Pubdate: Wed, 21 May 2014
Source: New Times (San Luis Obispo, CA)
Copyright: 2014 New Times
Contact:  http://www.newtimesslo.com/
Details: http://www.mapinc.org/media/1277
Author: Jono Kinkade
Page: Cover Story

YABBA DABBA DO(N'T)

An Uncertain Future and a Legal Gray Area Shade the Growing Trend of 
Cannabis Concentrates

Sunday, April 27, was like any other spring day in San Luis Obispo. 
The breeze blew through the trees, and the weather lingered in that 
pleasantly mild zone that so often settles on this part of the coast.

At 2:15 in the afternoon, personnel from the San Luis Obispo Fire 
Department responded to a reported structure fire in the neighborhood 
of Stoneridge Drive, where southwestern adobe-style houses dot the hillside.

When firefighters arrived, they found flames in the residence's 
garage, apparently generating from a square glass baking dish holding 
a gooey, resiny substance. Once they'd spotted the telltale canisters 
of butane, they notified police. Officers eventually secured a 
warrant and entered the premises. They've since reported discovering 
that the two men present had been in the middle of making 
concentrated cannabis, or hash oil, and that one of the men was 
grinding a metal pipe in the garage, sending sparks flying and 
setting the makeshift lab on fire. Luckily, the flames triggered a 
sprinkler system in the garage, which limited the damage, said SLO 
Fire Marshall Rodger Maggio.

The event landed one man in custody-arrested on suspicion of felony 
manufacturing a controlled substance-and the other in the hospital 
with charges pending. It was the latest of a small but growing number 
of episodes where it seems that the fairly simple process of making 
hash oil went terribly wrong.

Stories like this have hit the news in the last few years, as home 
production of concentrated cannabis follows the growing popularity of 
hash oil. The concentrated cannabis-also known as dabs, honey oil, 
wax, shatter, bubble hash, or extract-comes from a wide range of 
production methods, and there are a variety of ways to classify the 
finished product. Depending on who you ask, there are favored forms 
and preferred ways to inhale. Ten years ago, "honey oil" was more a 
novelty than anything, and it would be placed on top of a bowl of 
herb for that extra kick. Now, it's taken straight, smoked using 
intricate implements that attach to bongs, or vaporized using 
electronic devices similar to e-cigarettes. Dabs have become so 
common that people say "flower" when they're talking about marijuana 
in its natural form-the bud-just so there's no confusion.

AN EXPLOSIVE TREND

Famous rappers drop lines about dabs in their rhymes and have been 
touting the activity in online videos, becoming a part of an endless 
rabbit hole of YouTube clips in which people are filmed smoking the 
stuff in the most extreme ways possible.

What's known as "dab culture" has spread underground, through the 
counter-culture, and in the medical cannabis community, creating a 
demand that some people are all too happy to supply, using a process 
that can transform relatively low-grade marijuana or the post-trim 
leftovers (shake, leaves, and stems) into a high-value product.

And while there are various ways to extract concentrated cannabis, 
the use of butane has become the most common of all. It's pretty much 
the easiest, quickest, and most accessible method, and it yields one 
of the most potent concentrates available-thus the onset of butane 
hash oil, or BHO.

Aside from smoking or vaporizing marijuana, there are two ways to 
extract its psychoactive ingredients. One involves heating it and 
absorbing it in lipids, or fats, i.e. butter, the main ingredient in 
pot brownies. The other way uses solvents, which strip the terpenes 
(the desired parts of the plant) and move them into a concentrated 
form. This can be done with devices that employ carbon dioxide. Ice 
water can also be used for a solvent-less product. Butane's 
composition as a heavy liquid gas has earned its regard as the best 
bang for your buck. Butane canisters can cost anywhere from $5 to 
$15, and the other pieces for the process are just as cheap and available.

Here's the catch, though: Butane is highly flammable, and the people 
who use it work in a realm rife with a do-it-yourself, at times 
experimental, attitude, often lacking any oversight or basic safety 
measures. Doing it indoors is a bad idea, but working in the backyard 
can attract unwanted attention. Once the extraction is done, it can 
take hours or days for the butane to evaporate from the thick, gooey, 
greenish-brownish-blackish substance.

