A 2017 Guide To Colorado (Medical) Marijuana Cultivation & Plant Count Rights 18-18-406

By H. Michael Steinberg Colorado Drug Crimes Criminal Defense Lawyer

A 2017 Guide To Colorado (Medical) Marijuana Cultivation & Plant Count Rights – There is a great deal of confusion surrounding the rights of Colorado citizens to grow and use medical marijuana plants especially those with Medical Marijuana licenses.

To Understand The Right To Grow Marijuana Plants In Colorado One Needs To Study The Marijuana Laws

In 2000 Colorado voters enacted Amendment 20. It was a ballot initiative that amended the state’s constitution to recognize the medical use of marijuana. The effective date of the law was June 1, 2001.

Colorado’s medical marijuana law is far from clear and, to this day, still confuses state and local police departments throughout Colorado leading to unfair and illegal criminal charges.

Obtaining A Medical Marijuana License From The State Of Colorado

Colorado law allows Colorado residents to obtain a Medical Marijuana Registry ID card if they can establish that they have a “debilitating condition.” A physician has to provide a “recommendation” that marijuana may alleviate that condition.

The recognized “debilitating medical conditions” often change – as of this writing (2017) they include:

Primary Debilitating Conditions

• Cancer;
• Glaucoma; and
• HIV;

Secondary Debilitating Conditions*

(These are included if the disease process produces one of the following conditions in the patient:

• Cachexia;
• Severe pain;
• Severe nausea;
• Seizures, including those that are characteristic of epilepsy; or
• Persistent muscle spasms, including those that are characteristic of multiple sclerosis.

[As of 2017, PTSD or Post-traumatic stress disorder is a qualifying condition for doctor recommended medical marijuana in Colorado.]

If a patients seeks to obtain a recommendation for medical marijuana for a condition that is not explicitly covered by the state law – they are directed to consult their doctor and, perhaps, a specialized lawyer for assistance in applying for a Medical Marijuana Registry card.

The Levels Of Criminal Defense “Protection” For Medical Marijuana Patients in Colorado

Colorado law allows seriously ill people to legally grow and use marijuana as medicine but understanding the protections provided by law is not only confusing – the laws are unfairly applied.

The two “levels of protection,” under Colorado law, for medical marijuana patients are:

(1) The availability of an “affirmative defense” at trial for illegal cultivation ; and

(2) The “exception to prosecution” defense.

The Affirmative Defense To Illegal Cultivation Of Marijuana

To understand the nature of an “affirmative defense” click on the term affirmative defense.

Essentially an affirmative defense to a criminal charge means that you will still be arrested – your plants and other items seized – and you will be charged – (perhaps with a felony) – but you will have the right to an affirmative defense to the charge which means you are given the right to “raise” – or “assert” the defense at your trial. You are given the right to present evidence that you followed the law and your plant count was authorized by Amendment 20.

Coloradan medical marijuana users with red cards have been able to grow marijuana plants in their homes for almost 20 years following the passage of Amendment 20. While the a provision  in the Amendment gives medical marijuana patients the right to grow 12 plants – the Colorado constitution  allows the right to grow more plants “if such greater amounts were medically necessary to address the patient’s debilitating medical condition.”

This “extended plant count” must be based upon the recommendation of specific Colorado doctors – which doctors are permitted to recommend the increased plant count which is then tracked by the Colorado State Health Department.

As noted, the “right” to raise an “affirmative defense” is clearly problematic.

If the Judge) finds the defense credible – and the District Attorney cannot disprove your affirmative defense beyond a reasonable doubt – you should be acquitted – found not guilty.

But the question is quite obviously begged – the “right” to raise the affirmative defense means you must go to trial – with the commensurate costs and difficulties associated with that decision.

The “Exception To Prosecution” Defense

This defense means simply complying with lawfully permitted and designated plant counts and possession laws that apply in Colorado. In this situation the number of plants and/or the amount of marijuana and marijuana products you posses, do not exceed the law.

