Editor’s note: “Bringing It Home” runs weekends in The Aspen Times and focuses on state, national or international issues that have ties to or impacts on the Roaring Fork Valley.
Legal experts in the Roaring Fork Valley say the decision of Colorado’s second-highest court to throw out two marijuana convictions, using retroactive application of Amendment 64, will have little to no impact on cases here.
Snowmass defense attorney Arnie Mordkin said the Colorado Court of Appeals’ decision to dismiss Brandi Jessica Russell’s 2011 possession charges is very narrow in scope, and he doubts there are any other cases like it, considering her charges stem from three years ago. Her convictions — possession of marijuana concentrate and possession of less than 1 ounce of marijuana — were considered petty offenses in 2011 and subject to a $100 fine.
Mordkin said that Russell’s case does, however, raise some philosophical questions concerning criminal records. Because her case was under appeal in 2012, when Amendment 64 passed, the court agreed to retroactive application. But other convictions, ones that have been finalized, would not be considered by the court.
“What shocks our conscience is you can’t, in fact, go back and say, ‘Well what used to be a crime is not now a crime, therefore I want my record clean,’” he said. “That is the general rule. You don’t get to go back.”
He said the court of law wants a clear-cut end so that people can get on with their lives. But how does a person with a blemished record go on with their life, knowing their crime is no longer illegal?
Mordkin said it’s a question of policy: Do you want to apply the policy of finality, or do you want to apply the policy that people’s lives are affected by this? Those convicted do have the option of petitioning to have their criminal records sealed after a number of years.
Aspen attorney Jeff Wertz, who serves on Aspen’s Local Licensing Authority, the distributor of liquor and marijuana licenses, said that Colorado’s legal landscape will change gradually over time. Even before Amendment 64, defense lawyers, defendants, prosecutors and judges would argue for and against the use of medical marijuana by people on probation.
“They usually restrict you from drinking alcohol, and they customarily restrict you from using cannabis, even if you are a patient, and I don’t see that changing,” he said of probation cases. “I think that will change perhaps slowly now that using cannabis is legal for adults.”
Wertz would like the law to loosen up in terms of sealing records, overturning convictions and even getting pardons from the governor. He said things need to be more harmonized with Amendment 64.
“It’s going to take a little bit of time. It’s a learning curve. It’s a growing process — bad pun, I know,” he said.
Another issue, he said, is employee drug-testing policies, which are not subject to law. Employers aren’t expected to tolerate a worker who shows up stoned, just like they wouldn’t be expected to tolerate a worker who shows up drunk. But a drug test is not the same as a sobriety test. An employee might fail a urinalysis on Monday after smoking on Friday, even though they were not impaired at work.
“What’s the upshot of that?” Wertz asked, adding that it’s more an employment-policy question than a legal one. “But if you’re a large employer in Colorado and you want to have a policy that your employees can’t use cannabis when they’re not at work, we’re in a new day with that, aren’t we?”
While the appellate court threw out Russell’s marijuana convictions, it upheld a more serious methamphetamine charge. Colorado Attorney General John Suthers plans to appeal the overturned convictions because of the impact they could have on non-marijuana cases. Like Mordkin and Wertz, his office downplayed the ruling’s influence on marijuana convictions, given the pettiness of the woman’s crimes.
Like Mordkin, Suthers said that it is highly unlikely there is anyone currently incarcerated for possession of less than an ounce of marijuana or marijuana concentrate. He also cited the strength of Colorado retroactivity law.
“Well-established retroactivity law in Colorado indicates that statutory changes are prospective only unless the General Assembly or the voters have clearly indicated an intent to require such retroactive application. That was not the case with Amendment 64,” the statement said.