A Fort Collins couple will be the first in Colorado to seek to use the state's medical marijuana law as a defense to marijuana cultivation and distribution charges. James and Lisa Masters pleaded not guilty to the charges last Friday and face a March trial.

The couple was arrested last August when police arrived at their home to check on the welfare of their two children, girls aged four and six. According to a police affidavit, a police officer smelled marijuana in the house, and the couple told officers they had doctors' recommendations to use marijuana, which they were growing for that purpose.

The Masters and their attorneys filed a motion last fall to have the charges dismissed, arguing that they were protected by the state's medical marijuana law. The couple, both registered medical marijuana patients, said they grew the pot solely for themselves and other patients on the state registry. But in October, District Judge Jolene Blair rejected that motion, saying the couple did not have proper documentation showing they are caregivers for registered patients.

According to the Colorado criminal code, the state Department of Public Health and Environment is charged with creating "a confidential registry of patients," not patients and caregivers. But the code also charges the department with creating an application form for would-be patients, and on that form, patients are required to fill in information about caregivers.

Last fall, when the Masters were first arraigned, their attorney, Rob Corry, argued they were within the bounds of the state medical marijuana law. While there is no state registry card for caregivers, he said, the Masters were designated as such by properly registered patients. "The majority of voters in this state said medical marijuana should be available. My hope here is the jury will follow the law and show some compassion for patients who need help," Corry said.

But at least one Colorado official argued that in order for someone to have protection as a caregiver, patients must list that person on their applications. It appears that the Masters case will resolve that apparent ambiguity in the law. If the Masters lose, they face up to six years in state prison and the loss of their children, whom police seized after their arrest despite the lack of any evidence of abuse or neglect. It took the couple eight weeks to win the return of their children.

"The Masters are being targeted for helping sick people. This test case has the potential to increase vital access to medical marijuana by expanding the legal definition of 'caregiver' to allow those with significant responsibility for the care of seriously-ill individuals to cultivate and provide them with medical marijuana," said co-counsel Brian Vicente.