Careful where you smoke it, deputy DA says
An adult who plans to light up a marijuana cigarette on his front porch runs the risk of being prosecuted in Mesa County, despite the general legalization of marijuana last year with the passage of Amendment 64.
“We will prosecute things exposed to public view,” Dan Rubinstein, chief Mesa County deputy district attorney, told the Mesa County Bar Association on Monday.
Rubinstein also advises the state task force studying how to implement Amendment 64, the voter-approved constitutional amendment legalizing the possession and use of up to an ounce of marijuana by adults. He advises on behalf of Mesa County prosecutors and the Colorado District Attorney’s Council.
The task force on Monday met for the second-to-last time in Denver to craft recommendations to the governor and the Legislature how Colorado should become one of the nation’s first states to regulate marijuana like it does alcohol.
While smoking marijuana on the front porch appears to be a clear-cut violation of the amendment’s prohibition of smoking in public, that might not be the case for smoking the same joint on the back porch, Rubinstein told the Mesa County lawyers at their meeting at Two Rivers Convention Center.
And it seems that devouring an otherwise unremarkable marijuana-laced brownie is allowable anywhere.
Those approaches, however, remain to be tested in the courts, Rubinstein said.
Ambiguities around the amendment aren’t limited to its criminal-law aspects, Rubinstein said, noting that while the measure was sold as a revenue-generator, it contains no provision that would allow taxation under another part of the constitution, the Taxpayer’s Bill of Rights.
Amendment 64, moreover, contains no provision that would protect banks that offer loans to marijuana-related businesses.
Marijuana remains illegal under federal law, so banks run the risk of losing their affiliation with the Federal Deposit Insurance Corp., as well as criminal prosecution for money-laundering, if they deal with such businesses, Rubinstein said.
In sum, the measure appears to “encourage people to use cash and not use banks,” he said, noting that’s particularly contradictory because many voters cast ballots in favor of the measure because the first $40 million in tax revenues was to go for new school construction.
Amendment 64 recognizes a constitutional right to possession of small amounts of marijuana while also recognizing the right of municipalities to regulate or even ban the substance.
Settling the way Amendment 64 is to operate could involve a “battle of constitutional guarantees,” Rubinstein said.