 1000 feet of a school. The letters instructed the businesses to close within 45 days or face federal prosecution and civil forfeiture. The Feds are also targeting the landlords.

By way of review, the Feds purported authority over state medical marijuana programs stems from a 2005 U.S. Supreme Court Case, Gonzales v. Raich, 545 U.S. 1, which can be viewed at:

http://www.law.cornell.edu/supct/html/03-1454.ZS.html

A close reading of this case reveals that Colorado medical marijuana business regulations are very different from California. Recall that medical marijuana businesses in Colorado must be owned by two year state residents, there is no reciprocity for out-of-state medical patients and the state requires that the businesses grow their own medicine under strict state supervision. This scheme could possibly carve out an exception to federal authority over Colorado medical marijuana. Now if we only had an attorney general who was interested in supporting Colorado citizens and Colorado laws instead of taking pot shots at Obamacare…. Stay tuned.

Medical Marijuana, the ATF, Firearms, California, etc.

As you all know, the federal government continues to struggle with state legalization of medical marijuana. In June, the U.S. Attorney’s Office issued a 2nd memorandum regarding medical marijuana and the potential prosecution of medical marijuana businesses. However, on the other side of the federal government, the I.R.S. is permitting medical marijuana businesses to file tax returns and receive various deductions in connection with the cultivation and sale of medical marijuana. We are not tax attorneys, so please discuss such issues directly with a qualified and knowledgeable accountant.

The ATF:

On 9/21/11, the Bureau of Alcohol, Tobacco and Firearms (ATF) got into the act. The ATF sent an open letter to all federal firearms dealers informing them that they could not sell a firearm to a person known to use medical marijuana. Federal law, 18 U.S.C. Sec. 922(g)(3) prohibits an unlawful user of or addicted to any controlled substance, including marijuana. The ATF states that this includes medical marijuana patients. According to the ATF, this law prohibits a firearms dealer from selling a firearm to any person whom the dealer has “reasonable cause to believe that such person is an unlawful user of or addicted to a controlled substance, i.e., medical marijuana.

Currently, the firearms dealer does not have access to the Colorado medical marijuana patient database, nor does the ATF. There are only two ways that a firearms dealer can learn of a person’s mmj patient status: (1) the patient tells the dealer for whatever reason about his mmj status; or (2) the person checks “yes” to Question 11(e) on ATF Form 4473, which is form used when purchasing a firearm. Question 11(e) asks if the purchaser is an unlawful user or is addicted to a controlled substance. Again, marijuana, medical or otherwise, is federally classified as a controlled substance.

A copy of the 9/21/11 Open Letter to All Federal Firearms Licensees can be viewed at: http://www.atf.gov/press/releases/2011/09/092611-atf-open-letter-to-all-ffls-marijuana-for-medicinal-purposes.pdf

California and federal prosecution:

As many of you know, the federal government continues to threaten MMJ businesses through the US Attorney’s Office. It appears that, for now, the focus is California. You can read more about this at: http://latimesblogs.latimes.com/lanow/2011/10/feds-cracking-down-on-california-medical-marijuana-dispensaries.html.

This also has been the case historically. One of the reasons that California is targeted is the lack of substantive regulation by the state. Also, many people in law enforcement believe that California dispensaries are selling marijuana obtained illegally from growers in Humboldt, Mendocino, Mexico, etc.

With regard to Colorado, I recently met with Medical Marijuana Enforcement Division director, Mr. Dan Hartman, who advises that he is routinely in contact with the DEA here in Colorado. Accordingly, to Mr. Hartman there has been no movement toward targeting MMBs here. Of course, that could change at any time.

In any event, it is never good news that federal law enforcement is targeting MMBs in California or anywhere else. If you are concerned about the potential for federal prosecution, this is not a business you should continue to be associated with. Currently, there is no protection from federal criminal prosecution under current law. While Colorado is tightly regulated, that does not currently provide any defense to federal criminal prosecution. It could be argued that the fact that the Colorado MMBs are owned by residents, grow all their own medicine under state supervision and sell only to Colorado patients may afford an exception to Gonzales v. Raich, 545 U.S. 1 (2005), 352 F.3d 1222, which is the California case decided by the U.S. Supreme Court which confirmed the power of the federal government to prosecute medical marijuana actors based upon the Commerce Clause. See,http://www.law.cornell.edu/supct/html/03-1454.ZS.html. However, this potential exception to Gonzales v. Raich has never been attempted and would have to be litigated in the context of the criminal prosecution of a Colorado medical marijuana patient, caregiver or business. A frightening thought indeed. While I am prepared to assert such arguments and am admitted in the federal court, I hope it never comes to that.

Finally, as those of you who have met with or spoken with me, I have always maintained and advised that federal prosecution is a real and substantial risk for anyone involved in the medical marijuana business. Simply put, no one should take any risk for which they are not prepared to accept the ultimate, potential risk, in this case – federal criminal prosecution. If such federal criminal prosecution is successful, it could mean a lengthy prison sentence, civil forfeiture of property or both.

