Colorado Law Blog

A parent's use of medical marijuana does not necessarily constitute child endangerment, the Colorado Court of Appeals ruled yesterday. The determination of whether medical marijuana use presents a threat to a child's safety should be made on a case-by-case basis, the court held.

But a week after signing the parenting plan, the father learned he had been granted a license to use medical marijuana to treat back and knee pain resulting from a motorcycle accident. He then filed a motion asking a magistrate judge to waive the urinalysis requirement, but the magistrate ruled that the father had voluntarily signed the parenting plan ordering urinalysis and was "stuck with it."

A year later, El Paso County District Judge Rebecca Bromley upheld that order, but modified it to say the father could only have supervised parenting time until he could demonstrate to the court that his use of medical marijuana is not detrimental to his child. Bromley also held that the father could not petition for unsupervised visitation until he submitted a clean hair follicle test.

A three-judge Court of Appeals panel released 2-1 decision reversing Bromley's more stringent order but upholding the original order calling for urinalysis.

"[T]he record does not show that father's use of medical marijuana represented a threat to the physical and emotional health and safety of the child, or otherwise suggested any risk of harm," Judge Daniel Taubman wrote in the court's opinion. "Thus, father's use of medical marijuana cannot support the trial court's restriction on his parenting time."

The court also vacated the order for hair follicle tests. And in a somewhat unusual extension of the order, the court clarified what was not being decided:

"[W]e do not express an opinion as to whether medical marijuana use may constitute endangerment; rather, we conclude only that endangerment was not shown here," Taubman wrote. "We also express no view on father's constitutional right to use medical marijuana and whether the exercise of this right should bar UAs and drug screening."

The court also said nothing in its decision would stop a parent from arguing that his constitutional right to use medical marijuana should bar urinalysis testing. Judge David Furman wrote a special concurring opinion, saying that the best interests of the child should be the only thing considered in making a parenting plan, regardless of a parent's constitutional right to use marijuana.

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Under the Patient Self-Determination Act of 1990, every adult in the United States has the legal right to consent to or refuse medical treatment. All medical facilities receiving Medicare or Medicaid benefits must tell their patients about this law. The legal forms used for stating these terms are called "advance medical directives.

By executing a Living Will and a Medical Power of Attorney, you can express to others, including family, friends, and medical professionals, how you wish to be treated at the end of your life, or in an emergency situation in which you are unable to make your own medical decisions. Physicians and hospitals ask for these documents so that they are not forced to make decisions concerning medical treatment without information and background from you, the patient. Appointing an Agent designates who speaks for you concerning medical care, rather than leaving it to a group decision in a stressful situation. For your family, these documents provide your expressed wishes rather than leaving it to assumptions. Discuss your wishes when preparing the documents - the more you share your wishes on this subject, the more likely your wishes will be followed.

Signing advanced medical directives doesn't take away your right to decide on treatment, if you are able to do so. Whenever you can make your own medical decisions, an Agent under Medical Power of Attorney cannot override your decision.

Make copies of your advance directives for your doctor's files, agent, family and, if applicable, your health care facility. Discuss the policies of your health care provider and be sure they are compatible with your own beliefs and that your wishes will be honored.
This year, Colorado's living will statute was amended for the first time in 21 years. For a template of a living will form that complies with the statutory changes, click here.

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The government says about 45 million Americans are not buckling up in their cars. The Transportation Department released its estimate of seat belt use on Monday as it kicked off the annual "Click It or Ticket" campaign. The department says about 84 percent of motorists wear seat belts, an all-time high.

But Transportation Secretary Ray LaHood says thousands of motorists are still dying each year because they don't buckle up. He says an average of 38 unbelted people a day are killed in motor vehicle crashes.

The "Click It or Ticket" campaign is running from May 24 through June 6. More than 10,000 police agencies will enforce seat belt laws. The message will be reinforced with $8 million in national advertising.

The Colorado Department of Transportation, Colorado State Patrol and local law enforcement agencies will kick off the statewide Click it or Ticket seat belt enforcement today at 1:30 p.m. with a large seatbelt display and a challenge from Mayor John Hickenlooper to drivers and passengers. State and local law enforcement will be out in force during the nationwide "Click it or Ticket" mobilization to buckle down on those not wearing their seat belts.

