(Oliver Berg, AFP/Getty Images file)

Conviction upheld for Colorado doctor over prescribed medical marijuana

A court decision upholding the conviction of a Colorado doctor who recommended marijuana could have major implications on how the state treats physicians who frequently suggest the drug.

The Colorado Court of Appeals maintained the conviction of Dr. Joseph Robert Montante, who was sentenced to a month in jail for recommending pot without first conducting the exams required by law.

Montante challenged his conviction and Colorado’s guidelines for determining when doctors have a “bona fide doctor-patient relationship” and aren’t just writing pot recommendations to anyone who asks.

Colorado has struggled to crack down on doctors who write a large number of pot recommendations. Colorado passed a law detailing how doctors can recommend pot in 2010, but enforcement has been spotty.

A 2013 state audit report criticized health authorities for not doing enough to stop high-volume pot doctors. One physician wrote more than 8,400 marijuana recommendations.

Montante was one of just a handful of doctors who have faced criminal charges.

He was arrested in 2012 after writing a marijuana recommendation to a Loveland patient, who was an undercover police officer.

The officer told Montante he didn’t have a medical ailment but “just kind of (wanted) to get legit.” Montante then wrote the undercover officer a pot recommendation for “severe pain,” one of the conditions eligible for medical marijuana use.

Montante was convicted of related charges and sentenced to a month in jail and probation. Separately, he was stripped of his medical license.

Montante appealed, stating that he was being targeted for his personal opinions on pot and that the law allows prosecutors to challenge medical recommendations from “whichever physicians attract their disfavor.”

The Court of Appeals disagreed. In a decision released Thursday, the judges said a 2010 law spelling out appropriate doctor-patient relationships for pot “does nothing more than require a physician to refrain from making fraudulent representations.”

Montante and his attorney could not be reached Friday to say whether they planned to appeal again to the state Supreme Court.

The decision could have significant implications for Colorado’s pot doctors, said Jim Gerhardt, vice president of the Colorado Drug Investigators Association.

Colorado law enforcement has struggled with fuzzy guidelines for when doctors commit a crime — and not just violate professional ethics — by improperly recommending pot, he said.

“This gives us really the first road map for the entire state to hold these physicians accountable for doing this,” Gerhardt said.


Online: Montante opinion