LAW WEEK COLORADO
DENVER — Does Colorado’s medical marijuana amendment give patients a constitutional right to possess the substance, or does it simply give medical marijuana patients immunity from prosecution?
Whether Colorado’s high court answers that question may depend on whether Jason Beinor appeals his unemployment insurance case.
A Colorado Court of Appeals panel split on the issue last week, with the majority coming down against the notion of a constitutional right to medical marijuana. But the split decision suggests there’s enough controversy that the Colorado Supreme Court might be interested.
As first reported in Westword, legal medical marijuana patient Beinor was fired from his job as a street sweeper after testing positive for the substance. He was first denied unemployment insurance for violating the company’s zero-tolerance drug policy, but the industrial appeals board eventually granted benefits because his marijuana use was a state constitutional right.
The case went to the Court of Appeals, where Beinor represented himself. The appellate panel said the denial of benefits should stand because the medical marijuana amendment merely creates an affirmative defense from criminal prosecution.
“We conclude that although the medical certification permitting the possession and use of marijuana may insulate claimant from state criminal prosecution, it does not preclude him from being denied unemployment benefits based on a separation from employment for testing positive for marijuana in violation of an employer’s express zero-tolerance drug policy,” wrote Judge David Richman in the panel’s opinion.
The panel split 2-1, with Judge Rich Gabriel taking Beinor’s side, finding “the amendment, in fact, established a right to possess and use medical marijuana in the limited circumstances described therein….”
In an interview with Westword’s Michael Roberts, Beinor concedes he was pessimistic about his chances on appeal.
“If I was intent on winning the state appeals case, I should have gotten a lawyer,” he told Westword. “I never really thought I would win this case, though.”
But his case is a good candidate to get an airing in the state Supreme Court, say lawyers who handle medical marijuana cases. Brian Vicente of Sensible Colorado said patients deserve to use whatever remedy is best for them without being penalized.
“There are two attorneys who work here,” Vicente said. “Sometimes we’ll represent people in these kind of cases, and often we’ll refer them to attorneys who are able to assist pro bono.”
This is an issue that needs to be resolved in court, said Danyel Joffe, an appellate lawyer who has represented clients in marijuana cases.
“There are a lot of issues where we’re looking to get clarity, but this certainly is a big issue,” Joffe said. “Personally, I agree with the dissent, and it might be a worthwhile candidate to take on a pro bono basis.”