Who is not buckling up? The NHTSA reports:

• Teens -- In 2008, 70 percent of the passenger vehicle occupants 13 to 15 years old killed in traffic crashes were not buckled up -- the highest percentage of all age groups.
• Young Adults -- When comparing occupants 21 and older in fatal motor vehicle crashes, the age groups least likely to wear their seat belts are 21- to 24-year-olds and 25- to 34-year-olds. Among passenger vehicle occupants 21 to 34 who were killed in crashes from 2004-2008, 65 percent were not buckled up.
• Men -- Men are less likely than women to buckle up. This is especially true of young men. In 2008, 60 percent of male passenger vehicle occupant fatalities were unrestrained, compared to 45 percent for females.
• Pickup drivers and passengers -- Pickup truck drivers and passengers continue to have lower seat belt usage rates than occupants of other passenger vehicles. In 2008, 68 percent of pickup truck occupants who were killed in traffic crashes were NOT buckled up. Approximately 62 percent of sport utility vehicle occupants who died were not wearing their seat belts.
• Nighttime drivers -- According to NHTSA, of the 12,671 passenger vehicle occupants who died in motor vehicle crashes between the nighttime hours of 6 p.m. and 5:59 a.m. in 2008, nearly two-thirds (64%) were NOT wearing seat belts -- compared to less than half (45%) of the passenger vehicle occupants killed during the daytime hours of 6 a.m. to 5:59 p.m.
• Rural areas -- In 2008, 56 percent of fatally injured passenger vehicle occupants in rural areas were unrestrained, while 52 percent of those killed in urban areas were unrestrained.

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A toddler who fell from a third-story window in Northglenn is home again after a brief hospital stay. The accident happened in the early evening last Monday. The eighteen-month-old pushed through a window screen and fell to rocks below. Doctors believe a bush may have helped break her fall.

She was taken by helicopter to Children's Hospital in Aurora. Her injuries were originally described as "traumatic" but ended up being bumps and bruises.

From 2002 to 2004, CPSC has received an average of 25 reports per year of fatalities due to falls from windows. Children under the age of five account for about one-third of these fatalities. The CPSC offers these tips to keep your children safe from falls from window:

Safeguard your children by using window guards or window stops.

Install window guards to prevent children from falling out of windows. (For windows on the 6th floor and below, install window guards that adults and older children can open easily in case of fire.)

1. Install window stops so that windows open no more than 4 inches.


2. Never depend on screens to keep children from falling out of windows.


3. Whenever possible, open windows from the top -- not the bottom.


4. Keep furniture away from windows, to discourage children from climbing near windows.

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Independence Institute President Jon Caldara has filed a federal complaint challenging Colorado's new rules for gathering petition signatures for ballot initiatives. Almost exactly one year ago, Gov. Bill Ritter signed a major bill aimed at reforming Colorado's initiative petition process, one week after a Republican secretary of state candidate made criticism of the bill a centerpiece of one of his first e-mails to supporters. The law clamps down on signature-gathering firms by prohibiting them from paying petition circulators by the signature and imposing a number of requirements designed to prevent fraud. When passed, the bill had bi-partisan support.

The law, adopted in 2009 by the state legislature, forbids petition circulators from receiving more than 20 percent of their pay on a per-signatures basis. The measure was a response to allegations of fraud by signature gatherers in 2008. Caldara seeks an emergency suspension of the law, reportedly because it is driving up the cost of signature gathering and threatens an anti-health-care-reform initiative he's pushing. The Independence Institute, of which he is president, is calling for an amendment to the Colorado Constitution that would opt Colorado out of the federal health insurance mandates.

Testimony was heard in Colorado federal court Thursday and is expected to resume May 28. The deadline to collect 76,047 signatures to get an initiative on the November ballot is August 2.

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Administrators of the state community college system decided Monday to repeal the policy banning concealed weapons from campuses in response to an April 15 court ruling against a similar ban on University of Colorado campuses. Colorado State University decided on May 5 to also rescind its proposed ban on concealed weapons.

