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Judge denies dismissal in medical marijuana case

WALSENBURG — While the Colorado Constitution provides for medical marijuana use, cultivation, and possession, there are still many grey areas in the law that even those professionals in the judicial system cannot seem to agree on. Third Judicial District Judge Claude Appel denied a motion to dismiss a medical marijuana case stemming from a Huerfano Sheriff’s Office search warrant on October 1, 2015 in the Gardner area. Deputy State Public Defender Patrick McCarville argued briefly before the court Monday morning, saying his client, Joshua Hertel, was exempt from prosecution under Article 18 / Section 14 of the Colorado Constitution. Deputy District Attorney Mike Warren opposed the motion, saying in fact, there was no legal basis to even conduct the hearing. “I think the people are right in this case,” said Judge Appel. McCarville cited paragraphs 2A and 2B which say, (2) (a) Except as otherwise provided in subsections (5), (6), and (8) of this section, a patient or primary caregiver charged with a violation of the state’s criminal laws related to the patient’s medical use of marijuana will be deemed to have established an affirmative defense to such allegation where: (I) The patient was previously diagnosed by a physician as having a debilitating medical condition; (II) The patient was advised by his or her

physician, in the context of a bona fide physician-patient relationship, that the patient might benefit from the medical use of marijuana in connection with a debilitating medical condition; and (III) The patient and his or her primary care-giver were collectively in possession of amounts of marijuana only as permitted under this section. This affirmative defense shall not exclude the assertion of any other defense where a patient or primary care-giver is charged with a violation of state law related to the patient’s medical use of marijuana. (b) Effective June 1, 2001, it shall be an exception from the state’s criminal laws for any patient or primary care-giver in lawful possession of a registry identification card to engage or assist in the medical use of marijuana, except as otherwise provided in subsections (5) and (8) of this section. Judge Appel interpreted the citation as saying it provided an affirmative defense for Hertel, but did not provide a basis for dismissal of charges at this point. He said no other judge in the state had ruled on this point of law and he wasn’t going to be the first. Saying he respectfully disagreed with the court, McCarville said, “This is clearly an evolving area of the law, be he (Hertel and his patients, were in full compliance with the law.” The defense also said all of those involved had their medical marijuana cards and were within or below the legal amount of plants allowed under Colorado’s medicinal marijuana statutes. Formal arraignment in the case has been set for 1:30 pm Monday, March 7, 2016. On October 1, 2015 the Huerfano County Sheriff’s Office executed a search warrant below the Sheep Mountain area and seized approximately 540 marijuana plants. Joshua Hertel, 51, was arrested in connection with the allegedly illegal grow operation and was charged with illegal cultivation and was initially held in the Huerfano County Jail on a $50,000 cash only bond. Hertel is now free on bond. • Brief History of Colorado Medical Marijuana Use In November of 2000, 54% of voters approved Amendment 20, which amended the state’s constitution to recognize the medical use of marijuana. The law, which took effect on June 1, 2001, removes state-level criminal penalties on the use, possession and cultivation of cannabis by patients who possess written documentation from their physician sustaining that he or she suffers from a debilitating condition and recommends that they “might benefit from the medical use of marijuana.” This documentation must be presented prior to an arrest. Patients who have not joined the registry or possess amounts of marijuana that are not allowed by law can argue the “affirmative defense of medical necessity” in court after arrested for marijuana charges.