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California extraction rule helps scores of hash oil cases

Posted by Joseph Tully | Nov 17, 2017

The Leaf Online by  Chris Conrad,  November 17, 2017

The Bureau of Cannabis Control has released Emergency Regulations including a common sense rule change that provides relief for potentially hundreds of hash oil extraction cases with patients facing years in prison for using alcohol to make concentrates. Ethanol and CO2 extraction are officially non-volatile processes.

“These regulations have provided the clarification we sought regarding what is and is not a volatile solvent in the creation of cannabis concentrate,” explained attorney Ashley Bargenquast. “The specific section is California Code of Regulations section 5000(k),” published November 16, 2017.

Health and Safety Code section 11379.6, the so-called “meth lab penalty” set penalties of three to seven years in prison. The sloppily worded statute was intended to cast a wide net over the use of explosive materials to make methamphetamine. However, after a few explosions and fires erupted when people were making butane honey oil or BHO, often in residential areas, prosecutors found a new use for the statute.

The People v Bergen appeals court decision ruled that medical marijuana laws do not have a legal defense against the statute. Edibles, water and ice extraction, rosin and other non-solvent types of extraction were excluded from prosecution under the statute.

Volatile hash oil extraction: a big felony

Most people now agree that blasting butane through cannabis in a plastic tube inside your home is an extremely dangerous thing to do. Outside, maybe not so much but, even so, the public safety concern is understandable. The problem is how the terms “volatile” and “solvent” were written into the law.

As adopted, the statue included any solvent including flammable solvents. That snagged relatively harmless alcohol extraction and potentially even tinctures and liniments. Although CO2 is not flammable, such as dry ice, and it is actually a form of mechanical extraction, prosecutors often argued that it was included.

Then Proposition 64 and Senate Bill 94 changed the definition to refer to solvents that are or produce a flammable gas. Again, that would not include CO2 but prosecutors again revved up the notion that pouring some Everclear through cannabis, straining it out and then evaporating it off is an inherently explosive situation.

Ethanol and CO2 officially non-volatile

The BCC's California Code of Regulations, as promulgated, still leaves in limbo the matter of isopropyl alcohol extraction, although the new rule creates a legal analogy for the defense in that rubbing alcohol is not much more volatile than hard liquor.

Section 5000(k) “Nonvolatile solvent” means any solvent used in the extraction process that is not a volatile solvent. For purposes of this division, a nonvolatile solvent includes carbon dioxide (CO2) used for extraction and ethanol used for extraction or post-extraction processing. [Emphasis added.]

The take away on that is that people moving forward with home hash oil solvent extraction should use ethanol alcohol, which generally makes for a cleaner product, anyway.

A big win for social justice

“When combined with Health and Safety Code section 11362.1(a)(2) which makes it lawful for persons 21 years of age or older to process not more than 8 grams of marijuana in the form of concentrate cannabis, and section 11362.3(a)(6) which clarifies that section 11362.1 does not allow the manufacture of concentrated cannabis using a volatile solvent, the lawfulness of [using alcohol and CO2 extraction] becomes clear'” explained Bargenquast, a Compliance Associate at Tully & Weiss Attorneys at Law.

“This is even further clarified by section 11362.4(d) which explicitly says that the conduct in paragraph 6 of subdivision (a) of section 11362.3 shall be subject to punishment under section 11379.6. Since 11362.3(a)(6) behavior is a violation of 11379.6 but the use of ethanol for extraction is not 11362.3(a)(6) behavior, the use of ethanol or CO2 is clearly not 11379.6 extraction.

About the Author

Joseph Tully

Founding Partner, Criminal Law Specialist Our founding attorney, Joseph Tully, is sought out for his expert legal advice throughout California. With over 20 years of experience as a criminal lawyer, in 1000+ felony and other cases, Tully served as felony trial counsel as a public defender before...