Personal Cultivation of Marijuana at a Residence – in Park County, Colorado

What you should know before growing marijuana in your home in Park County.

Remember, even though marijuana is legal in Colorado, it is illegal under federal law.  Under federal law marijuana is a controlled substance; cultivation, production or possession of marijuana or its derivatives could subject you to criminal prosecution.  

Keep children and strangers out

Growing outdoors is prohibited in Park County.  All of your plants must be kept in a locked and enclosed area.  This is especially important if you have children.  Law enforcement and child services view exposing children to marijuana as child abuse, do not allow children anywhere near your marijuana. 

Park County Ordinance 18-01 Section 2(k) requires your plants to be within a “secure” area, meaning partitioned off to prevent access by children, visitors, casual passersby, vandals, or anyone not licensed and authorized to possess medical marijuana.

Keep your plants out of sight and smell

The first thing that can get a grower into trouble is County Ordinance 18-01 Section 2(c) which requires that the “cultivation, production, or possession of marijuana plants must not be perceptible from the exterior of the structure in which such cultivation occurs.”

Be sure of the following:

1) Your grow is not be visible outside the building;

2) there are no signs indicating marijuana is inside;

3) there are no odors coming from your grow (including non-marijuana specific smells);

4) no light is visible coming out of your grow room; and

5) there are no extra cars or people around.

All of the above are prohibited by Park County Ordinance 18-01, and allow for a neighbor to make a complaint to law enforcement.  Unless you enjoy visits from the guys in uniform with guns and handcuffs, you should take all steps necessary, such as air filters and covering windows, to avoid giving a neighbor any reason to complain.

Limit the area used

You can use only one structure, building, greenhouse or enclosure on any lot/parcel of land.

If in a “multi-family dwelling unit,” such as an apartment, condo, townhouse, duplex, the enclosed and locked space occupied by your plants must not exceed 100 square feet.  Otherwise the space may be as much as 150 square feet.

Limit the number of plants you grow

There are two kinds of non-commercial growers: recreational and medical.

1) Personal Recreational Use

For recreational use: you may have up to 6 plants per adult with a maximum of 12 plants per household.  No more than 6 plants can be flowering at one time. 

2) Medical Use

The law regarding cultivation for Medical use is vague, piecemeal and subject to interpretation by law enforcement.  While this may would normally mean the law can be challenged as unconstitutional, such a challenge would be difficult or even impossible because marijuana remains illegal under federal law.  Therefore marijuana growers must keep up to date on the latest changes in the law and do their best to follow that law.

Medical Cultivation is divided into two classes: personal and by a caregiver.  This analysis does not cover caregivers.

The safest approach is to follow the lesser amount allowed for recreational use.  However, if you need more it gets complicated.

Colo. Rev. Stat. § 25-1.5-106(8.5)(a.5)(I) allows a medical marijuana patient to grow no more than 12 plants.  But if you meet the following conditions you can grow up to 24 plants at your residence:

1. The city, municipality, and county where you live does not limit the number of plants a medical marijuana patient can grow in/on a residential property;

2. The patient registers with the state licensing authority, with the location, and number of plants authorized to cultivate; and

3. Provides notice to the applicable city, municipality and county if required by that jurisdiction.

Park County Ordinance 18-01 Section 2(e) allows for no more than the “maximum number of marijuana plants allowed by state law”; and only requires “primary caregivers” to register with the county.

So if you meet the conditions above, including having registered with the state licensing authority, you should be legal with 24 plants.  However, be aware that several Park County Deputies have communicated directly and indirectly to this author that they disagree with this interpretation and would file charges for having more than 12 plants.

The above is a statement of the law as exists at this date and time (4/2/19).  You should review the law before depending on anything herein.  Additionally, the proceeding does not create an attorney-client relationship.  Please contact my office if you have questions or need legal advice.

Colorado Legal News – Juries and Reasonable articulable suspicion

In People v. Larsen and People v. Jacobson, the court addressed the question of whether a trial court must ask the jurors if they had seen news reports about the case.  Both trial courts gave repeated admonitions not to seek out news about the case.  Thus, the trial courts did not abuse their discretion by refusing to poll the jury about prejudicial news reports.  The supreme court affirmed the defendants’ convictions.

Martinez v. People and— The supreme court reviewed the trial court’s decision to allow the jury unfettered access, to the recorded DVDs statements of three sexual assault victims admitted as exhibits during trial.  [Normally, prior statements of witnesses are inadmissible as hearsay.  However, there is a statutory exception in child sexual assault cases] The supreme court concluded that giving the DVDs to the jury without protest by the defense was not a “plain error.”  This means that the attorney had to stand up and object in order to raise the issue on appeal.  So, the defendant’s appeal was unsuccessful.

People v. Jefferson — Similarly to Martinez, in Jefferson a DVD of the recorded statement of a child sexual assault victim was admitted and provided to the jury without the trial court insuring that the jury would not accord it undue weight or emphasis.  Unlike Martinez, the defense did object and the appeal was successful because the jury could have given the DVD recording too much weight.  [This case should be useful in the future to keep a jury from watching a DVD over and over again.  Many times, good case law comes from nasty cases.]

These two cases also highlight the importance of hiring a good trial lawyer; a good lawyer will make the proper objection at the appropriate time to preserve his/her client’s rights on appeal.

People v. Beauvais—The supreme court dealt with a trial court’s “Batson ruling.”  Batson v. Kentucky, 476 U.S. 79 (1986) prohibits eliminating juror on the basis of sex or race.  The supreme court determined that the trial court followed the 3-step analysis required by Batson and provided sufficient details.

