Meanwhile In Sf:court Rules "concentrated" Cannabis Is Medical...

[slipstar059]

http://www.sacbee.com/news/local/article4708713.html?fb_ref=Default&fb_source=message

 

A man was found with cannabis oil, during a probation search, and the judge in his case added on two years probation, suspended, until he had his appeal heard.

Concentrated cannabis “is covered by the CUA, and there is insufficient evidence (Mulcrevy) violated his probation in light of that conclusion,” the justices stated in their unpublished opinion. “Therefore, we also conclude the court’s error was not harmless and we reverse the trial court’s judgment.

The CUA does not define marijuana or concentrated cannabis, the justices noted. But, they added, the terms had already been defined in other sections of the law when the CUA was approved by voters 18 years ago.

 

Marijuana was defined as “all parts of the plant Cannabis sativa L.,whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.” Hemp was excluded from the definition.

 

So now my question is how does this affect us? Can all medical states use this as a defense now?

 

I'd rather be able to take my meds in in gel capsule form, they were really helping when I took them orally, but I don't dare risk possessing them until it's legal, and safe to do so.

Does this finally protect people that don't want to smoke?

Edited December 21, 2014 by slipstar059

[t-pain]

state courts in other states are non binding to our courts.

 

i wish more people would take the time to read carruthers. its quite confusing because the coa sucks, but if you read it, you may understand it.

 

heres what the CoA said in carruthers:

Notably, the MMMA’s definition of “usable marihuana” excludes much of the language found in the definition of “marihuana.” It excludes the phrases “resin extracted from

any part of the plant” and “compound, manufacture, salt, derivative . . . of the plant or its seeds

or resin.” See MCL 333.7106(3); MCL 333.26423(k). It additionally excludes “the resin

extracted” from “the mature stalks of the plant.” See MCL 333.7106(3); MCL 333.26423(k).

To ignore these exclusions, and to thereby construe the term “usable marihuana” as including a

“mixture or preparation” of an extract (THC) of an extract (resin) from the marijuana plant,

would alter the plain meaning of the words that the drafters of the MMMA chose to employ. By

excluding resin from the definition of “usable marihuana,” as contrasted with the definition of

“marihuana,” and defining “usable marihuana” to mean only “the dried leaves and flowers of the

marihuana plant, and any mixture or preparation thereof,” MCL 333.26423(k) (emphasis added),

the drafters clearly expressed their intent not to include resin, or a mixture or preparation of

resin, within the definition of “usable marihuana.” They therefore expressed their intent not to

include a mixture or preparation of an extract of resin. Consequently, an edible product made

with THC extracted from resin is excluded from the definition of “usable marihuana.” Rather,

under the plain language of the MMMA, the only “mixture or preparation” that falls within the

definition of “usable marihuana” is a mixture or preparation of “the dried leaves and flowers of

the marihuana plant . . . .” Id.

so theres two things at play here.

first, the CoA thinks carruthers made brownies from marijuana stalk resin extract. stalks are excluded from 'usable marihuana' (sec 3k of mmma), because 'usable marihuana' means dried leaves and flowers (and any mixture of dried leaves and flowers).

 

so all you have to do is make sure you dont use the word 'resin' when talking to police. just make sure you only use dried leaves and flowers to make your oils and edibles.

 

the opinion from the court of appeals says right there that edibles are allowed. i'm not sure how many times i have to say this. you need to start contacting media reporters and idiots who continue to repeat the lie that edibles (including oil made from dried leaves and flowers) are somehow banned.

 

 

 

Our interpretation also does not preclude the medical use of marijuana by ingestion of

edible products; to the contrary, that use is authorized by the MMMA, within the statutory

limitations, provided that the edible product is a “mixture or preparation” of “the dried leaves

and flowers of the marihuana plant,” rather than of the more potent THC that is extracted from

marijuana resin.

please feel free to ask more questions if i am not clear somewhere.

 

i am not a lawyer, do not take this as legal advice.

Edited December 21, 2014 by t-pain

[slipstar059]

How can Michigan's law define marijuana as one thing, and yet the law allowing its Medical use defines it differently Didn't the chief of police association state they recently found out there's no difference between medical mj, and mj? Don't they have to follow the definition that's already in place? I guess one major difference is California's medical law doesn't even attempt to define it.

[slipstar059]

What about lawyers using case law as precedent? Or doesn't that happen outside of Law & Order.

[cristinew]

 from “the mature stalks of the plant.???  how about the buds,

[slipstar059]

There's also so much control over the dosage and potency when taken orally. I'm convinced there's a ton of us who are ok without the buzz, but are looking for something non habit forming to stop the pain. If there are times when I can't afford my medicine, I don't have to have the pain worsened, from withdrawal. I hope the police will remember that we're stuck with the plant as well. I will say that smoking/vaporizing does help when you have random muscle spasms. It gives immediate relief.

