Arrests are down, but advocates say policies need to change more
Boulder County District Attorney Stan Garnett has announced publicly he won't prosecute medical marijuana cases, Boulder law enforcement officials say they're not going after patients and caregivers, and arrests for possession and cultivation have gone down over the past year.
But patients with valid registry cards still find themselves in Boulder County Jail, and dispensary owners and growers still worry about finding themselves on the wrong side of the law -- or simply a suspicious officer.
Nicholas Polashek, a local musician and poet who goes by Maus Isi, says that's what happened to him.
He was pulled over for having a dirty license plate, and a sheriff's deputy noticed he had some hash. He didn't have his medical marijuana card on him, but the deputies were able to confirm he had a valid card with another officer who had had a similar encounter with Polashek a few weeks earlier, he said.
Polashek, who uses marijuana to ease the joint pain from his hip dysplasia, spent the night in jail and is facing a felony possession charge.
Patients and advocates say cases like Polashek's show that law enforcement still hasn't accepted that marijuana is legal for authorized patients and that prosecutors need new policies.
Law enforcement officials say they are walking a fine line enforcing the marijuana laws while respecting the exemptions laid out in Amendment 20, the nine-year-old voter initiative that legalized marijuana for medical use, and they have made big changes in their approach to the drug.
Boulder County prosecutors currently have 94 open marijuana cases, 57 of which are felony cases. Garnett's administrative deputy, Catherine Olguin, said the office has no way of tracking which cases involve or might involve medical marijuana defenses.
The Boulder Police Department shows a steep decline in arrests for possession, distribution and sales. The Boulder County Sheriff's Office's marijuana arrests are down as well, though numbers for particular offenses are more variable.
Boulder police Chief Mark Beckner and Boulder County Sheriff's Office Drug Task Force Cmdr. Tom Sloan both said they put far fewer resources toward marijuana cases now. The shift started with a change in public attitudes. Juries in Boulder County and around the state were acquitting medical marijuana patients and even ordering agencies to return confiscated marijuana and plants or pay up if the plants had died.
Beckner said his officers just walk away if a suspect has a medical marijuana card. If the suspect claims to be a patient, but doesn't have a card, officers might take photographs for evidence and discuss the case with prosecutors, but they won't confiscate the pot.
"It's pretty much a waste of our time to put too much energy into it," he said.
Sloan said his detectives don't self-initiate any dispensary investigations, though they will respond to complaints. He said it's usually easy to tell who is legitimate and who isn't.
"The legal ones, as soon as we make contact, they have the names of their patients ready and they present their card," he said. "It's the ones who don't know the names of any patients, don't know the law, and they're standing in front of 300 plants."
But Sloan also will pursue more ambiguous cases. His office arrested Sherri Versfelt in 2008. The Nederland woman had an expired registry card belonging to another patient, for whom she was a caregiver, a diagnosis of a debilitating medical condition, no card of her own and 50 pot plants. Charges were dropped after Versfelt obtained her own registration card, but not before the case almost went to trial.
Sloan said he would still arrest Versfelt if he had it to do over. The criminal charges led her to get in compliance with the law, and that's important, he said.
Asked about Polashek's case and whether it contradicted his promises, Garnett said he couldn't comment on an individual case, but repeated he did not intend to prosecute legitimate medical marijuana patients and caregivers, even if they fell into a gray area of the law.
He said every case needs to be looked at individually, and there isn't a blanket policy. Just because someone has a medical marijuana card doesn't mean there might not be valid reasons to try to case.
Polashek's attorney, Jeff Gard said that in Garnett's defense, he probably isn't aware of every low-level marijuana case that comes through his office, and he had not yet had a chance to meet with Garnett about the case, something he hopes to do before Polashek's arraignment next month.
But Gard said the charges should have been dropped as soon as Polashek presented a valid card.
"With policies in place, Stan Garnett wouldn't have to look at every single case personally to prevent these cases from going to trail and costing the taxpayers money," Gard said.
By Erica Meltzer
November 15, 2009
Medical marijuana patients continue to be caught in legal web