When a Colorado law enforcement officer asks the medical marijuana registry to confirm a patient is allowed to possess more than two ounces or six plants, does the registry have to answer?

Plain-English summary

Colorado's medical marijuana registry, run by the Department of Public Health and Environment (CDPHE), maintains records on registered medical marijuana patients. When a patient encounters law enforcement and shows a registry ID card, the officer can call the registry to confirm the card. The constitutional and statutory framework lets the registry tell the officer one thing: whether the cardholder is "lawfully in possession" of a registry ID card.

The question CDPHE asked was whether the registry could go further. If a patient's physician has recommended more than the default amount (six plants, or two ounces of usable marijuana), can the registry vouch for that higher amount when an officer asks?

AG Cynthia Coffman said no. The constitution authorizes patient-physician arrangements above the default amount only on a "medical necessity" basis, but Amendment 20 does not define "medical necessity." The registry application captures the physician's recommended amount, but the registry has no authority to evaluate medical necessity. So the registry cannot tell an officer "this patient is authorized to have ten plants." It can only confirm card validity.

For patients above the default amount, the legal protection is not a registry confirmation. It is an affirmative defense the patient can raise in court if charged. The patient must establish medical necessity to prevail on that defense. The registry does not pre-clear that defense.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Amendment 20 added Article XVIII, § 14 to the state constitution. The amendment created a "confidential registry" of medical marijuana patients and primary caregivers, set default possession amounts (six plants, with three or fewer in flowering form, and two ounces of usable marijuana), and created an exception from the state's marijuana-prohibition criminal laws for patients who comply with the constitutional limits.

Section 14(3)(a) controls registry disclosure. The registry generally cannot share information with anyone, with one narrow exception: when state or local law enforcement has stopped or arrested a person who claims to be engaged in medical use, the registry can confirm whether that person is "lawfully in possession" of a registry ID card. The phrase is doing all the work.

The implementing statute, § 25-1.5-106(7)(d), C.R.S., requires the registry to be available to law enforcement 24/7 for verification. If the person is not registered, the registry can confirm that. If the person is registered, the registry cannot release information beyond what § 14(3)(a) allows.

Possession amounts:

• Up to six plants / two ounces. A registered patient is "lawfully" within an exception from criminal laws under § 14(2)(b) and (4)(a). People v. Watkins, 282 P.3d 500, 503 (Colo. App. 2012); Beinor v. Indus. Claim Appeals Office, 262 P.3d 970, 975 (Colo. App. 2011).
• Above six plants / two ounces. Section 14(4)(b) provides an affirmative defense if the patient can show "medical necessity" with their physician. The registry does not pre-clear this; it is litigated case by case.

Coffman concluded that registry verification of "lawfully in possession" speaks only to the validity of the card itself. The registry can confirm: the person is the actual patient (not an imposter), the card has not expired, the card is authentic. It cannot confirm authority for amounts above the default.

Common questions

Q: A patient has a doctor's recommendation for ten plants. Why can't the registry just say "yes, ten plants are okay"? A: Because Amendment 20 puts the medical-necessity question outside the registry's authority. The registry holds the application, including the recommended amount, but the constitution does not tell the registry to assess whether that amount is "medically necessary." That is a fact-bound determination for a court if the patient is charged. The registry would be exceeding its authority by purporting to validate the higher amount.

Q: What does an officer do if a patient claims more than the default and shows a card? A: The opinion says it is "within their discretion" to treat the person as not protected by Amendment 20 with respect to the excess amount. The patient still has the affirmative-defense path. Officers may continue investigating; the possibility of an affirmative defense does not itself prevent a search or seizure supported by probable cause. The patient may litigate medical necessity if charged.

Q: Does the registry expose the patient's name to officers? A: Section 14(3)(c) lists what the registry includes: name, address, date of birth, social security number, the certification of debilitating medical condition, the issuance and expiration dates of the card, and the primary caregiver's name and address. Disclosing identification details necessary to confirm the cardholder is who they say they are is consistent with the constitutional verification mechanism.

Citations and references

Constitutional and statutory:

• Colo. Const. art. XVIII, § 14 (Amendment 20), medical marijuana
• § 14(3)(a), registry disclosure rules
• § 14(4)(a), default possession limits
• § 14(4)(b), medical necessity affirmative defense
• § 25-1.5-106(7)(d), C.R.S., registry availability for law enforcement verification
• § 18-18-406.3(2), C.R.S.: affirmative defense framework

Cases:

• People v. Watkins, 282 P.3d 500 (Colo. App. 2012), Amendment 20 exception structure
• Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011), possession limits as outer boundary of exception
• Mendez v. People, 986 P.2d 275 (Colo. 1999), possible medical-use defense does not foreclose probable cause

Source

• Landing page: https://coag.gov/attorney-general-opinions/
• Original PDF: https://coag.gov/app/uploads/2019/07/no-15-02.pdf

