Fighting Possession Tickets Bodes Well For Pot Offenders In Denver

In the two years since Denver voters opted to legalize up to an ounce of marijuana in 2005, four highly-publicized possession cases in the city have had their charges lowered or dropped completely. Is publicly fighting a possession charge the ticket to clemency in the Mile High City, and is the City Attorney’s office backing away from such cases? Legalization advocates aren’t certain. On Monday, Dec. 10, the city dropped charges against Hayley Jaqua, a 25-year-old college student who pleaded not guilty to a possession charge of under an ounce of marijuana. The charges were dropped under the conditions of a plea agreement, where Jaqua will attend an adult diversion program, which “will likely entail community service,” according to SAFER Denver, the pro-legalization group that successfully passed the initiative to legalize possession of marijuana in the city.

Individuals cited for possession of under an ounce in Denver are required to pay a $100 fine if found guilty under state law, even though the drug has been legalized under city law for over two years.

In another similar public case, 21-year-old student Sara Tafoya pleaded not guilty to a marijuana possession charge in May, and later had it pleaded down to a charge of paraphernalia.

Both cases involved college students who would have lost their federal and state financial aid if convicted of a possession charge. Under the Aid Elimination Penalty, a provision in the federal Higher Education Act passed by Congress in 1998, students are denied federal aid if they are convicted of certain state or federal drug offenses, not including paraphernalia.

Students For A Sensible Drug Policy, a national organization supporting legalization, recently released data (PDF) obtained from the federal Department of Education in 2006, which showed that nearly 200,000 students have been declared ineligible to receive aid because of drug convictions. The number of Colorado students ranks in the middle nationally, with 0.21 percent of students being denied aid since the provision went into effect. California had the highest number with 0.36 percent, and Vermont the lowest with 0.12 percent.

Another test case for the city’s legalization law was David “Damien” La Goy, an HIV-positive man cited for possession in March 2006. La Goy claimed to be using marijuana medicinally, to combat the nausea from antiviral drugs. The city eventually dropped the case six months later due in part to La Goy’s health.

The first legal fight under the new legalization ordinance in Denver revolved around real estate consultant Eric Footer, who was charged with possession a day after the new law took effect in November 2005. The City Attorney’s Office maintained they dropped the case on a technicality two months later because police did not follow proper procedures when they seized the marijuana from the defendant.

Although the City Attorney’s Office did not return a request for comment, officials have made it clear through the media that office policy is to follow state statutes and prosecute marijuana offenders. However, the statutes aren’t sticking for those who decide to publicly fight their possession charges. Is the city backing away from high-profile cases?

“It’s hard to say,” says Mason Tvert, executive director of SAFER Denver. “We simply don’t see a reason for actually issuing the citation to begin with, if they’re going to ultimately drop it, which has been the case with every person who has challenged a possession ticket that we’ve worked with.”

SAFER released statistics from the Denver Police Department in April showing that marijuana arrests in Denver had risen almost 20 percent in 2006, when compared with the average for the last three years. There were 1,912 arrests in 2004, more than 2,000 in 2005, and a total of 2,446 in 2006, although the numbers do not reflect the number of successful convictions.

I-100, the initiative legalizing marijuana in Denver, was passed by 54 percent in 2005, and a similar state measure failed in 2006 with 41 percent. This year, Denver voters also approved an additional legalization measure, making pot possession the lowest law-enforcement priority and creating a city panel to study and report on marijuana arrests.

Erin Rosa was born in Spain and raised in Colorado Springs. She is a freelance writer currently living in Denver. Rosa's work has been featured in a variety of news outlets including the Huffington Post, Democracy Now!, and the Rocky Mountain Chronicle, an alternative-weekly in Northern Colorado where she worked as a columnist covering the state legislature. Rosa has received awards from the Society of Professional Journalists for her reporting on lobbying and woman's health issues. She was also tapped with a rare honorable mention award by the Newspaper Guild-CWA's David S. Barr Award in 2008--only the second such honor conferred in its nine-year history--for her investigative series covering the federal government's Supermax prison in the state. Rosa covers the labor community, corrections, immigration and government transparency matters. She can be reached at erosa@www.coloradoindependent.com.

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