CO Medical Marijuana Rules: Law Enforcement Trumps Patient Privacy

One step forward, two steps back. Colorado's proposed regulations on medical marijuana are 90 pages long. You can read them here.

The rules would govern everything: how state officials regulate marijuana cultivation; how dispensary owners keep track of their sales; what makers of marijuana-infused pastries should put on their labels. Several of the rules would place Colorado in unprecedented territory — for instance, requiring marijuana growers to install security cameras through which state auditors could remotely monitor their crop. Others would take action on areas of long-standing concern, including inventory-control rules designed to prevent medical marijuana from leaking into the black market.

Check out the 5 pages of possible violations. [More...]

Violations will be deemed "general offenses:"

43.3-xxx Violation - Defined.

A. For purposes of penalty assessments, a violation of Colorado medical marijuana law or rules is classified as a general violation unless otherwise specified.

1. General violation is defined as a violation which is specifically determined not to be of a serious nature, but has a relationship to Colorado’s medical marijuana laws or rules.

B. A general violation can be deemed aggravated and the penalty assessment increased when any relevant circumstances, supported by evidence, are present to cause the harshest penalty allowed under Colorado law to be appropriate.

There's also this:

There shall be no property rights of any kind in any medical marijuana, edibles, tinctures, oils or other substances containing medical marijuana, vessels, appliances, fixtures, bars, furniture, implements, wagons, automobiles, trucks, vehicles, contrivances, or any other things or devices used in or kept for the purpose of violating any of the provisions of article 43.3 of title 12, C.R.S. 45

They appear destined to drive patients and growers back to the black market.

Nothing in this article shall be construed to limit a law enforcement agency’s ability to investigate unlawful activity in relation to a medical marijuana center, optional premises cultivation operation, or medical marijuana-infused products manufacturer. A law enforcement agency shall have the authority to run a Colorado crime information center criminal history record check of a primary caregiver, licensee, or employee of a licensee during an investigation of unlawful activity related to medical marijuana.

Via Westword, Cannabis Therapy Institute says:

The Colorado constitution sets up a confidential registry run by the state health department," she continues, "and the only reason law enforcement ever gets to question the registry is if they stop somebody or detain them -- and then they can call the registry and ask if this person is on the registry. That's as far as it's supposed to go.

But they're talking about replacing that with this monstrous database that's shared by the Department of Revenue, the department of health and law enforcement that's going to confirm not just that a person is a patient, but what medicine they bought, when they bought it and where they bought it.

And there'll be a 24-7 video surveillance system of dispensaries and grow operations. Wherever medical marijuana is processed, cultivated or sold is going to be under surveillance accessible to law enforcement on demand. It's going to be the most scrutinized substance on the planet."

...not only is this an issue of violating the confidentiality requirement in the Colorado constitution, but it's a question of medical-records privacy, which is a broader issue than just for medical marijuana patients. It's giving law enforcement access to medical information on an unprecedented scale.

Cannibis Therapy Institute also says the regulations impact the 5th Amendment privilege against self-incrimination:

[O]nce you create a record of purchases by patients, it can be used as evidence against them in a court of law. There's no protection whatsoever for patients that this information will remain confidential if they should wind up in a legal situation. So we believe this is also an unconstitutional violation of the Fifth Amendment's protection against self-incrimination, because it requires you to incriminate yourself in a federal crime."

Cannibis Therapy Institute explains the loss of patient confidentiality by turning the registry into a database accessible by law enforcement:

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  • Display: Sort:
    Colorado... (none / 0) (#1)
    by kdog on Tue Dec 07, 2010 at 01:19:54 PM EST
    is going to require growers to record evidence that could be used against them in a federal court of law?  Who's gonna sign up for that arrest warrant waiting to happen?

    Yeah, it almost sounds like they are desperate to create more crimninals to offset the loss of criminals under the medical mj law....and if that is the case, why bother.

