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The Colorado Court of Appeals has ruled that convictions for possessing small amounts of marijuana that were pending appeal when Amendment 64 took effect are eligible to be reversed. On Thursday, the Court of Appeals threw out a 2011 conviction by retroactive application of Amendment 64.
In reversing the conviction, while admitting that Amendment 64 had no specific provision calling for retroactive application, the court reasoned that both state statute and the doctrine established by the Supreme Court to allow “a defendant to benefit retroactively from a significant change in the law,” called for retroactive application in the matter before them.
The court noted, “Amendment 64, by decriminalizing the persona use or possession of one ounce or less of marijuana, meets the statutory requirement for a significant change in the law.”
However, Attorney General John Suthers has pledged to appeal the ruling. He said, “well-established retroactivity law in Colorado indicates that statutory changes are prospective only unless the General Assembly or the voters have clearly indicated.”
In the instant case, the defendant Brandi Jessica Russell tested positive for amphetamine, marijuana and methamphetamine when she and her husband took an injured baby to a hospital, and their behavior caused the physician to become suspicious.
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The appeals court upheld her conviction on possession of meth, but reversed the portion relevant to conviction for possession of a small amount of marijuana – an amount which is already non cognizable due to Amendment 64.
Brian Vicente, one of the authors of Amendment 64, called the ruling a “huge victory” and said Colorado prosecuted as many as 9,000 cases a year for marijuana possession and that a number of appeals are still in courts even after use of marijuana was decriminalized. Others think the ruling is not going to make a significant change where numbers of convictions are concerned as drug wars usually target poor people who are unable to challenge even at trial courts and usually plead guilty to avoid costs – cases going up to appeal are few and far between.