[Wild Bill]

The Carruthers decision is almost like a Zen koan. Maybe they're not idiots, maybe they're Shaolin priests.

 

Has a dog Buddha-nature?
This is the most serious question of all.
If you say yes or no,
You lose your own Buddha-nature.

 

[t-pain]

 from “the mature stalks of the plant.???  how about the buds,

buds are the dried flowers of the plant.

 

just cant use stalks or roots for anything to be counted as usable marihuana.

 

you can see the prosecutor tried to help us! in the decision, by saying that if it contains THC, then its usable marihuana. but the COA said prosecutor and defense were both wrong! (how often does that happen lol)

[medmanmike]

buds are the dried flowers of the plant.just cant use stalks or roots for anything to be counted as usable marihuana.you can see the prosecutor tried to help us! in the decision, by saying that if it contains THC, then its usable marihuana. but the COA said prosecutor and defense were both wrong! (how often does that happen lol)

T-pain, I just read the Carruthers COA ruling and noted the following quotes that I think (I'm no lawyer, either) supports your contention that "edibles are allowed". As long as the THC isn't extracted in resin form. I'd appreciate your comments.

 

COA, Section V, p.5. "Therefore, to constitute usable marijuana under the MMMA, any “mixture or preparation” must be of “the dried leaves or flowers” of the marijuana plant."

 

P. 7. "Consequently, an edible product made with THC extracted from resin is excluded from the definition of “usable marihuana.” Rather, under the plain language of the MMMA, the only “mixture or preparation” that falls within the definition of “usable marihuana” is a mixture or preparation of “the dried leaves and flowers of the marihuana plant . . . .” Id."

 

P. 9. "Our interpretation also does not preclude the medical use of marijuana by ingestion of edible products; (9) to the contrary, that use is authorized by the MMMA, within the statutory limitations, provided that the edible product is a “mixture or preparation” of “the dried leaves and flowers of the marihuana plant,” rather than of the more potent THC that is extracted from marijuana resin."

 

Footnote: 9. "Defendant advances such an argument with respect to counting the entire weight of an edible product toward the quantity limit of § 4 of the MMMA. Although defendant formerly argued (at his preliminary examination) that edible products made with THC extract were not usable marijuana, we can now envision a possible argument to the effect that, because our endorsement of that position might result in the subjection of a possessor of those edible products to prosecution under our controlled substance possession statutes, that finding will similarly preclude all medical use of marijuana by ingestion of edible products. We disagree, for the reasons noted."

 

So, it seems to me that these examples would meet this requirement:

- ground up dried leaves and flowers, either loose and sprinkled on/in food, added to a liquid or placed in gel caps

- dried leaves and flowers that have been added to an "oil" and allowed to sit, and then ingested. For example, I grind up dried leaves and flowers and let them sit in oil for a period of time. My take is that if I leave the dried leaves and flowers in the oil and consume both, then I'm ok. However, if I filtered, strained the dried leaves and flowers out of the oil and then ingested it (the oil) I would be in violation.

 

Finally, what is the status of the Carruthers appeal for a Section 8 defense? Is there a date set?

[t-pain]

carruthers is in abeyence on his sec8 , waiting for supreme court to tell hartwick/tuttle how to make section 8 in court properly.

[t-pain]

T-pain, I just read the Carruthers COA ruling and noted the following quotes that I think (I'm no lawyer, either) supports your contention that "edibles are allowed". As long as the THC isn't extracted in resin form.

the COA said it themselves that edibles made of dried leaves and flowers are allowed, you read it yourself. its not something i made up.

 

 

P. 9. "Our interpretation also does not preclude the medical use of marijuana by ingestion of edible products; (9) to the contrary, that use is authorized by the MMMA, within the statutory limitations, provided that the edible product is a “mixture or preparation” of “the dried leaves and flowers of the marihuana plant,” rather than of the more potent THC that is extracted from marijuana resin."

see, the bolded part, i'm taking to mean that the coa is talking about resin extracted from stalks.

 

The definition specifically excludes the “mature stalks” of the plant “except the resin extracted therefrom.” Id. By virtue of that exception, therefore, resin extracted from mature stalks is also expressly included within the definition of “marihuana.” There is no dispute that both the raw marijuana and the brownies found in defendant’s possession constitute marijuana under the MMMA. By contrast, however, the definition of “usable marihuana” under the MMMA does not include “all parts” of the cannabis plant. More to the point, it specifically does not include “the resin extracted from” the cannabis plant. Nor does it include “the resin extracted” from mature

stalks of the plant.

you see they really focused hard on the stalks of the plant, and resins of the plant. what they are trying to say is that if you extract resin from flowers its ok, but resin from stalks or roots are not ok.