Original opinion text

CYNTHIA H. COFFMAN
Attorney General
DAVID C. BLAKE
Chief Deputy Attorney General
MELANIE J. SNYDER
Chief of Staff
DANIEL D. DOMENICO
Solicitor General
FORMAL
OPINION
OF
STATE OF COLORADO
DEPARTMENT OF LAW
)
)
)
)
)
CYNTHIA H. COFFMAN )
Attorney General )
RALPH L. CARR
COLORADO JUDICIAL CENTER
1300 Broadway, lOth Floor
Denver, Colorado 80203
Phone (720) 508-6000
Office of the Attorney General
No. 15-02
January 15, 2015
This opinion, requested by Larry Walk, Executive Director of the Colorado Department of Public Health and Environment ("CDPHE" or "Department"), addresses the permissible disclosures of the Department's Medical Marijuana Registry ("Registry") to law enforcement who seek verification of Registry patients' recommended amounts of marijuana plants or ounces provided by their physician on the Registry application. QUESTION PRESENTED AND ANSWER Question: May the Department's Medical Marijuana Registry verifY a patient's recommended amount of marijuana plants and ounces to law enforcement, including the Department of Revenue ("DOR")? Does a registry identification card validate a patient or caregiver's claim to need amounts of marijuana in excess oftwo ounces or six plants? Answer: No. Upon a lawful stop or arrest,1 the Registry is only allowed to disclose to law enforcement whether the presenter is "lawfully in possession" of the Registry card. Possession of a Registry identification card does not validate claims for quantities of marijuana in excess of the presumptive amount of two ounces of usable form marijuana or six plants.2 See COLO. CONST. art. XVIII, §14(3)(a) ("Amendment 20"). Authorization 1 The CDPHE is neither authorized nor trained to question the legality of the stop or arrest and should presume law enforcement is engaged in a lawful stop of a person who presents a Registry card. 2 The Constitution defines the allowable plant limit to be "No more than six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana." COLO. CONST. art. XVIII,§ 14(4)(a)(II)

for amounts above that threshold is based upon "medical necessity," which is undefined by Amendment 20, the medical marijuana code, or case law. See id. Section (4)(b). Because CDPHE does not determine "medical necessity," it cannot advise law enforcement of the legality of any amounts of marijuana in excess of the presumptive two ounces and six plants. By the terms of Amendment 20, CDPHE's verification of "lawfully in possession" answers only whether the registry identification card itself is valid and accurate.3 ANALYSIS I. The Controlling Law for Registry Disclosures. The Colorado Constitution requires the Department to disclose Registry information to law enforcement in certain circumstances: No person shall be permitted to gain access to any information about patients in the state health agency's confidential registry, ... , except for authorized employees of the state health agency in the course of their official duties and authorized employees of state or local law enforcement agencies which have stopped or arrested a person who claims to be engaged in the medical use of marijuana and in possession of a registry identification card... Authorized employees of state or local law enforcement agencies shall be granted access to the information contained within the state health agency's confidential registry only for the purpose of verifYing that an individual who has presented a registry identification card to a state or local law enforcement official is lawfully in possession of such card. COLO. CONST. art. XVIII, § 14, at (3)(a) (emphasis added). The Department's release of Registry information to law enforcement is also informed by statute: 3 Of note, Amendment 20 does not define either "medical necessity" or "lawfully in possession," and neither the General Assembly nor case law to date has provided any clarification. 2

The state health agency shall maintain a registry of this information and make it available twenty-four hours per day and seven days a week to law enforcement for verification purposes. Upon inquiry by a law enforcement officer as to an individual's status as a patient or primary caregiver, the state health agency shall check the registry. If the individual is not registered as a patient or primary caregiver, the state health agency may provide that response to law enforcement. If the person is a registered patient or primary caregiver, the state health agency may not release information unless consistent with section 14 of article XVIII of the state constitution. C.R.S. § 25-1.5-106(7)(d). There are two components of disclosing Registry information: (1) what must happen first to authorize disclosure; and if authorized, (2) what information may be disclosed. The Executive Director's question implicates the second component - that is, assuming that disclosure is authorized, what Registry information may be shared with law enforcement? According to Section 3(a), law enforcement is entitled to verify whether the individual is "lawfully in possession" of the Registry card. II. Verification of a Registry identification card does not speak to any claim for marijuana amounts in excess of the default six plants or two ounces. The Registry's limited role means that verifying "lawfully in possession" allows for a release of the information expressly listed in the Constitution at Section 14(3)(c)4, as well as verifying that the person has complied with Section 3(b) in the application for a registry identification card. This verification ensures the person presenting the card is indeed the patient and not an imposter and, for example, that the card is authentic by describing security features embedded in the card. (See C.R.S. 18-18-406.3(2)). Verification does not validate or invalidate claims for particular quantities of marijuana. There are different legal mechanisms in Section 14 for (1) someone on the Registry and 4Specifically (at COLO. CONST. art. XVII, § 14(3)(c)): (I) The patient's name, address, date of birth, and social security number; (II) That the patient's name has been certified to the state health agency as a person who has a debilitating medical condition, whereby the patient may address such condition with the medical use of marijuana; (III) The date of issuance of the registry identification card and the date of expiration of such card, which shall be one year from the date of issuance; and (IV) The name and address of the patient's primary care-giver, if any 1s designated at the time of application. 3

