Pot Possession Conviction Just Before Amendment 64 Became Law Nixed by Court

The court ruling and more below.
The court ruling and more below.
Thinkstock/Photohide

Mesa County's Pamela Boyd was convicted of marijuana possession 26 days before Amendment 64, the proposal that made it legal for Coloradans to possess small amounts of cannabis, went into effect.

Boyd appealed, maintaining that the measure should have been retroactively applied to her.

A legal long shot? Perhaps — but it scored.

In recent days, the Colorado Court of Appeals ruled in Boyd's favor in a decision that the attorney who represented Brandon Coats, a paralyzed medical marijuana patient whose firing by DISH was upheld by the Colorado Supreme Court earlier this year, sees as positive but contradictory.

The document, shared by Colorado Lawyer, is on view below — and the site describes the back story to the case as the fruit of a sting operation.

Specifically, an undercover cop is said to have approached Boyd and her boyfriend while they were sitting in the BF's van. After the officer purchased some pot from the boyfriend, the latter put the money on the dashboard and drove off.

He didn't get far. Shortly thereafter, the van was pulled over in a traffic stop and both the boyfriend and Boyd were arrested after the cash and a small amount of cannabis was found.

The building that houses the Colorado Court of Appeals and the Colorado Supreme Court.
The building that houses the Colorado Court of Appeals and the Colorado Supreme Court.
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Boyd was found guilty of both possession and attempted distribution of marijuana on August 8, 2012 and sentenced on November 14 — more than a week after voters approved Amendment 64 and less than a month before the December 10 date on which Governor John Hickenlooper made it law.

The appeal filed on Boyd's behalf turns in part on the belief that Amendment 64 retroactively decriminalized marijuana possession, and the appeals court agreed, more or less.

While it let the distribution conviction stand, the court opined that defendants like Boyd should be able to receive the “benefit of amendatory legislation which became effective at any time before the conviction became final on appeal" — and since her appeal stretched beyond the legalization date, Boyd's possession conviction was vacated.

Attorney Michael Evans shared the decision with journalists who covered the Coats case, and in his introduction to it, he suggested that reporters "try to reconcile this with the holding in Coats v. DISH, which arguably said the exact opposite."

Attorney Michael Evans and Brandon Coats.
Attorney Michael Evans and Brandon Coats.
File photo

How so? Evans argued that medical marijuana fit under the "lawful activity" description in Colorado's Lawful Activities Statute, since it's legal under state law. However, marijuana remains against federal law, and that was the rationale used to reject his arguments by both the Colorado Court of Appeals — the same body that ruled in Boyd's favor — and the Colorado Supreme Court. Here's an excerpt from the latter's ruling.

By its terms, the statute protects only 'lawful' activities. However, the statute does not define the term 'lawful.' Coats contends that the term should be read as limited to activities lawful under state statute. We disagree.

We find nothing to indicate that the General Assembly intended to extend section 24-34-402.5’s protection for lawful activities to activities that are unlawful under federal law, In sum, because Coats's marijuana use was unlawful under federal law, it does not fall within section 24-34-402.5’s protection for 'lawful' activities."

The federal law versus state law question didn't prevent the Court of Appeals from tossing out Boyd's conviction — and the disconnect between the rulings definitely stood out to Evans.

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"It's never a good idea for the court to take the path of least resistance when deciding a case, although it's commonly done, like in Coats," he writes. "Coats urged the court to take on and decide many more issues than it did — and because they did not, now you get this. Pretty frustrating."

We suspect Boyd isn't nearly as irritated. Here's the court's decision in the Boyd case.

Send your story tips to the author, Michael Roberts.

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