More Plants?
by Alan Shackelford, M. D.
There is a great deal of confusion about how many cannabis plants a Colorado medical marijuana patient can grow. Rumors run rampant on the subject. Many people are convinced that there is something called an“ edibles license” that is somehow different from a“ normal license” and that a doctor’ s recommendation for more than six plants protects them from prosecution. Some doctors even charge more for an evaluation that results in an increased plant count recommendation and emotions can become pretty heated when cherished assumptions on this point are challenged. So let’ s take a look at what the laws actually say.
Amendment 20, passed in 2000 and incorporated into the Colorado Constitution as Article 18, says:
“( 4)( a) A patient may engage in the medical use of marijuana, with no more marijuana than is medically necessary to address a debilitating medical condition. A patient’ s medical use of marijuana, within the following limits, is lawful:
( I) No more than two ounces of a usable form of marijuana; and
( II) No more than six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana.
( b) For quantities of marijuana in excess of these amounts, a patient or his or her primary care-giver may raise as an affirmative defense to charges of violation of state law that such greater amounts were medically necessary to address the patient’ s debilitating medical condition.”
That means that Colorado law allows medical marijuana patients to grow six plants( three flowering and three immature or“ vegging”) and to possess up to two ounces of useable marijuana at any given time. In practice, it also means that a doctor can recommend that a patient be allowed to grow more than six plants and have more than two ounces of marijuana. It does not mean that the doctor’ s recommendation automatically makes you exempt from prosecution. However, it does mean that a patient who is arrested for violation of these provisions may raise an“ affirmative defense” against the charges.
That phrase“ affirmative defense” sounds pretty good. It seems to mean that someone growing more than six plants only has to say, or affirm, that his or her medical condition requires more plants. And it takes more plants to make edibles, and since that’ s what you use, everything’ s fine.
Well, it isn’ t quite that easy, either in theory or in practice, and while it’ s crucial that the term“ affirmative defense” be
32 April / May understood, the definition is unfortunately somewhat vague. In broad terms, an affirmative defense is the introduction of evidence by a defendant in a criminal case that refutes the prosecution’ s case. Essentially, the defendant must be able to prove that the facts being introduced into evidence disprove the prosecution’ s evidence. In other words, the burden of proof lies with the defendant mounting the affirmative defense.
If, for example, a patient was growing twenty-four plants and has been accused of growing more than the six plants specified in the constitution with the intention of selling marijuana to another person, he or she must introduce evidence that effectively counters those charges. Most people would try to use evidence of their debilitating medical condition as the basis for their affirmative defense. People have said things like“ my doctor said that my back pain was severe and wrote that I needed twenty-four plants for my edibles and that’ s why I was growing that many.”
And while that may in fact be the case, the legal points on which an affirmative defense rests can be rather problematic. The rules of jurisprudence and court procedure as well as rulings by the judge might prevent you from presenting your evidence, or the evidence might turn out to be insufficient if you have been charged with intent to distribute marijuana to others and the prosecution focuses on the fact that you were growing twenty-four plants rather than six.
None of this means that there aren’ t situations in which it is entirely appropriate for a doctor to recommend more plants and for a patient to grow them. Certain highly effective ways to use cannabis such as ingested and topical preparations may require more plants. The problem is that there is no generally agreed protection from prosecution for growing more than six plants, even though a doctor may have recommended it.
Several district attorneys have expressed widely differing opinions on patients growing more than six plants, whether with or without a doctor’ s specific recommendation. One said that the only acceptable argument for growing more than six plants would be a life-threatening medical condition. Any other reasons would be disregarded in making a decision on whether or not to prosecute someone. Another said all such cases would be pursued, with the details to be worked out in court or in plea-bargaining. Yet another said each case would be reviewed individually, being that there is no specific policy regarding growing more than six plants in that particular county.
Because policies vary so obviously from county to county, you might be more likely to be prosecuted for growing more than six plants if you live in one county than another. This