 

 

So, it seems to me that these examples would meet this requirement:

- ground up dried leaves and flowers, either loose and sprinkled on/in food, added to a liquid or placed in gel caps

- dried leaves and flowers that have been added to an "oil" and allowed to sit, and then ingested. For example, I grind up dried leaves and flowers and let them sit in oil for a period of time. My take is that if I leave the dried leaves and flowers in the oil and consume both, then I'm ok. However, if I filtered, strained the dried leaves and flowers out of the oil and then ingested it (the oil) I would be in violation.

i'd say making oil out of dried flowers is ok. its a preparation of dried flowers.

*yes, dried flowers. wet flowers arent "usable marihuana" as defined in our act.

 

the coa thinks "resin" is defined as "resin from mature marijuana stalks".

 

i'm trying to say that the entire carruthers opinion is based solely on this stalk issue that the coa imagined how carruthers created his edibles/butter with stalks instead of dried flowers. all because carruthers or someone called it "resin".

 

i'd love to see the oakland county court transcript of the case.

Edited December 21, 2014 by t-pain

[slipstar059]

Hash & Concentrates

In Michigan, marijuana and hashish are punished in the same manner. The statutory definition of "marihuana" includes "all parts of the plant Cannabis sativa L., growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin." Hashish, hashish oil, and extracts clearly fall under this definition. Please see the marijuana penalties section for further details on Michigan's criminal sanction on cannabis.

See:

Michigan Code § 333.7106

 

AYCOCK v. THE STATE.

55626.

(146 Ga. App. 489)

(246 SE2d 489)

(1978)

SMITH, Judge.

Drug violation. Clayton Superior Court. Before Judge Crumbley.

This case presents one issue: Is the oily substance found in the appellant's possession to be legally classified as Schedule I tetrahydrocannabinol (THC), or as marijuana? Chemically, it has characteristics of both; legally, it must be one or the other. The distinction is more than academic. If this small amount of fluid is classified as marijuana, the appellant is guilty of a misdemeanor; if THC, the appellant is guilty of a felony punishable by up to 15 years in prison. An analysis of the relevant statutory provisions together with the available scientific evidence leads to the conclusion that the substance here must be classified as marijuana. The appellant's conviction for possession of Schedule I THC is therefore reversed.

On a previous appearance of this case, we reversed the appellant's conviction because he had not been permitted to obtain an independent laboratory analysis of the substances found in his possession. Aycock v. State, 142 Ga. App. 755 (236 SE2d 863) (1977). We declined at that time to reach the question whether the alleged THC was to be classified as marijuana or as Schedule I THC.

The appellant obtained an independent analysis of the substances, and a second trial followed. At this trial without a jury, the appellant did not contest Count 2 of the indictment, a charge of possession of marijuana. As to Count 1, the charge of possession of Schedule I THC, the appellant contested only the legal classification of the substance he admittedly had unlawfully possessed. Evidence was presented on the classification question only, and following the presentation the trial court entered a verdict of guilty as to both counts. We granted this interlocutory review prior to sentencing.

I. Statutory Provisions

The operative statute in this case is the Georgia Controlled Substances Act. Code Ch. 79A-8 (Ga. L. 1974, p. 221 et seq.). The relevant sections of that Act are described below.

(a) Marijuana. Code 79-802 (o) defines as marijuana "all parts of the plant Cannabis Sativa L., . . . the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant . . ."

(b) Tetrahydrocannabinol. Code 79A-805, which establishes five schedules of controlled substances, generally defines a Schedule I substance as one having a high potential for abuse, no currently accepted medical use, and no accepted safety for use under medical supervision. Code 79A-805 (b)(1). Thus, Schedule I substances are considered the most dangerous and are the most prohibited of the controlled substances. A listing of Schedule I substances is found in Code 79A-806;in specific, 79A-806 (d) lists the following: "Any material, compound, mixture or preparation which contains any quantity of the following hallucinogenic substances. . . (16) Tetrahydrocannabinols."

© Punishment. Simple possession of up to one ounce of marijuana is a misdemeanor offense punishable by up to a year in prison, $1,000 fine, or both. Code 79A-9917. Simple possession of any amount of a Schedule I substance is a felony punishable by two to 15 years in prison for a first offense, and five to 30 years in prison for any subsequent offense. Code 79A-811 ©.

