Injunction and the Department of Health.

Yesterday an injunction was granted against the Department of Health for adopting the Clendenin definition of primary caregiver without public input. That input currently is scheduled for mid-December. However, it is important to remember that judicial branch of government is responsible for constitutional interpretation and that Amend. 20 is a constitutional amendment. As such, it is the appellate courts that ultimately will decide the constitutional definition of “primary caregiver,” not the Department of Health. Accordingly, I continue to believe that, unless the Colorado Supreme Court says otherwise, the Clendenin definition should be considered “the law” and you should all continue to roll out additional caregiving services immediately. Don’t be a test case for the next wave of judicial decisions. Remember, all such decisions are made in the context of your criminal case!!!

CDPHE decision inevitable.

The CDPHE meeting and adoption of Clendenin is obvious and inevitable. CDPHE is merely charged with administrating the constitutional amendment, which necessarily includes incorporation of any rulings by the Court of Appeals and/or Colorado Supreme Court. It is those two entities who define that which is constitutional (or not) and CDPHE is required to follow such rulings in carrying out its adminstrative function. Rather than “tilt at windmills” and complain about how unfair the ruling is, it would behoove everyone to immediately comply with the strict requirements of Clendenin while law enforcement is still gathering its forces. Perhaps by complying with Clendenin, we can present a different (i.e., winnable) case to help modify this decision going forward. Failure to comply is likely to result in prosecution without the benefit of a MMJ affirmative defense for caregivers. In such a case, the trial would only consist of a presentation by the DA of how much MJ was produced or sold, without any reference to MMJ or caregiving. All of our time is better spent finding new and creative ways to comply with Clendenin, rather than listening to the inevitable adoption of the case by CDPHE.

Practical Tips to Comply with Clendenin case

Dear Friends,

As I stated yesterday, the Colorado Court of Appeals announced its decision in the case of People v. Clendenin, a case handled by attorney Robert Corry. The case dealt a serious blow to patient’s rights and it is much more difficult for a primary caregiver to avoid prosecution. The case can be read at: http://www.cobar.org/opinions/opinion.cfm?opinionid=7372&courtid=1.

Accordingly, it is critical to view the MMJ laws as conservatively as possible. As I tell my clients, caregiving means more than cultivating and/or providing MMJ to your patient and the Court of Appeals has made my opinion the law for MMJ in Colorado. Also, you must only cultivate and provide MMJ to patients who designate you as their primary caregiver. As I predicted, the Court of Appeals has ruled that caregiving requires a personal relationship with the patient and providing MMJ is only one small part of managing the patient’s well-being. In order to receive any protection a caregiver must (1) have a personal relationship with the patient; (2) be assigned the right to cultivate and provide MMJ by and on behalf of the patient; and (3) MMJ must only be a small part of your caregiving service.

Accordingly, all caregivers should immediately align themselves with other services including, but not limited to, housekeeping, home-delivery, handyman, meal delivery, lawn maintenance and other such services to offer your clients as part of your caregiving business. I suggest you immediately write/email each of your patients and offer such services (and any others you think of). Document that you offer such services and keep a copy of any responses from your clients. Actively encourage your clients to accept such additional services, so that you can demonstrate, if needed, that you are a caregiving service, with MMJ being only one part of that business. Be creative and be safe.

Court of Appeals guts MMJ Amendment

Today, the Colorado Court of Appeals announced its decision in the case of People v. Clendenin, a case handled by attorney Robert Corry. The case dealt a serious blow to patients rights and casts doubt on whether a primary caregiver will receive any legal protection. The case can be read at: http://www.cobar.org/opinions/opinion.cfm?opinionid=7372&courtid=1.

It is more critical than ever to view the MMJ laws as conservatively as possible. Under the Clendenin case, the Court of Appeals ruled that the primary care-giver affirmative defense does not apply where the provision of marijuana is itself the substance of the relationship. As I have told prosective caregivers who seek my advice, caregiving means more than cultivating and/or providing MMJ to your patient and any such activities must be limited only to patients who have assigned you to be their caregiver (i.e., no walk-in business!). Caregiving requires a personal relationship and providing MMJ to your patient is only one small part of managing the patient’s well-being. In order to receive any protection a caregiver must (1) have a personal relationship with the patient; (2) be assigned the right to cultivate and provide MMJ by and on behalf of the patient; and (3) MMJ must only be a small part of your caregiving service.