Colorado Attorney General: Medical marijuana use is not a right

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Colorado Supreme Court courtroom.


Back in April, we told you about a Colorado activist group appealing to the state Supreme Court to make medical marijuana use a right in Colorado after a DISH Network employee was fired for off-work use. The Colorado Patient and Caregiver Rights Litigation Project filed an amicus to the court arguing that medical marijuana use is a right and the intent of the voters was to legalize medical cannabis – not just make it a decriminalized form of use.
But now the Attorney General of state of Colorado is offering their opinion to the Colorado Supreme Court, and it’s the complete opposite.


The whole story a complicated legal mess, but basically Brandon Coats was fired in 2012 for failing a drug test that he told employers he would fail due to off-work medical cannabis use. Colorado’s medical marijuana amendment says that “nothing [in the bill]shall require any employer to accommodate the medical use of marijuana in any workplace,” and Courts and employers have routinely used that and federal marijuana laws and federal labor and employment laws to supersede state medical pot laws. Coats took dish to court, lost then took it to state Appeals court. He failed to get his argument accepted there and tried a third time by filing with the Colorado Supreme Court. Their ruling, if they decide to make one, is going to stand as a precedent for the rest of the state – which is why the CPCR filed their brief in April hoping to nudge the Supreme Court along in the direction of patient rights and safety.

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Colorado Attorney General John Suthers.

But in a brief filed late last month, Colorado Attorney General John Suthers argues that marijuana use outside of work is not a right, even for medical patients. Instead, he says it is a “narrowly drawn constitutional amendments that decriminalize small amounts of marijuana for patients with a debilitating medical condition, at issue in this case, or for recreational use by adults over the age of 21.”
The state argues that allowing medical patients and adults 21 and up to smoke otherwise legal cannabis would create major problems for employers who would have to do “invasive” investigations to determine if someone’s usage was truly done away from work or if they were showing up high. Marijuana stays in someone’s system for up to several weeks at a time, they argue, it’s too hard to determine when someone may have ingested it. Also, since marijuana remains federally illegal, the state would be violating federal laws.
Basically, Suthers thinks the court should just ignore the case and certainly not set any precedent.
“The State of Colorado contends there is no reason in this case to address the question of describing the medical use of marijuana as a ‘right’ under the state constitution,” Suthers writes. “Resolving this case does not require this Court to reach the question of what type of a right, if any, protects medical marijuana patients and caregivers. As a matter of statutory interpretation the undeniable and unambiguous illegality of marijuana under federal law answers the question in this case.”
Andrew Reid an attorney with the CPRC litigation project points out that there are no federal laws about medical marijuana because medical marijuana doesn’t exist to the feds. Therefore, state law is the highest law. Besides, Reid points out in a release, the state already runs a medical marijuana program. To argue that it’s not a right is absurd.
“Given that the State of Colorado runs an established MMJ program, including licensing and taxing, its position in its amicus brief is outrageous. Its position is that the government of Colorado and the individual governmental officials are engaged in abetting violations of federal drug laws. The Colorado Attorney General is essentially subjecting all state officials who participate in the MMJ program to federal prosecution for violations of federal felony drug laws.”
The state Supreme Court expects to rule on the matter by late June or early July of this year.

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