In recent weeks, some police agencies and prosecutors have arrested and charged medical marijuana patients and caregivers with possession of marijuana concentrate. This is a violation of the Colorado Constitution and quite possibly actionable as harassment.
Colorado’s criminal statutes make possession of any amount of marijuana concentrate a class 5 felony, punishable by a presumptive 1-3 years of prison, with an aggravated maximum of 6 years, and 2 years of parole. Whereas, possession of less than 1 ounce of marijuana is a class 2 petty offense, punishable by a fine of not more than $100. And, possession of less than 8 ounces of marijuana is a class 1 misdemeanor, punishable by up to 18 months in county jail. The medical marijuana provisions of the Colorado Constitution provide for an exemption from criminal laws on possession, cultivation, sale and use of medical marijuana.
This article aims to resolve the question:
Does Article 18, §14 of the Colorado Constitution provide a medical exemption for all forms of medical marijuanaconcentrate, such as hashish, hash oil, and other similarly concentrated forms of medical marijuana?
Simply put, does the Colorado Constitution cover medical hashish?
As is shown, it clearly does. There is no solid argument to the contrary. If law enforcement continues to arrest and charge medical marijuana patients and caregivers for marijuana concentrate, they are violating the rights of the citizens they are sworn to protect and serve.
What is Marijuana Concentrate?
With the amendment of the Colorado Constitution to allow medicinal use of marijuana by persons with a debilitating medical condition and a doctor’s advisement that they might benefit from it, an entire industry was born. Within this industry, medical marijuana has become readily available in many forms. Traditionally, we think of marijuana as vegetable material that is smoked. But, there are many less traditional products that do not have the harmful side effects of smoke inhalation. These include edible foods, often made with canna-butter or hash, tinctures, and even liquid gel caps.
All of these edible forms of medical marijuana require removing the active ingredient from the vegetable material, concentrating it and then using it in another product. Tetrahydrocannabinol or THC is the active ingredient in marijuana. Concentrated THC is often called hashish, hash, hash oil, kief, or marijuana concentrate. This is essentially a mixture or preparation of the marijuana plant. To be clear, nothing is added to the plant to make marijuana concentrate. It is just taking the active ingredient out of the plant material.
One simple way to make hashish is to collect the resin by shaking off or brushing it from the leaves and buds of the plant, let it dry and then to compress it. This is not very efficient, but it shows how easily marijuana concentrate can be removed from the vegetable material. If you have ever seen the bottom of a glass jar that previously held a marijuana bud, the dusty material at the bottom is marijuana concentrate. As a friend recently protested when told that possession of hashish is a felony, “any time you have marijuana, you also have marijuana concentrate falling off of it."
As my friend’s statement suggests, the distinction between marijuana and marijuana concentrate can be insignificant. Ultimately, this distinction is largely a creature of the legislature’s statutory definition.
Statute Limited by its Own Language to Article 18 of Title 18
Some prosecutors and police officers argue that the Constitutional Amendment does not cover all forms of marijuana. These servants of the people and officers of the court cling to selected words in a criminal statute. But it appears they did not read the entire statute, nor do they understand how to interpret the law. A full and fair analysis devastates their position.
Their argument is as follows:
The definition provided for marijuana in CRS §18-18-102(18) defines marijuana in all of Colorado law, including for the Constitutional Amendment. As the statute specifically states: “’Marihuana’ does not include marijuana concentrate as defined in subsection (19) of this section." If so, then marijuana concentrates, such as hashish or hash oil, were not made legal in Art. 18, §14 of the Constitution. The Constitutional Amendment only made traditional, smoked, vegetable marijuana exempt from the criminal laws.
This argument fails for numerous reasons, beginning within the statute they cite. The legislature specifically limited the scope of their definitions to Article 18 of Title 18. As such, these definitions do not apply anywhere in law other than in that specific article. Not found in this specific article, is Art. 18, §14 of the Colorado Constitution. Therefore, these definitions do not apply to the Constitution.
