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2nd Feb 2013

It’s no secret that San Diego County is hostile to medical marijuana. So, it’s not a surprise that District Attorney Bonnie Dumanis is not exactly a supporter of medical marijuana. For years now, Ms. Dumanis has pushed her anti-medical marijuana agenda via prosecutions of legitimate patients in San Diego. Even in cases where collectives and their members are clearly in compliance with state law, the D.A.’s office initiates prosecution. This forces medical marijuana patients into court in order to prove that they are in compliance with state law, costing them plenty of money (if they are fortunate enough to have it) and an untold emotional toll. And the effect on the community is huge–the pain of dealing with a prosecution and fear of another one in the future is enough to shut down many collectives and their members for good.

I am proud to say that on May 29, 2012 I helped put the brakes on the D.A.’s political maneuvering. After my client’s preliminary hearing, Judge Charles Rogers dismissed the case against my client. The D.A. charged my client with a violation of Health and Safety Code section 11379.6(a) for making so-called “bubble hash.” The standard cultivation statute is section 11358, which we see in most medical marijuana prosecutions. This statute carries a 16 month, 2 year, or 3 year penalty. On the other hand, section 11379.6(a) carries a penalty of 3, 5, or 7 years in state prison. This statute makes it a crime to manufacture a controlled substance via “chemical extraction” or “chemical synthesis.” It was enacted primarily to combat the use of dangerous chemicals in manufacturing methamphetamine and PCP. Thus, I call this the “meth lab” statute.

The D.A. attempted to use the meth lab statute to prosecute my client for making hashish using ice-water extraction. This process involves agitating the marijuana with ice water inside a filter bag. The resin falls off of the marijuana into the ice water solution, which is then filtered using screens to extract the resin. The D.A. used testimony from a DEA forensic chemist. She testified that this ice-water extraction of hash constituted a form of “chemical extraction” under the meth lab statute.

After several hours of testimony, I argued that, at core, the term “chemical” in the statute referred to what you and I would normally think of as a chemical: things like butane, acid, etc. After all, legislators are regular people, not forensic chemists. Despite vehement disagreement from the D.A., Judge Rogers agreed with me and ruled that the charge could not stand and dismissed the case.

The importance of this case cannot be overemphasized. In 2008, the California Court of Appeal ruled in People v. Bergen that the meth lab statute does apply to making hash using butane. The problem for medical marijuana patients is that the medical marijuana defense DOES NOT APPLY to any charge under the meth lab statute (so, for you medical marijuana patients and caregivers out there, don’t use butane to make hash). In this light, it is clear that the D.A. was trying to use this statute to prevent my client from utilizing the medical marijuana defense. However, Judge Rogers sent a clear message to the D.A.: the courts will not endorse oppressive, experimental prosecutions of medical marijuana patients who legitimately engage in collective cultivation activities, which includes the lawful manufacturing of hash.

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