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How a Comma Might Make Colorado Hash Oil Illegal

Russ Belville

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Colorado Attorney General John Suthers has issued an opinion that Amendment 64 does not guarantee the right of adults to produce hash oil from their legal marijuana plants.

Suthers’ statement on the issue explains that “To decriminalize dangerous and unreasonable behavior in which people are getting hurt and houses are blowing up, defies the intent of the voters,” adding “Colorado is experiencing a real public safety issue as a result of unsafe and unlicensed [hash oil] manufacturing and production.”

The trial of a Mesa County man, Eugene Christensen, has brought the issue to the fore. Christensen was busted when he was allegedly making butane hash oil, leading to an explosion that damaged his home and left him injured.  Christensen is charged with arson, reckless endangerment and manufacture of marijuana concentrate.

It’s the final charge that Christensen’s attorney is fighting, arguing that the law against personal manufacture of marijuana concentrate is unconstitutional in the wake of Amendment 64’s passage.  He points to section (3)(b) of Amendment 64 that allows all adults the right of “possessing, growing, processing, or transporting no more than six marijuana plants.”  Extracting hash oil, he argues, is merely processing one’s legal plants.

The attorney general argues, however, that the definition of marijuana in Amendment 64’s section (2)(f) clearly indicates that hash oil is not marijuana.  Marijuana is constitutionally defined as “all parts of the plant of the genus Cannabis whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin, including marihuana concentrate.”  That would seem to support Christensen’s argument—he was merely extracting the resin from his plants to create marijuana concentrate.

Supporting the attorney general’s interpretation is the next part of the definition, which states that marijuana “does not include industrial hemp, nor does it include fiber produced from the stalks, oil, or cake made from the seeds of the plant…”  According to the attorney general, the comma that separates “oil” refers to hash oil.  “Construing the general term of ‘marijuana concentrate’ to include ‘oil’ would make the provision excluding ‘oil’ meaningless,” Suthers writes.

But if hash oil is a separate thing from marijuana, what the hell is “resin extracted from any part of the plant”?  Surely all hash oils are concentrates, but not all concentrates are hash oil; for example, bubble hash or finger hash is a concentrate of resin without being an oil.  Could this one little comma really end up defining hash oil as not a marijuana concentrate, counter to logic?

As I read the “does not include” section, I think the word “oil” was meant to refer to hempseed oil.  It is clearly laying out that industrial hemp isn’t marijuana, hempstalk fiber isn’t marijuana, and hempseed cake isn’t marijuana.  Within that context I’d argue that “oil” is referring to oil from the hemp seed, not oil from the marijuana.

But that should have been written, “does not include industrial hemp, nor does it include fiber produced from the stalks, nor oil and cake made from the seeds of the plant…” Suthers makes that point in a footnote:

“The three independent clauses do not modify each other; as fiber cannot be produced from oil or cake. Likewise, the phrase ‘from the seeds of the plants’ cannot be read to modify the preceding two clauses because fiber cannot be made from the seeds of a plant. And to the extent the defendant intends to argue that the three clauses are referring to products made from industrial hemp, such a reading would be incorrect because it ignores that industrial hemp is set-off by its own subordinating conjunction of ‘does not include’.”

So to Suthers’ reading, things that are not marijuana include:  Industrial hemp; fiber produced from the stalks, which Suthers seems to argue is not industrial hemp; oil that is neither industrial hemp nor hemp seed oil, since “seeds of the plant” only refers to the cake portion; and cake made from the seeds of the plant.  Doesn’t it seem odd to define hash oil along with three non-psychoactive cannabis products as non-marijuana items?

On another front, the attorney general argues that making butane hash oil isn’t “processing” marijuana plants, as allowed by section (3)(b), but rather “manufacturing”.  Amendment 64 makes many mentions of “manufacturing facilities” that make “concentrated marijuana products” for commercial but not personal purposes.  Suthers argues that since Amendment 64 made no definition of what “manufacturing” means, it therefore means what it means under the criminal law, which states, “‘Manufacture’ means to produce, prepare, propagate, compound, convert or process a controlled substance, directly or indirectly, by extraction from substances of natural origin, chemical synthesis, or a combination of extraction and chemical synthesis…”

But that just muddies the waters when we look back at the definition of marijuana in section (2)(f) that includes “every compound, manufacture, salt, derivative, mixture, or preparation of the plant…” If (3)(b) allows for the “processing” of marijuana plants and (2)(f) allows for the possession of “every manufacture” made from marijuana plants, how can “processing” not be “manufacturing”?

Suthers argues that the letter of the law means that “‘process’ necessarily does not include processing by extraction,” since that is a function of manufacturing. So to Suthers' interpretation, the personal right to process “covers all process[es] except those by extraction.”  Suthers then blames the legalization campaign for the confusion, adding, “Had the amendment’s authors intended to define ‘manufacture’ and ‘process’ to provide for definitions different than existing law, they would have said so.”

Finally, Suthers argues that the intent of Amendment 64 wasn’t to legalize hash oil, since the explanatory document for voters, known in Colorado as the “Blue Book”, never mentioned hash oil, despite the clear language in the amendment authorizing legal marijuana concentrate. The Blue Book, Suthers reasons, explained how legalizing marijuana would benefit the health and safety of Coloradoans, but that Christensen “nevertheless insists that the voters created a constitutional right protecting butane-fueled explosions in kitchens and garages throughout the state.”

Should the Colorado courts agree with Suthers, not only would the manufacture of home butane hash oil be illegal, but it is possible the mere possession of any hash oil, regardless of where it was manufactured, could be a criminal act.  If “oil” is not defined as “marijuana” or “marijuana concentrate”, it probably falls back to being the illegal drug it was before Amendment 64 passed.

(Photo c/o kdvr.com)

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