possessing only up to six plants or two ounces, contrasted with (2) someone who is on the Registry but in possession of greater than six plants or two ounces of marijuana. Amendment 20 declares it to be an "exception"5 from the criminal law when a cardholder possesses the default amount of six plants or two ounces, and Amendment 20 describes usage within those limits "lawful" when in strict compliance with the limits of the constitution.G For the exception to apply, one must obtain a Registry card. COLO. CONST. art. XVIII, § 14, at (2)(b). To this end, Amendment 20 provides the mechanism for law enforcement to verify registry identification cards, and it requires the presentation of a Registry identification card to law enforcement. As a result, any stop or arrest where the person claiming to be protected by Amendment 20 claims they have a registry card but cannot produce it is not in compliance with the Constitution. See C.R.S. § 25-1.5-106(9)(a). Thus, if a person is stopped or arrested and they present a registry identification card that is verified, the use of marijuana is deemed an "exception" from the state's criminal laws, Section (2)(b), and "lawful," Section 4(a). In contrast, patients or caregivers who possess more than six plants or two ounces (per patient, for caregivers) are not protected by simply possessing a valid Registry card. See Section (4)(b). None of the provisions governing the confidential registry, the registry application process, nor the registry verification mechanism address claims of "medical necessity" needed to establish an affirmative defense for possession of "quantities of marijuana in excess" of the default amounts of six plants or two ounces. Id. A Registry card simply does not authorize a patient to any more marijuana than the default amount of six marijuana plants or two ounces.7 For this reason, when law enforcement encounters such a situation, it is within their discretion to treat the person 5 COLO. CONST. art. XVII, § 14, at (2)(b). 6 Id. at (4)(a); See People v. Watkins, 282 P.3d 500, 503 (Colo. App. 2012). ("The Amendment provides that it shall be an exception from the state's criminal laws for any patient in lawful possession of a 'registry identification card' to use marijuana for medical purposes. While possession of marijuana remains a criminal offense in Colorado, a patient's medical use of marijuana within the limits set forth in the Amendment is deemed 'lawful' under subsection (4)(a) of the Amendment.") (internal citations omitted); See also Beinor v. Indus. Claim Appeals Office, 262 P.3d 970, 976 (Colo. App. 2011). 7 See Beinor, 262 P.3d at 975 ("Because subsection (4) also provides specific limits for the quantity of marijuana and the number of marijuana plants that may be possessed, we understand the purpose of this subsection as setting the limits beyond which prosecution is not exempted, and not the creation of a separate constitutional right."). 4

as they deem appropriate. It should be noted that an investigating officer need not refrain from a search or seizure just because the individual might ultimately prove an affirmative defense. Mendez v. People, 986 P.2d 275, 281 n.4 (Colo. 1999) ("[W]e reject the defendant's contention that the fact that the medicinal use of marijuana provides an affirmative defense to the charge of possession precludes a finding of probable cause under these circumstances. . . . [A]bsolute certainty is not required before probable cause can be established."). Because CDPHE cannot confirm lawfulness of possession of more than six plants or two ounces of marijuana, law enforcement officers have discretion to continue their investigation, or not, even when there is a valid Registry card. What the Registry may share aligns with the Registry's role: if a person is in lawful possession of a Registry card, they are allowed to acquire, possess, produce, use or transport six plants or two ounces of medical marijuana - within this limit, it is an exception to the criminal law. The Registry exists to verify this limited exception and interrelated information, not to adjudicate claims for "medical necessity". CONCLUSION The Constitution's two-part disclosure standard controls when and what the Registry can disclose to law enforcement, including DOR. When the Registry is allowed to release information, it is limited to verifying whether that person is "lawfully in possession" of the Registry card. Because lawful possession of a registry identification card does not validate a claim to "excess" amounts of marijuana, verification of "lawfully in possession" does not include any specific plant or ounce amounts. Therefore, upon lawful inquiry from law enforcement, the Registry should not release any recommended plant or ounce amounts. Investigation and observation revealing plant count or weights in excess of the default amounts would be within the law enforcement agencies' discretion to handle as they deem appropriate. Issued this 15th day of January, 2015. 5 CYNTHIA 1
!j(c¢;Jl'FMAN
Colorado 'Attor$y General