Nedlin: Rocky Mountain High
With the turn of the new year, many new laws take effect, none with more anticipation than Amendment 64, regulating the use of marijuana. Enacted as Article 18, Section 16 of the Colorado Constitution, the law addresses personal use and regulation of marijuana, similar to the manner used in the regulation of alcohol for adults 21 and older, as well as commercial cultivation, manufacture and sale.
So what does this mean for people in the state of Colorado? Well, it is now legal for any person 21 and older to possess as much as an ounce of marijuana. This means you will be able to, without a medicinal marijuana card, enter a state-licensed recreational marijuana store and purchase the lovely green herb. Colorado residents may buy as much as 1 ounce of marijuana per visit and non-Colorado residents may purchase as much as a quarter ounce per retail transaction, although they may legally possess a full ounce.
For all of you “green thumbs” out there, Amendment 64 allows you to grow as much as six marijuana plants (only three of which may be mature or flowering) in an enclosed, locked space and possess all marijuana from the plants grown. Adults 21 and older also are allowed to give away their marijuana (including marijuana they grow) to adults who are 21 and older. The law does not allow adults to receive any money in exchange for the marijuana grown at home, but how this is going to realistically prevent people from selling their homegrown marijuana, I cannot foresee. I imagine most of these transactions will take place in the privacy of their own homes and the days of the “hand to hand” sale are long and gone.
You may be asking, “Can I go into a medical marijuana dispensary now and purchase my herb?” Sorry, but no. Only individuals with state-licensed medical marijuana cards may buy from a dispensary. Amendment 64 has no effect on the current medical marijuana laws. The recreational users, as provided for in Amendment 64, will have to wait for the recreational shops to open.
Does that mean that any town you travel through in Colorado will have recreational marijuana shops? No. As of now, 84 municipalities have voted to prohibit recreational marijuana shops, while 42 have voted to allow such shops, and 33 municipalities currently have a temporary moratorium on Amendment 64 licensing issues.
Aspen has passed an ordinance allowing recreational shops. The next obvious question would be: What is going to happen to all of the medical dispensaries, and how will they stay in business? Well, there are still advantages to obtaining a medical license. For one, medical marijuana patients will have to pay only the sales tax of where they make their purchase. Recreational purchasers will have to pay the recreational-use, 15 percent statewide excise state tax (earmarked for school capital construction) and the additional 10 percent special sales tax, making it a total 25 percent tax that is associated with the purchase of recreational weed on top of the regular local sales tax.
So, for example, in Aspen you would be paying a 34 percent tax on your recreational purchase. Additionally, marijuana patients can possess as much as 2 ounces of marijuana and also possess and grow more than six plants if their doctors say they need to. Further, people 18 and older can use medical marijuana legally.
So, knowing that the possession and consumption of marijuana is legal, you may be wondering if you can consume in areas as one would cigarettes or alcohol. That answer is not quite so clear-cut. You may consume in your own private home, assuming you own your home or it is allowed per your lease or rental agreement. However, you may not smoke in public places or privately owned buildings where the owners do not allow marijuana smoking.
That being said, the Denver City Council just passed an ordinance that allows residents to smoke marijuana in a front yard, patio or balcony of their residence even if it can be smelled or seen from others on the street or sidewalk. One also must remember that the possession of marijuana is still illegal under federal law and therefore a federal offense. It is illegal to possess marijuana if you are entering a federal courthouse, an office building, a national park or national forests governed by federal law. Also, there will be many scenarios such as college students who may have the legal right to possess marijuana but the dorm or college may prohibit the use or possession on campus, which could lead to school violations.
Additionally, this now opens the door to potential issues with employers. Amendment 64 expressly states that an employer does not have to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace. Amendment 64 also states that an employer is permitted to restrict the use of marijuana by its employees. However, it is still unclear and a gray area whether an employer may restrict the use of marijuana outside the workplace without potentially violating current employment laws.
Many of the opponents of Amendment 64 believe that the legalization of marijuana will have an adverse effect on the young and affect the overall health of individuals and that marijuana is the “gateway” drug to more dangerous illegal drugs. In all my time as a prosecutor, I never had a case in which a violent crime on a person or property was committed because the individual was high on marijuana. I also never had a driving -under-the-influence-of-marijuana case where the person driving was doing so in a manner that was dangerous to other drivers or pedestrians.
Further, there has never been a documented death due to a marijuana overdose. Perhaps the most dangerous part of the legalization is going to be that new users might be unfamiliar with the potency and effects of marijuana in its different forms. Marijuana can be smoked, vaporized and used as edibles (brownies, cookies, candies), tinctures, tonics and even teas and sodas. Before delving into the vast array of vessels for which marijuana can be consumed, it is best to visit an educated and responsible shop that can give you proper information on dosage and potency so you can truly enjoy your “legal” Rocky Mountain high in a fun and responsible manner.
Richard Nedlin is a former prosecutor in Aspen and now practices criminal defense. He can be contacted at 970-309-8197 and richard@nedinlaw.com.
