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People v. Lente

Supreme Court of Colorado, En Banc

June 19, 2017

The People of the State of Colorado, Plaintiff-Appellant
v.
Austin Joseph Lente, Defendant-Appellee

         Interlocutory Appeal from the District Court El Paso County District Court Case No. 15CR961 Honorable David S. Prince, Judge

          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

          HOOD JUSTICE

         ¶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. ยง 16(3). Second, it sets out "Lawful operation of marijuana-related facilities": activities associated ...


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