II. Factual Setting 1

What is THC? THC is the component of cannabis which can take full credit for boosting this plant's popularity well beyond the popularity of any other weed known to our culture. Kudzu, crabgrass, and poison ivy are the banes of suburbia; add a little THC and they would become instant cult heroes. THC is the psychopharmacologically active component of the cannabis plant. Most THC exists in the form of an isomer known as delta-9-THC, but somewhat less than ten percent of naturally occurring THC is of the delta-8 isomer. Both delta-8-THC and delta-9-THC produce a psychological effect. They are found in all cannabis plants, and they are not known to exist elsewhere in nature. Concentrations of THC can be produced in two ways, either by chemically extracting it from the cannabis plant or by synthesizing it in the laboratory. A simple procedure, using organic solvents to remove the THC from cannabis, can produce an oily substance variously known as "hash oil," "marijuana oil," or "liquid marijuana." Terry Mills, senior forensic chemist and supervisor of the drug identification division of the state crime laboratory, offered his opinion that the THC thus extracted "is not marijuana; it is tetrahydrocannabinol. It is the extract, the pure compound from the drug." The defense presented Dr. James Woodford, an organic chemist, who described the common procedure for obtaining hash oil. The basic process, he said, removes not only THC, but many other chemicals, from the cannabis plant. These other chemicals include a group known as cannabinols, and they, like THC, occur naturally only in the cannabis plant. Further refinement of the hash oil could remove the cannabinols and reduce the extract to more nearly pure delta-9-THC, but the refinement process is complex and difficult and is not likely to be employed for other than scientific research. The hash oil becomes a valuable and marketable street drug without this refinement. While the basic extraction process does not remove the cannabinols from the end product, it does remove plant fibers. Mr. Mills testified that because of this absence of

marijuana is attributable to the work of the Marijuana Project, and samples from many drug seizures, especially those made by the Drug Enforcement Administration, are sent there for analysis.) plant fibers, the substance would show no "gross morphological features" of the cannabis plant. For this reason alone, and despite the fact that the substance may contain cannabinols unique to the cannabis plant, the crime lab's policy is to classify these extracted substances as Schedule I THC rather than as marijuana.

The hash oil extraction procedure is contrasted to the procedure for obtaining hashish from the cannabis plant. Hashish is a resin which is oozed out of the flowery part of the plant, collected, and pressed into bricks. Hashish generally contains a higher concentration of THC than that found in the cannabis plant as a whole. The crime lab classifies hashish as marijuana rather than Schedule I THC because hashish retains plant fibers, i.e., the "gross morphological features" of the cannabis plant.

THC is found in different concentrations in different substances, and we can arrange these substances on a hypothetical continuum of increasing THC concentration. At the very bottom of the scale, we find the basic cannabis plant. More specifically, THC concentrations increase in the following order of the various parts of the plant: seed, roots, large stems, small stems, leaves, flowers, and bracts. Most marijuana samples seized in the United States have averaged around one or two percent THC content. Some Mexican and South American varieties of cannabis have been found to have from four to seven percent THC, and the bracts from these potent plants may contain as high as 10 percent THC.

Hashish tends to have higher concentrations of THC, and thus it would generally rank higher on the scale than cannabis. Hashish samples which have been seized and tested generally range from two to seven percent THC, though it is believed that hashish derived from very potent plants could assay as high as 14 percent THC. Hashish, then, would range higher on the concentration scale, but it would overlap with some parts of the cannabis plant. Because hashish still retains some of the visible structure and form of the cannabis plant, the crime lab classifies it as marijuana.

Hash oil achieves a much higher range on the scale. Tested samples of this substance ranged from five to almost 90 percent THC; the majority of samples range from about 20 percent to 50 percent. Nestled at the very top of the scale would be pure or nearly pure THC. This compound may be derived by refining hash oil to remove the other organic compounds, or it may be synthesized from certain petroleum based chemicals.

The legal question presented here is this: Where along the above scale does a substance cease to be marijuana and begin to be Schedule I THC? The state crime lab has reached its own determination of the demarcation between marijuana and THC. Unfortunately, the Controlled Substances Act provides no such guidelines, and our task here is to fashion a rule consonant with the language and intent of the Act and with due regard for the rules pertaining to construction of criminal statutes. Before departing on our own analysis, we will review in some detail the analyses employed in this case by the crime lab and by the trial court.

As indicated above, the crime lab's approach narrows the focus to one factor, the presence of certain plant fibers. If a sample contains "plant material exhibiting gross morphological features characteristic of Cannabis Sativa L.," then the sample will be tested for and treated as marijuana. Conversely, if a sample contains no gross morphological features of cannabis, it will be tested for THC. If those tests are positive, the sample will be classified as a Schedule I substance. The dividing line for the crime lab, then, is that point at which the substance ceases to contain plant material exhibiting the form and structure of the cannabis plant. The substance may contain indications that it is of botanical origin (for example, it may contain chlorophyll, a chemical almost exclusively produced by plants) and it may even contain indications that it is of cannabis origin (for example, it may contain cannabinols) but unless it retains some of the physical structure and form of the cannabis plant, the crime lab will not classify it as marijuana.