And there's another catch: Under Proposition 215-the Compassionate 
Use Act of 1996, which decriminalized growing, possessing, and 
consuming marijuana with a proper doctor's recommendation-collectives 
and patients can possess and transport concentrates. They can't make 
BHO, however, thanks to another law on the books that predates 
Proposition 215 by a decade. In the 1980s, lawmakers added Section 
11379.6 into the Health and Safety Code, designed to combat the 
then-growing trend of methamphetamine and PCP production, which 
placed an enhanced felony charge for manufacturing a controlled 
substance and carried a minimum three-, five-, or seven-year prison 
sentence to "every person who manufactures, compounds, converts, 
produces, derives, processes, or prepares, either directly or 
indirectly by chemical extraction or independently by means of 
chemical synthesis, any controlled substance." The language then 
defines "controlled substance" with a list that includes essentially 
every drug known to man, including marijuana.

That law-and the publicity generated by the occasional inferno-has 
put BHO under a microscope, and medical cannabis advocates and law 
enforcement agents alike grapple with the challenge at hand, respectively.

Catching fire

One thing BHO producers and law enforcement agents will agree on is 
that making hash oil is very dangerous. Butane is a flammable gas. 
It's what fuels the flame of a lighter and what makes a camp stove 
cook your beans. As the BHO process is a clandestine one, labs are 
often anything but industrial-grade. Hash oil is often made in 
kitchens, bathrooms, or garages, where proper ventilation or fire 
retardants are usually nonexistent. One person who's made BHO told 
New Times, "It's like riding a motorcycle; you're going to crash sometime."

After a pause, his friend sitting next to him chuckled and said, 
"Well, I've owned four motorcycles, and I've never crashed."

The two, both speaking on condition of anonymity, explained that 
while there have been major fires that have made the news, they've 
heard word of plenty more small fires that were contained before 
major damage occurred. You might say that as far as BHO production 
goes, if you play with fire, at some point you're bound to get burned.

The best way to avoid an accident is to follow the fundamental rule: 
Don't make hash oil anywhere near an ignition source. But if there's 
one thing you can say about mankind, it's that history is marked by 
people who do stupid shit.

All of the incidents in which officials in San Luis Obispo County 
responded to fires erupting from suspected BHO labs have led to 
arrests with felony manufacturing charges.

Before the April 27 fire, there had been three fires in San Luis 
Obispo, all in 2013. The year started with the explosion of a 
suspected large-scale hash lab in a mobile home at the Laguna Lake 
Mobile Estates. On Jan. 8, the SLO Fire Department responded to a 
fire on Lynn Drive, arriving to see flames pouring out of windows and 
reaching into the sky. After the fire was extinguished, firefighters 
reported discovering hundreds of butane canisters on the premises. 
Officials then found 180 pounds of marijuana, scales, and conversion 
cylinders, some full of product yet to be extracted. The explosion 
was so strong that flying debris-including several butane 
canisters-sprayed in all directions and dented the mobile home next door.

San Luis Obispo Fire Marshal Rodger Maggio determined that the 
conversion process in this case took place under a canopy on the 
patio where circulation was poor. The damage was so intense, with so 
many possible ignition sources present, they couldn't determine what 
specifically sparked the blaze. It could have been a nearby pilot 
light, a dryer, a compressor motor from either a washing machine or a 
refrigerator (which appeared to have exploded), or a spark from a 
device that was plugged into the wall but left unrecognizable by the fire.

San Luis Obispo officials saw two smaller suspected BHO-related fires 
in 2013, according to SLO Police Department Capt. Chris Staley: an 
apartment fire on Stafford Street in August and another on Murray 
Street in October. Both incidents led to arrests on suspicion of manufacturing.

Countywide, there have been at least three more suspected BHO-related 
blazes that drew a response from firefighters and eventually the 
Sheriff's Department. In March 2012, an explosion in a Los Osos 
residence blew a sliding glass door from its frame. A November 2012 
fire in a Morro Bay residence was ignited by the pilot light of 
either a floor or wall heater, blowing out the windows and injuring 
one person, who was transported to the Fresno Burn Center. Both 
incidents brought felony manufacturing arrests.

The first apparent incident of this kind in SLO County occurred in 
Templeton in November 2009. There, a suspected BHO lab exploded in a 
mobile home where an 11-year-old child was present. One man was 
arrested on suspicion of felony manufacturing and child endangerment, 
and one woman was arrested on suspicion of child endangerment.

The child endangerment charges were eventually dropped in court, and 
the primary defendant pleaded not guilty, then no contest, to the 
manufacturing charge, sentenced to one year in jail and felony 
probation. Most cases have resulted in a similar sentence.

Elsewhere, the list keeps going, full of incidents that are both 
weird and worrisome. While the following may be outliers to the 
larger production trend, they're still notable.

