Colorado moves prescription pot closer to Kansas
Kansas has quietly become a border state — to legal (sort of) marijuana.
Whether Colorado’s fast-emerging medicinal pot market will waft across the state line — either in traffic of those headed toward the Rockies for a dose of ganja, or in swaying Kansan sensibilities about weed — is hard to tell.
Still, the fast-shifting climate for medical marijuana in Colorado shows how sales can take hold when suppliers detect a legal opening.
Lawyers specializing in marijuana cases estimate that more than 100 dispensaries have opened in Colorado this year — though no state agency keeps track. None, so far, have been busted. Thousands of people have applied for the right to treat their maladies with pot.
“It’s amazing to see how fast this has taken off,” said Warren Edson, a Denver lawyer whose clients gingerly tread the emerging norms of medical marijuana in the state.
Denver’s alternative Westword newspaper has even created a job for a pot critic.
Sales weren’t legalized
Coloradans amended their state constitution in November 2000 to make marijuana available for a handful of medical conditions.
Then for most of the decade, nothing happened. The amendment legalized pot by prescription but did not legalize its sale.
In translating the constitutional amendment to regulations, state officials first tried to limit a “caregiver,” or pot supplier, to five patients. With sellers reduced to so few potential customers, there was little incentive to get in the business — especially as worries remained that federal agents would bust sellers under the nation’s ongoing prohibition.
Then two things happened. A judge in Denver tossed out the state’s cap on patients per caregiver. And Barack Obama moved into the White House.
Obama rose to the presidency saying he thought the federal government had better things to do than battle states over medical marijuana. Then in mid-October, Attorney General Eric Holder told his prosecutors not to bother with users or distributors of medical marijuana in states where it has been legalized.
So far, that includes 13 states with a hodgepodge of regulations that don’t always make clear how and from whom cannabis can be bought, and where and how it can be grown.
Colorado is very specific about some things. A state-licensed physician must recommend the drug. The doctor can do so only for cancer; glaucoma; HIV/AIDS; cachexia, or malaise; severe pain; severe nausea; seizures; or persistent muscle spasms.
Colorado is rather vague about other things. It does not have any laws specifying who can sell medical marijuana or how a user should get supplies. In that void, some cities have imposed moratoriums on business licenses for sellers. Others — Denver notable among them — have done nothing.
State Attorney General John Suthers said that Holder’s position “relies on the faulty assumption that Colorado has clearly defined laws on medical marijuana. In fact, it does not.”
Few predict how, or whether, the state will ultimately impose regulations.
“It’s a tricky thing because regulating it accepts it,” said Maureen Cain, a lobbyist for the Colorado Criminal Defense Bar. “There are some legislators who don’t want to give it tacit approval.”
State regulators attempting to interpret the constitutional amendment settled on a few rules.
After getting a marijuana prescription, a patient must submit an application to the state’s Department of Public Health and Environment, along with a photocopy of an identification showing Colorado residency (although rules for residency are not specified).
With that, and a $90 fee, the patient is free to carry up to 2 ounces of pot or cultivate six plants.
Pain Management of Colorado in Denver does the work for its patients. Doctors are on site six days a week, and for $350, the clinic will secure the prescription (although it says it turns some pot seekers away), fill out the necessary paperwork and sell marijuana to a patient — for an additional $350 to $420 an ounce — on the basis of a pending state user card.
“All of our employees are designated as caregivers,” said Miles Zalkin, a former currency trader who owns the clinic.
“They always have the cards for the people we’re caregivers for.”
Zalkin said he closely followed the advice of his lawyers to keep the clinic within the bounds of Colorado’s law.
Yet others say such dispensaries operate in a fuzzy legal domain.
“We’re through the looking glass,” said Lenny Frieling, a defense attorney in Boulder County. “Some people are being very careful and have a reasonable chance of not attracting a lot of attention. But not everybody.”
Agents at the U.S. Drug Enforcement Administration in Denver say they have long been too busy to bother with pot smokers, focusing instead on an underworld of dealers. Even with the Department of Justice’s new declaration, spokesman Mike Turner said, “dispensaries fall in that grey area.”
While no clinics have been raided, some arrests have occurred at marijuana plots where the growers claimed to be producing buds for legal users. Their fates are still in doubt.
Lawyers say card-carrying medical marijuana users have also been arrested for possession of the drug. Some, they say, mistakenly believe they are allowed to drive under the influence of pot. The prescription does not give them a legal excuse for driving impaired.
But if users are not driving and can produce the card from the state authorizing pot possession, Frieling said, police and courts “typically leave them alone.”
Applications soar
For the first few years after voters added medical marijuana to their constitution, applicants slowly dribbled in — 512 in 2004, 730 in 2005 and so on. There wasn’t much point to having a card, because no shops had opened to sell the stuff.
But this year the state has seen the applications skyrocket. By last count, taken in July, more than 11,000 people held cards granting them a state-certified right to get pot.
Of those, a suspiciously large number were young men — the same demographic often in pursuit of a high. In fact, more than one in five Coloradans with a marijuana pass is a male younger than 30. Of those, nearly nine in 10 landed the card with a diagnosis of severe pain — a condition difficult to prove or refute.
“We are evaluating strategies,” said Ned Calonge, the state’s chief medical officer, “that might allow us to assure that physicians documenting a diagnosis of chronic or severe pain are doing so within the standards of medical care.”
Patients’ access to the legal pot has been largely limited to the population centers on Colorado’s front range.
In border counties where Interstates 70 and 76 give easy access to Kansas and Nebraska, sheriffs say they have yet to see dispensaries open up. But they don’t know how their jobs will change.
“We’re going to continue to make arrests,” said Sedgwick County Sheriff Delbert Ewoldt.
“The county prosecutors aren’t really answering our questions about whether they’re going to prosecute.”
The legal medical trade seems unlikely yet to cut into illegal recreational traffic, because prices run about the same.
Across the state line in Colby, Kan., defense attorney Cal Williams said he did not imagine many people traveling to Colorado and faking state residency to get legal access.
“There are just too many other ways to get it.”