In this case, the oily substance contained no morphological features of the cannabis plant. The crime lab therefore tested the substance for THC, and the tests were positive for delta-9-THC. Dr. Woodford testified that, in his opinion, the sample contained chlorophyll, an indication that it very likely was derived from cannabis. And Mr. Mills even conceded that the substance "probably" came from cannabis. But because of the lack of any morphological features of cannabis, the substance was classified by the crime lab as Schedule I THC.

At trial, the appellant contended that hash oil, necessarily derived from cannabis, should be classified as marijuana, and synthetically produced THC should be the only substance legally classified as Schedule I THC. The trial court noted that the state had not proved beyond a reasonable doubt that the substance was industrially synthesized THC rather than botanically derived hash oil, but the court discounted the importance of the distinction: "However, if Ga. Code Section 79A-806 (d) (16) is to be given any application at all it must be applied to all tetrahydrocannabinols, whether they be of synthetic or natural origin, provided that the substance in evidence shows a greater concentration of tetrahydrocannabinol than could be mechanically extracted from any physical part of the Marijuana plant in its natural state." The trial court thus fashioned a "relative concentration" test for pinpointing the dividing line on our continuum: If the THC concentration in the sample could be acquired mechanically (such as by oozing out the resin to form hashish), the substance is still marijuana; if the concentration is so great that it could not be acquired mechanically, but only chemically (such as by dissolving the THC from the parts of the plant), the substance is classified as Schedule I THC.

III. Analysis

Because of the language of the statute involved, and because of the applicable rules of statutory construction, we find both the "gross morphology" test and the "relative concentration" test to be unworkable and contrary to the meaning of the statute.

(a) The statutory conflict. There is a clear overlap between Code 79A-802 (o) and 79A-806(d)(16), both set forth in Part I, ante. On one hand, "all parts" of the cannabis plant, including "every compound . . . derivative . . . or preparation of such plant," are classified as marijuana. Code 79A-802 (o). Unmistakably, a cannabis extract such as hash oil falls within this definition. It is precisely a compound, derivative, and preparation of the Cannabis Sativa L. plant. On the other hand, Schedule I THC is defined as "any material" containing many quantity" of "tetrahydrocannabinols." Code 79A-806 (d)(16). This definition is broad enough to include not only industrially synthesized THC and concentrated THC extracted from cannabis, but also hashish and everyday street grade marijuana, for they all contain "any quantity" of THC. (In fact, Mr. Mills testified that several police departments had once sought to have seized marijuana cigarettes classified as Schedule I THC.)

Since the Controlled Substances Act does not further refine the marijuana/THC distinction, a literal reading of the entire Act, including its penalty provisions, leads to the situation where a single act may be punishable in two ways by the same statute. For example, the individual carrying less than one ounce of hashish in his pocket is possessing marijuana as Code 79A-802(o) defines it, and he is therefore punishable for a misdemeanor under Code 79A-9917; equally, he is possessing THC as Code 79A-806(d)(16) defines it, and he can be imprisoned up to 15 years for this offense. Code 79A-811 ©. This same analysis applies to all cannabis-derived substances falling anywhere along our hypothetical continuum. They are all marijuana, and they are all THC.

Since the statute defines two punishments for possessing any of these substances, which of the two punishments should be imposed? " 'Where there are two sections in a statute providing a punishment or penalty for the same act or offense, one providing a greater and the other providing a lesser, the section prescribing the greater is abrogated by the one prescribing the lesser. Where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered.' " Curtis v. State, 102 Ga. App. 790, 802 (118 SE2d 264) (1960). The above language was quoted approvingly by the Supreme Court in Gee v. State, 225 Ga. 669, 676 (171 SE2d 291) (1969), a case involving reconciliation of divergent penalty provisions in the Georgia Drug Abuse Control Act (Ga. L. 1967, pp. 296, 343 et seq.), the predecessor to our current Controlled Substances Act. This specific rule for penalty provisions is based upon the general rule that "[p]enal statutes are always construed strictly against the State and liberally in favor of human liberty." Curtis v. State, supra. See also Glustrom v. State, 206 Ga. 734, 738 (58 SE2d 534) (1950); Riley v. Garrett, 219 Ga. 345 (133 SE2d 367) (1963).

