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. 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, 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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