In Cali, a Little Dab Could Do Ya’—Three Years Prison

Over the past few years, there has been an explosion in the use of concentrated cannabis around the U.S. Unfortunately, an actual explosion in San Diego earlier this year has given rise to a lot more prosecutions in California for manufacturing a controlled substance, a non-reducible felony with a possible 3-7 year prison sentence. While many other marijuana states do not have the same severe penalties as California, those who are thinking about making concentrates or extracts like BHO should be aware of the legal and health risks.

I wouldn’t be doing you justice if I did not begin by reminding you that cannabis is a Schedule 1 substance under federal law meaning it is illegal all of the time. No exceptions. Marijuana is classified on the same level as black tar heroin to the feds.

In the 20 states that have MMJ laws and the two states that have adult marijuana use laws, consumers are provided various legal protections which allow them to benefit from the use of cannabis. These laws are constitutional, but do not override federal law. It is advisable to consult with an attorney in your state before doing anything with marijuana to ensure compliance with the law.

In California, patients may use, possess, cultivate, transport and purchase cannabis. Patients participating in a collective may cultivate and sell marijuana in aggregate amounts so long as the operation is run in a not-for-profit manner. The California Appellate Court recently ruled that patients may possess (and presumably use) concentrated cannabis. However, there is currently no law providing for the creation of this lawful concentrated cannabis which begs the question—where does it come from?

This past January, a 22-year-old man allegedly blew up his hotel room near SeaWorld in San Diego while trying to make butane honey oil (BHO). According to media reports, the man ended up fighting for his life in the ER, while two others were injured. Police believe several boxes of butane canisters caught on fire from a lit cigarette. The case was submitted to the District Attorney’s Office for prosecution.

There have been many reported cases throughout California of individuals lighting themselves on fire while attempting to make BHO. Law enforcement agencies have seized on these tragedies in the media to push for more enforcement against individuals making all forms of concentrated cannabis. In their ongoing “War on Drugs,” police agencies are twisting the science of marijuana concentrate processing in order to punish individuals with harsh prison sentences and deny them a medical marijuana defense in court.

Under California Health and Safety Code 11379.6, any person who “manufactures, compounds, converts, produces, derives, processes or prepares . . . by chemical extraction . . . any controlled substance . . ” can be punished by imprisonment of three, five or seven years. There is currently no MMJ defense to this offense in California. Enacted in the 1980s, the purpose of this law was to protect people from the chemical explosions caused by meth labs. For that reason, the law only applies to individuals that are manufacturing a controlled substance by chemical extraction process and not through any other method. This is a critical distinction scientifically when applying the law to cannabis.

Despite the passage of MMJ laws, cannabis remains a controlled substance under California law. So for purposes of manufacturing laws, it is the equivalent of meth, PCP or heroin. However, as most cannabis consumers know, concentrated cannabis (even if made with butane) is still cannabis. Unlike meth production which utilizes several chemicals to create a new chemical, concentrate is made with the marijuana plant which contains THC. The substance at the other end of the process is still THC, merely in a concentrated form.

Importantly, the process of making concentrate is a physical extraction process not a chemical process. This is the critical fact that police often try to mislead the public on. Manufacturing concentrate always utilizes some form of solvent to extract the THC. Some forms of solvents include butters (a lipid), cooking oil or water. Over the past several years, concentrate makers have become more experienced and are using substances such as butane or CO2 to extract the THC. While butane is highly flammable and may contain harmful residue, it is apparently possible to utilize commercial food-grade butane which may have less chemical residue. Whatever the substance that is used (water or butane), the process is the same—THC is physically extracted from the plant by using a solvent.

The real question then becomes what is a “chemical” under California law? Is butter a “chemical?” If so, then a seriously ill patient who makes herself some medicated brownies could be sent to prison for seven years. A scary thought.

Lance Rogers is an attorney licensed to practice in California and federal courts. The Law Offices of Lance Rogers, APC is a full-service law firm in San Diego with expertise in business litigation, corporate law, criminal defense and civil rights litigation. Go to www.lrogerslaw.com.