State, federal statutes clash on medicinal uses of pot

October 07, 2005

Patrick Malone, The Pueblo Chieftain

Muddy waters swirl around the discrepancies between Colorado's medical marijuana law and the federal law that forbids possession of the drug.

Those murky waters seeped into Pueblo on Monday when Yvonne Martinez, who has a state-issued license to possess marijuana for medicinal purposes, called police to report that someone had stolen a dozen cannabis plants from the greenhouse in her yard.

Overnight, Martinez, 45, says she went from crime victim to suspect, largely because she reported the theft to police.

"If I was a (drug) dealer, I sure wouldn't have called the police," Martinez said. "I don't have anything to hide. Now (the marijuana) is in the hands of someone who's using it illegally."

Martinez said she was open with police about her pot growing operation and showed them her medical marijuana card. She thought law enforcement's involvement ended there, but it didn't.

Deputy Chief John Ercul said Pueblo police have notified federal authorities about the marijuana Martinez was growing.

Martinez's medical marijuana card was issued by the Colorado Department of Public Health and Environment, which had issued 671 of the licenses statewide Ñ 26 of them in Pueblo Ñ as of the end of September, according to Ron Hyman, state registrar of vital statistics.

People seeking a medical marijuana license must apply to the state and get a doctor's certification that they suffer from one of the conditions that qualifies them for the registry. Those conditions are cancer, glaucoma, HIV/AIDS, muscle spasms, seizures, severe pain, severe nausea and wasting sickness, Hyman said.

Hyman said the state's medical marijuana registry is confidential. He would not verify whether Martinez is registered with the state as a medical marijuana patient. Ercul said Martinez provided police with proof of her participation in the program.

Martinez declined to identify the medical condition that precipitated her approval for the medial marijuana registry, but said she copes with severe pain.

Colorado voters adopted an amendment to the state constitution that legalized medical marijuana beginning in 2001. However, earlier this year the U.S. Supreme Court shot down an attempt by California lawyer and Pueblo native Robert Raich to shield medical marijuana patients from prosecution of any kind.

The Supreme Court's ruling essentially recognizes the state laws allowing medical marijuana, but upholds the federal law against possession of pot. So someone in Martinez's situation is protected from prosecution on state charges, but is still subject to criminal action by the federal government, according to Kristen Hubbell, spokeswoman for the Colorado Attorney General's office.

"There’s a discrepancy between the federal law and the state law," Hubbell said. "That discrepancy still exists after the Supreme Court decision."

Jeff Dorschner, spokesman for the U.S. Attorney's office in Denver, said it's the policy of federal law enforcement to confiscate and destroy any marijuana it encounters in the course of a criminal investigation.

"Marijuana is considered contraband," Dorschner said. "It's a substance prohibited by federal law from being possessed."

However, he said federal prosecutors are not actively targeting Colorado residents with medical marijuana licenses.

"The U.S. Attorney's office focuses on large-scale drug traffickers," he said.

Dorschner said Martinez's crop is subject to investigation by both federal and local prosecutors because the number of plants she reported stolen exceeds what is allowed by Colorado's medical marijuana law. The Colorado law provides for three mature plants that have reached the budding phase and three infant plants that have not yet produced buds, Dorschner said.

"I can see them going after someone who has 800 plants," Martinez said. "If I was misusing it, I wouldn’t have called the police."

Ercul said police plan to forward details of the probe into Martinez's reported stolen marijuana to the local district attorney's office when the investigation is complete.

Martinez said she consulted the state health department before reporting the theft of her plants to police and was told it was her choice whether to report the crime. She said she reported the theft to police so she could recoup her financial loss through insurance.

Martinez valued the plants at $10,000, according to a police report. Ercul said police are skeptical about whether the plants were worth that much.

Martinez said she was comfortable reporting the theft to police because she had been contacted by narcotics officers last year and provided proof to them that she was legally on the state's medical marijuana registry. Police never bothered her again, so she says she believed it was acceptable in the eyes of the law to keep growing marijuana.

Martinez turned to marijuana as an alternative to the prescription drug Vicodin, which contains the potent narcotic hydrocodone. Martinez said she would rather tolerate the pain of her condition than resort to strong pharmaceutical painkillers.

"I don’t want to get back on something that’s going to make me a zombie," Martinez said. "I’d rather deal with the pain. I don’t want to get on anything stronger."

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