    I think (none / 0) (#2)
    by jbindc on Tue Dec 07, 2010 at 01:22:23 PM EST
    all this stuff is for use in Colorado state courts.  Marijuana is still illegal federally, so the feds wouldn't even need to jump through all these hoops to prosecute (should they choose to).

    Yeah... (none / 0) (#3)
    by kdog on Tue Dec 07, 2010 at 01:30:51 PM EST
    till the DEA storms a Colorado grow-op an hour late, and then goes to the State of Colorado to cough up the tapes and put that next notch in the belt.

    If my state legalized growing for personal use tomorrow, I still wouldn't be taking any video for fear of Uncle Sam's jackboots.


    you are missing the point (none / 0) (#4)
    by Jeralyn on Tue Dec 07, 2010 at 01:35:15 PM EST
    In every case, in order to prosecute, the feds need evidence. These regulations change the current registry system and allow law enforcmeent, including the feds, access to records that might provide them with the evidence.

    But the feds (none / 0) (#5)
    by jbindc on Tue Dec 07, 2010 at 01:37:51 PM EST
    Wouldn't necessarily need all that.  They could walk in as an undercover buyer, buy marijuana, and then shut the place down, couldn't they?  Why go through all the trouble, unless you are saying they'd want to get all the patrons as well.  Of course, they could also do that easily too by personally observing buys.

    these are patients not patrons (none / 0) (#6)
    by Jeralyn on Tue Dec 07, 2010 at 01:44:18 PM EST
    This is medical marijuana. The new database will provide information on patients and dispensaries regarding activities that are legal under the state constitution and state law. It's not what they can do now, it's whether they should be provided access to these records. No more from you on this please, please take your well-documented pro-prosecution bias elsewhere.

    I wasn't being "pro-prosecution" (none / 0) (#7)
    by jbindc on Tue Dec 07, 2010 at 01:47:52 PM EST
    whatever that means (I believe in following the rule of law?) - I was asking questions, but apparently on this topic, you just want people to agree with you.

    Too bad BTD isn't around to weigh in on .... (none / 0) (#8)
    by magster on Tue Dec 07, 2010 at 03:09:42 PM EST
    Obama presser.  Potentially the beginning of the end for Obama.  He will not be reelected by the base who voted for him before.

    I almost hate mentioning it, (none / 0) (#10)
    by jeffinalabama on Tue Dec 07, 2010 at 06:22:32 PM EST
    but Gephardt was a strong supporter of unions and poor people. He actually DID care.

    Other than that difference, probably minor, a sincerely disturbing sentiment. However, I expect I'll be using it tomorrow, if you don't mind.


    Donald, he doesn't (none / 0) (#12)
    by Zorba on Tue Dec 07, 2010 at 06:36:12 PM EST
    see himself as the African-American equivalent of FDR.  He quite clearly sees himself as the African-American equivalent of Ronald Reagan.

    The feds already are infiltrating (none / 0) (#14)
    by kgoudy on Tue Dec 07, 2010 at 09:40:27 PM EST
    An IRS agent went to the various dispensaries on the western slope asking about a "custumer" they were looking for, and demanding to see records. The dispensaries compared notes and the name was different from place to place, but the description was the same. the feds just wanted to see the record keeping, the sales rooms and to snoop around.

    This is very good news (none / 0) (#15)
    by Peter G on Tue Dec 07, 2010 at 09:53:29 PM EST
    for lawyers.  Bad news for anyone else.

    There's been alot of that going on (none / 0) (#16)
    by Rojas on Tue Dec 07, 2010 at 10:38:10 PM EST
    Why is pot special? (none / 0) (#17)
    by diogenes on Wed Dec 08, 2010 at 03:42:21 PM EST
    Many states keep computerized records of all prescriptions of controlled substances such as Oxycontin.  All states keep records of all prescriptions when Medicaid pays the bill.  When I prescribe Marinol it goes into databases.  Why should marijuana cigarettes be any different?