In 2018 – Colorado’s Medical Marijuana Laws Will Change

Colorado’s laws governing the limits on the legal cultivation of marijuana plants will change on January 1, 2018.

Two new laws – House Bills 17-1220 and HB 17-1221 – were enacted to “target” the llegal sales of marijuana to black markets for marijuana cultivation. The new laws were enacted to stop the perceived widespread abuse of marijuana plant cultivation by limiting the number of marijuana plants that can be cultivated.

To understand the reasoning behind these changes – a careful reading of the preamble to the new laws – reprinted below – helps to flush out the thinking underlying the changes.

Essentially, the new laws were enacted as a result of the Colorado Law Enforcement lobby urging the Colorado State Legislature to correct for conflicts in the state of Colorado laws governing pant counts as well as an ambiguity in the language of Amendment 20 that permits extended marijuana plant counts for those with Medical Marijuana Licenses – when compared to plant limits allowed under the Colorado criminal code.

Here is the Preamble to the new legislation:

Concerning Measures to Stop Diversion of Legal Marijuana to the Illegal Market.

Be it enacted by the General Assembly of the State of Colorado: SECTION I. Legislative declaration.

(1) The general assembly finds and declares that:

(a) Through citizen-initiated measures, Colorado provided its citizens protections for the cultivation and use of medical marijuana in 2000 and recreational marijuana in 2012;

(b) One of the reasons behind these citizen-initiated measures was to erode the black market for marijuana in Colorado;

(c) The constitutional provisions for both medical marijuana and recreational marijuana provide protections for personal marijuana cultivation, but these provisions are silent on the question of where marijuana plants may be grown or processed for medical or recreational use;

(d) Although the authority for marijuana cultivation for both medical and recreational marijuana is generally limited to six plants per person, some provisions allow individuals to grow more plants. In the medical marijuana code, a patient can grow an “extended plant count” if his or her physician, who makes the medical marijuana recommendation, also determines the patient has a medical necessity for more than six plants. As well, a primary caregiver can grow medical marijuana for each of the patients that he or she serves.

(e) The extended plant count and primary caregiver provisions have created a situation in which individuals are cultivating large quantities of marijuana in residential homes;

(f) These large-scale cultivation sites in residential properties create a public safety issue and are a public nuisance. A site in a residential property can overburden the home’s electrical system, resulting in excessive power use and creating a fire hazard that puts first responders at risk. A site can also cause water damage and mold in the residential property.

A site in a residential property can produce a noxious smell that limits the ability of others who live in the area to enjoy the quiet of their homes. Often the site is a rental home, and the renters cause significant damage to the home by retrofitting the home to be used as a large-scale cultivation site. When residential property is used for a large-scale cultivation site, it often lowers the value of the property and thus the property value of the rest of the neighborhood. Finally, a site in a residential property can serve as a target for criminal activity, creating an untenable public safety hazard.

(g) Large-scale, multi-national crime organizations have exploited Colorado laws, rented multiple residential properties for large-scale cultivation sites, and caused an influx of human trafficking and large amounts of weapons as well as the potential for violent crimes in residential neighborhoods;

(h) Large-scale cultivation sites in residential properties have been used to divert marijuana out of state and to children.

(2) Therefore, the general assembly determines that it is necessary to impose reasonable limits on residential marijuana cultivation that do not encroach on the protections afforded Colorado citizens in the Colorado constitution.

The New Laws Place Limits On The Number Of Plants That Can Be Grown In A Residential

In a nutshell, the new law, HB 17-1220 mandates that as of January 1, 2018, the residential medical marijuana growing limit from 99 plants per household to 12 plants per household.

If patients and care givers register with the state, they would be allowed to grow up to 24 plants due to an exemption to the 12-plant limit.

Colorado’s previous maximum – which was capped at 99-plant plants, was the highest in the country. Colorado’s law enforcement community was overwhelmed by black market growers with massive, illegal operations in ordinary neighborhoods. The idea behind the reduced plant limit is to deter and detract illegal organizations from continuing to operate in Colorado.