We conclude, therefore, that any substance which is a resin, compound, manufacture, salt, derivative, mixture, or preparation of the cannabis plant shall be treated as marijuana, even though the substance may contain a high percentage of THC. For the state to sustain a charge of possession or distribution of Schedule I THC, the state must prove that the THC is not a compound, derivative, or preparation of the cannabis plant; that is, the state must prove that the THC is synthetically derived. This same result was reached in People v. Campbell, 72 Mich. App. 411 (249 NW2d 870) (1976), where the Michigan Court of Appeals held that possession of "natural" THC would be punishable as a marijuana offense whereas possession of synthetic THC would be punishable as a Schedule I offense: "Unless the statute [Michigan Controlled Substances Act, M. C. L. A. 335.301 et seq.] is so interpreted, any person selling marijuana could be charged with sale of THC and become subject to the greater penalty since all marijuana contains at least a trace of natural THC. In enacting the Controlled Substances Act, the Legislature did not intend such an anomalous result."

(b) The ineffectiveness of tests which distinguish between different grades of cannabis produced THC. The most obvious bar to the crime lab's "gross morphology" test and the trial court's "relative concentration" test is that these tests are simply unauthorized by Code 79A-802(o). That section does not define marijuana as all parts of the cannabis plant, including every compound, derivative, preparation, etc., of such plant, "so long as such compound, derivative, preparation, etc., retains the gross morphological features of the cannabis plant." Nor does the section define as marijuana all parts of the cannabis plant, including every compound, derivative, preparation, etc., "so long as such compound, derivative, preparation, etc., does not contain a higher proportion of THC than that which could be mechanically extracted from the cannabis plant." There are no such exceptions to the scope of the legal definition of marijuana, and neither the crime lab, nor the trial court, nor this court, is authorized to create such exceptions.

Even if such exceptions were necessary in order to support the intent of the legislation, the exceptions proposed by the crime lab and by the trial court do not appear to provide an adequate basis for distinction. First, the gross morphology test singles out only one of the unique properties of cannabis, its structure and form; take away this property, and the crime lab ceases to treat the substance as marijuana. In doing so, the crime lab ignores the fact that the substance may still contain up to 20 different cannabinols, all of which are unique to cannabis, and all of which can be chemically detected. Thus, a substance may be literally teeming with evidence that it is a cannabis compound or derivative, but the crime lab will not classify it as marijuana because it no longer looks like cannabis. Such a result could not conceivably match the language of Code 79A-802 (o).

Second, the test which looks to the relative concentration of THC in the substance does not single out all hash oil; rather, it singles out only that which happens to be more potent than, say, a good grade of hashish. This may indeed be a logical way to approach the problem, for there undoubtedly may be a stronger interest in proscribing the more potent solutions. But under the test, a poorly prepared hash oil sample would be classified as marijuana, and a somewhat purer sample would become Schedule I THC. Such subtle distinctions, with such enormous consequences, must be left to the legislature.

IV. Conclusion

We are not comfortable with where this has led us. THC can be synthesized, but most THC concentrations on the street are the hash oil variety. And there may be some difficulty in proving that a particular sample is not derived from cannabis.

For example, Dr. Turner, testifying before the Senate Subcommittee (Hearings, p. 453 (note 1, supra)), stated that he had used a very simple chemical procedure to prepare hash oil from marijuana. The THC concentration in his end product was increased by a factor greater than 16, and the weight was reduced by a factor greater than 10. Thus, a man possessing one half pound of marijuana would be committing a felony. Using Dr. Turner's process, he could retain all the THC in his possession while reducing the total weight of the substance to less than an ounce. Without sacrificing any of the psychological potential of the substance in his possession, he has reduced his crime to a misdemeanor. And his misdemeanor will be easier to conceal. (Results such as this are inherent in the one ounce threshold of Code 79A-9917, which looks to the weight of the gross product rather than to the weight of the active compound within the gross product. For example, several pounds of cannabis seeds or stalks may well contain less THC than an ounce or less of moderately potent cannabis leaves, but possession of the seeds or stalks would be a felony and possession of the leaves would be a misdemeanor.)

The law enforcement aspect of this situation presents perhaps the strongest imperative for treating hash oil differently from ordinary marijuana. At the subcommittee hearings, Jerry Jenson, deputy administrator of the Drug Enforcement Administration, testified, "It is no surprise to DEA that these more concentrated forms are appearing on the market. In 1971, a research study . . . predicted that as marijuana usage became more prevalent in the United States, the users would seek stronger and stronger forms; also, as the enforcement effort became more efficient, the smugglers would reduce the size of the contraband by condensing it to make it easier to bring in, smuggle in, in large quantities. Law enforcement was prepared for this as evidenced by our escalating removals." Hearings, p. 436 (note 1, supra). And Senator James O. Eastland, chairman of the subcommittee, termed hash oil "one of the most frightening drugs on the market today." He added, "At the average potency of 45 to 50% THC, an ounce of it is enough to intoxicate over 1000 people. It is, moreover, very easy to prepare; and it is attractive to the traffickers, additionally, because it is so easily concealed and because they can get so high a return for it." Hearings, p. vi. (note 1, supra).

