Montrose - Daily Press

Scott Schwebke

MONTROSE - A prosecutor refused Thursday to file drug charges against a Pea Green man who contends he is legally entitled to grow medical marijuana.

Assistant District Attorney Dan Hotsenpiller stated in a written notice filed in Montrose County Court there is "insufficient evidence" that would be admissible at trial to charge 53-year-old Michael Branson.

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Prior to court getting underway Thursday morning, Hotsenpiller said the decision wasn't based on the provisions of Colorado's medical marijuana law.

"Rather it's an issue of evidence being admissible at trial to support a conviction," he said, declining to elaborate on the specific reasons why charges were not filed. "When that's the case there is no other choice but not to file charges."

Montrose County Sheriff's Office personnel arrested Branson Aug. 18 on suspicion of marijuana cultivation after police conducting a flyover spotted marijuana growing in a garden at his residence on Amber Road.

Branson said he is registered with the state as a caregiver and is allowed to grow marijuana for a 44-year-old Eckert area woman who has multiple sclerosis and is a registered medical marijuana patient.

Branson was arrested because MCSO personnel found 22 plants on his property, which is 16 more than allowed under the state's medical marijuana statute.

Branson has admitted growing more plants than allowed by law because he is attempting to become a caregiver for another individual and a registered medical marijuana patient himself.

To be listed on the registry, a patient must obtain certification from a licensed Colorado physician that they have been diagnosed with a debilitating condition that may be alleviated by marijuana.

Following Thursday's court proceedings, Branson expressed relief at not being charged, but was critical of his arrest by the MCSO.

Branson said law officers should have attempted to contact state health officials to confirm his registration as medical marijuana caregiver before searching his property and seizing the pot.

"They screwed up," he said.

The woman who reportedly uses the medical marijuana that Branson grows and was with him in court Thursday said she has been "living on painkillers" since the seizure of the pot.

She also said authorities were heavy-handed in taking the marijuana and arresting Branson.

"They drug us both through hell," said the woman, who declined to give her name.

After court adjourned, the woman asked Hotsenpiller whether 2 ounces of useable marijuana she says the state allows her to possess would be returned by the MCSO.

"You took my medicine," she angrily told Hotsenpiller as he entered an elevator on the first floor of the Montrose County Justice Center.

Just before the elevator door closed, Hotsenpiller replied that he doesn't answer "rhetorical questions."

Hotsenpiller later told the Daily Press the MCSO had been instructed to release evidence associated with the case.

However, it remained unclear how much, if any, of the marijuana would be returned.

Montrose County Undersheriff Dick Deines said his department would comply with an order to release the evidence. He also believes the search and seizure at Branson's residence was carried out properly.

"I don't think there was any wrongdoing," he said.

Contact Scott Schwebke via e-mail at scotts@montrosepress.com.

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