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
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),
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.
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
Facts and Procedural History
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, §
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.
Lente was charged with processing or manufacturing marijuana
or marijuana concentrate under section 18-18-406(2)(a)(I),
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 People appealed directly to this court under section
16-12-102(1), C.R.S. (2016), and C.A.R. 4(b)(3).
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."
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
Standard of Review
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)).
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" 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
§ 18-18-102(17), C.R.S. (2016).
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