People v. Lente

• Decision Date: 19 June 2017
• Docket Number: Supreme Court Case No. 15SA331
• Citation: 406 P.3d 829
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant v. Austin Joseph LENTE, Defendant-Appellee.
• Court: Colorado Supreme Court

406 P.3d 829

The PEOPLE of the State of Colorado, Plaintiff-Appellant

v.Austin Joseph LENTE, Defendant-Appellee.

Supreme Court Case No. 15SA331

Supreme Court of Colorado.

June 19, 2017

Attorneys for Plaintiff-Appellant: Daniel H. May, District Attorney, Fourth Judicial District, Doyle Baker, Senior Deputy District Attorney, Jimmy Litle, Deputy District Attorney, Colorado Springs, Colorado, Cynthia H. Coffman, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado.

Attorneys for Defendant-Appellee: Douglas K. Wilson, Public Defender, Nathan Ojanen, Deputy Public Defender, Colorado Springs, Colorado.

En Banc

JUSTICE HOOD delivered the Opinion of the Court.

¶ 1 When Austin Joseph Lente tried to extract hash oil from marijuana using butane, the butane exploded, engulfing his laundry room in flames. Worse yet, he was charged with processing or manufacturing marijuana or marijuana concentrate in violation of section 18-18-406(2)(a)(I), C.R.S. (2016).

¶ 2 The district court dismissed the charge, reasoning Amendment 64 decriminalized processing marijuana and therefore rendered section 18-18-406(2)(a)(I) unconstitutional as applied to Lente. The People appealed directly to this court.

¶ 3 We disagree with the district court. When Amendment 64 was approved, "processing" marijuana had a settled meaning that excluded hash-oil extraction, and we assume Amendment 64 adopted that meaning. We hold that, under Amendment 64, extracting hash oil from marijuana is manufacturing marijuana—not processing marijuana plants—and therefore does not fall within Amendment 64's protected personal uses of marijuana. Accordingly, the district court erred in dismissing the charge. We reverse and remand for further proceedings.

I. Facts and Procedural History

¶ 4 As relevant here, in 2012, Colorado citizens adopted Amendment 64 to the Colorado Constitution, legalizing under state law possession of one ounce or less of marijuana and some uses of marijuana for people twenty-one or older. Amendment 64 also decriminalizes under state law the "processing ... [of] no more than six marijuana plants." Colo. Const. art. XVIII, § 16 (3)(b).¹

¶ 5 In 2015, the Colorado Springs Police and Fire Departments responded to a report of a fire at Lente's house. Lente admitted he had caused the fire in the laundry room while trying to extract hash oil from marijuana. He had frozen a jar containing marijuana, removed the jar from the freezer, and injected butane into the jar through a hole in the lid. Before he could return the jar to the freezer, the bottom of the jar broke, spilling butane onto the freezer. The butane exploded, setting the room ablaze.

¶ 6 Lente was charged with processing or manufacturing marijuana or marijuana concentrate under section 18-18-406(2)(a)(I),² arson, criminal mischief, and several other counts. He moved to dismiss the processing/manufacturing charge, reasoning that section 18-18-406(2)(a)(I) was unconstitutional because Amendment 64 had decriminalized processing marijuana. After a hearing, the district court granted the motion and dismissed the charge.

¶ 7 The People appealed directly to this court under section 16-12-102(1), C.R.S. (2016), and C.A.R. 4(b)(3).

II. Analysis

¶ 8 Lente does not dispute that his alleged conduct—using butane to extract hash oil from marijuana—violated section 18-18-406(2)(a)(I). But he argues that statute is unconstitutional as applied to him because Amendment 64 legalized extracting hash oil by legalizing "processing ... marijuana plants."

¶ 9 We begin with the standard of review for constitutional challenges to statutes. Next, we discuss Lente's challenge to the statute and explain how hash-oil extraction works. Then, we consider whether unlicensed hash-oil extraction is protected under Amendment 64. We conclude it is not. Amendment 64 distinguishes between processing marijuana plants, which doesn't require a license, and manufacturing marijuana, which does. Under the statutory scheme in place when voters approved Amendment 64, extracting hash oil was manufacturing, and we presume Amendment 64 adopted that meaning. Last, we reject Lente's assertion that the statute is either overbroad or vague in light of Amendment 64.

A. Standard of Review

¶ 10 We review the constitutionality of statutes de novo. Justus v. State, 2014 CO 75, ¶ 17, 336 P.3d 202, 208. We presume statutes are constitutional, and a challenger has the burden to prove a statute unconstitutional. Id. When a constitutional challenge is based on an asserted direct conflict between the statute and the Colorado Constitution, we must uphold the statute absent a "clear and unmistakable" conflict. E-470 Pub. Highway Auth. v. Revenig, 91 P.3d 1038, 1041 (Colo. 2004) (quoting City of Greenwood Vill. v. Petitioners for the Proposed City of Centennial, 3 P.3d 427, 440 (Colo. 2000) ).

