New card holder and resident with some questions.

This may be a bit long but there are a few nagging questions I have. I know that it is not a good idea to get legal advice on a forum. But if anyone can answer anything it would put me in a better place than I am now.

1. What is up with plant count limits?
I have extremely bad asthma and I have not smoked a single gram of herb for the past 2 years. I have always used tinctures and edibles. I just got my card a few days ago and I explained all of this to the Dr. and he gave me a 45 plant limit. I keep seeing all this talk about 6 plant per patient (for caregivers) or 6 plants per personal grow.

I then discovered this:

From Amendment 20:
(II) No more than six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana.
(b) For quantities of marijuana in excess of these amounts, a patient or his or her primary care-giver may raise as an affirmative defense to charges of violation of state law that such greater amounts were medically necessary to address the patient's debilitating medical condition.

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Has there been any documented cases of someone using this defense? If I were to get busted, would I basically be guaranteed to be in jail until I use this defense? Is there anything I should do in order to keep myself safe? I do not plan on doing more than 24 plants for myself. And as soon as the harvest I plan on making butter and tinctures and cut down the total amount of time I have useable bud. I just fear that if something were to happen during the grow - and some cops walk in on 20+ plants i'll be totally screwed.

On the other hand, I will be with 2 roomates who both have their cards as well. I was thinking of just registering them as my patients and use their 6 plants (3 mature/3 seedling) to lower my personal count. Another interesting thing is one of them also has a Drs order of 45 plants.

2. Specifics on the 6 plant rule.
Does the law specifically state what constitutes as a mature and immature plant? Is a plant in veg considered immature? A seedling? A clone?

It frustrates me how rapidly Colorado changes their laws and how city to city can make a difference in legality. For example, I was hours away from singing a lease in Denver until I found out that in October a law passed stating that you could only grow 12 plants no matter what per home in the Denver area.

How can they pass such a law!? This is so unfair to people who are trying to do things legitimately. I understand how the state is trying to push out the black market sales but I feel that they are only creating an environment where you have no choice but to do things illegally. For instance, I just read an article about CO complaining that meds are being sent across boardering states....Maybe if there was a legitimate way for us to get rid of your excess meds this would not happen!

3. What county should I move to?

I have been staying with some friends in Boulder, and have been house hunting. I have had my eyes set on loveland, longmont, frederick, Westminster, thornton and westglenn. Do any of these stand out as good or bad choices to any of you familiar with the area?

Thanks and sorry for the long post!

I am leaving for work, if when i get home no one has answered i will give general answers, but when SoCoMMj sees this he will have all your answers. Also, this has been mostly covered in previous posts in this forum, with exception to location, if you want to look it up.

thanks. ill take a look in prev threads. i would love to hear your input, esp on location.

1) If the cops happen to get into your grow for whatever reason, and you have proper documents for yourself and all patients they SHOULD just come in and count plants, making sure you do not have more than 6 with no more than 3 producing a "usable" form of marijuana. If you do not they should be on their way, if you do they take everything and arrest or ticket you and then you have to defend yourself in court. I do not know of, certainly doesn't mean there isn't, anyone successfully using this defense. You would be better off than most since you probably don't have a dozen bongs and pipes sitting around and claim you can't smoke, would probably kill that defense. One rule of thumb is that 99 plants is state court, 100 is federal court. In federal court they will not let the jury hear the words "medical marijuana".
2) As far as plant count goes, i do not know exactly what they count in this state, I have heard about other states using root zones as the basis. I do know that you should count a seed a plant as soon as it has a tap root, and a clone as soon as you cut it. The "usable form" is kind of a grey area in my mind, gives a couple of weeks of flowering before it could be considered usable. This is also why none of us are willing to show off the location of our grows, "loose lips sink ships". You may believe you are in compliance and the officer may not agree. This is why carbon filters still sell so well in this state.
3) Location: i will start with this
http://www.cdphe.state.co.us/hs/Medicalmarijuana/statistics.html
shows where the most card holders are by county. I do not want to get into this too far on here, you can PM me if you are really interested in my thoughts. Boulder would of course be the most tolerant county, other than that it is really personal preference, and exact house of course. Feel free to pm me if you want to discuss further, i don't want to insult anybodys neighborhood.
Good luck!

affirmative defense

google it

A defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. An affirmative defense is known, alternatively, as a justification, or an excuse, defense.[1] Consequently, affirmative defenses limit or excuse a defendant's criminal culpability or civil liability.

A clear illustration of an affirmative defense is self defense.[2] In its simplest form, a criminal defendant may be exonerated if he can demonstrate that he had an honest and reasonable belief that another's use of force was unlawful and that the defendant's conduct was necessary to protect himself.

"Mistake of fact" is not an affirmative defense: it does not require proof but it does introduce doubt. In mistake-of-fact defenses, the defendant asserts that his mistaken belief prevents the establishment, beyond a reasonable doubt, of the required mens rea. It can be used with other defenses such as self defense. Self defense would still be available even if the defendant mistakenly believes that he was in imminent danger of harmful or offensive bodily contact.

Among the most controversial affirmative defenses is the insanity defense,[3] whereby a criminal defendant seeks to be excused from criminal liability on the ground that a mental illness, at the time of the alleged crime, prevented him from understanding the wrongful nature of his actions.

