Colorado Court Dismisses Charges Against Medical Marijuana Doctor

Random targeting of medical doctors seems to be backfiring in the justice system.

(DENVER) - A Colorado physician accused of writing fraudulent medical marijuana recommendations had all the criminal charges against him dismissed on Wed., May 11, 2011 by Arapahoe County District Court Judge Kurt A. Horton.

Dr. Toribio Robert Mestas had been randomly targeted for prosecution by the South Metro Drug Task Force because he gave recommendations for medical marijuana.

In his dismissal of the case, Judge Horton ruled that there was nothing improper about Dr. Mestas' recommendation of medical marijuana to an undercover police officer complaining of severe pain and that Colorado's Constitutional Amendment protected physicians by guaranteeing them an exception from the state's criminal laws for making medical marijuana recommendations.

In addition, Judge Horton ruled that physician recommendations for medical marijuana in Colorado were also protected by the First Amendment to the U.S. Constitution, affirming a decision by the U.S. Court of Appeals for the Ninth Circuit (California) in 2002.

In March 2010, the South Metro Drug Task Force initiated an undercover investigation of Dr. Mestas, who was chosen completely at random. There had been no complaints against Dr. Mestas for anything related to medical marijuana.

South Metro Drug Task Force Agent Joe Ward, using a fake drivers license with the fake name "Joe Butkus", arrived for an appointment with Dr. Mestas for a medical marijuana recommendation and secretly recorded the entire meeting.

Dr. Mestas' office was across the hall from a dispensary in Englewood. Joe Butkus told Dr. Mestas that he suffered from lower back pain that was severe enough to negatively affect his work as a handyman.

Dr. Mestas performed a 15 minute examination of Joe Butkus. The examination included taking a detailed patient history and checking Butkus, he advised him to lose weight and stop smoking.

Having confirmed that Butkus suffered from severe pain as required in the Colorado Constitution's medical marijuana law, Dr. Mestas advised Butkus on the differences in cannabis strains, potency and methods of delivery. After Butkus had his recommendation from Dr. Mestas, he went to the dispensary across the hall and legally purchased a small amount of marijuana.

For the incident, Dr. Mestas was charged with four criminal felony counts of attempting to influence a public servant, forgery, distribution of marijuana and conspiracy to distribute marijuana.

Dr. Mestas argued that he was in compliance with Article XVIII, Section 14 of the Colorado Constitution Section 2 (c), which grants physicians an exception from the state's criminal laws for recommending medical marijuana to a patient.

The court agreed and said that Dr. Mestas had fulfilled all the Constitutional requirements for his medical marijuana recommendation and diagnosis of a debilitating medical condition, and that he did not distribute or conspire to distribute marijuana.

Judge Horton's ruling sets important case law on Colorado's medical marijuana constitutional amendment. The ruling affirms that physicians in Colorado have a constitutional exception from state criminal laws if they make a medical marijuana recommendation.

The ruling also affirms that physician recommendations for medical marijuana in Colorado are protected by the First Amendment to the U.S. Constitution.

"My client and I are very pleased. This is a well-reasoned opinion recognizing the rights of physicians under the Colorado Constitution. The decision affirms an exception to criminal penalties for physicians that make medical marijuana recommendations in Colorado, under both the Colorado and the U.S. Constitution. Hopefully, this will prevent future prosecutions of physicians," says Matt Giacomini, defense attorney for Dr. Mestas.

However, physicians may not yet be completely safe yet. Judge Horton points out on page 27 of his order that physicians are still subject to punishment through administrative and regulatory actions under new statutes passed by the legislature last year (Senate Bill 10-109).

"Judge Horton's ruling makes it clear that we need to sue to overturn SB 10-109 in order to fully protect physicians," says Kathleen Chippi, of the Patient and Caregiver Rights Litigation Project. The PCRLP is trying to raise money to challenge the constitutionality of all the Colorado medical marijuana statutes passed in the last two years.

"No one will be safe until we prevent the General Assembly from continuing to gut the patient and physician protections in the Colorado Constitution."

Source: Press release from the Patient and Caregiver Rights Litigation Project.

Salem-News.com Marijuana Coverage

Where and How to Smoke Legal Marijuana without Fear of Arrest in the U.S.

Eulogy of a Great Warrior: Hoss Plourde

The Ripple Effect How Marijuana Laws Are Impacting Society

Audit the Audit

Welcome Home, Tom

Comments Leave a comment on this story.

All comments and messages are approved by people and self promotional links or unacceptable comments are denied.

malcolm kyle May 14, 2011 11:53 am (Pacific time)

Prohibitionists often express the belief that the resulting suffering and mayhem that their policy engenders is in no way connected to the basic and erroneous mechanism being used, but that they simply haven't been granted sufficient governmental powers, i.e., the removal of even more of our basic individual rights and freedoms for these sadistic, sociopathic perverts to do their work successfully. It's quite possible, that many of the early Prohibitionists did not intend to kill hundreds of thousands worldwide or put 1 in every 32 Americans under supervision of the correctional system. Nevertheless, it may now be reasonable to claim, that our Latter-Day Sadomoralist Prison-for-Profit Prohibitionists don't care. They don't care that, historically, the prohibition of any mind altering substance has never resulted in anything else but mayhem and chaos. They don't care that America has the highest percentage of it's citizens incarcerated of any country in the history of the planet. And they don't care about spawning far worse conditions than those they claim to be alleviating. These despotic imbeciles are actually quite happy to create as much mayhem as possible, after all, it's what fills their prisons and gets them elected. Which is why it's no surprise, that when asked if they support torture, prohibitionist, GOP Presidential candidates rush to raise their hands. http://www.drugwarrant.com/2011/05/torture-and-drug-policy/

john May 13, 2011 3:04 pm (Pacific time)

why don't these cops stop wasting every bodies time. Including the courts...They should be charged w/ frivolous prosecution

[Return to Top]