February 18, 2012
Colorado Court of Appeals - 2-16-12 criminal law decision - People v. Sexton
People v. Sexton Medical Marijuana – Affirmative Defense & Waiver of Doctor/Patient Privilege
Facts: Mr. Sexton operated a legal marijuana growing operation. However, the prosecution charged Mr. Sexton with cultivation for growing plants in excess of the size limit and not keeping complete, legible records for whom he grew the marijuana. Mr. Sexton asserted the Medical Marijuana Amendment as a defense. During trial, the prosecution called Mr. Sexton’s doctor without a waiver from Mr. Sexton. The jury convicted Mr. Sexton possession of more than 8 ounces of marijuana.
Issue: Whether by asserting a defense under the Medical Marijuana Amendment, Mr. Sexton waived his doctor/patient privilege?
Reasoning: The Court of Appeals held, “Here, by raising the affirmative defense of medical use, defendant validly waived his privilege under section 13–90–107(1)(d). Thus, the physician's rebuttal testimony concerning his conversations with defendant was a lawful disclosure under section 13–90–107(1)(d), rather than an unlawful disclosure of defendant's confidential medical marijuana patient registry information. Accordingly, we conclude, as did the trial court, that the written waiver requirements of section 18–18–406.3(5) simply did not apply.”