Pubdate: Fri, 02 Jan 2015
Source: Denver Post (CO)
Copyright: 2015 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122

AN ABSURD CLAIM ON HOME HASH OIL

Does Amendment 64 immunize individuals who make marijuana hash oil in 
their home from prosecution, as a defendant in Mesa County claims in 
a criminal case there?

Surely not. As Attorney General John Suthers says in a brief filed in 
that case, "the defendant agrees that his actions resulted in an 
explosion, injuries, damage, and 'potentially put others in danger.' 
He nevertheless insists that the voters created a constitutional 
right protecting butane-fueled explosions in kitchens and garages 
throughout the state. However, this court should reject the 
defendant's interpretation because the voters would not have 
understood the amendment to authorize such irresponsible and dangerous use."

That's true. Moreover, as the AG adds, "in interpreting the 
Constitution, a court must consider whether an interpretation leads 
to absurd results."

It's one thing, however, to argue that the state or local 
jurisdiction has the right to outlaw the home production of hash oil. 
We've said as much ever since it became clear that home production 
was a peril. Hash oil should be produced only in regulated 
manufacturing facilities. But Suthers goes further in his brief and 
contends that Amendment 64 actually excludes "oil" from the 
definition of marijuana itself. Can this possibly be the case? Surely 
the amendment's sponsors could not have meant this interpretation. As 
Christian Sederberg, one of Amendment 64's authors, told The Denver 
Post's John Ingold, such a reading of the amendment could justify 
banning hash oil possession. And if that were contemplated, why would 
the amendment explicitly include "marihuana concentrate" in the 
definition of legal marijuana?

But Suthers points to an apparently contradictory line in the 
amendment that does indeed appear to exclude "oil" from the 
definition of marijuana. Perhaps this amounts to a drafting error. If 
so, it wouldn't be the first time that citizen activists included 
confusing language in an initiative, leaving it up to the courts to 
sort out the mess.

The outcome most consistent with Amendment 64 would be for the court 
to reject the claim that making hash oil at home is a constitutional 
right while acknowledging that such oil is a protected concentrate.

Still, it wouldn't be shocking if the court sided with the AG on both 
issues given the amendment's curiously inconsistent language. Suthers 
has produced a provocative brief that potentially could rock the 
popular understanding of what's protected and what's not under Amendment 64.
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MAP posted-by: Jay Bergstrom