Most affirmative defenses must be pled in a timely manner by a defendant in order for the court to consider them, or else they are considered waived by the defendant's failure to assert them. The classic unwaivable affirmative defense is lack of subject-matter jurisdiction. The issue of timely assertion is often the subject of contentious litigation.

Because an affirmative defense requires an assertion of facts beyond those claimed by the plaintiff, generally the party who offers an affirmative defense bears the burden of proof.[4] The standard of proof is typically lower than beyond a reasonable doubt. It can either be proved by clear and convincing evidence or by a preponderance of the evidence. In some cases or jurisdictions, however, the defense must only be asserted, and the prosecution has the burden to prove beyond a reasonable doubt that the defense is not applicable.[citation needed]

Rule 8 of the Federal Rules of Civil Procedure governs the assertion of affirmative defenses in civil cases that are filed in the United States district courts. Rule 8(c) specifically enumerates the following defenses: "accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense."

Rule 11 of the Federal Rules of Civil Procedure requires that affirmative defenses be based on "knowledge, information, and belief, formed after an inquiry reasonable under the circumstances," and cannot consist of a laundry list of all known affirmative defenses.[5]

An affirmative defense can be different from a negating defense. A negating defense is one which tends to negate an essential element of the state's case. An example might be a mistake of fact claim in a prosecution for intentional drug possession, where the defendant asserted that he or she mistakenly believed that the object possessed was an innocent substance like oregano. Because this defense simply shows that an essential element of the offense is not present, the defendant does not have any burden of persuasion with regards to a negating defense. At most the defendant has the burden of producing sufficient evidence to raise the issue.
[edit] Examples

* civil law
o accord and satisfaction
o assumption of risk (when the plaintiff knowingly entered into a dangerous situation)
o authority
o consent
o defense of property
o duress
o estoppel
o contract specification
o contractual provision (when the defendant's liability for causing the plaintiff's injuries had been waived in the contract; however, these provisions are typically unconscionable in many situations.)
o contributory negligence (when the plaintiff's actions contributed to his own injury)
o fair use
o laches (similar to statute of limitation)
o merger doctrine
o repossession
o statute of frauds
o statute of limitations (too much time has elapsed between the tort and the complaint)
o waiver
* criminal law
o insanity defense
o necessity
o self defense
o statute of limitation
o truth

basically if you prove a need for more than what the state allows you should have your case dismissed and everything that was confiscated, returned.

After you have spent thousands of dollars on attorneys you get back your plants, dead. I think i will keep my mouth shut and a big carbon filter. What Grow room officer? Defending yourself without an attorney is no fun, now if you are looking at jail time, it would be stupid to not get one, no matter how innocent you are. And of course always follow the rule, No Warrant, No Entry. Always walk outside and close the door behind you, even if you lock yourself out doing it.

Guilty till proven innocent.

1: recent case of CO MMJ Patient Jason Lauve, charged with possession of 34oz of MMJ. law states 6 plants per patient. but same as you, he is edibles only and used it as an affirmative defense that greater ammounts of MMJ are needed for his condition. the patients' attorney argued this was Jason's case and the burden of proof doesn't lie with the patient; rather it is the states' responsibility to prove that the amount of medicine a patient posesses is excessive. Jason was aqcuitted of all charges in August. Jusry members told the media that Jason could have had a 'ton' of pot and they still would have aqcuitted him. * that said, every case will be different, but keep it state legal and don't flaunt it to the feds and all will be well. you have your Dr recommendation - as long as he wrote the actual plant count on your paperwork. I've seen just "edibles" on paperwork, and without an actual plant count #, they are 'saying' you are only allowed 6. but Jason's story and the verdict seem to indicate a dichotomy with the 'rules' that are somewhat arbitrarily being put in place.

2: another up in the air ruling that is being 'decided'. current thought is anything with roots is an actual plant. but there is talk of limiting the diffinition of 'plants' to 12" or taller. this would seem more fair to me, since clones are useless for plant count until they reach the veg stage, this way a grower could also choose the best clones to move into true veg stage. I think current rule of thumb for personal plant count is 4 in flower, 2 in veg. if growing out 2 plants per month and harvesting 2 every month, you have a rotating crop of never ending meds (assuming a 7-8 week finishing strain).

3: no matter where you look, check your lease. I noticed too late that mine said 'no manufacturing of control substances, including medical marijuana'. thankfully I have another option in a correctly zoned industrial area.

Thanks eyecandi, learned a lot there. Great to hear that at least that jury saw it as innocent until proven guilty, which is rare to see at this point.

The 45 plant thing is absolute BS, most doctors charge more to give you that recommendation, but it IS NOT in compliance with state law. 6 per patient, 3 flowering, 3 veg

You can have a rec that shows a need to have more plants but you better have enough money for retainer as the cops don't care about an edible rec and you better make sure the doc is willing to testify for you too. For them it's 3 & 3 - though from personal experience they just come in & count the total number of plants, check paperwork, and leave.

yep I got counted by some undercovers... they were extremely nice and even tho i had twice my limit they said that they were looking for larger grows... just left and I haven't heard from them since

stbwolfe said:

yep I got counted by some undercovers... they were extremely nice and even tho i had twice my limit they said that they were looking for larger grows... just left and I haven't heard from them since

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may i ask how undercovers happened to get access to your room? and how many total plants did you have?

BuddhaThai said:

you better make sure the doc is willing to testify for you too.

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the receptionist specifically stated that they will do just this if needed. she said that this has happened twice in the past year or so and once they showed the paper work the case was closed.