Routt County forwards medical marijuana case to state

By Jack Weinstein

Thursday, October 6, 2011

Steamboat Springs — The Routt County District Attorney’s office will not file charges against a Denver nurse practitioner who wrote recommendations for medical marijuana in Steamboat Springs.

Steamboat Springs Police Department Capt. Joel Rae said police, with assistance from the All Crimes Enforcement Team and Routt County Sheriff’s Office, conducted an undercover operation Sept. 10 at Bud Werner Memorial Library where the nurse was performing patient evaluations and signing off on the use of medical marijuana.

Rae said the officer, who did not identify himself as law enforcement, was issued a recommendation for medical marijuana after complaining that a stubbed toe “occasionally aches” during a consultation that lasted less than 10 minutes.

Rae declined to comment about the interaction between the officer and the nurse, nor would he provide the officer’s name or say whether the investigation included additional measures such as video surveillance.

Rae said the investigation was turned over this week to the District Attorney’s Office. It was forwarded to the Colorado Department of Public Health and Environment, said Brett Barkey, an assistant for the 14th Judicial District, which includes Routt County. The agency oversees the state’s medical marijuana patient registry.

“We view it as a regulatory issue at this point in time, with what we have right now,” Barkey said Thursday.

The nurse, Gay Ann Ost, said she’s one of several nurse practitioners in Colorado who see patients to evaluate whether medical marijuana would be an appropriate treatment method for them. She’s been doing it part-time since April.

“It’s about access and helping people in the rural communities,” she said.

Ost said she is a board-certified family nurse practitioner with the American Academy of Nurse Practitioners and the American Nurse Credentialing Center. She said this is her 30th year in the profession.

She said Colorado’s Nurse Practice Act allows nurse practitioners to work independently if they are delegated medical functions by a licensed physician. Ost said she has a professional agreement with a Denver osteopath who signs her recommendations for medical marijuana.

But she acknowledged the state constitution states that only a doctor can recommend the use of medical marijuana. Ost called it a gray area. She said she sought guidance from the state as well as medical and nursing boards and attorneys for the Colorado General Assembly, but no one would give her clarification.

Chris Lines, a spokesman for the Colorado Department of Regulatory Affairs, said he thought the law was clear.

“The constitution says that only a doctor in good standing can recommend medical marijuana,” he said. “The constitution supersedes statute. Therefore, if there is a nurse practitioner writing recommendations for medical marijuana, they are in violation of the law.”

Lines added, “Medical marijuana is not a medicine. Medical marijuana is a treatment option.”

Colorado voters authorized the use of medical marijuana for certain medical conditions and a doctor’s recommendation when they approved Amendment 20 in 2000. The industry exploded in 2009, which prompted lawmakers at the state and local levels to enact new laws to regulate it. Routt County and Steamboat Springs voters will decide whether to ban medical marijuana businesses here in the upcoming election.

Previous attempts by other Colorado law enforcement agencies to bring charges against doctors have been unsuccessful to date.

The Aurora Sentinel reported in July that a trial against physician Manuel Aquino-Villaman, who was charged with forgery, attempt to influence a public servant, marijuana distribution and conspiracy to distribute marijuana, was delayed indefinitely.

The Denver Post reported that an Arapahoe County judge in May threw out the same charges against Englewood physician Toribio Robert Mestas.According to the Post, the judge said the doctor complied with state law when recommending medical marijuana to an undercover officer who complained of having daily back pain.

Rae said local law enforcement was alerted to Ost’s activity by community members who saw a classified ad in the Steamboat Today. He called the undercover operation a “compliance check.”

The county’s top law enforcement officers, including Rae, Police Chief JD Hays, Sheriff Garrett Wiggins and Undersheriff Ray Birch, wrote in a Sept. 30 Steamboat Today letter to the editor that medical marijuana was becoming too easy to get and provided some detail about the operation, including the officer complaining of having a stubbed toe that “occasionally aches.”

Rocky Mountain Remedies co-owner Kevin Fisher said he found it interesting that local law enforcement would use its resources to investigate Ost. He said it’s not going to stop other medical professionals from coming to Steamboat to recommend medical marijuana to qualified patients.

“They’re going to continue to come up from the Front Range until local physicians come on board and realize this is a viable treatment option under our state constitution,” Fisher said.

— To reach Jack Weinstein, call 970-871-4203 or email jweinstein@SteamboatToday.com

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Comments

steamboatsprings 1 year, 7 months ago

This is completely out of hand. Not exactly a serious medical condition, most doctors that write these prescriptions would have at least asked "wink wink" if they had something more serious.