On April 29, a couple was reportedly making BHO in their tent in a 
San Leandro homeless encampment when something exploded. Another man 
in the encampment cut the tent open and discovered that the two had a 
sticky substance covering their faces and arms, before rushing them 
to an apartment complex nearby and causing a bit of a scene. Just 
three days before that, in Littleton, Colo., where BHO fires are 
reportedly happening once a week, an explosion on April 26 sent a man 
to the hospital, leading authorities to discover that he and his 
girlfriend were operating a suspected BHO lab in the same house where 
an 8-month-old baby and a 3-year-old child lived.

Reports of injuries continue: On Sept. 29, 2013, in Santa Cruz, three 
men in their early 20s suffered life-threatening injuries; they're 
suspected of making BHO in a garage. The fire was sparked by a water 
heater, also in the garage. Additional butane canisters exploded as 
firefighters attempted to contain the blaze. Ten days later in the 
same town, a 29-year-old man was severely burned and two dogs injured 
when the man lit a cigarette lighter while operating a suspected BHO 
lab, causing an explosion that blew out the windows. As one Santa 
Cruz resident told New Times, the blast sent flames out from the skylight.

In 2011, a man was killed in Livermore after an apparent lab operated 
by his roommates exploded. As a result, a couple pleaded no contest 
to voluntary manslaughter and accessory charges.

Chemical equations and legal decisions

There are only two incidents in which local law enforcement agents 
made arrests for suspected BHO production and filed felony 
manufacturing charges that didn't involve fire. On Feb. 14 of this 
year, county probation officers reported discovering a BHO conversion 
lab and marijuana grow while executing a probation search.

GREEN MATTER

One month prior, in January, the Sheriff's Department pursued a tip, 
secured a warrant, and entered the home of 28-year-old Michael Allen 
Siegfried. There, deputies reported finding evidence of a BHO 
conversion lab, 30 pounds of marijuana ready to be shipped, 80 pounds 
of loosely packaged marijuana, guns, and cash. Siegfried was arrested 
on suspicion of felony manufacturing, possession for sale, and 
assault on a police officer.

Two other individuals were also arrested, according to Siegfried's 
attorney Louis Koory. They're represented by different attorneys; one 
person is facing manufacturing and possession charges, while another 
is facing gun charges for firearms that were legally registered. All 
three men were providers for a medical cannabis collective, Koory 
said, and all of the seized cannabis products were earmarked for 
medical use. While it's likely that a possession for sale charge can 
be successfully contested in court because of Siegfried's role as a 
provider, a manufacturing charge will be difficult, Koory said.

"In essence, you have a statute that was designed to combat meth labs 
and PCP labs, and it's being used against people making concentrated 
cannabis," the lawyer explained.

The manufacturing statute and its application toward those arrests 
for BHO conversion have been a bit of an albatross for medical 
collectives operating under Proposition 215 laws, leading to challenges.

In 2008, the California Second Appellate Court upheld a ruling that 
found Niall Patrick Bergen guilty under the 11379.6 statute of 
manufacturing a controlled substance. Attorneys for Bergen, who was 
arrested for operating a BHO conversion lab in the garage of a 
three-bedroom rental he used as a grow house for a collective, argued 
that because concentrated cannabis is still cannabis from start to 
finish-it's merely concentrated from plant matter to oil-the 
manufacturing statute is improperly applied because it was intended 
for a process that chemically altered one substance to another to 
make methamphetamine. The appellate court wasn't persuaded and upheld 
the charge, finding that a chemical was still used in the process. 
The Bergen Decision stands to this day, and has been upheld at least 
once in the case of a San Francisco man unsuccessfully challenging 
felony manufacturing charges.

This is a source of frustration for the medical cannabis community.

Lance Rogers, a San Diego-based attorney who counsels the California 
Cannabis Industry Association (CCIA), said that 11379.6 applications 
are misguided.

"Prosecutors are trying to fit a square peg into a round hole," 
Rogers said. "The meth lab statute was originally designed for 
activities that you would see on Breaking Bad: the clandestine mixing 
of chemicals to produce methamphetamine."

Koory-who, as one of the prominent medical marijuana defense 
attorneys in SLO County, has dealt with his fair share of cases 
involving law enforcement agents making arrests regardless of 
Proposition 215 protections-says agents are well aware of this loophole.

"They're hoping to sway public opinion and justify these arrests, 
because the public doesn't buy cannabis arrests anymore," he said.

SLO County Sheriff Ian Parkinson disagrees.

"Lou can say what he wants, but this has nothing to do with 215," he said.

