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New Proposed Federal Affirmative Defense and Colorado’s Affirmative Defense

While 17 states and Washington, D.C. all have enacted some form of exemption from criminal prosecution for medical marijuana, there are no corresponding exemptions allowed under federal law in a fed

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While 17 states and Washington, D.C. all have enacted some form of exemption from criminal prosecution for medical marijuana, there are no corresponding exemptions allowed under federal law in a federal prosecution for marijuana. In July 17, the House of Representatives submitted HR 6134, “Providing An Affirmative Defense For The Medical Use of Marijuana; Seizure of Property,” to provide an affirmative defense for the medical use of marijuana in accordance with the laws of the various states, and for other purposes. Finally.

Interestingly enough, when we look to see the members of Congress brave enough to sponsor this amendment, we do not see any name of a Colorado representative.

This proposed amendment is known as the “Truth In Trials Act;” more than likely because historically when a person was federally prosecuted for a marijuana crime and went to trial, the defendant was barred from mentioning any state protection he or she may have enjoyed in compliance with their state’s medical marijuana laws. So now, this bill would allow “truth” (evidence) to be presented in a federal trial that the person was in compliance with their state’s medical marijuana laws.

The proposed bill allows the defendant an “affirmative defense” in which the defendant must show the jury by a “preponderance of the evidence” (something that is more likely true than not) that his/her marijuana activity complied with his/her state’s medical marijuana law and then the jury, if they believed that, could find the defendant not guilty for that marijuana which was used in compliance with state law. The jury could still find the defendant “guilty” of any marijuana activity which did not comply with state law.

Colorado’s own Article 18, Section 14, includes an “Affirmative Defense” too. Sec.14(4)(a) says: “A patient may engage in the medical use of marijuana, with no more marijuana than is medically necessary to address a debilitating medical condition.” It continues on to state that two ounces of usable marijuana and no more than six plants are “lawful” to possess. Then the Affirmative Defense follows next in Sec. 14(4)(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.”

So if you are charged with a criminal offense because you had more than two ounces or six plants, you could go to trial and provide evidence to the jury the excess marijuana was “medically necessary” for your medical condition. The current practice in Colorado is for the physician to write on the Recommendation for the Patient the specific number of plants the physician is recommending. Then if a trial is necessary, you would need the physician to testify as to how he/she determined that this amount of marijuana was medically necessary to treat your debilitating condition.

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

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