Here is the issue for those charged with violating 18-18-406 (see law below). The police are at a loss when they find large home grows and oftentimes they must distinguish between innocent patients and criminal organizations.

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“Police deserve to know where these growing operations are as they masquerade themselves into these family neighborhoods,”

                     Colorado Association of Chiefs of Police leader John Jackson.. ”

Backlash From Colorado Medical Marijuana Advocates

Colorado’s medical marijuana advocates testified that the plant limit impacted the ability of medical marijuana patients to extract needed oils from marijuana plants to treat their conditions (numerous plants are required to generate the oils).

The compromise in these laws was to increase the plant count to 24 plants for patients and or caregivers from the 12 plant limit for everyone else.

“Any patient or caregiver who is registered with the local government can grow up to 24 plants at home,” 

“That covers 92 percent of all patients and caregivers, and then those who need more than 24 plants can petition their local government for a variance or they can grow it in a non-residential setting.”

“……the goal of a hard plant limit is to prevent the illegal sale of plants produced in unlicensed grows and stop the abuse of Amendments 20 and 64, not to violate the constitutional rights of law-abiding caregivers and patients.”

Penalties Under The New Law As Amended – 18-18-406

The law will allow local jurisdictions and municipalities to enact rules to allow growers to raise more plants than the statewide limit, however.

Colorado District Attorneys can now charge people who break the new plant limit law as follows:

• A first offense involving more than 12 plants will be considered a level 1 drug petty offense punishable by a fine of up to $1,000.
• A second or subsequent offense involving between 12 and 24 plants will carry a level 1 drug misdemeanor charge,
• A second or subsequent offense involving more than 24 plants will be considered a level 3 drug felony.

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Summary And Conclusion – A 2017 Guide To Colorado (Medical) Marijuana Cultivation & Plant Count Rights 18-18-406

The political forces at play battling the State’s decision to limit the number of marijuana plants came from organizations such as the Drug Policy Alliance, the Criminal Defense Bar and the ACLU. Even the definition of a “plant” (at least four inches in height) were subject to difficult negotiations.

Under the new law a “plant” does NOT include seeds, clippings, clones and seedlings. The penalties were also lowered substantially with the lowest penalty only petty offense then moving to a misdemeanor and only a felony on the most serious of cases.

Finally, the law applies to RESIDENTIAL neighborhoods will be 12 plants, but there’s a carve-out for patients and caregivers of up to 24 plants. To increase the number of plants one must now attempt to find a location other than a residence.

While Colorado’s counties and cities have the authority to increase the plant count by setting higher limits or granting variances to individuals, it is unlikely that will occur.

They don’t have to abide by the state’s limit, which gives us room to work for more reasonable regulations at the local level like we did in Longmont.

Affirmative defense is still intact. But if you stay within this framework, you can’t be charged or prosecuted in the first place.

Here Is A Summary Of HB17-1220

HB17-1220, “Prevent Marijuana Diversion To Illegal Market”

The new law places a cap on the number of plants that can be possessed or grown on a residential property at 12 plants unless a local jurisdiction permits possessing or growing more than 12 plants.

A medical marijuana patient or primary caregiver may seek an exception to grow up to 24 plants, in compliance with applicable city, county, or city and county law and must comply with all local laws, regulations, and zoning requirements.

The criminal penalties for violating the cultivation limit are:

–A level 1 drug petty offense for a first offense if the offense involves more than 12 plants, punishable by a fine of up to one thousand dollars;

–A level 4 drug felony for a second or subsequent offense if the offense involves more than 12 but not more than 30 plants; or

–A level 3 drug felony for a second or subsequent offense if the offense involves more than 30 plants.

