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 every medical marijuana patient. 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 show, with their physician's testimony, that the amount possessed was medically necessary. 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

Colorado voters approved Amendment 20 in 2000, adding 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. The officer can charge based on what they observe, and the patient can litigate medical necessity in court.

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.

Q: Has any court since this opinion clarified "medical necessity"?
A: Possibly. The opinion notes that as of 2015, no statute or case had defined "medical necessity." Subsequent litigation may have refined the analysis. Verify current authority before relying on this rule.

Q: What about recreational marijuana possession (Amendment 64)?
A: The opinion is specific to medical use under Amendment 20. The recreational regime under Amendment 64 has its own possession limits and does not turn on a registry card.

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

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

STATE OF COLORADO
DEPARTMENT OF LAW
Office of the Attorney General

FORMAL OPINION OF CYNTHIA H. COFFMAN, 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 of two ounces or six plants?

Answer: No. Upon a lawful stop or arrest, 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. See COLO. CONST. art. XVIII, §14(3)(a) ("Amendment 20"). Authorization 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.

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).

The Department's release of Registry information to law enforcement is also informed by statute:

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).

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), 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.

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 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" 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. For the exception to apply, one must obtain a Registry card.

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.

A Registry card simply does not authorize a patient to any more marijuana than the default amount of six marijuana plants or two ounces. For this reason, when law enforcement encounters such a situation, it is within their discretion to treat the person as not protected by Amendment 20 with respect to the excess amount. The patient retains the affirmative-defense path under § 14(4)(b) to litigate medical necessity in court. See People v. Watkins, 282 P.3d 500, 503 (Colo. App. 2012); Beinor v. Indus. Claim Appeals Office, 262 P.3d 970, 975-76 (Colo. App. 2011).

CONCLUSION

The Medical Marijuana Registry's verification authority extends only to confirming that the presenter is lawfully in possession of a registry identification card. The registry has no authority to verify, and may not be relied upon to verify, any patient or caregiver's authority to possess marijuana in excess of the default amounts of six plants or two ounces. Authority above the default depends on "medical necessity," which is not a determination CDPHE makes through the registry process.

Issued January 15, 2015.

/s/ Cynthia H. Coffman
CYNTHIA H. COFFMAN
Attorney General