B. Lente's Challenge to the Statute

¶ 11 Lente was charged under section 18-18-406(2)(a)(I). That provision makes it "unlawful for a person to knowingly process or manufacture any marijuana or marijuana concentrate" except in circumstances inapplicable here. § 18-18-406(2)(a)(I). Article 18 of the criminal code does not define "process," but it defines "manufacture":

"Manufacture" means to produce, prepare, propagate, compound, convert, or process a controlled substance, directly or indirectly, by extraction from substances of natural origin, chemical synthesis, or a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container.

§ 18-18-102(17), C.R.S. (2016).

¶ 12 As applied to Lente's hash-oil extraction, he argues, that statute conflicts with Amendment 64. Amendment 64 legalized possession of one ounce or less of marijuana and some activities relating to marijuana. See Colo. Const. art. XVIII, § 16. The Amendment creates tiers of protected activities. First, it sets out "Personal use of marijuana": activities that are protected for all individuals at least twenty-one years old. Id. § 16 (3). Second, it sets out "Lawful operation of marijuana-related facilities": activities associated with the regulated-marijuana business, some of which are protected only for those with certain current, valid licenses. Id. § 16 (4).

¶ 13 Lente had no license,³ but he contends that extracting hash oil falls under the protected personal use of "processing ... marijuana plants," id. § 16 (3)(b). The People counter that hash-oil extraction is not a protected personal use, but instead amounts to the facility-operation activity of "manufacturing ... marijuana," which requires a license. Id. § 16 (4)(d). To settle the dispute, we must understand the nature of hash-oil extraction and then interpret Amendment 64.

C. Hash-Oil Extraction and the "Butane Method"

¶ 14 The psychoactive ingredient in marijuana is tetrahydrocannabinol, or "THC." Hash-oil extraction is the process of separating concentrated THC—a viscous liquid ("hash oil")—from the marijuana plant. The extractor puts parts of a marijuana plant—usually compressed by chopping or grinding—into a tube. He or she then pours a chemical solvent through the plant material. The solvent dissolves and holds the THC from the plant and then passes through a filter into another container. The extractor then separates the THC from the solvent by letting the solvent evaporate, a process which can be (and usually is) accelerated by applying heat.

¶ 15 The "butane method" of hash-oil extraction—using butane as the solvent—is particularly dangerous due to the nature of butane. Butane gas is highly flammable, odorless, and heavier than air. Because it is heavy, it falls and pools, where it can be ignited by heat sources like pilot lights, cigarettes, or even static electricity. Explosions typically occur because of inadequate ventilation or because people move the butane-THC mixture from a well-ventilated area to an unventilated space (like a freezer) before the butane has finished evaporating.

D. Lente's As-Applied Challenge Fails Because Amendment 64 Does Not Protect Unlicensed Hash-Oil Extraction

1. Standards of Interpretation and Controlling Precedent

¶ 16 To determine whether hash-oil extraction is a protected personal use under Amendment 64, we begin with our standards for interpreting citizen initiatives. Our goal in interpreting a citizen initiative is to "give effect to the electorate's intent." Colo. Ethics Watch v. Senate Majority Fund, LLC, 2012 CO 12, ¶ 20, 269 P.3d 1248, 1253 (quoting Davidson v. Sandstrom, 83 P.3d 648, 654 (Colo. 2004) ). We look to the language used and its plain and ordinary meaning. Id., 269 P.3d at 1253–54. If the language is unambiguous, we enforce it as written. Id. at 1254. But if the language is ambiguous, we "construe the amendment in light of the objective sought to be achieved and the mischief to be avoided by the amendment." Id. (quoting Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo. 1996) ).

¶ 17 Additionally, if an amendment's language had a settled meaning under the existing law at the time of the amendment, we presume the electorate intended to adopt that meaning. See id. This is because we presume the electorate is aware of the existing law at the time it clarifies or amends that law. Id.

¶ 18 Colorado Ethics Watch guides our analysis today. There, a watchdog group complained that two political organizations had engaged in "express advocacy" without meeting certain requirements, thus violating Amendment 27, a citizen initiative. See id. at ¶ 11, 269 P.3d at 1252. The organizations had distributed political ads that, while avoiding specific words of endorsement, nonetheless identified candidates for office and favorably discussed their qualifications, views, and plans. Id. at ¶ 9, 269 P.3d at 1252. The watchdog argued that the plain meaning of "express advocacy" covered all ads that "unmistakably communicate support ... [for] a candidate." Id. at ¶ 27, 269 P.3d at 1256.

¶ 19 We explained, "[T]o resolve [the] case...