Status: Passed General Assembly on March 31; signed by governor June 8 – Effective date: Jan. 1, 2018

Here Is A Summary of HB17-1221

HB17-1221, “Grey And Black Market Marijuana Enforcement Efforts”

The state constitution grants a person the authority to assist another person in cultivating medical and recreational marijuana plants.

The bill states that a person is not in compliance with the authority to assist another individual and is subject to marijuana cultivation criminal offenses and penalties if the person possesses any marijuana plant that he or she is growing on behalf of another individual, unless he or she is the primary caregiver for the individual and is in compliance with the requirements of section 25-1.5-106.

The bill creates the gray and black market marijuana enforcement grant program (grant program) in the division of local government in the department of local affairs (division). The grant program awards grants to local governments to reimburse the local governments, in part or in full, for law enforcement and prosecution costs associated with gray and black marijuana markets. A rural local government has priority in receiving grants.

Status: Passed General Assembly on April 10; signed by governor June 8

Effective date: July 1, 2017

Here Is a Reprint of the Entire Law 18-18-406 – (with the new and the old sections delineated):

18-18-406. Offenses Relating to Marijuana and Marijuana Concentrate – Definition.

(1)(a) The sale, transfer, or dispensing of more than two and one-half pounds of marijuana or more than one pound of marijuana concentrate to a minor if the person is an adult and two years older than the minor is a level 1 drug felony subject to the mandatory sentencing provision in section 18-1.3-401.5(7).

(b) The sale, transfer, or dispensing of more than six ounces, but not more than two and one-half pounds of marijuana or more than three ounces, but not more than one pound of marijuana concentrate to a minor if the person is an adult and two years older than the minor is a level 2 drug felony.

(c) The sale, transfer, or dispensing of more than one ounce, but not more than six ounces of marijuana or more than one-half ounce, but not more than three ounces, of marijuana concentrate to a minor if the person is an adult and two years older than the minor is a level 3 drug felony.

(d) The sale, transfer, or dispensing of not more than one ounce of marijuana or not more than one-half ounce of marijuana concentrate to a minor if the person is an adult and two years older than the minor is a level 4 drug felony.

(2)(a)(I) It is unlawful for a person to knowingly process or manufacture any marijuana or marijuana concentrate or knowingly allow to be processed or manufactured on land owned, occupied, or controlled by him or her any marijuana or marijuana concentrate except as authorized pursuant to part 1 of article 42.5 of title 12, C.R.S., or part 2 of article 80 of title 27, C.R.S.

(II) A person who violates the provisions of subparagraph (I) of this paragraph (a) commits a level 3 drug felony.

(b)(I) Except as otherwise provided in subsection (7) of this section and except as authorized by part 1 of article 42.5 of title 12, C.R.S., part 2 of article 80 of title 27, C.R.S., or part 2 or 3 of this article, it is unlawful for a person to knowingly dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute marijuana or marijuana concentrate; or attempt, induce, attempt to induce, or conspire with one or more other persons, to dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute marijuana or marijuana concentrate.

(II) As used in subparagraph (I) of this paragraph (b), “dispense” does not include labeling, as defined in section 12-42.5-102(18), C.R.S.

(III) A person who violates any of the provisions of subparagraph (I) of this paragraph (b) commits:

(A) A level 1 drug felony and is subject to the mandatory sentencing provision in section 18-1.3-401.5(7) if the amount of marijuana is more than fifty pounds or the amount of marijuana concentrate is more than twenty-five pounds;

(B) A level 2 drug felony if the amount of marijuana is more than five pounds but not more than fifty pounds or the amount of marijuana concentrate is more than two and one-half pounds but not more than twenty-five pounds;

(C) A level 3 drug felony if the amount is more than twelve ounces but not more than five pounds of marijuana or more than six ounces but not more than two and one-half pounds of marijuana concentrate;

(D) A level 4 drug felony if the amount is more than four ounces, but not more than twelve ounces of marijuana or more than two ounces but not more than six ounces of marijuana concentrate; or

(E) A level 1 drug misdemeanor if the amount is not more than four ounces of marijuana or not more than two ounces of marijuana concentrate.

