According to Miller, possessing marijuana plants beyond the limit of six plants per patient used to be considered a class-4 felony -- no ifs, ands or buts. However, that changed thanks to House Bill 10-1352, signed into law this year, which establishes different penalties depending upon the number of plants in question. Here's the key passage:
EXCEPT FOR A PERSON WHO LAWFULLY CULTIVATES MEDICAL MARIJUANA PURSUANT TO THE AUTHORITY GRANTED IN SECTION 14 OF ARTICLE XVIII OF THE STATE CONSTITUTION, A PERSON SHALL NOT KNOWINGLY CULTIVATE, GROW, OR PRODUCE A MARIJUANA PLANT OR KNOWINGLY ALLOW A MARIJUANA PLANT TO BE CULTIVATED, GROWN, OR PRODUCED ON LAND THAT THE PERSON OWNS, OCCUPIES, OR CONTROLS. A PERSON WHO VIOLATES THE PROVISIONS OF THIS SUBSECTION (7.5) COMMITS:
(a) A CLASS 1 MISDEMEANOR, IF THE OFFENSE INVOLVES SIX OR FEWER PLANTS; OR
(b) A CLASS 5 FELONY IF THE OFFENSE INVOLVES MORE THAN SIX BUT FEWER THAN THIRTY PLANTS; OR
(c) A CLASS 4 FELONY IF THE OFFENSE INVOLVES THIRTY OR MORE PLANTS.
In Miller's case, she's accused of having 21 plants for herself and one other patient: Randy Garcia, who she describes as "a Naval veteran." Under these circumstances, she would be legally entitled to have twelve plants. But she says six of the 21 plants were dead and had been tossed into a trash can. If those aren't counted, she'd be only three over the limit, which would make her offense a class-1 misdemeanor under HB 10-1352.
She adds that none of the plants were actually flowering.
Why, then, does she face punishment for a class-4 felony if she's found guilty at a proceeding currently scheduled for February? "The effective date of this legislation was August 11, and I was arrested in March," she says. "So I'm facing two-to-six years in prison instead of up to a year for a misdemeanor."
The time disparity is hardly the sole reason Miller is upset about the situation. If convicted of a felony, she says she'd have to lose her bankruptcy-petition preparation business, as well as something much more precious -- custody of her child, who's just three weeks old. And in her words, "I'd do anything for that not to happen."
Indeed, Miller says she'd plead guilty to a lesser charge, even though she feels the prosecution as a whole is unfair on several different levels, if it meant being able to retain custody. Thus far, though, the Adams County District Attorney's Office hasn't offered a deal. So, in a long shot effort, she's started contacting signatories of HB 10-1352 in the hope that they can pass an addendum to the bill once the next legislative session gets underway moving back the measure's effective date, so she would fall under the new charging guideline.
If that doesn't happen? "I could lose my child," she says. "And I could be in jail for close to six years over three plants."
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