Constitutional Definition Supersedes the Statutory Definition
The Colorado Constitutional provides the definition of "’Usable form of marijuana’ means the seeds, leaves, buds, and flowers of the plant (genus) cannabis, and any mixture or preparation thereof, which are appropriate for medical use as provided in this section, but excludes the plant's stalks, stems, and roots." Colo. Const, Art. 18, §14 (1)(i)(emphasis added). This definition is very broad and clearly meant to include, not to exclude.
By definition, a Constitution overrides and supersedes any statute. And, any statute that violates the Constitution is void or unconstitutional. To the extent that the legislature’s definitions for marijuana conflict with the Colorado Constitution, they are void. Since the Colorado Constitution’s definition of medical marijuana includes hashish or marijuana concentrate, then any statutory definition in conflict is void.
There is no attempt to exclude marijuana concentrate from the definition of medical marijuana in the Colorado Constitution. There is no reference to the previously enacted statutory definition. Where a Constitutional Amendment does not incorporate a statutory definition, but instead provides its own, that definition is the only one that applies to the Constitution. This is truer where the statutory definition would serve to limit the right granted by the Constitution. This definition overrides the statutory definitions.
The Colorado Supreme Court in Velasquez did provide guidance on defining marijuana. Specifically, the Court found that the statutory definition of marijuana includes marijuana concentrate (hashish and hash oil). Although this decision pre-dates the Colorado Constitutional Amendment, the definitions of marijuana are similar. The Constitutional definition is at least as broad as the definition analyzed in these cases. Therefore, the Constitutional definition of marijuana includes marijuana concentrate.
Disparate Treatment Violates Equal Protection
Equal protection of the laws prohibits punishment of identical criminal conduct with disparate penalties. When the same conduct is proscribed in two statutes, and different criminal sanctions apply, problems arise under equal protection. There are different tests depending on whether the statute infringes upon a fundamental right, a suspect classification or neither. The People of Colorado have decided that medical marijuana is a fundamental right by putting it in the Constitution using the ballot box within this generation. Since it is a fundamental right, then a strict scrutiny test must be applied. See, Griffin v. Illinois, 351 U.S. 12 (1956).
Prior to the Constitutional Amendment, the Colorado Supreme Court addressed whether marijuana concentrate could be treated differently than marijuana under equal protection. The Court in Velasquez found no equal protection violation. The Court analyzed the legislative reason for distinction on a rational basis since possession of illegal drugs is not a fundamental right. The Court found a rational reason to treat the illegal possession of marijuana concentrate more seriously than vegetable marijuana. As indicated above, medicinal marijuana is a fundamental right guaranteed by the Colorado Constitution. Therefore, the equal protection argument needs to be re-evaluated under strict scrutiny.
Under strict scrutiny, distinguishing between two forms of medicine fails. The proponent of the distinction bears the burden of proving that the classification is necessarily related to a compelling governmental interest and is narrowly drawn. See, Tassian v. People, 731 P.2d 672 (Colo. 1987); People v. Chavez, 629 P.2d 1040 (Colo. 1981). The proponent must present evidence of the legislature’s compelling interest. This would be impossible because the legislature never considered the definitions in relation to the medical marijuana. The legislature has not addressed this issue since the amendment to the Constitution. Therefore, the legislature did not consider this issue as it relates to this fundamental right.
The proponent’s burden is even greater in the case of medicinal marijuana versus medicinal marijuana concentrate. It is axiomatic that the greater the disparate treatment, the greater the necessary justification. Here, one act is legal and the other is a felony punishable by prison. What narrowly drawn, compelling governmental interest can justify this extraordinarily disparate treatment? I see none.
Rule of Lenity and Unconstitutionally Vague
If there is any ambiguity in the Colorado Constitutional amendment and criminal statutes, under the rule of lenity, a court is required to construe a penal statute in favor of the accused. If a statute is ambiguous, then its application would be unconstitutionally vague in light of the amendment.
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