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. Dr. Mestas was represented by defense attorney Matt Giacomini of the Denver law firm Springer and Steinberg.
Click here to read the judge's dismissal order:
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."
For more information:
Springer and Steinberg, PC
Patient and Caregiver Rights Litigation Project
P.O. Box 1794, Nederland, CO 80466