This is a far more complex question than it might first seem. For example, I recently pleaded a client to a drug felony, and I knew the consequences of that, but the judge actually had to look it up.
In general, there is mostly no functional difference between medicinal and recreational marijuana at this point. The only big difference that exists is if somebody is on probation and they don’t want to stop smoking weed, they often go get a medical card. Or, they already had a medical marijuana card, and then they try to get permission from probation to continue smoking weed, despite being on urine analysis tests (UAs) for any other type of drug. And so, to them, marijuana is essentially a prescribed medication. So that happens a lot.
Having said that, some judicial districts with some crimes are now making part of their probation requirements that no marijuana is allowed—medicinal or otherwise.
The other thing that plays a major role is that weed is now legal in Colorado. But obviously, it’s not legal to consume in public. I don’t think any cops are arresting people for smoking a bowl on the 16th Street Mall at this point, but it is technically not legal to do so.
So then, one of the questions is: what is legal to grow? And this is where a lot of my drug clients come in. If you’re allowed to grow X number of plants based on whatever licensing you have through the marijuana enforcement division, but then you get caught with a hundred plants in your basement… do you have the right to a hundred plants?
In some aspects, you could potentially have the legal right to have a hundred plants: if you’re a caregiver and each person gets six plants, and you’re a caregiver of X amount of people. You could have a hundred plants, but generally, those folks are still running the underground market and trying to take advantage of the fact that it’s legal in the area where they’re growing it.
But there’s still the black market. So a lot of cases are about cultivating marijuana above the legal limits. So you know, back in the day, you could get in trouble for growing your own plants. Now you can’t get in trouble for that, but those same people that were growing their own plants see the economic incentive to grow a hundred plants and ship it out to states where it’s not legal, and that’s what law enforcement is cracking down on. (And by the way, they’re looking at your utility bill to find that out).
So it’s really more about if you have the intention to distribute rather than if you just really enjoy pot and want to have a lot of marijuana plants. Although there are also rules against who can make concentrates (the stuff that gets boiled down) because it’s so highly flammable. I had one client who literally burned off part of his rear end when he exploded his home concentrate system. When his the explosion happened, he not only got charged with arson because it burned part of his house down, but he was in the hospital for three months, getting skin grafts on his entire backside.
So, yes, you can smoke weed. It’s the same as how you can drink alcohol or at least similar to that. But just like you can’t have a distillery in your home to make alcohol without the proper licensing, there are still regulations because there are still community safety risks.
And there are still a bunch of foreign interests—not just foreign country interests, but also foreign state interests because of people who are running a marijuana game in Colorado, then shipping it out to places where it’s not legal.
And that’s, I think, where you get a lot of the legal problems because there isn’t so much a black market for weed anymore in Colorado. Nobody’s going to a dealer to get their eighths because you can go to the store, and it’s way cheaper.
It’s the “everywhere else” that causes the biggest legal problem for Coloradans: other states where it isn’t legal, where people are shipping it.
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Mr. Krizman is a criminal defense attorney in Denver, Colorado. He specializes in providing relentless defense for domestic violence, DUI, and drug crimes. He is a former public defender who has also worked for a district attorney and is licensed in the State of Colorado, and the United States Federal Court, District of Colorado. Mr. Krizman is a member of the Colorado Criminal Defense Bar, Colorado Bar Association, Denver Bar Association, and Arapahoe County Bar Association. A Colorado native, he has a law degree from the University of Denver Sturm College of Law, and a bachelor’s degree in Government and World Affairs from the University of Tampa. Contact him today at 720.819.7317.