People v. Reyes-Valenzuela— In this case the defendant was reported going into and out of houses under construction.  He was seen by the reporting person going into a house and coming out with a black bag.  Deputies questioned the defendant, he spoke limited English but provided his name and birthdate.  He was subsequently arrested under an outstanding warrant.  Defendant’s counsel moved to suppress the evidence because there were innocent explanations for the defendant’s presence at the scene.  The supreme court addressed whether an officer must have reasonable, articulable suspicion that criminal behavior is afoot, and if the officer must consider the possible innocent explanations for otherwise suspicious behavior before conducting an investigatory stop. The court held that, an officer does not have to consider every possible innocent explanation for criminal behavior, the officers in this case justifiably performed an investigatory stop on the defendant based on a reasonable, articulable suspicion of ongoing criminal activity. 

Colorado Legal News

Three recent Colorado Supreme Court Decisions are bad for people charged with DUI. 

People v. Hyde

A driver was in a single-vehicle accident that rendered him unconscious. Suspecting that he had been drinking, the police had his blood drawn after he had been taken to the hospital.  His blood was drawn while he was unconscious and unable to express his consent.  The Court determined that Colorado’s Expressed Consent Statute C.R.S 42-4-1301(1) was sufficient consent that the warrantless blood draw from an unconscious person was not a violation of the Fourth Amendment’s prohibition on unreasonable searches.

People v. Simpson

An Officer saw a pickup bounce off a curb four times, turn across a median, and then oversteer into oncoming traffic while entering an apartment complex parking lot. When asked by the Officer if he had been drinking the driver answered yes.  Driver was ultimately transported to the hospital for medical attention.  At the hospital, he was read the “Colorado Express Consent Law Information” but told he did not have the option of a breath test because breathalyzers are not available at the hospital.  The defense challenged this as an involuntary blood draw.  The Court held that the Expressed Consent Statute eliminated the need for the trial court to assess the voluntariness of the defendant’s consent; therefore, the blood draw was constitutional.

Fitzgerald v. People

The Court considered whether the prosecution can use a defendant’s refusal to submit to blood-alcohol testing as evidence of guilt at trial as provided for in Colorado’s Expressed Consent Statute C.R.S. 42-4-1301.1.  The question was whether the evidence of a refusal violates the Fourth Amendment.  The Court held that the evidence of refusal does not “impermissibly burden . . . a defendants Fourth Amendment right to be free from an unreasonable warrantless search.”  Justice Hood who delivered the opinion called characterized the holding as a “short leap.”

The blood and breath tests mentioned in the cases above are NOT performed at roadside.  If an officer asks for roadside tests including the portable breath test, be aware that they are optional you cannot be forced to perform roadside tests.  With or without the roadside test, if the officer has probable cause to believe that you have been driving under the influence, you will be taken to jail/hospital for a breath or blood test.  You will not have the chance to consult with an attorney.

The moral of this story is Don’t Drink and Drive.

Marijuana in Park County

Yesterday evening the Park County Sheriff's department had a community meeting to answer the questions and concerns of the people in the Bailey area. This meeting was in response to the recent home explosion in the Burland subdivision where three people were severely burned. The cause of the fire was allegedly due to the butane processing of marijuana into hash oil.

Bailey residents were particularly worried because of the recent fire hazard in the area. Bailey had been under a fire ban for most of the last month and the fire at the home spread to the nearby vegetation but was stopped by emergency officials.

At the meeting Sheriff Wegener and two deputies addressed the public's questions. Two county commissioners were also present and made comments at the end of the meeting. The message of the meeting was aimed at two audiences: 1) Park County Residents that disprove of marijuana and 2) marijuana growers.

Park County Residents

The Sheriff and his deputies requested that residents monitor suspicious activities of neighbors, including writing down the time of comings and goings, license plates of visitors, any potential foreign odor, the presence of a vicious dog, more than one security camera, or anything that raises concern. Residents can then call the Sheriff's marijuana hotline 719-836-4417 to report said suspicious activities.

The Sheriff Wegener implied that informing on neighbors could stop a future butane extraction explosion. However, at another point in the meeting the deputy over marijuana enforcement explained that he had been to the house that caught on fire but he was not allowed in.

Residents raised additional concerns that the occupants of an illegal grow house would retaliate if a neighbor reported them to the Sheriff. The Sheriff replied that was not aware of any retaliation in the past.

Marijuana Growers in Park County

The basic message to marijuana growers was “we are out to get you if you are not in strict compliance with the law.”

The deputies explained that when they get a credible report from a neighbor of smells, out-of-state vehicles, blacked out windows or other signs of a grow house, two or three deputies would then go to the house and ask to inspect the premises. Of course most people let the deputies in. If the grower is not in exact compliance with the State's laws and regulations as well as Park County's ordinances the grower will be cited.

As the deputy said “the citation is often for a Class 2 petty offense with a fine of $1000 or less, but usually only a few hundred dollars.” This seems like no big deal, RIGHT? WRONG! what the deputy also said was that there would be a follow up visit to verify compliance and that the grow house would be on the “list” of homes that would be under regular surveillance for future violations.

If law enforcement officers show up at your door, DO NOT LET THEM IN unless they have a search warrant! DO NOT TALK TO THEM unless your attorney is present! After they leave (or if they won't leave) CALL Runyan Legal Services right away at 720-675-7094

Also be aware that the Sheriff's department is very concerned about the potential presence of health hazards such as molds and chemicals. They may offer to make a “health safety check” as a pretext to entering your home. SAY NO THANKS and DO NOT LET THEM IN! Then call my office 720-675-7094.