Two dozen citations for simple marijuana possession were issued by local agencies in the three weeks since the vote passed Nov. 6.
Prosecutors and police say that’s because the law has not yet officially changed.
“Citizens are not free to use or possess marijuana until the vote is certified and signed by the governor. Obviously, once the vote is certified, possession and use in compliance with the (Colorado) Constitution will not be against the law,” Larimer County District Attorney Larry Abrahamson said in an e-mail.
Denver lawyer Sean McAllister, who helped frame the language of Amendment 64 legalizing marijuana, said prosecutors can dismiss offenses that will be legal under the new law and that it’s “a waste of resources” to go after low-level marijuana users.
“They are clearly making a political choice not to embrace the will of the voters,” he said. “That’s a travesty.”
Meanwhile, police and prosecutors in Denver, Aurora, Boulder and Grand Junction have decided not to go after people with marijuana amounts that would be legal under the new law, which allows adults 21 and older to possess less than an ounce of pot, along with numerous other marijuana-legalizing changes.
Larimer County Sheriff Justin Smith said his office will continue to enforce the existing statutes. That won’t change until the vote is official and he hears differently from prosecutors and state officials.
“We follow the law as it is, understanding it may not go through full prosecution — but it’s still the law of the land,” Smith said.
Prosecutors have said the new laws aren’t retroactive and any violations before the vote is official can still be prosecuted. But McAllister said it’s wasteful to go after people for a crime that’s becoming legal.
“My advice to people in these jurisdictions is go ahead and set these cases for trial and get the DA to sit a jury and see if the jury can even convict them,” he said, adding that it would be unfortunate for the six jurors having to spend a day in court.
Smith said there are uncertainties with how the new laws will be enforced. For example, if deputies find a grow operation of 600 marijuana plants, someone could show a list of 100 people and say it’s a cooperative because the law allows one person to grow up to six plants, he said.
“A lot of people will find out sooner than they realize that (Amendment 64) was written very deceptively,” Smith said.
McAllister said clarity will come to such issues as the legislature and courts address them. Some of the first people starting big grow operations could end up in precedent-setting court cases.
“If people rush out and do that today, I think there is a legal argument that could have one person growing for 100 people,” he said. “But that is a risky place to be.”
The Amendment 64 language requires regulations for marijuana stores to be developed by this summer, and McAllister said most of the legal uncertainties should be ironed out in the next six months.
Smith said policing agencies are used to enforcing statutes, not constitutional amendments.
“We have a constitution that’s become a joke in this state, that has day-to-day things put into it, making the constitution irrelevant as a guiding document,” he said.
Fort Collins Police Services and Colorado State University also continue to follow the existing marijuana laws. The two agencies and the sheriff’s office have issued a combined total of about 24 petty-offense marijuana citations since Election Day. A petty offense is issued for possession of 2 ounces or less of marijuana and results in a $100 fine.
Because marijuana remains illegal on the federal level, state officials are struggling to reconcile the conflicting laws — particularly regarding stores and larger amounts of marijuana. Gov. John Hickenlooper has until Jan. 5 to sign off on the vote totals and issue an executive order “proclaiming” the new constitutional amendment, his office has said.
Medical marijuana has been legal in Colorado since 2000, and the laws associated with medical-marijuana patients and dispensaries are not to be affected.
In Larimer County, Amendment 64 passed 55.7 percent to 44.2 percent, with more than 176,000 ballots cast.
It passed statewide 55.3 percent to 44.7 percent, with 2.5 million ballots cast.
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