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rhys jones 1 year, 7 months ago

I think we should just shoot 'em.

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rhys jones 1 year, 7 months ago

didn't say who "we" were.

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muck 1 year, 7 months ago

Can't file charges??? Why??? BECAUSE THE COPS BROKE THE LAW TRYING TO GET THE DOCTOR TO BREAK THE LAW!! NICE GUYS!! I FEEL SAFE WITH OUR SSPD!! BUNCH OF LIARS!!

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1999 1 year, 7 months ago

so our police/sheriff are spending this much time and energy to trip up some NP about recommending canibis?

really?

come on...we have real crime issues out there and this is what we are spending our resources on?

good grief.

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muck 1 year, 7 months ago

Yo highway......

Dude!! Weed are on the same side! Don't use statemants like "shoot"! Uncool, 100%. We are TAX paying, law abiding adults here. Don't stoop to that level and expect help defending your words! WE ARE NOT VIOLENT!!

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muck 1 year, 7 months ago

So if a doctor "recommends" you do something, HOW IN THE H**L IS THAT ILLEGAL?? IF he/she writes a PRESCRIPTION for MMJ i can see that being illegal!

MAKE A CHOICE!! DRUG DEALERS OR DESPENSARIES? YOUR CHOICE!!

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telivader 1 year, 7 months ago

Good timing guys! The article should include the statement: Paid for by public tax dollars to support 2C.

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mmjPatient22 1 year, 7 months ago

First of all, rhys, dude, ....whiskey tango foxtrot shipmate!?!?! I don't think it really matters who the "we" or the "'em" are that you're referencing, it's still not cool man.

Secondly, maybe if these fellas are so hot to trot about trying to bust up anything that has a thing to do with cannabis, they should go run off and join the DEA? And are you kidding me? A medical marijuana recommendation sting?!?! You guys really don't have anything better to do around here than that? Is there anyway for tax-payers to demand some of their taxes back, ya know, due to poor performance and inefficient use of our tax dollars? There's gotta be a way!

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Scott Wedel 1 year, 7 months ago

Well, what a brilliant undercover sting operation. It worked perfectly and yet they still don't file charges.

Don't know why it took an undercover investigation to determine she is a nurse practitioner and not a doctor.

The GRAMNET Dream Team of Wiggins and Birch are finally back in top form.

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Scott Wedel 1 year, 7 months ago

And seriously, no one in ACET is smart enough to think far enough to what would happen in a jury trial in Routt County? They couldn't think far enough ahead to see that they would never get a Routt County jury to vote to convict for a substandard mmj recommendation.

Now, if she was writing prescriptions for narcotic lollipops, oxycontin or so on, then they would have had a case to take to a jury. But no, mmj recommendations are seen by that crew as the problem.

Idiots!

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shawant 1 year, 7 months ago

The Doctor's recommendation is only a first step to buying mmj. The recommendation must be presented to the CDPHE, who, in turn, may or may not issue a registry card. In this case, the CDPHE would have had good grounds to deny the undercover agent's application because the recommendation did not come from a Doctor.

It looks like the cops never presented the NP recommendation to the CDPHE to see if a card would be issued, and of course, never tried to buy any mmj. Instead, they pounded their chests for getting to first base, then got tagged out by the DA during the victory dance.

What if they sent an agent to an MD in Steamboat and got a Rx for OxyContin for "pain"? Would that prove that drugstores should be banned? No, it just proves that people can get drugs by lying to a doctor. The liar and the winking doctor should be stopped. The drugstore is completely innocent.

Of course, stopping the liars and complicit doctors does not fit in with the pre-election witch hunt the top cops are on right now. This isn't about law enforcement, folks, it's about winning an election.

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rhys jones 1 year, 7 months ago

Again my facetious sense of humor is taken at face value. Trust me; I don't want to shoot anybody. I was kiddingly implying that RCSO might. There is no limit to how petty they might get. My mistake was assuming our readers would recognize the humor -- hopefully they know me by now -- and not assume I want to go shoot somebody. It's a lesson I re-learn from time to time, that not everybody gets me. Sorry.

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Scott Wedel 1 year, 7 months ago

Rhys, Your mistake is what you wrote. Maybe it was not what you meant, but what you wrote is just simply wrong.

When your statement is "we" shoot "them" then by no means it is clear that you mean RSCO should shoot mmj patients. Since "we" normally includes the person writing it, then the more obvious "we" would be you and mmj supporters and so then the "them" becomes the police. So a normal reading of it is the exact opposite of what you say you meant.

