Medical marijuana defense used properly, court rules | Western Colorado

The Colorado Legislature cannot impose restrictions to a medical marijuana affirmative defense that is expressly allowed under the state’s Constitution, the Colorado Court of Appeals ruled Thursday.

In a case involving Palisade peach grower David Cox, a three-judge panel unanimously agreed that Cox’s use of that defense against multiple felony marijuana charges is protected under Amendment 20, the constitutional provision approved by voters in 2000 that legalized medical marijuana.

In 2019, Cox was acquitted on seven felony marijuana distribution and cultivation charges after law enforcement raided his Palisade home and warehouse in 2017.

During trial, Cox invoked that affirmative defense, saying he was intending to become a medical marijuana caregiver and industrial hemp entrepreneur.

On appeal, prosecutors argued that the judge in the case, Judge Brian Flynn, erred by not considering three additional elements to that defense that were enacted by the Colorado Legislature when it codified Amendment 20, but don’t appear in the Constitution.

“As a matter of first impression, we hold that the elements of the medical marijuana defense are prescribed by article XVIII … of the Colorado Constitution and cannot be supplemented by additional elements purportedly added in later-enacted Colorado statutes,” Judge Michael Berger wrote in the ruling, which was joined by Judges John Daniel Dailey and Ted Tow.

Mesa County District Attorney Dan Rubinstein, whose office filed the appeal, said he was trying to get clarification on that defense.

“While the court did not give us the answer we were hoping for, it is important that law enforcement understand the scope of the affirmative defense articulated in the constitutional amendment relating to marijuana to assist in their ability to enforce the rules and regulations regarding grow operations,” Rubinstein said.

Cox, a failed GOP candidate for the Legislature and Congress, argued at trial that the case was politically motivated by Rubinstein’s office. Cox’s peach boxes make several references to the Sept. 11, 2001, terrorist attacks, some claiming it was an inside job.

Cox was found not guilty on seven marijuana charges, but he was found guilty on two misdemeanor child abuse charges. Those charges centered on weapons found at his home that created an unsafe environment.

Cox’s home and business were raided by the Western Colorado Drug Task Force, which seized dozens of cannabis plants and loaded weapons. Flynn initially declared that raid invalid, but Rubinstein’s office appealed to the high court, which overturned Flynn in 2018 and remanded the case to trial.

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