Thus, we can clearly see why it would be a salutary legislative choice to exclude a preparation such as hash oil from the definition of marijuana and treat it instead as the unusual and dangerous drug it is. But this court cannot alter the clear language of Code 79A-802(o) to exclude from the definition of marijuana any compounds containing very high proportions of THC. Only the legislature can do that.

Because the state failed to prove that the alleged THC was synthetic and not cannabis derived, the judgment of conviction as to Count 1 is reversed. The judgment as to Count 2, possession of marijuana, is affirmed.

DEEN, Presiding Judge, dissenting.

I respectfully dissent. Paper is extracted from or is a derivative from pulpwood. Bread toasted loses its identity and becomes toast. Hydrogen plus oxygen plus a tea bag equals tea. To ask the question, "Does the latter possess any quantity of oxygen," is not a pertinent question, as the components have lost their identity and are now known exclusively as tea. The same applies to paper and toast.

Hash oil with all plant fibers removed shows no "gross morphological features" of the cannabis plant and is classified as THC. Hashish retains plant fibers and is therefore classified as marijuana. The latter retains some of the visible structure and form of the cannabis plant. The content of cannabinols in marijuana and Schedule I THC is immaterial. The line of demarcation between the two is the presence or absence of plant fibers. THC may be of botanical origin containing chlorophyll or industrially synthesized; either way, it is THC, not marijuana.

This question is one of technology and science best left to experts under the circumstances of each case. I would affirm.

I am authorized to state that Judge McMurray joins in this dissent.

Notes

1 The scientific material contained herein was derived from the testimony of the two expert witnesses as well as from the following sources: "Biological Effects of Marihuana," Vol. I, Ch. 1, Appendix, Marihuana: A Signal of Misunderstanding (the first report of the National Commission on Marihuana and Drug Abuse) pp. 15 et seq.; and, Hearings before the Subcommittee to Investigate the Administration of the Internal Security Act and Other Internal Security Laws, of the United States Senate Committee on the Judiciary, Part 2, May 8, 1975. (See particularly the testimony of Dr. Coy W. Waller, Director of the Research Institute of Pharmaceutical Sciences at the University of Mississippi, and Dr. Carlton E. Turner, Director of the federally sponsored Marihuana Project of the School of Pharmacy, University of Mississippi. Much of the scientific knowledge about

Robert E. Keller, District Attorney, Harold G. Benefield, Assistant District Attorney, for appellee.

Al Horn, Charles S. Thornton, for appellant.

ARGUED APRIL 3, 1978 -- DECIDED JULY 3, 1978 -- CERT. APPLIED FOR.

[slipstar059]

So the real question is was it synthetic or plant derived. Can anyone find People v. Campbell, 72 Mich App. 411 (1977). and post it here? I've been looking all day. It's posted on NORML but when I web search I come up empty.

[slipstar059]

Also it's pretty crazy that "liquid" marijuana was being fought over in the 70s, in Goergia.

 

The rhetoric hasn't changes one bit.

Edited December 22, 2014 by slipstar059

[Highlander]

T-pain, I'm curious as to why you say the SC thinks resin extracted from flowers is OK when they said, "More to the point, it specifically does not include “the resin extracted from” the cannabis plant."

[t-pain]

T-pain, I'm curious as to why you say the SC thinks resin extracted from flowers is OK when they said, "More to the point, it specifically does not include “the resin extracted from” the cannabis plant."

first, its the COA, not the MSC.

 

second,

"the resin extracted from the cannabis plant" is not usable marihuana.

"the resin extracted from the dried leaves and flowers" is usable marihuana, because its a mixture or preparation of dried leaves and flowers.

 

plant != flowers

 

plant = stalks and roots and flowers and leaves

 

am i wrong? you guys can disagree with me. i'm not always right. i just like to think i am...

 

Therefore, to constitute usable marijuana under the MMMA, any “mixture or preparation” must be of “the dried leaves or flowers” of the marijuana plant.

paraphrasing: to constitute usable marijuana under the MMMA any "resin" must be of “the dried leaves or flowers” of the marijuana plant.

 

Simply put, the evidence before this Court indicates that the brownies were not a “mixture or preparation” of “dried leaves and flowers of the marihuana plant.”

every time the coa refers to extract of resin , they say "of a marijuana plant" and not "of dried leaves and flowers". i could be wrong, but they are really really specific with it.