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sledneck 1 year, 7 months ago

Didn't say who "we" are but implies YOU and others. Didn't say who "they" were either... If you havn't changed your mind don't apologize. There are quite a few people in this world who need desperately to be shot. Pot smokers, in general, are way down from the top of that list.

And ps, they "get" you; they are just cocked and ready to use any percieved slight as cause for more "righteous indignation". Goes back to what we discussed a few months ago... Lighten up and grow some thicker skin, people.

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steamboatsconscience 1 year, 7 months ago

Go watch Ken Burns' PBS series "Prohibition". The parallels are uncanny. The Anti Saloon League (Wiggins et al.) The WCTU (Watts and Victory), See what that wrought. As Burns says, "We tried to legislate morality and ended up enshrining hypocrisy"

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gettinold 1 year, 7 months ago

Ok, lets avoid the smoke and mirrors stuff here, cops bad, MMJ good. Is there anyone on the side of MMJ that believes that the system is abused and that some/most/all who have a card have a need for MMJ. It was not legalized. I belive there is a genuine need for MMJ and that there are legitimate uses however the issue has been abused by people with stubbed toes. Not just cops, I know plenty of individuals with similar maladies. Is you are for MMJ it seems to me you should be against this manipulation of the system as it can make those with a real need seem like it is less genuine as it creates suspision on the entire issue. If you are for legalization, move directly towards that goal and not back into it through a loophole.

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steamboatsconscience 1 year, 7 months ago

yvb Exactly

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Scott Wedel 1 year, 7 months ago

getinold, Well, sure there are people abusing the system. Look at how now more die from prescription narcotics than from traffic accidents. And a narcotic that is 100 times more potent than morphine is administered via a lollipop.

Oh, and yes, people abuse the mmj system as well.

So which system has greater problems? The one that is killing more than 100 a day in the US or the one killing 0 a day?

So which one do they send an undercover officer to attempt to get a prescription on false pretenses? You got it, the one that kills 0 per day.

Right what is in the State Constitution of Colorado is Amendment 20 which legalizes mmj. And the State Legislature passed and governor signed HR 1284 which regulates growing and dispensaries in a way that is the best attempt of any state to remove federal jurisdiction from intrastate commerce of mmj.

So why should Colorado citizens ignore their state constitutional rights and their state laws just because the federal government is too messed up to get the job done and make it legal nationally subject to local control?

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trump_suit 1 year, 7 months ago

But YVB, the brownshirts are specifically forbidden from ccessing the database unless it is to check the status of a mmj license. ~innocent blush~

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Scott Wedel 1 year, 7 months ago

yvb, Well, a bit much. That was a night of violence and arson against Jews.

I doubt it would be a night of violence and arson against mmj. Though, I could see a series of raids and arrests. And a DA that doesn't prosecute due to wanting to avoid sympathetic juries acquitting everyone and ruining the DA's conviction percentages.

Though, local cops don't need the state database. They simply raid the dispensaries and get the records of whom purchased and go from there.

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trump_suit 1 year, 7 months ago

Yes, there is most definitely abuse in the MMJ system. From fraudulent applications to MMj patients selling to minors, the abuse is rampant.

However, at only 6.5% of the population, just how bad can that abuse actually be when compared to MIP tickets, or DUI cases?

Anyone ever get a prescription from the pharmacy that had a warning about driving or operating heavy equipment until yo know the effects on your system. Does that mean if you are a lightweight and get drowsy you should not drive but if you are well experienced with this particular prescription it is ok to pop a pill and get out on the road?

If 6.5% of Routt county currently has an MMJ license, what percentage of our population beleives that it would be OK to drive while taking this prescription? How many of us think that just 1 drink would be safe? How many think two drinks are safe?

Is this really about the dangers of Marajuana or is there just possibly an element of our right wing social policies that want to conrol your every thought? How is it that corporations can be trusted but individuals cannot?

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rhys jones 1 year, 7 months ago

Wow, look what sprung up in my absence.

I was having fun with words last night -- first I used "we" in the context of the general public, being protected by the BLUE shirts, from the nasty nurse, who qualified in this scenario as "them" only later realizing the meanings could be switched, adding to the confusion.

Sorry if I offended; I thought it was all in fun. I'll try to be more judicious in the future. Some latitude and thicker skin couldn't hurt either.

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Zac Brennan 1 year, 7 months ago

Sounds like a case of "low hanging fruit". Maybe the officer is a newbie going through basic training. I saw one officer today driving the wrong way on Pine @ 11th. Maybe he was absent from driver safety class. I see a lot of overzealous behavior on the part of all law enforcement in Routt county. Maybe they should protect and serve in a metropolitan area where there is 'real' crime.

