Many people in possession of marijuana wish to prepare it by “dabbing.” Soaking marijuana in a solvent, like butane, will extract and concentrate the cannabinoids like THC and CBD. Then, by removing the solvent, you are left with a THC extract or concentrate. This procedure can be accomplished in a very safe manner. It requires an explosion proof or fire proof room, a closed loop system and a safe butane recovery vessel.
There is, of course, also the unsafe way to do it, called “open blasting,” which permits flammable butane into the “open” air. If a spark ignites it, an explosion occurs. I have seen it level a house, garage and barn. The question is: What should the criminal charge be if an explosion occurs?
The answer is NOTHING. It was an accident. There is nothing unlawful about extracting THC from marijuana using butane in Michigan. But, of course, not all prosecuting attorneys agree. Some believe that butane extraction makes a person guilty of manufacturing marijuana, a four-year felony under the Michigan Public Health Code.
Medical Marijuana is Not a Defense
The Michigan Medical Marijuana Act (MMMA) expressly prohibits the extraction of THC using butane in a residential building, which can create a criminal case. Therefore, the MMMA is not a defense. The same can be said for our new recreational marijuana law called the Michigan Regulation and Taxation of Marijuana Act (MRTMA).
However, contrary to some incorrect beliefs, the MMMA prohibition for butane extraction does not make it a crime. Nevertheless, the possession, manufacture, extortion and medical use of cannabis used during or from the extortion process is not afforded a Medical Marijuana Protections.
Possible Marijuana Manufacturing Defenses
Public Use Exception
Even through there is no medical marijuana defense, another defense is available which is called the personal use exception. If a person is preparing a drug for personal use, it is not fair to hit them with an additional felony. The person was simply being in possession of the same controlled substance.
Difference Between Meth and Marijuana
For example, a person using manufacturing methamphetamine has to combine different ingredients to create meth. You do not start with meth and then prepare it for use with the end result of having meth. There is not personal use exception in that circumstance.
But with marijuana, the butane is used to extract the cannabinoids like THC and the resin. You end up with marijuana, just like how you started and therefore, the personal use exception applies. It is not considered manufacturing.
Definition of Marijuana: Same for Plant and Resin
The key lies in the definition of marijuana, which is defined as:
the plant, flowers of the plant, and any resin or extract therefrom.
This means, with butane extraction, you start with marijuana and end with marijuana, just in a different form. It’s a preparation for use, which is why the personal use exception applies.
Private Use Has Not Been Decided in Michigan
Few trial courts have ruled upon this issue as it relates to butane extraction of marijuana. To date, no appellate courts have ruled upon this issues either and therefore, it is unsettled law in Michigan.
Like many issues, it can take a few years for it to get to a court of appellate jurisdiction, which would then set the law for the state. However, it is only a matter of time between we have a set law on this.
How to Win a Butane Explosion Case
For now, to win butane explosion case where the charge is manufacture, make sure to use a law office drug crimes lawyer or drug crime attorneys who knows the defense very, very well. That is the only way for a criminal defense attorney to fight it, especially against prosecutors who do not like to plea bargain, like in Oakland County.
It’s vital to keep a case like this off of someone’s criminal record.
Attorney Morris has enjoyed a very successful and distinguished career as a trial lawyer providing high quality legal representation in the area of state and federal criminal defense for 20 years. He is known for his trial preparation by fellow attorneys, judges and clients alike. As a trial attorney, he is dedicated to attaining justice in every case, and is prepared to take on complex legal issues with success. Barton and his law firm pride themselves on obtaining results for their clients that other attorneys cannot.
Not only does Barton Morris have extensive experience, he also engages in continuing legal education to provide the highest quality legal services. Barton has received specialized scientific training through the American Chemical Society. He attended the prestigious Trial Lawyers College and serves on its Alumni Association Board of Directors. Barton Morris is also a board member of several distinguished legal associations including the Michigan Association of OWI Attorneys, and the DUI Defense Lawyer’s Association Justice Foundation. He is also an active member of the National Association of Criminal Defense Attorneys and has also graduated from their National Criminal Defense Trial College in Macon, Georgia.
Barton Morris was chosen as a Top Lawyer of Metro Detroit for 2012, 2013, 2014, 2019 and 2020 for DUI/DWI and criminal defense by DBusiness Magazine and Hour Magazine. Barton Morris was also chosen as a Super Lawyer in Criminal Defense for 2014-2020 and Barton Morris is the only Lawyer in Michigan designated by the American Chemical Society as a “Forensic Lawyer-Scientist”