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Is Stage Set For High Court MMJ Showdown In Colorado?

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.”

One Response to “Is Stage Set For High Court MMJ Showdown In Colorado?”

  1. MileHiMMJPatientMagazine says:

    Constitutional Rights are meaningless if they can’t be exercised.
    Let’s look at the first amendment right to redress of grievances. That is the clause that provides court access. It doesn’t say “right to access the courts” does it ? But to have a right conferred by the Constitution is meaningless if, in the real world, you cannot FULLY exercise that right.
    Further, the right to access to the courts does not mean that you can get in to just stand in the courtroom and get your head beat in. Right to access must be MEANINGFUL – it can’t just be a kangaroo court. You must have notice and an opportunity to be heard, for example.
    So, the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” DOESN’T SAY that you must have an opportunity to be heard in Court, but how meaningless would be if you didn’t ?
    I am surprised at this decision. It absolutely fails to recognize the practical, daily Life, aspects of the Constitutional Right to use cannabis as medication. How “MEANINGFUL” is the right to use a medication, legally, but you can’t possess it ? How do you use your medication if you can’t possess it ? If you use your medication how is it that in a FREE society you can, then, be punished ? You can’t live a normal Life in society and have a job ? An apartment ?
    Use of cannabis as medication CANNOT, in a just society be punished any worse than people who use insulin or oxycontin – both of which can impair on the job performance or driving competence.
    You have the right to buy and drive a car, but you are prohibited the steering wheel ?
    The “Justice” system needs to take the word more seriously and STOP being so convoluted that they make less sense than tits on bull.
    David

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