6/20/11 meeting with Dan Hartman/MMED, practical issues

Yesterday I met with the Director of the Medical Marijuana Enforcement Division to answer the numerous questions I receive from the businesses we represent. The issues and the answers are set forth below:

1. Transfer of “banned” businesses to new jurisdictions:

Will there be continued operation of the transferred business based on prior 7/1/10 compliance? Yes, as long as there is local approval. Mr. Hartman recommends that the “banned business” request withdrawal of the application, along with an explanation of the banned/transfer reason. If the application is not withdrawn, it must be denied. Then, once the transfer and local approval are complete, you can request that the withdrawal of the application be rescinded. Once the rescinded application is reinstated, you may resume operation.

Also, if the banned/tranferred business is sold before the transfer is complete, the business will not be able to operate. Mr. Hartman’s reasoning is that this provision is designed to help people who suffered local ban, not speculators who seek to profit from this unfortunate situation.

Further, both the MMC/MIP and OPC must be transferred, not the OPC only.

2. Security system and other ongoing compliance issues:

Are there approved providers? No, and there will not be any. Mr. Hartman states that the specifications are published and must be followed. As long as the specifications are followed, the provider of the service is not relevant. He did state that ADT appears to be ready to supply MMC/MIP/OPC security needs.

What if the system is not in place yet? This will be ok, as long was you have something in place and are under contract by 7/1/11to meet the specifications.

What if the system is not adequate, will there be a chance to correct it? Yes.

Does the security system have to have its own room? No, as long as the DVR(s) is locked in a secure box, bolted into the wall, floor, etc.

3. Point of Sale system:

Are there approved providers? No, but various companies are prepared for compliance, (MJ Freeway is one example). Mr. Hartman advised that “a big chief tablet” is ok, as long as you are tracking the necessary information. What the state requires will be published shortly and I will send out an email link to this information.

4. Employees deemed unacceptable by MMED:

Will there be an opportunity to terminate the employee if deemed unacceptable? Yes.

5. Ongoing construction, permits, etc.:

Does all construction work need to be completed by 7/1/11? No. You must be making a concerted effort to complete the work and permits should be requested by 7/1/11. However, if the local licensing authorities require the work to be completed and deny you for this reason, the state will not interfere and will enforce the denial.

6. License fees:

What are the licensing fees? These are not set, but MMCs will be less than the application fee, OPCs and MIPs will be more (perhaps even double). The license will be good for one year and will begin when the state notifies you that the fee is due and payable.

7. Key employees:

What is a key employee versus support? The answer is “case by case” and the answer will turn on how the employee is used, whether there is any contract with employee in place (key), and the businesses decision to classify someone as an “independent contractor” will have little or no bearing.

Also, payment of growers “by the pound” will be under serious scrutiny. If that is the arrangement, Mr. Hartman advises that this arrangement makes the grower an owner and the business will be required to revise its ownership structure, corporate documents, etc., accordingly. Mr. Hartman advises that you should pay the grower a salary and that bonuses are ok.

8. Business under denial/appeal, i.e., City of Boulder:

What is the state going to do about businesses locally denied (not banned), where an appeal is pending and the local licensing authority permits continued operation? This is a tricky one. The state will honor the continued operation order until such time as the business prevails or appeals to the district court. An order from the district court permitting continued operation will be required. The license will be issued by the state as a “provisional license” and the state will await final outcome of the case.

Further, Mr. Hartman advised that he will be speaking with the City of Boulder to discuss this matter (and others). Stay tuned, as I expect this policy to change (for better or worse) once the situation between the City and the State is further clarified.

9. Transactions of businesses:

Do all of the various sales, mergers and tranfers of MMBs have to be completed by 7/1/11? No. However, be reminded that any transfer requires (1) local approval; (2) state approval, including a meeting with the parties with MMED before the sale/merger/transfer occurs. Simply put, you need MMED’s blessing before the transaction can occur.

10, Sales below cost/free:

Does the “sales below cost or for free” provisions of HB1043 preclude the incentive programs, i.e. “buy one get one, free pre-rolled,” etc.? No, and there will be new rules developed in connection with the industry to help clarify this situation.

However, Mr. Hartman advised that MMED will take a very dim view of businesses “flooding” the market with cheap meds to drive out other businesses. Beware.

11. Independent contractors, i.e., trimmers, growers, etc.

What do independent contractors, vendors, etc., need to file with MMED? Everyone needs some sort of license to handle meds. If you are an employee, the employee application needs to be completed. If you are a vendor, the vendor application:

http://www.colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251721405112&ssbinary=true

If you are an independent contractor, i.e,, trimmer, etc., you need to complete an occupational license application. It is unclear what this means. If you fall into this category, we can schedule a meeting with MMED to discuss your situation.

Again, the relationship between the individual and the MMB will be viewed by its substance, not what you call it. Be careful.

12. Contracts between MMC and MIP:

Is there an approved contract, recommended language or necessary inclusions for the contracts between MMCs and MIPs? No. The contract should deal with the amount paid for the trim, the weights to be delivered, the parties, etc. Also, be advised that the parties cannot pay “in product.”

