A professional extractor examines a sheet of "shatter" THC concentrate. (Brennan Linsley, Associated Press file)

Hash oil legality now question for Colorado courts

A court hearing Wednesday to determine the legal status of marijuana hash oil in post-legalization Colorado resulted in the judge turning up his hands and shrugging his shoulders in exasperation.

The hearing in Denver District Court was to decide whether a man named Paul Mannaioni, who was one of three people charged after an explosion at a southwest Denver warehouse, can be prosecuted for the crime of manufacturing marijuana concentrate. The man’s attorney, Rob Corry, who helped write Colorado’s marijuana-legalization law, said Mannaioni can’t be charged because Colorado’s constitution now protects the personal possession of marijuana and the processing of marijuana plants.

“The court system is not to be used for marijuana regulation anymore,” Corry said.

Marijuana concentrates: Home hash oil production is illegal, Colorado AG Suthers says

The Colorado attorney general argues Mannaioni can be charged because — by virtue of a curiously placed comma in Amendment 64, the legalization measure — the protection for marijuana does not cover cannabis “oil,” like hash oil. The measure says its definition for marijuana, “does not include industrial hemp, nor does it include fiber produced from the stalks, oil, or cake made from the seeds of the plant…”

The attorney general’s office, which weighed in on Mannaioni’s case even though it is not prosecuting the case, has made a similar argument in a case in Mesa County.

By the end of Wednesday’s hearing, Denver District Court Judge A. Bruce Jones had concluded both sides were wrong, though it was still unclear how he would ultimately rule. Jones said he plans to deny Corry’s motion to drop the charge, meaning the case against Mannaioni can proceed.

Hash oil is the potent goop left over after marijuana’s active chemicals are dissolved from the underlying plant material. A popular amateur production method uses compressed butane gas, which can lead to dangerous explosions like the one that rocked the 1200 block of South Lipan Street last April. Mannaioni is also charged with arson in connection with the blast.

The New Cannabis Lexicon: Butane hash oil, defined (see also: “BHO, budder, crumble, dabs, earwax, errl, honeycomb, honey oil, live resin, oil, pull ’n snap, sap, shatter, taffy, wax”)

During Wednesday’s hearing, Corry argued that home hash oil explosions are mistakes but not illegal.

“I compare it to frying a turkey,” Corry said. “Accidents don’t mean a crime has occurred.”

Jones didn’t seem impressed, calling some of Corry’s arguments “circular.” But Jones also criticized the attorney general’s position.

“I’m going to tell him he’s wrong. I’m going to tell him he’s way wrong,” Jones said.

Caught almost on the sidelines was the Denver district attorney’s office, which is actually prosecuting the case. A deputy district attorney said that hash oil qualifies as pot. But he said there’s a difference between Amendment 64’s protection for “processing” marijuana and the state law’s criminalizing of “manufacturing” concentrated marijuana.

Jones is expected to issue his ruling in the coming weeks.

John Ingold: 303-954-1068, jingold@denverpost.com or twitter.com/johningold

This story was first published on DenverPost.com