Aims Community College is holding a special meeting Thursday to discuss revising weapons policies on its two campuses. It is not under the Colorado Community College System. the University of Colorado continues to enforce its 1994 policy banning weapons from campus. The university has until June 1 to appeal the decision to the Colorado Supreme Court. See CSU Rescinds Weapons Ban.

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Citing a Colorado Court of Appeals ruling that struck down a similar ban at the University of Colorado, the CSU governors voted unanimously Wednesday to pull back their own rule. The CSU board directed campus presidents to work with legal counsel to revise and implement "appropriate weapons control policies that are compliant with state law." Gun-rights advocates, spurred by the Colorado State University Board of Governors' order rescinding a system-wide ban on concealed weapons, pledged Wednesday to challenge any future attempts to restrict students' rights to carry firearms on other campuses.

The Rocky Mountain Gun Owners and the CSU chapter of Students for Concealed Carry on Campus filed suit against CSU in Larimer County District Court in April, claiming the CSU ban also violated the state law. Rocky Mountain Gun Owners-- which claims to be the state's largest gun-rights organization -- has declared that it will now challenge any other college or university gun ban.

CU banned guns in 1970 but allowed students to keep weapons in campus police lockers. After the Concealed Carry Act was passed in 2003, the CU regents asked then-Attorney General Ken Salazar whether the act applied to CU. Salazar ruled it did not. The CU ban went unchallenged until December 2008, when the lawsuit was filed in the wake of the fatal Virginia Tech shootings.

The CSU ban was unanimously approved by the Board of Governors on Feb. 23 but immediately drew fire from gun-rights' groups that claimed students' having guns would head off tragedies like Virginia Tech. But the CSU governors cited the International Association of Campus Law Enforcement Administrators, which declared in 2008 that there was "no credible statistical evidence demonstrating that laws allowing the carrying of concealed firearms reduce crime."

The CSU ban essentially barred anyone from carrying a concealed firearm on the campuses in Fort Collins and Pueblo unless they are law enforcement or authorized under special circumstances. The CSU ban was to take effect in August. Ryan said he didn't know how the Board of Governors' decision would affect his group's suit. CSU was scheduled to file an answer in district court this week.

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Colorado watchdog group Colorado Ethics Watch today filed a campaign finance complaint against Clear the Bench Colorado, a committee dedicated to the ouster of four state Supreme Court justices in the retention election this fall. The complaint filed with the Colorado Secretary of State's office alleges Clear the Bench violated state campaign finance law by registering as an issue committee rather than a political committee.

Clear the Bench advocates against retaining Chief Justice Mary Mullarkey and Justices Michael Bender, Alex Martinez and Nancy Rice. The group was formed shortly after the high court ruled the state's mill-levy freeze does not violate the Taxpayers Bill of Rights, a decision that angered many TABOR supporters. Ethics Watch estimates Clear the Bench could face fines of $8,500.

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May is Motorcycle Safety Awareness Month. Throughout May, the National Safety Council will encourage motorists to share the road with motorcyclists and be extra alert when they are nearby.

Fatalities involving motorists and motorcyclists increased 131 percent between 1998 and 2008. The mileage death rate for motorcyclists in 2007 was 37 times greater than for passenger car occupants.

"Throughout spring and summer the number of motorcyclists on the road will increase. It is important for both motorists and motorcyclists to be aware of one another," said David Teater, NSC senior director of Transportation Initiatives. "To better defend themselves, motorcyclists should follow the rules of the roadway and wear protective gear, including a Department of Transportation compliant helmet."

NSC offers these tips for motorists and motorcyclists:

Motorists

•Allow greater following distance behind a motorcycle.
•Be extra cautious in intersections. Most crashes occur when a motorist fails to see a motorcyclist and turns left in front of a motorcycle.
•Give a motorcycle the full lane width - never try to share a lane.

Motorcyclists

•Avoid riding in poor weather conditions.
•Position motorcycle in lane where you will be out of a motorist's blind spot.
•Use turn signals for every turn or lane change.

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