A woman convicted in 2011 of a marijuana offense that is now legal in Colorado is entitled to have her conviction retroactively thrown out, the state’s second-highest court ruled Thursday.
The woman, Brandi Jessica Russell, was appealing her conviction for possessing less than an ounce of marijuana and possessing marijuana concentrate, among other charges, when Colorado voters passed Amendment 64 in 2012. The measure made possession of up to an ounce of any kind of marijuana legal for anyone in the state over 21 years old.
“Amendment 64, by decriminalizing the personal use or possession of one ounce or less of marijuana, meets the statutory requirement for ‘a significant change in the law’ and eliminates and thus mitigates the penalties for persons convicted of engaging in such conduct,” a three-judge panel of the Colorado Court of Appeals wrote in the opinion.
The ruling could have broad application for people busted for marijuana crimes that Colorado voters legalized in 2012, but its impact is not yet clear. Possession of less than an ounce of marijuana was previously a petty offense in Colorado, and state law specifies that conviction for the offense “shall be punished by a fine of not more than one hundred dollars.”
The appeals court’s ruling can now be cited as precedent by others appealing their convictions, but marijuana advocate Brian Vicente said it is unknown how many people could be eligible for significant relief. While someone convicted of petty marijuana possession would not be sent to jail, Vicente said the ruling’s real impact could be for people convicted of possessing small amounts of marijuana concentrate.
Possession of less than two ounces of marijuana concentrate is a level-1 drug misdemeanor, according to state law.
“That’s a serious crime,” Vicente said.
But the appeals court’s ruling notes that, “Marijuana and marijuana concentrate are treated separately under the Colorado Criminal Code … but are deemed the same under Amendment 64.” For that reason, the appeals court determined that Russell’s conviction for marijuana concentrate should also be tossed.
Vicente said the same logic could apply to adults convicted of growing six or fewer marijuana plants, which was also a level-1 drug misdemeanor prior to Amendment 64.
“It’s promising that the appellate court is reflecting the reality that we have passed two constitutional measures allowing the use of marijuana and we need to stop the criminalization of people who act within these laws,” Vicente said.
A spokeswoman for the Attorney General John Suthers says prosecutors are reviewing the opinion to determine any next steps. It is possible the ruling could be appealed to the Colorado Supreme Court.
Russell was arrested in 2010, after she and her husband took their infant son to the hospital in Granby and doctors suspected abuse. Police found small amounts of methamphetamine and marijuana concentrate when searching her home, and Russell was ultimately charged with child abuse, possession of methamphetamine and possession of marijuana concentrate, according to the appeals court’s ruling.
A jury acquitted her of the child abuse charge but found her guilty of the two drug charges plus an added charged of petty marijuana possession. She was sentenced to two concurrent four-year teams of supervised probation, plus community service. She faced a 90-day jail sentence if she slipped up again.
While it threw out the two marijuana convictions, the appeals court upheld Russell’s methamphetamine conviction in its ruling Thursday.
John Ingold: 303-954-1068, jingold@denverpost.com or twitter.com/john_ingold
The Associated Press contributed to this report.
