Oh, word, weed is legal in Colorado? I must have missed that when they were arresting my clients for possessing a legal substance.
I often see references in the news that pot is legal in Colorado, or something to that effect. Pot is not legal, it’s a federally controlled substance, still classified as a schedule 1, which means that it has harsher penalties for possession and trafficking than many other substances which have literally no medicinal benefit – whereas marijuana there are a litany of peer-reviewed journal articles on the medical benefits of marijuana.
So why does the media keep repeating the trope that marijuana is legal?
Likely because the distinction between de-criminalized and legal is a difficult subject for a medium that targets the masses, and it can be a difficult concept for lay people to understand. So I will break down what you can and cannot do in Colorado:
- All marijuana possession and consumption is illegal under federal law. If you consume weed or possess weed while skiing on national forest land, you will VERY likely get a ticket which will require your presence in federal court – in the event that you are turned over to rangers. All public consumption of marijuana remains illegal even at the state level, barring consumption in a cannabis club in Denver.
- You may possess, use, or transport one ounce of marijuana or less
- You may cultivate 6 plants for your own use
- You may not sell marijuana yourself
- You may give away up to one ounce per day
- You can assist someone under the age of 21 in procuring marijuana pursuant to statute
That’s it. You can’t do more than that legally.
“But I have a red card that says I can grow 35 plants!”
Growing 35 plants is a felony in Colorado. In fact, 30 plants or more constitute a felony pursuant to Colorado Revised Statute 18-18-406(3)(I).
“But another lawyer told me I would be OK if the cops came” then you didn’t listen, or he committed malpractice you and you should report him to the bar for telling you to commit a crime.
While you can certainly grow the 35 plants your doctor recommended for you, you are committing a felony if you do this. What’s codified in the Colorado constitution is what’s known as an affirmative defense.
Affirmative defenses are presented to the jury after the evidence has been presented to determine whether they believe you committed a crime but had a reason for doing so.
The medical defense of possessing more than 30 plants (Or more than 12 plants in the case of a misdemeanor) can often be a compelling one, but the narrative surrounding that defense must be consistent with your being a medical patient and not a drug dealer.
For example: If you have 35 plants, and you have marijuana packaged and sealed for distribution, loose cash, scales, and indicia of drug dealing in your residence, a jury is unlikely to believe that your possession was related to your own medical use. That situation is also why you likely got charged in the first place.
Your first line of defense to not being charged for possession of marijuana with the intent to distribute is not having the police inside of your house. If the cops show up to your grow: You have fucked up. Where did you go wrong? Were you off-gassing into your neighbors yard? Were you growing in your garage and someone saw what you were doing? Did you have cars coming and going to your house at all hours of the day? Were you using more power than a reasonable person in your situation would be? All of these factors can lead to police obtaining a warrant. You have no 4th amendment right to privacy over your powerbill. There is conflicting case law on whether odor is probable cause of a crime being committed, and clever police will often interject their “years of experience in dealing with marijuana operations” to cobble together probable cause for a warrant. While you are innocent until proven guilty beyond a reasonable doubt in the United States criminal system, the standard for obtaining a warrant is merely “probable cause to believe that a crime has been or is being committed.” That is a very low standard for a busy judge. If the facts seem plausible, they’re going to be knocking on your door.
If the cops get into your house, how is it going to look? Does it look like a drug dealer lives there? You’re likely going to get charged. Don’t have any medical paperwork related to your grow? You’re 100% going to get charged with something, though if you’re lucky the police will be gentle and give you a ticket for odor and tell you to cut down your plants.
In short, marijuana is not legal, but as a legal community, we’re working on it.