13. Inventory and MIP sales:

Does the trim, etc., sold to MIPs count against allowable inventory, 70/30? Yes and no. If the MMC sells trim to the MIP, i.e., 10 lbs, and the MIP makes the infused product and provides all of the infused product to the MMC, then no. However, if the 10 lbs. sold to the MIP is then used to make infused products sold to other MMCs, even if 1/2 of the infused product goes back to the selling MMC, then all 10 lbs. counts against the selling MMCs 70/30 inventory numbers. Be aware that this is somewhat different from prior information provided by MMED.

14. MIP issues, misc.:

Does the use of alcohol in infused products require a liquor license required? Not as far as MMED is concerned. However, Mr. Hartman advised that the Liquor board may have a very different view and a big problem with this. I suggest a candid discussion with the liquor board be had before proceeding further with alcohol infused product manufacturing.

Does the liquid weight versus MMJ weight count against an MMC’s allowable inventory? This was not a clear answer. In general, no. However, if the MIP product is clearly labled “2 ounces, 1 gram, etc. MMJ in each product,” Mr. Hartman advises that he would have no choice but to count it against allowable inventory.

What about MIPs in jurisdictions with no MIP approval process, i.e., Fort Collins? If there is no local approval, there will be no state approval. Sorry to all the Fort Collins’ MIPs.

15. Expanded plant and ounce recommendations:

Is a MMC ok to honor the recommendation and incorporate patient center assignments of this variety into its allowable inventory? Yes.

Does the MMC have any duty to investigate the propriety of the recommendation? No. However, Mr. Hartman advises that the expanded plant recommendations will be under great scrutiny by the Department of Health and that doctor recommendations patterns are likely to be tracked. In these cases, the doctors will be required to medically justify the recommendations. Be advised that this is going to be a big deal

If patient designates “self and MMC” can both the patient and MMC grow 6 plants? This answer was not clear. In general, yes, but it appears that this issue has not been considered by MMED and is likely to see revision in the near future.

16. Sales Taxes:

What is the form of monthly reporting to MMED? This will be handled by the sales tax folks, not the MMCs/MIPs. However, monthly, not quarterly payments are required.

17. Other:

Does a scale need to be attached and incorporated into the point of sale system? No.

Can someone own a % of both a MMC and a doctor referral business even if no $ is exchanged between MMC and the doctor referral business? No. Mr. Hartman believes this is not appropriate. I am not sure if his opinion will be legally supported, since the only prohibition is payments from MMCs to doctors/doctor referral businesses.

Can investors receive a % of the profit? Yes, but there are then deemed owners, not investors and must follow all of the MMC/MIP ownership rules (residency, felony rules, and local/state approval of their ownership).

Can existing MMC’s apply for new retail locations in 2011? No. New OPC locations in 2011? No.

How is the MMC going to verify patient center assignment? MMED and the Department of Health are working on this. For now, keep track yourself, including accurate records

What will MMED do about MMCs/MIPs currently in litigation between partners for pending licensees? Mr. Hartman will issue the license provided both parties are license eligible. So, if the litigation is between owners with felonies and owners without felonies, the license will be denied. The same is true for residents and non-residents. Mr. Hartman wants notice of the lawsuit and periodic status reports. He does not want copies of pleadings.

Lifetime drug felony; reiteration: 35 day rule

CRS 12-43.3-307(1) (h) states that a license shall not be issued to a “person who has discharged a sentence in the five years immediately preceeding the application date for a conviction of a felony or a person who at any time has been convicted of a felony pursuant to any state, federal law regarding the possession, distribution, manufacturing, cultivation or use of a controlled substance.” This change added “manufacturing” and “cultivation” to the license prohibiting offenses and did not limit the lifetime prohibition.

However, the state may grant a license to “an employee if the employee has a state felony (not federal) conviction based on possession or use of a controlled substance that would not be a felony if the person were convicted of the offense on the date he or she applied for licensure.” I anticipate this was amended to: (1) ensure that employees were specifically included in the prohibition portions of this section; and (2) to recognize the reclassification of marijuana charges from felonies to misdemeanors. I assume that the reclassification would have to be in the state where the conviction was entered. This means that if the conviction was in Florida and is still a felony in Florida, but not in Colorado, it is still a felony for purposes of licensure.

Finally, I want to take the opportunity to re-clarify the “35 day” rule based on ongoing confusion. Up to this point, the State prohibited selling to new patients who were not in possession of their card (see, MMED’s 9/27/10 Memorandum regarding its position on the 35 day rule, http://www.colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251659488306&ssbinary=true).

CRS 12-43.3-402(5) was changed to state that “the employee of the medical marijuana center making the sale shall verify that the purchaser has a valid registration card… or a copy of a current and complete new application for the medical marijuana registry administered by the Department of Public Health and Environment that is documented by a certified mail return receipt withing the preceding 35 days and a valid identification card that matches the name on the registration card.” The “certified mail return receipt” is the green postcard that is signed by the Department mailed to the sender, not the USPS receipt for paying the certified mail postage fee. Also, in such a case, the employee must contact the Department of Public Health and Environment to determine whether the purchaser’s application has been denied. This section does not apply to license renewal applications and these patients must have their card.