Grower Beware: Protecting Your Product May Land You in Prison

July 18, 2013

No Guns and Marijuana

If you are accused of drug possession, drug manufacturing or drug sales, you should immediately contact an experienced criminal defense attorney.  You should not speak to police or prosecutors without an attorney.  There is nothing you can tell the police today, that we cannot tell them tomorrow together.  You should not discuss the facts with anyone but your attorney.

 

 

SPECIAL OFFENDER LAWS AND MANDATORY PRISON

Marijuana is valuable.  We rightly fear theft of our grows and product.  A natural response is to assert your 2nd amendment rights and protect your property with a gun.  The problem is that you are trading a risk of theft for a risk of 8 years in prison.  Here is why:

If a person uses, displays, or possesses a deadly weapon on his person or within immediate reach, at the time of the commission of a drug offense, then a special offender charge can be added.  CRS§18-18-407(1)(f), a special offender count aggravates a drug offense, including marijuana or medical marijuana, to a minimum term of 8 years of prison up to 48 years of prison.  This applies to any felony drug charge. 

In addition, the definition of deadly weapon is extremely broad and could easily include a kitchen knife, as well as a gun, or possibly a bb gun, bottle, fist, foot, or shod foot.

The statute includes having possession of the weapon in a car.

The statute includes having an armed confederate “in a manner that poses a risk to others.”

If you could be accused of any felony drug charge, you should make certain that no guns are in the same area, meaning room, car and if possible building where the possession, manufacture or sale occurs.  I would also remove all other obvious self defense weapons like large knives, lead pipes, baseball bats.

That said, I believe that the District of Columbia vs. Heller case, along with other Colorado cases, provide for an unfettered right to self defense in the home, even if you have a marijuana grow.  I believe that this law is overbroad and is ripe for appeal.  But, the problem is that you risk a minimum of 8 years in prison to challenge the law.  Colorado laws provide for self defense right in your automobile also, but the same risk applies.

Other special offender laws with mandatory 8-48 prison time:

  1. Two or more prior felony convictions for more than possession (CRS§18-18-407(1)(a))
  2. Pattern of distribution or manufacturing constituting a substantial source of income (CRS§18-18-407(1)(b))
  3. As a part of a conspiracy (CRS§18-18-407(1)(c))
  4. Importing into the state four or more ounces (two ounces of meth) of any state schedule I or schedule II drug (CRS§18-18-407(1)(d))
  5. Import/illegally distribute 100+ pounds of marijuana (CRS§18-18-407(1)(e))
  6. Use of children (CRS§18-18-407(1)(g))
  7. Proximity to schools or public housing (CRS§18-18-407(2)(a))

All of these increase your risk and expose you to mandatory prison time.

I am sure that some people will say, but Marijuana is legal according to the Constitution.  I do not disagree.  My review of the Constitutional Amendments and the laws implementing them reveal that there are ways for an aggressive prosecutor and unfriendly judge to find that your possession, manufacture or distribution is not completely legal.  If they do, then it could take years for appellate courts to fix that wrong.  In the mean time, you may be sitting in prison.

To best protect yourself, you need an experienced criminal defense lawyer to discuss your rights and risks.  It is cheaper and easier to avoid these risks than to defend against them.  Please contact meor another Colorado NORML lawyerto set up an appointment.

Jason Savela Photo
Author: Jason Savela

Jason became a lawyer to represent individuals against the tyranny of government and corporations. Learn More About Jason

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