It is common to hear patients, caregivers, and public officials decry the “gray areas” in Montana’s medical marijuana law. Hashish is one of those, and I recently spoke with a criminal defense attorney who has concluded that any amount of hashish may be prosecuted as a criminal offense, even if you have a state-issued medical marijuana card.

First though, a word about so-called gray areas. Here’s another way to think about it:

There is one way to interpret any aspect of the law on which everyone will agree — patients, growers, lawyers, and every cop and judge in Montana.  This is the most strict, narrow interpretation of the law, and one you can rely on. For example, the fact that a registered patient may possess up to one ounce of marijuana buds. Nobody doubts that the law currently protects this conduct.

Then there are the parts of the law where various people differ on appropriate interpretation. Caregivers may insist that one reading is reasonable and correct, while patient advocates may describe the same interpretation as “risky”. Even two lawyers may disagree.

When the meaning of the law is not crystal clear to absolutely everyone (with no debate), then what we are likely to see is cases with identical facts treated differently in different jurisdictions. And no matter how confident you may be of our interpretation of the law, if a cop, prosecutor, and judge in Broadwater County feel differently, you could go to jail. For years.

Hashish is one of the topics on which there is not universal agreement. Let’s review the law.

The Montana Medical Marijuana Act states:

“Usable marijuana” means the dried leaves and flowers of marijuana and any mixture or preparation of marijuana.

“Any preparation”  seems like it should include hashish, and the helpful DPHHS FAQ agrees.

A qualifying patient and a qualifying patient’s caregiver may each possess up to six marijuana plants and up to one ounce of usable marijuana. “Usable marijuana” means the dried leaves and flowers of marijuana and any mixture or preparation of marijuana. This would include hashish, tinctures or food products. (emphasis added)

However, Montana criminal code states:

A person convicted of criminal possession of marijuana or its derivatives in an amount the aggregate weight of which does not exceed 60 grams of marijuana or 1 gram of hashish is, for the first offense, guilty of a misdemeanor… (emphasis added)

And elsewhere:

“Hashish”, as distinguished from marijuana, means the mechanically processed or extracted plant material that contains tetrahydrocannabinol (THC) and is composed of resin from the cannabis plant. (emphasis added)

So the criminal code specifically distinguishes between marijuana and hashish, allowing up to 60 grams of buds, but only one gram of hash. More than either threshold constitutes a felony punishable by up to 20 years in prison.

The next piece of the puzzle is a principle of law which basically states:

If two laws seem to conflict, but one makes a specific statement and the other is more general, then the law with greater specificity takes precedence.

So, the medical marijuana law implies that hashish (as “any preparation”) is the same as marijuana, but the criminal code specifically distinguishes between the two.

Therefore, one way to interpret Montana law is that medical marijuana cardholders possessing any amount of hash are committing a criminal offense.

I’m not a lawyer, and there may never be a prosecution of this nature. But we hear that some growers are selling up to an ounce of hash to their patients, so it’s best everyone be aware of the risks of doing so.

Remember, no matter how certain someone  may be of a particular interpretation of the law, it may take some jail time and thousands of dollars in legal fees to successfully argue the case. Be careful out there.

• Previous Entry: Whitefish Medical Marijuana Ordinance Draft
• Next Entry: $100 Haiku Contest!