One of the first known doctors in Colorado to be charged with writing a shoddy medical-marijuana recommendation had the case against him thrown out this week.
Dr. Toribio Robert Mestas had been facing charges of forgery, attempt to influence a public servant, marijuana distribution and conspiracy to distribute marijuana after writing a recommendation to an undercover police officer early last year in Englewood. But, in an order handed down Wednesday, Arapahoe County District Judge Kurt Horton ruled Mestas had complied with the requirements of Colorado’s constitution in making his recommendation.
“Colorado’s Amendment 20 simply allows for a physician to certify that a patient might benefit from the use of marijuana as a medical treatment,” Horton wrote, “and it is then left up to the patient whether to apply for a medical marijuana registry card.”
The ruling dealt a blow to prosecutors and threw into question another case in the county against a similarly charged doctor. They were the first two cases known to be filed in the state against doctors accused of writing bad medical-marijuana recommendations and came after a series of undercover stings.
In an e-mail, Arapahoe County district attorney’s spokeswoman Casimir Spencer said prosecutors have yet to decide on their next move.
“The District Attorney’s Office will be reviewing his ruling to determine whether it is appropriate to appeal this matter,” Spencer wrote.
In Mestas’ case, an officer using the fictitious name “Joseph Butkus” visited Mestas’ office, which was linked to a dispensary, and asked for an exam so he could receive a medical-marijuana recommendation. “Butkus” told Mestas that he suffered from daily back pain — the officer said he had “the body of an 80-year-old” — and sometimes had trouble sleeping.
Mestas wrote “Butkus” a recommendation to use marijuana to treat “severe pain.” Prosecutors contended that the officer never told Mestas he suffered from “severe pain,” according to Horton’s ruling. But Mestas and another doctor testified in court that such a diagnosis was implied based on what the officer did say.
Horton agreed, finding that Mestas had performed the needed exams and given sufficient attention to the officer to make the recommendation.
“Dr. Mestas could have done more to support his Physician’s Certification” that “Butkus” needed marijuana, Horton wrote. “However, the Court cannot find that Amendment 20 expressly required more.”
“This is good for physicians in Colorado,” said Mestas’ attorney, Matt Giacomini. “I think it recognizes . . . the role of a physician.”
Arapahoe County prosecutors are still pursuing charges against another medical-marijuana doctor, Manuel Aquino, who is accused of writing shoddy recommendations to two undercover officers after brief exams. The case is scheduled for trial in August.
Both cases originated before the legislature in 2010 adopted rules mandating that doctors do a thorough physical exam and offer to provide follow-up care to patients before writing a marijuana recommendation. But Mestas’ and Aquino’s attorneys contend that their clients were in compliance with the stricter rules.
Lauren Davis, Aquino’s lawyer, said she is preparing motions to make the same arguments Giacomini did, and she called the Mestas ruling promising.
“This stuff is protected by the constitution,” she said.
Spencer, the district attorney’s spokeswoman, said the facts in Aquino’s case are different and said prosecutors don’t expect the Mestas ruling to have any effect on that case.
– Article originally from The Denver Post.