Hash Oil Could Soon Be Banned In Colorado, Despite State-Legal Cannabis

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by Russ Belville

on January 5, 2015

In an opinion that may have a much further reach, Colorado Attorney General John Suthers is asking a criminal court to declare that home hash oil manufacturing is not protected by Colorado’s constitutional marijuana legalization.

At issue is the case of a Mesa County man, Eugene Christensen. He was busted when he was allegedly making “butane hash oil,” a.k.a. honey oil, or just hash — which is a sticky, brownish colored goo extracted from cannabis as a resin. Because it is a condensed extract of the plant’s oils, it is typically higher in potency than regular marijuana and its psychoactive effects tend to last longer. Making it is a sensitive process involving an extractor device and flammable butane gas. Christensen’s “butane hash” endeavor lead to an explosion that damaged his home and left him injured. Christensen is charged with arson, reckless endangerment and manufacture of marijuana concentrate.

Christensen’s attorneys argue that making hash oil at home is protected under Amendment 64. Section (3)(b) of Amendment 64 allows all adults the right of “possessing, growing, processing, or transporting no more than six marijuana plants.”  Extracting hash oil, they argue, is merely processing one’s legal plants.

The attorney general counters that the constitutional definition of legal marijuana very specifically “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.

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…” [emphasis added].

Suthers makes that point in a footnote, arguing that since the wording refers to “fiber from stalks” and “cake from seeds”, “oil” can’t be referring to the stalks or the seeds.

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,” 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 Suther, 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.