What is Still Illegal Under Colorado Marijuana Law?

In 2012, Colorado voters approved Amendment 64, which allows persons of 21 years of age or older to purchase and possess marijuana accessories and up to one ounce of marijuana, plus up to six marijuana plants, of which no more than three may be mature.  The plants must be grown in an enclosed, locked space; the cultivation may not be conducted openly or publicly and may not be made available for sale.  It also allows transfer of up to one ounce of marijuana to any other person of at least 21 years of age, provided that the transfer is without remuneration. Finally, it allows personal consumption of marijuana, but does not allow it to be conducted openly or publicly or in a manner that endangers others.

Among the things that Amendment 64 specifically stated that it did not intend to accomplish:

  • Driving while impaired or under the influence of drugs, including marijuana, is still an offense;
  • Amendment 64 only restricts the scope of state prosecutions; possession of marijuana is still a federal offense;
  • Public consumption of marijuana is still an offense under C.R.S. section 18-18-406;
  • Employers can still regulate their employees and adopt “zero-tolerance” policies that discipline employees who test positive for the drug even if it was consumed outside the workplace. This is true even if the employee was certified as a patient for whom marijuana was prescribed under Amendment 20. See Beinor v. Industrial Claims Office, __P.3d__ (Colo. App. no. 10CA1685, Aug 18, 2011) but see Coats v. Dish Network, L.L.C., __P.3d__ (Colo. App. no. 13CA62, Apr. 25, 2013, cert. granted, Jan. 27, 2014;
  • Sales of marijuana are still illegal unless specially licensed and all other transfers of marijuana are subject to the provisions of section 18-18-406.

Section 18-18-406(2)(b) covers unlawful sale, dispensation, distribution, possession with intent to sell and conspiracy to do any of the above. The level of the drug offense is based on the weight involved:

Amount Offense Level
4 oz. or less of marijuana or 2 oz. or less of concentrate Lvl 1 Drug Misdemeanor
More than 4 oz. up to 12 oz. of marijuana or more than 2 oz. up to 6 oz. of marijuana concentrate Lvl 4 Drug Felony
More than 12 oz. up to 5 lbs. of marijuana or more than 6 oz. up to 2 ½ lbs. of marijuana concentrate Lvl 3 Drug Felony
More than 5 lbs. of marijuana up to 50 lbs. or more than 2 ½ lbs. up to 25 lbs. of marijuana concentrate Lvl 2 Drug Felony
More than 50 lbs. of marijuana or more than 25 lbs. of marijuana concentrate Lvl 1 Drug Felony

 

Note: Under Section 18-18-406(5)(c), the unlawful transfer of two oz. or less of marijuana, for no consideration, is a Drug Petty Offense and is not deemed to be “dispensing or sale.”

The third part of 18-18-406 proscribes unlawful cultivation. As with everything else, this has to be read in conjunction with exceptions for personal and medical use. In cases where those exceptions don’t apply, cultivation is punishable according to the number of plants:

Amount Offense Level
Not more than six plants Lvl 1 Drug Misdemeanor
More than six, up to thirty plants Lvl 4 Drug Felony
More than thirty plants Lvl 3 Drug Felony

 

“Simple possession” of marijuana (i.e. without intent to distribute) is addressed in 18-18-406(4).  Again, the offenses are categorized according to weight:

Amount Offense Level
More than two oz., up to 6 oz. Lvl 2 Drug Misdemeanor
More than 6 oz., up to 12 oz. of marijuana, or up to 3 oz. of marijuana concentrate Lvl 1 Drug Misdemeanor
More than 12 oz. of marijuana or more than 3 oz. of marijuana concentrate Lvl 1 Drug Felony

 

Note: Under section 18-18-406(5)(a), except as provided in 18-1-711 (which relates to emergency reporting exception), unlawful possession of not more than 2 ounces of marijuana is a Drug Petty Offense, punishable by a fine of not more than $100.

Under 18-18-406(5)(b), open and public display, consumption or use of marijuana, except as provided by the emergency reporting exception, is a Drug Petty Offense if the amount involved is two ounces or less, and punishable by a fine of up to $100 and/or 24 hours of community service. If the amount openly consumed or displayed is more than two ounces, then it is deemed to be possession, and is punished accordingly.

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