 

the prosecutor brought it up that the extract cannabutter HAD to be made out of leaves and flowers

The prosecution argues that the resin from which THC is extracted would itself have been extracted from the leaves and flowers of the marijuana plant.

but instead of following this normal, logical line of thought, the COA then ignores this piece of evidence and relies on this chemist testimony

 

The chemist also testified that THC extraction techniques involve extracting THC from the resin of the marijuana plant.

it really is the most circular logic ever.

Edited December 22, 2014 by t-pain

[t-pain]

i would like someone to try explaining this sentence to me.

 

Instead, he or she then possesses an amount of marijuana that is in excess of the permitted amount of usable marijuana. In other words, the language establishing limited immunity in § 4 of the MMMA expressly conditions that immunity on the person possessing no amount of marijuana that does

not qualify as usable marijuana under the applicable definitions.

double negative.

[Highlander]

first, its the COA, not the MSC.

 

second,

"the resin extracted from the cannabis plant" is not usable marihuana.

"the resin extracted from the dried leaves and flowers" is usable marihuana, because its a mixture or preparation of dried leaves and flowers.

 

plant != flowers

 

plant = stalks and roots and flowers and leaves

 

am i wrong? you guys can disagree with me. i'm not always right. i just like to think i am...

 

 

paraphrasing: to constitute usable marijuana under the MMMA any "resin" must be of “the dried leaves or flowers” of the marijuana plant.

 

 

every time the coa refers to extract of resin , they say "of a marijuana plant" and not "of dried leaves and flowers". i could be wrong, but they are really really specific with it.

 

My bad on SC vs. COA.

 

Interesting food for thought on the matter.  So, your take is that resin extracted from the "plant" (in general....not specific parts) is a no-no but resin specifically extracted from the flowers or leaves is OK? 

 

Considering the specificity of the COA opinion, this makes sense.  Thanks for clarifying, and I'd tend to agree with your conclusion. 

 

If this really is the legal conclusion, this represents a conundrum for LEO, as they have no way of knowing what parts of the plant were used for the resin extraction.  So it might be that some labeling is in order for some folks to at least try to avoid arrest and possibly lay the groundwork for a defense...i.e. "This resin was extracted from dried leaves and flowers of a cannabis plant and in no way includes any resin extracted from mature stalks."  Too bad we actually have to think this stuff through this deeply.

 

Again, thanks for clarifying.  It's a danged shame we need to think these matters through at this level of detail when the end result is the same - qualified patients accessing MMJ in a form suitable to their condition.

[t-pain]

i wouldnt even use the word resin.

 

"these edibles were made with dried flower".

[snarkler]

I've always thought that there's a chance of distinguishing Carruthers (and ruling the other way) in a case with a decent lab analysis and expert testimony that such compounds come from the flowers and leaves.

[Highlander]

"Then I sifted the flower into the melted butter..."

 

Heh, yeah.  and sometimes the flowers are so sticky with resin that you might not see much of the flowers.  Happens all the time.

[t-pain]

"Then I sifted the flower into the melted butter..."

i wouldnt mention butter either! especially not after that butter case in kent county. butter? butter? never heard of IT!

[Highlander]

You might recall that when our esteem brother Swampy was still walking the earth, he got raided and the cops didn't pay any attention to the "budder" in his freezer.  Just sayin'

[slipstar059]

What about hash and oil though. The Campbell ruling said If it had plant matter they could tell it was marijuana, but when processed into oils they couldn't tell so it could possibly be synthetic. Current technology should be able to detect cannabinoids which would be a marker for real vs synthetic. There have been a ton of rulings that say oil=marijuana.

[slipstar059]

." Curtis v. State, supra. See also Glustrom v. State, 206 Ga. 734, 738 (58 SE2d 534) (1950); Riley v. Garrett, 219 Ga. 345 (133 SE2d 367) (1963).

We conclude, therefore, that any substance which is a resin, compound, manufacture, salt, derivative, mixture, or preparation of the cannabis plant shall be treated as marijuana, even though the substance may contain a high percentage of THC. For the state to sustain a charge of possession or distribution of Schedule I THC, the state must prove that the THC is not a compound, derivative, or preparation of the cannabis plant; that is, the state must prove that the THC is synthetically derived. This same result was reached in People v. Campbell, 72 Mich. App. 411 (249 NW2d 870) (1976), where the Michigan Court of Appeals held that possession of "natural" THC would be punishable as a marijuana offense whereas possession of synthetic THC would be punishable as a Schedule I offense: "Unless the statute [Michigan Controlled Substances Act, M. C. L. A. 335.301 et seq.] is so interpreted, any person selling marijuana could be charged with sale of THC and become subject to the greater penalty since all marijuana contains at least a trace of natural THC. In enacting the Controlled Substances Act, the Legislature did not intend such an anomalous result."