Colorado Cannabis Law
Colorado has five separate regulatory tracks for consuming & producing Cannabis:
(1) Constitutional Affirmative Defense (Medical); (2) Constitutional Debilitating Patient Registry (Medical); (3) Statutory Disabling Patient Registry (Medical-Adds Conditions To Registy); (4) Constitutional Licensed Retail Marijuana Program (Recreational); and (5) Hemp / Industrial Hemp. *This page is not complete, and is for informational purposes only.
Amendment 20 - Colo. Const. art. XVIII, § 14 – Medical Marijuana
In 2000, Colorado voters passed Amendment 20, codified as Colo. Const. art. XVIII, § 14, one of the first medical marijuana laws in the country. The Constitutional section created two separate and distinct regulatory schemes for persons with debilitating medical conditions to purchase and/or possess marijuana: the Affirmative Defense System found in Section 2, and the Confidential Registry System found in Section 3.
Colo. Const. art. XVIII, § 14(2) – Affirmative Defense
Colo. Const. art. XVIII, § 14(2) creates an Affirmative Defense for patients and primary care-givers to any “violation of the state's criminal laws related to the patient's medical use of marijuana” if the following conditions are met: “(I) The patient was previously diagnosed by a physician as having a debilitating medical condition; (II) The patient was advised by his or her physician, in the context of a bona fide physician-patient relationship, that the patient might benefit from the medical use of marijuana in connection with a debilitating medical condition; and (III) The patient and his or her primary care-giver were collectively in possession of amounts of marijuana only as permitted under this section.” Colo. Const. art. XVIII, § 14(2) (emphasis added).
This Affirmative Defense has been successfully asserted most recently in the unpublished opinion of People v. Cox, 2021 COA 68, ¶ 19, where the court held the General Assembly is not permitted to add additional substantive elements to the affirmative defense. “The addition of substantive elements to an affirmative defense makes it more difficult for a defendant to establish the defense. See Garcia, 113 P.3d at 784. Therefore, when, as here, the Colorado Constitution specifically prescribes and defines an affirmative defense and does not authorize the General Assembly to add additional substantive elements, courts must apply the constitution as written.” People v. Cox, 2021 COA 68, ¶ 19.
Colo. Const. art. XVIII, § 14(3) – The Colorado Department of Public Health and Environment’s “Confidential Registry”
Colo. Const. art. XVIII, § 14(3) created a “confidential registry of patients” (the “Confidential Registry”) overseen by the Colorado Department of Public Health and Environment (“CDPHE”).
Colo. Const. art. XVIII, § 14(3) expressly states the confidentiality standards of such Confidential Registry, as well as mandatory and express procedures CDPHE must follow when issuing and denying a “registry identification card” (“Registry Card”).
The benefit of registering for the Confidential Registry is that it creates an “exception” to all criminal laws of Colorado related to a patient’s medical use of marijuana and enables a patient to shop at medical marijuana dispensaries regulated by the Marijuana Enforcement Division (the “MED”). Id.
(a) Confidential Registry Confidentiality Provisions
Colo. Const. art. XVIII, § 14(3)(a) plainly states the confidentiality standards for the Confidential Registry. Barring (1) CDPHE employees “in the course of their official duties;” and (2) law enforcement officers verifying a stopped or arrested person’s registration, no person is permitted to gain access to any information about patients, physicians, or primary care-givers maintained by CDPHE. This prohibition applies whether the information appears in the Confidential Registry or is “otherwise maintained” by CDPHE.
(b) Patient Registry Application
Colo. Const. art. XVIII, § 14(3)(b)(I)-(IV) states that to be placed on the Confidential Registry, a patient must reside in Colorado and submit a completed application including the following information: “(I) The original or a copy of written documentation stating that the patient has been diagnosed with a debilitating medical condition and the physician’s conclusion that the patient might benefit from the medical use of marijuana; (II) The name, address, date of birth, and social security number of the patient; (III) The name, address and telephone of the patient’s physician; and (IV) The name and address of the patient’s primary care-giver, if one is designated at the time of application.”
(c) Verification, Denial, and Mandatory Issuance of Registry Card
Colo. Const. art. XVIII, § 14(3)(c) states that CDPHE “shall verify” the information required by (3)(b) “within thirty days of receiving the information referred to in (3)(b)(I)-(IV).” Barring CDPHE determining: (1) the information required by Colo. Const. art. XVIII, § 14(3)(b) was not provided; (2) the information required by Colo. Const. art. XVIII, § 14(3)(b) was falsified; (3) the documentation fails to state that a patient has a qualifying debilitating medical condition; or (4) the physician is not licensed in Colorado, CDPHE “shall issue” a Registry Card “not more than five days after verifying such information.” Id.
(d) Automatic Approval if CDPHE Fails to Verify and Issue
Colo. Const. art. XVIII, § 14(3)(d) states that for any patient above the age of eighteen (18), if CDPHE fails to issue a Registry Card or fails to issue a notice of denial for the reasons enumerated above within thirty-five days of receiving an application, the application will be deemed to have been approved, regardless of a Registry Card being issued.
A patient, approved through Colo. Const. art. XVIII, § 14(3)(d), who is questioned by any law enforcement official about his or her medical use of marijuana shall provide a copy of the application submitted to CDPHE, including the written documentation and proof of the date of mailing or other transmission of the application. This shall be accorded the same legal effect as a Registry Card, until such time as the patient receives notice that the application has been denied or a Registry Card. Id.
Colo. Const. art. XVIII, § 14(4) – Lawful Amounts of Medical Marijuana
Colo. Const. art. XVIII, § 14(4)(a) states “A patient’s medical use of marijuana, within the following limits, is lawful: (I) No more than two ounces of a usable form of marijuana; and (II) no more than six marijuana plants, with three or fewer being mature… (b) For quantities of marijuana in excess of these amounts, a patient or his or her primary care-giver may raise as an affirmative defense to charges of violation of state law that such greater amounts were medically necessary to address the patient’s debilitating medical condition.”