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muck 1 year, 7 months ago

But yet another example of COPS wasting precious tax dollars. And in doing so they have to BREAK THE LAW in order TO ATTEMPT to prosecute. WHAT A HUGE WASTE OF YOUR MONEY!!

May 2011 CENTENNIAL, Colo. (AP) — A Colorado doctor accused of writing a shoddy medical-marijuana recommendation has been cleared by a suburban Denver judge who said the physician didn't violate the law when he recommended pot to an undercover police officer who complained of back pain.

Dr. Toribio Robert Mestas was cleared of charges including forgery and marijuana distribution. Arapahoe County District Judge Kurt Horton ordered the case thrown out last week after finding that Mestas complied with constitutional requirements about recommending medical marijuana.

Mestas was charged after recommending marijuana to an undercover officer who complained of back pain and trouble sleeping but didn't tell the doctor he had “severe pain,” a qualifying condition for medical marijuana. Mestas testified in court that such a diagnosis was implied.

Fraudulent representation of a medical condition by a patient to a physician, state health agency, or state or local law enforcement official for the purpose of falsely obtaining a registry identification card or avoiding arrest and prosecution.

lies lies lies!!!

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Scott Wedel 1 year, 7 months ago

Muck, Actually, the doctor's defense was that someone coming to him complaining about back pain so bad that it affects sleeping is obviously in severe pain. Case won.

Just as this nurse practitioner could also claim that anyone coming to her complaining about pain from a stubbed toe probably has a smashed degenerative joint and is in severe pain. Turf toe is so painful that it stops NFL players from being able to play.

Police are allowed to be liars as part of an investigation or to someone they've arrested. Question is whether the Sheriff's dept is run in a way that generates public trust or not. So when an officer asks a question does the citizen think it is an honest question or a trick to further an investigation. Thus, should the citizen answer in good faith or seek legal advice before answering?

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rhys jones 1 year, 7 months ago

yvb -- Gee, I thought yours truly was paranoid. You should join my club; we'll make you the poster boy!! Your prediction of events may be accurate; we'll see, but if the Feds were to pursue such a course of action, in all the states which have recently legalized mmj, they would clearly be squelching a widespread, "grass"-roots movement, as evidenced at the polls. time after time. Thus further alienating an already-disgruntled constituency, over half, if the vote is the barometer. I think they may yet throw us a bone on this one, in hopes of bigger victories elsewhere, and knowing this harmless weed is ripping this country apart at the seams. Not to mention making it illegal again would make criminals out of me and millions of others, negating our production and contribution, making us instead leaches on society, now burdens. When is enough enough? Whose country is this, anyway? Certainly not those who make it work. And pay for it.

Scott et al -- Remember this: If Officer Friendly, city, county, or state, asks you where you got it, and your source has a card, it is a separate crime to tell them, as you have now violated your supplier's privacy. So don't fall for that one. Most of the local Mounties are kids, fresh out of school or the military, still wet behind the ears. Many have an Earp complex, out to save society; the system will eventually "weed" them out, as their more-professional peers move on to the bigger money of bigger markets. In the meantime they can be a blight on our town, harrassing those they swore to protect in their crusade. In an ideal Fed, exactly half the population will be paid to keep tabs on the other half, who in turn pays their keepers.

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rhys jones 1 year, 7 months ago

yvb -- Obama has become a henchman of the Fed. We hired him to get us out of a war, and got another one or two instead. He knows what they did to JFK and the WTC; they are all-powerful and unstoppable. His choice is but to toe the mark.

There will be very interesting times, in the very near future, as the frustrated electorate, having recently discovered their power at the polls, comes in direct opposition with an increasingly repressive regime, ever more powerful in their surveillance and enforcement techniques. My personal feeling is that they find pot a threat, and not from any medical or intoxicant standpoint, but if the folks are sitting around honestly dissecting things rather than getting sloppy drunk, maybe they might question why we are killing the whole world just to make more money. I see it coming to a head, especially if they force our hand on the dispensaries. If they won't stand by our vote, why are they there? Don't mistake that I am advocating violence, but we will need to re-evaluate our priorities if that happens.

As a sad footnote, many readers mourn with me the loss of Steve Jobs, a true maverick and pioneer. I was getting ready to cast the shroud of suspicion on the Fed, since we also lost a rare earwitness to the rumbling overhead as they removed our gold from the floor above him at the WTC, the weekend prior to the event. But I doubt they gave him pancreatic cancer. Mystery averted. He was about 6-1/2 weeks older than me, so I will consider it borrowed time after that. Ya never know...

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