Hashing out medical pot law

October 25, 2007

Jason Cox, Keizer Times (OR)

Keizer Police recently arrested a medical marijuana grower and patient for manufacturing a controlled substance – hashish oil.

Pro-medicinal marijuana advocates have criticized the arrest, saying that creating hash oil – essentially separating the active ingredients of the drug from the plant material, using dry methods, water or a chemical solvent – is legal for medical marijuana patients.

However, Keizer Police Capt. Jeff Kuhns said the Keizer Police Department believes the intent of a portion of the law addressing "mixtures or preparations" of medical marijuana doesn't extend to hash oil.

"The intent behind that language is for things such as brownies, butters and stuff like that – putting it in your pizza, different recipes, different things you can make with the dried leaves," Kuhns said. "When they drafted this law, if they meant to address hashish or hash oil they would seemingly have addressed how much you can possess."

Lori Evans, a deputy district attorney for Marion County, said the case is set to go before a grand jury next month. She cited bar association guidelines in declining to discuss the intricacies of the case.

"The case is pending, so I can't talk about the merits of the case," Evans said.

For anyone who doesn't hold a Oregon Medical Marijuana Program card, hash oil is explicitly illegal under Oregon law, as is marijuana.

But organizations such as the Oregon chapter of the National Organization for Reforming Marijuana Laws and the THC Foundation say hash oil fits within what medical marijuana patients are allow to have under Oregon law.

No authorities, or the Oregon Medical Marijuana Program's director, have so far been able to point to a statute, rule or case law indicating explicitly whether making hash oil is actually legal or illegal for medical marijuana patients.

The issue of Anthony Wyatt Beasley's medical marijuana grow – which was situated in a rental home adjacent to McNary High School's campus – became news fodder after several plants were stolen from his property.

About a week later – Wednesday, Oct. 17 – a former roommate was at the Newberg Drive house to collect personal belongings when police said she spotted two PVC pipes in the home, which she told authorities could be pipe bombs. Police responded to the residence and called in the Salem Police Bomb Squad, who determined that the pipes were full of marijuana. Butane – a chemical often used to extract hash oil out of the marijuana plant – was also obtained during the search, Kuhns said.

Keizer Police were able to obtain a search warrant – which must be signed by a judge – and went to the residence on Friday, Oct. 19, later arresting Beasley, 28, for manufacturing a controlled substance within 1,000 feet of a school. Beasley was released on his own recognizance on Tuesday, Oct. 23.

The Oregon Revised Statutes define "usable marijuana" – that is, what substances qualify as medicinal marijuana – as "the dried leaves and flowers of the plant Cannabis family Moraceae, and any mixture or preparation thereof, that are appropriate for medical use."

The Oregon Administrative Rules – a set of legally-binding rules that further govern the medical marijuana program – are even more explicit, declaring proper "the resin extracted from (the marijuana plant); and every compound, manufacture, salt, derivative, mixture or preparation of the plant or its resin."

There was only one point that both law enforcement and medicinal marijuana advocates could agree on - in their opinion, making hash oil using the butane method is unsafe. A 2006 case in Eugene saw two men allegedly attempting to make hash oil suffer severe burns, The Register-Guard reported. But the agreements end there.

Medicinal marijuana advocates, including the directors of the THC Foundation and Oregon's chapter of NORML, adamantly believe police and prosecutors were erroneous in their belief that hash oil falls outside the bounds of medical marijuana.

What is hash oil?
Hash oil is made from the marijuana plant, using a solvent such as butane, isopropyl alcohol or other solvents to extract active ingredients in a more concentrated form.

There are several methods of making hash oil – one of which is by using PVC pipe. Essentially, it consists of grinding the marijuana plant into a powder and pouring the solvent into the pipe with the marijuana. A thick, gooey substance comes out that contains a higher percentage of THC (tetrahydrocannabinol) and other active ingredients than does the portion of the marijuana plant that is typically smoked.

The Oregon chapter of the National Organization of Marijuana Laws contends that hash oil is allowed for medical marijuana patients under the law, but does not recommend this extraction method due to the fact that butane is extremely flammable.

Paul Stanford, executive director of the Portland-based THC Foundation, actually teaches monthly classes on how to extract hashish from the marijuana plant. They do not teach the extraction method using PVC pipes and butane to make hash oil.

Stanford said there's no narcotics added to hashish or hash oil – and that patients extracting it are within their rights. Hash is often in a solid form, while hash oil is generally a thicker liquid. It can be consumed by adding it to a tobacco or marijuana cigarette or cooked into food.

"This man had paid a fee to the state to be allowed to grow and possess marijuana, including hashish and hash oil," Stanford said.

Madeline Martinez, executive director of Oregon's chapter of NORML, blamed what she called inadequate training of law enforcement. She said 2005 changes to the medical marijuana statute were created specifically to address questions about what forms of marijuana are acceptable as medicinal.

"If you look at the law, it states clearly that we can have hash … we can have ganja butters," Martinez said. "… This is outrageous. If patients are expected to follow the law, doesn't it make sense that law enforcement should also have to follow the law?"

For her part, Tawana Nichols, program director of the Oregon Medical Marijuana Program, said she consulted with legal counsel and could not find any documentation to clarify the matter.

Kuhns reiterated that the department "think(s) the intent does not include hash oil" and noted the case had been reviewed by a district attorney and signed by a judge. He noted that, in Oregon statute, hashish and hash oil are listed separately from marijuana.

This isn't the first time Keizer Police have had to deal with seemingly contradictory laws regarding the medical marijuana program and laws that enhance penalties for drug cultivation or distribution near a school.

Just a few weeks ago a reported disturbance at Beasley's home brought police to the home, after another person at the house allegedly chased several teenagers with pepper spray. Police responded to the home and saw numerous marijuana plants growing, but found that Beasley and the other cardholders were in compliance with Oregon's medical marijuana law.

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