Oregon growers win case; drying marijuana is not usable marijuana

(AP / Newser) When police knocked on Josh Brewer’s door to check for marijuana, even one of the nation’s most liberal medical marijuana laws was put to the test.

Officers were fine with the two pounds 10 ounces he and a cousin had grown, harvested, and processed. That was under the pound and a half each allowed by law. And they didn’t care about the 12 plants _ six each _ growing in the backyard. Also legal.

But after they discovered the additional two pounds 11 ounces drying on coat hangers suspended from the ceiling in the living room, officers arrested Brewer, sparking a legal battle over what was enough _ in the maximum sense _ for medical use, and what crossed the line into the potential for illegal sales.

Under the Oregon Medical Marijuana Act, each cardholder…

ORS 475.320(2)(b) May possess up to six mature plants and up to 24 ounces of usable marijuana for each cardholder or caregiver for whom marijuana is being produced.

And under the law…

ORS 475.302(11) “Usable marijuana” means the dried leaves and flowers of the plant Cannabis family Moraceae, and any mixture or preparation thereof, that are appropriate for medical use as allowed in ORS 475.300 to 475.346. “Usable marijuana” does not include the seeds, stalks and roots of the plant.

So our attorney general has informed the judge in this case that an Appeals Court ruling from 2007 had already determined that marijuana that has been freshly harvested is not “usable” in the legal definition of the term.  If it is “drying” it is not yet “dried”.  So the 42 ounces of dried marijuana the pair had was within legal limits and the 43 ounces of drying marijuana can’t count against that.  Furthermore, a branch pulled off a plant to hang and dry is itself not a plant, either, so they don’t count against the 6 mature plant limit.

Theoretically speaking, with my caregiver card, I could be sitting here with 24 ounces of dried buds and six mature plants with ten pounds of bud on them apiece.  I could chop off a branch each week and dry it and so long as I’ve gone through my dried pound-and-a-half before the pound-and-a-half on the branch dries, I’ve never broken the law.  In fact, theoretically there is no limit to how much weight in wet bud I could be drying here, so long as no more than 24 ounces of it is dry at one time.

Now, I can see how law enforcement is freaking out about this.  There is no doubt that some patients need 24 ounces of medicine in order to make edibles, tinctures, and oils, and to hedge against uncertain supply, since we have no reasonable retail access to marijuana.  However, it can also be argued that this is also a huge loophole through which commercial growers can use the medical marijuana law to shield their illegal production.

This goes to show how unworkable it is to carve out an exception to prosecution for 10% of marijuana users.  No matter what firewalls, limits, inspections, or requirements are created for the medical use of cannabis, the overwhelming market forces driving the personal use of marijuana will always find a way to exploit exceptions and thwart limits.  Then those we persuaded for exceptions say, “See, we told you legalizing a little would lead to this!” and they push for tighter restrictions and limits that do nothing to stop the personal use market, but cause huge problems for the medical user who has always been the least able to function in an illegal market.