Parkinson later explained that as far as his department is concerned, 
deputy sheriffs pursue BHO labs because they're a "significant public 
safety issue, and it's proven to be dangerous."

"It's been proven in this county that it's a problem," said Tony 
Cipolla, spokesman for the department.

For Cipolla, the statute is one way to deter the continued spread of BHO labs.

"It's effective, I think it's fair, and any time that we can identify 
the safety risks to the public then I think we're doing our job," he said.

Both Koory and Rogers understand the rationale that using butane is 
dangerous; Rogers equates it to "playing around with camping fuel."

But that's where they see the law as an obstruction to a process that 
can otherwise become safer if it were allowed to move out of the 
garage and into a commercial facility with proper safety mechanisms, 
and maybe even with a proper inspection and regulation process.

Clearing the air

Like most things pertaining to marijuana in California, the 
discussion sooner or later turns toward supporters' long-term goal: 
legalization.

As it is now, local medical cannabis providers have taken different 
stances on BHO. One CEO of a collective, speaking on condition of 
anonymity, told New Times that while he's philosophically against it 
because there's no way to know what residual chemicals and compounds 
are left behind in the finished product, he still carries it because 
demand is so high. Another collective CEO said he won't carry BHO 
because of the legal gray area.

"If law enforcement has an issue with BHO, then I have an issue with 
BHO," he said, also speaking anonymously.

That particular dispensary does carry hash oil extracted with carbon 
dioxide (CO2), a process many people say is much cleaner and less 
dangerous. Hash derived from CO2 is far less common, however, partly 
because it generally requires a $50,000 machine plus the CO2. The 
process is a closed-loop system that recirculates the gas and 
minimizes risk of leakage. Where CO2 and other processes fall in the 
legal gray area is still unclear, Rogers said, but there haven't yet 
been any cases of the felony manufacturing charge being invoked.

Still, BHO is the reigning form of cannabis concentrate. With 
popularity comes demand, and it's got to come from somewhere.

"We still have access, but unfortunately we have access through third 
parties, which we have no control over," said Ryan Booker, executive 
director of Ethnobotanica, one of the largest and most reputable 
collectives in the area.

Like most providers, Ethnobotanica tests and vacuum purges the 
concentrate it receives, a process that can further purify the 
product. For Booker, the key piece to the puzzle is maintaining the 
spirit of Proposition 215: granting sick patients who rely on medical 
cannabis safe and legal access to the medicine. BHO, he said, is a 
part of that mission for people who prefer the arguably cleaner 
method of vaporizing it.

As part of Oregon's medical cannabis provisions, the state allows 
concentrates to be derived in a commercially inspected, closed-loop 
system. In Colorado and Washington, both of which recently legalized 
marijuana for adult use, there are similar provisions. Those states, 
however, are still seeing BHO-related fires, pointing to the 
challenge faced by medical cannabis advocates in California.

As of press time, two bills that would establish a set of regulations 
for doctors, growers, and medical cannabis dispensaries are currently 
working their way through Sacramento, and may be a step toward 
setting the ground rules absent in the industry.

Such guidelines would be beneficial to everyone involved, said Sean 
Donahoe, deputy director of the CCIA, because then there'd be a set 
of rules to which everyone could adhere. This would eliminate 
confusion between different parties and create ways to provide 
necessary regulation. It could even provide some relief from the 
feds, who've indicated they'd relax if California were to establish a 
clear set of rules and regulations.

"It's what we've been trying to do for years in the state, to get 
some sort of rules," Donahoe said. "There are no rules."

In the state Senate, SB 1262, championed by the League of California 
Cities and the Police Chiefs Association, originally set out to 
restrict and crack down on the process for doctors to issue 
recommendations, and also looked to ban BHO. Both of those provisions 
were dropped after the bill was amended, which in turn attracted 
support from medical cannabis advocates. The bill would place 
regulatory powers in the hands of local agencies. AB 1894, currently 
working through the state Assembly, offers a different approach, 
placing regulation in the hands of the Alcohol Board of Control. In 
order to move forward, both bills-which are facing sturdy 
roadblocks-need to clear their house of origin by the end of May.

For now, however, it appears that neither of these laws would trump 
the existing statute that brings a felony manufacturing charge to BHO 
extraction. But Donahoe hopes that eventually the rules and 
regulations might bring concentrated cannabis production into the 
fold. In the broader sense, however, Donahoe is hopeful that for 
many, the long-awaited day will come when marijuana is legalized in California.

"The simple fact is, it's just overdue," Donahoe said.
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MAP posted-by: Jay Bergstrom