Implementing Amendment 64 is Next: Hang on for the Ride

If you are in Colorado, quick, pinch yourself and the person next to you. On Nov. 6, the voters of the great state of Colorado spoke and said that it is not illegal in this state to possess up to one ounce of cannabis and to grow six plants for personal use.

So, the question on everyone’s lips is: what’s next? While we look to the 2013 session of the Colorado State Legislature to hammer out statutes implementing the new Constitutional Amendment, unfortunately, it doesn’t look like it is going to be as simple as that.

Cannabis remains illegal to possess, cultivate, and distribute under federal and much of state law. In the case of Gonzales v Raich, 545 U.S. 1 (2005), the U.S. Supreme Court held that Congress’ Commerce Clause authority includes the power to prohibit local cultivation and use of the plant even when in compliance with state law. Colorado’s new constitutional amendment appears contrary to the Controlled Substances Act, 84 Stat. 1242, 21 U.S.C. Sec. 801, and therefore, under Raich, federal law should prevail. Cannabis continues to be a Schedule I drug which means it purportedly has no medicinal value; it simply is illegal in all of its shapes and forms.

Some members of Colorado’s congressional delegation is moving to introduce a bill in Congress which will “exempt” Colorado, in part, from the Controlled Substances Act, therefore quelling the state-federal conflict and allowing the usage of cannabis under certain circumstances. So, you ask, if the federal government did not try and prosecute Colorado’s medical cannabis use since 2009, why would we be threatened now with regulated marijuana? With MMJ, we could articulate that cannabis could provide many health benefits. Amendment 64 simply says everyone 21 or older can possess up to one ounce of marijuana and cultivate up to six plants for personal use not based at all on the need of the adult.

Governor Hickenlooper has “reached out” to U.S. Attorney General Holder to see how the Justice Department will respond to Amendment 64. Many people are questioning why the governor just doesn’t embrace the will of the people of Colorado and quit looking for federal intervention. Hickenlooper just announced the formation of a task force “to identify the policy, legal and procedural issues that need to be resolved related to Amendment 64.” Now is the time to contact your state legislators and let them know your position and thoughts. The passage of Amendment 64 is historic and its implementation will be groundbreaking. We get to go along for the ride.

Ann Toney, P.C. is a Denver-based law firm that focuses on medical marijuana business law and marijuana defense; and defending people charged with driving under the influence of alcohol and drugs (DUI/DUID). Ann Toney can be contacted via phone or web at (303) 399-5556 and www.anntoneylaw.com.