Expanded Plant Count – Proceed at your own risk!

First, marijuana, medical or otherwise, remains illegal under Colorado Criminal Law. The protections afforded by Amendment 20 and 64 are interpreted by the Court to provide for an affirmative defense to felony prosecution. Only the strictest and narrowest compliance with either Amendment 20 or 64 stand a chance of acquittal at felony trial.

I. No sales of marijuana are permitted.

At the outset it must be stated and clearly understood that there can be no sale of marijuana, medical or otherwise, except by licensed marijuana businesses under the direct supervision of the Department of Revenue, Marijuana Enforcement Division. Any sale, even a single joint, constitutes a felony to which there is no defense whatsoever. “Donations” and other devices designed to disguise the fact of a sale have proven useless. Indeed, the fraud of such a device is usually what causes the remaining defenses to fail.

A primary caregiver also cannot sell marijuana to his or her patients. A primary caregiver may only charge the cost that it takes to produce the marijuana on two ounce basis. The medical marijuana program contemplates that the primary caregiver has significant responsibility for the wellbeing of the patient and is doing this service primarily for compensation. The law only permits recouping of costs and not profit.

II. Exception to criminal law defense.

Second, a patient or primary caregiver is afforded a greater defense, “exception to criminal law,” when the person cultivates 6 plants (3 in flower and 3 in vegetative state) and possesses two ounces. All marijuana product greater than 2 ounces must be immediately destroyed. Otherwise, the person commits the felonious crime of either possession of marijuana or possession with intent to distribute marijuana. Typically both felonies are charged.

III. Medical necessity defense.

For cultivation of more than 6 plants, in this scenario 99 plants per property, the patient or primary caregiver “may raise as an affirmative defense to the charges of violation of state law that such greater amounts were medically necessary to address the patient’s debilitating medical condition.” Colorado Constitution, Article XVIII, Sec. 14(4)(b). This is a medically based affirmative defense in which the Defendant is required to prove by a preponderance of the evidence that:

(1) he/she suffers from a chronic, debilitating medical condition;
(2) that greater than 6 plants cannot possibly address the seriousness of the medical condition; and
(3) that the doctor who made this recommendation did so based on careful application of medical judgment in the context of a bonafide patient- physician relationship.

This defense is almost always a complete fraud and the doctors who provide such expanded plant count recommendations do so only for an additional fee. Again, premising a defense on a foundation of medical fraud almost invariably results in conviction.

In my numerous meetings where such ideas are discussed, I typically state that “all people who qualify for medical marijuana are presumptively disabled. In order to justify an additional plant count, you would have to prove that you were more profoundly disabled than all of the other disabled patients who qualify for a medical marijuana recommendation. For instance, if I have chronic back pain, I take ibuprofen. If I have Stage 5 cancer, I have a morphine drip. The expanded plant count is the equivalent of a morphine drip and the medical condition must be commensurate with Stage 5 cancer.”

The response I usually get is “I make edibles.” I respond “there is no choice of consumption defense. And, the police know that edibles are made with trim. They also know that a competent grower gets approximately 1 pound per plant. Accordingly, even if you make edibles, 6 plants is more than sufficient. So, the assumption is that you sell marijuana for a living.” As stated before, only strict compliance with Amendment 20 or 64 has a chance of success a trial. If the police discovery cash, substantial quantities of marijuana, evidence of sales (typically people are using their smart phones or computers to transact the marijuana making proof of criminal activity quite simple) or any other indicia of distribution, then even a perfect medical necessity defense would fail. I have had numerous such instances.

IV. Law enforcement crackdown and cooperation with federal agencies.

Also, the police are under tremendous pressure to stop the hundreds of pounds of marijuana leaving the state each day. The fact that such copious quantities of marijuana leave the state each day has resulted in lawsuits from our neighboring states and there is now lock step cooperation with federal law enforcement to which there is no defense whatsoever to federal criminal prosecution. I have worked on several cases in which local law enforcement was working with the Attorney General, who was working with the United States Attorney General, DEA and the IRS (for tax evasion of an illegal enterprise).

V. Landlord liability and civil forfeiture.

Next, the question of prosecution and forfeiture for landlords must be addressed. At the outset, the crime of cultivation includes both the cultivation itself, as well as permitting a property owned by a person to be used for such purposes. CRS 18-18-406(3). There is also a likely charge of conspiracy if the landlord is aware and permits the cultivation. CRS 18-2-201. That means the landlord is jointly responsible for any and all crimes committed at the property. Civil forfeiture of the property is quite common and often is handled by federal authorities. The only defense to forfeiture is the “innocent owner” defense in which the landlord does not know, nor have any reason to know about the marijuana activities. I have had cases dismissed only to have the property contemporaneously seized by federal authorities.