Colorado Supreme Court Upholds Ban on Making Hash Oil at Home

A provision of Amendment 64, which legalized limited possession and use of cannabis by adults in Colorado, provided a right to “process” up to 6 cannabis plants.

In People v. Lente, 2017 CO 74, decided this week, defendant Austin Lente argued that this constitutional right to process marijuana immunized him from prosecution for unlicensed manufacture of butane hash. Lente was originally charged with unlawfully “processing or manufacturing marijuana or marijuana concentrate,” after an explosion related to butane hash making occurred in his laundry room. The trial court dismissed the manufacturing charge against Lente based on this argument, and the prosecution appealed.

On June 19, 2017, the Colorado Supreme Court reversed the trial court, reasoning that “manufacturing” is defined under Colorado’s Controlled Substances Act as extraction or chemical synthesis, meaning that “processing” inherently must mean something else. The Court concluded that this distinction between processing and manufacturing was settled at the time Amendment 64 was adopted, and that Amendment 64 never intended to allow unlicensed hash oil production. Two justices dissented, arguing that even if processing does not include extraction (and the dissenters believed it does), the law was still unclear enough to be unconstitutionally vague.

Of note, the Lente decision, while not particularly unexpected, may muddy the legality of certain methods of concentrate production by unlicensed persons. Since Lente’s arrest, Colorado passed a law prohibiting unlicensed production of concentrates using a volatile solvent, such as butane or propane. But the Lente decision concerned the state’s older, more general statute against production of marijuana concentrate that existed prior to Amendment 64, so this decision may criminalize other methods of concentrate production generally considered lawful even without a license, such as water or alcohol-based extractions. It is somewhat concerning that the Court may have inadvertently opened the door for prosecutions of individuals using safe methods of concentrate production at home.