[HMS – OLD LAW Section 3(a) ]

(3)(a) It is unlawful for a person to knowingly cultivate, grow, or produce a marijuana plant or knowingly allow a marijuana plant to be cultivated, grown, or produced on land that the person owns, occupies, or controls. A person who violates the provisions of this subsection (3) commits:

(I) A level 3 drug felony if the offense involves more than thirty plants;

(II) A level 4 drug felony if the offense involves more than six but not more than thirty plants; or

(III) A level 1 drug misdemeanor if the offense involves not more than six plants.

[HMS – NEW LAW – Text of (3)(a), effective Jan. 1, 2018.]

(3)(a)(I) It is unlawful for a person to knowingly cultivate, grow, or produce a marijuana plant or knowingly allow a marijuana plant to be cultivated, grown, or produced on land that the person owns, occupies, or controls.

(II)(A) Regardless of whether the plants are for medical or recreational use, it is unlawful for a person to knowingly cultivate, grow, or produce more than twelve marijuana plants on or in a residential property; or to knowingly allow more than twelve marijuana plants to be cultivated, grown, or produced on or in a residential property.

(B) Except as provided in section 25-1.5-106(8.5)(a.5)(I) or section 25-1.5-106(8.6)(a)(I.5) for a medical marijuana patient or a primary caregiver with a twenty-four-marijuana-plant-count exception to subsection (3)(a)(II)(A) of this section, it is not a violation of subsection (3)(a)(II)(A) of this section if a county, municipality, or city and county law expressly permits the cultivation, growth, or production of more than twelve marijuana plants on or in a residential property and the person is cultivating, growing, or producing the plants in an enclosed and locked space and within the limit set by the county, municipality, or city and county where the plants are located.

(III) A person who violates the provisions of subsection (3)(a)(I) of this section commits:

(A) A level 3 drug felony if the offense involves more than thirty plants;

(B) A level 4 drug felony if the offense involves more than six but not more than thirty plants; or

(C) A level 1 drug misdemeanor if the offense involves not more than six plants.

(IV) A person who violates the provisions of subsection (3)(a)(II)(A) of this section commits:

(A) A level 1 drug petty offense for a first offense if the offense involves more than twelve plants, and, upon conviction, shall be punished by a fine of up to one thousand dollars;

(B) A level 1 drug misdemeanor for a second or subsequent offense if the offense involves more than twelve but not more than twenty-four plants; or

(C) A level 3 drug felony for a second or subsequent offense if the offense involves more than twenty-four plants.

(V) Prosecution under subsection (3)(a)(II)(A) of this section does not prohibit prosecution under any other section of law.

(b) It is not a violation of this subsection (3) if:

(I) The person is lawfully cultivating medical marijuana pursuant to the authority granted in section 14 of article XVIII of the state constitution in an enclosed and locked space;

(II) The person is lawfully cultivating marijuana in an enclosed and locked space pursuant to the authority granted in section 16 of article XVIII of the state constitution; except that, if the cultivation area is located in a residence and:

(A) A person under twenty-one years of age lives at the residence, the cultivation area itself must be enclosed and locked; and

(B) If no person under twenty-one years of age lives at the residence, the external locks of the residence constitutes an enclosed and locked space. If a person under twenty-one years of age enters the residence, the person must ensure that access to the cultivation site is reasonably restricted for the duration of that person’s presence in the residence.

[HMS – ADDED – Completely NEW Section 3(c) ]

(c) For purposes of this subsection (3):

(I) “Flowering” means the reproductive state of the cannabis plant in which there are physical signs of flower budding out of the nodes in the stem.

(II) “Plant” means any cannabis plant in a cultivating medium which plant is more than four inches wide or four inches high or a flowering cannabis plant regardless of the plant’s size.

