Summary 2011 WY 5

Summary of Decision January 19, 2011

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Case Name: Burns v. State

Citation: 2011 WY 5

Docket Number: S-10-0053

URL: http://tinyurl.com/5s7a5av

Appeal from the District Court of Laramie County, Honorable Michael K. Davis, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel, Wyoming Public Defender Program. Argument by Mr. Alden.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; David L. Delicath, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General. Argument by Mr. Delicath.

Date of Decision: January 19, 2011

Facts: Appellant entered a conditional plea of guilty to felony possession of a controlled substance, namely marijuana. Appellant reserved the right to challenge the district court’s in limine ruling which prohibited him from presenting at trial any evidence and defense theories to the effect that he lawfully obtained the marijuana pursuant to a valid prescription of a practitioner in Colorado.

Issues: Whether the Appellant obtained a Schedule I controlled substance pursuant to a valid order of a practitioner in another state constitutes a defense under Wyo. Stat. 35-7-1031(c).

Holdings: The purpose of a motion in limine is to obtain the court’s pretrial ruling on the admissibility of evidence. As with other evidentiary decisions, the question of whether or not to grant a motion in limine is left to the sound discretion of the trial court.

Wyo. Stat. 35-7-1031(c), in pertinent part, makes it unlawful in Wyoming to possess marijuana “unless the substance was obtained directly from, or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice.” The district court’s in limine ruling was based on its determination that Appellant’s Colorado medical registry card and the physician’s certification were not the equivalent of a “prescription or order” as intended under the statute.

The possession of marijuana, even for medical purposes, remains illegal in Wyoming pursuant to Wyo. Stat. Ann. 35-7-1013, 1014, 1031(c). Therefore, it would be illegal for a physician to prescribe or order, in any sense, the possession of marijuana. Indeed, the Colorado law simply allows for a physician to certify that a patient might benefit from the use of marijuana as a medical treatment. It is then left entirely up to the patient whether to apply for a medical marijuana registry card from the State of Colorado. It is the State of Colorado that makes the final determination whether the patient qualifies for the registry card, thereby exempting the patient from criminal liability for possessing amounts of marijuana necessary for medicinal purposes. Importantly, it is not the action of the physician that determines any potential possession of marijuana by the patient. Therefore, the physician is not prescribing or ordering the possession of marijuana as contemplated by the language of 35-7-1031(c). The exception found in 35-7-1031(c) simply does not apply in this case.

Section 35-7-1031(c) does not exempt a defendant from criminal liability even if the defendant obtained a legitimate medical marijuana exception under Colorado law. Colorado law does not allow a physician to prescribe or order, in any sense of the terms, marijuana possession. Thus, pursuant to §35-7-1031(c), a Colorado registry card is irrelevant to criminal proceedings in Wyoming. The district court’s decision on the motion in limine is affirmed.

Justice Golden delivered the opinion for the court.