(III) “Residential property” means a single unit providing complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking, and sanitation. “Residential property” also includes the real property surrounding a structure, owned in common with the structure, that includes one or more single units providing complete independent living facilities.

(3.5) A person is not in compliance with the authority to assist another individual granted in section 14(2)(b) or section 16(3)(e) of article XVIII of the state constitution and is subject to the offenses and penalties of subsection (3) of this section if the person possesses any marijuana plant he or she is growing on behalf of another individual, unless he or she is the primary caregiver for the individual and is in compliance with the requirements of section 25-1.5-106.

(4)(a) A person who possesses more than twelve ounces of marijuana or more than three ounces of marijuana concentrate commits a level 4 drug felony.

(b) A person who possesses more than six ounces of marijuana but not more than twelve ounces of marijuana or not more than three ounces of marijuana concentrate commits a level 1 drug misdemeanor.

(c) A person who possesses more than two ounces of marijuana but not more than six ounces of marijuana commits a level 2 drug misdemeanor.

(5)(a)(I) Except as described in section 18-1-711, a person who possesses not more than two ounces of marijuana commits a drug petty offense and, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars.

(II) Whenever a person is arrested or detained for a violation of subparagraph (I) of this paragraph (a), the arresting or detaining officer shall prepare a written notice or summons for the person to appear in court. The written notice or summons must contain the name and address of the arrested or detained person, the date, time, and place where such person shall appear, and a place for the signature of the person indicating the person’s written promise to appear on the date and at the time and place indicated on the notice or summons. One copy of the notice or summons must be given to the person arrested or detained, one copy must be sent to the court where the arrested or detained person is to appear, and such other copies as may be required by the law enforcement agency employing the arresting or detaining officer must be sent to the places designated by such law enforcement agency.

The date specified in the notice or summons to appear must be at least seven days after the arrest or detention unless the person arrested or detained demands an earlier hearing. The place specified in the notice or summons to appear must be before a judge having jurisdiction of the drug petty offense within the county in which the drug petty offense charged is alleged to have been committed. The arrested or detained person, in order to secure release from arrest or detention, must promise in writing to appear in court by signing the notice or summons prepared by the arresting or detaining officer. Any person who does not honor the written promise to appear commits a class 3 misdemeanor.

(b)(I) Except as described in section 18-1-711, a person who openly and publicly displays, consumes, or uses two ounces or less of marijuana commits a drug petty offense and, upon conviction thereof, shall be punished by a fine of up to one hundred dollars and up to twenty-four hours of community service.

(II) Open and public display, consumption, or use of more than two ounces of marijuana or any amount of marijuana concentrate is deemed possession thereof, and violations shall be punished as provided for in subsection (4) of this section.

(III) Except as otherwise provided for in subparagraph (I) of this paragraph (b), consumption or use of marijuana or marijuana concentrate is deemed possession thereof, and violations must be punished as provided for in paragraph (a) of this subsection (5) and subsection (4) of this section.

(c) Transferring or dispensing not more than two ounces of marijuana from one person to another for no consideration is a drug petty offense and is not deemed dispensing or sale thereof.

(5.5)(a) It is unlawful for a person to transfer marijuana or marijuana concentrate at no cost to a person if the transfer is in any way related to remuneration for any other service or product.

(b) A violation of this subsection (5.5) is a level 1 drug misdemeanor.

(6) The provisions of this section do not apply to any person who possesses, uses, prescribes, dispenses, or administers any drug classified under group C guidelines of the national cancer institute, as amended, approved by the federal food and drug administration.

(7) The provisions of this section do not apply to any person who possesses, uses, prescribes, dispenses, or administers dronabinol (synthetic) in sesame oil and encapsulated in a soft gelatin capsule in a federal food and drug administration approved drug product, pursuant to part 1 of article 42.5 of title 12, C.R.S., or part 2 of article 80 of title 27, C.R.S.

A 2017 Guide To Colorado (Medical) Marijuana Cultivation & Plant Count Rights 18-18-406

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