Appeals Court: Butane Extraction by Individuals is Manufacturing a Controlled Substance

The Michigan Court of Appeals last week ruled that using butane to create hash oil is illegal for individuals, concluding that the practice constitutes the manufacturing of a controlled substance. The ruling comes in the case of Alexan Korkigian who was charged with manufacturing a controlled substance in 2018 after authorities were called to his residence after an explosion caused by butane extraction.

Korkigian’s case reached the court of appeals after his attorneys sought to have the charge dismissed or be able to use personal-use affirmative defense under the state’s adult-use legalization law in the circuit court. Korkigian argued that he could not be charged because state law allows some cannabis manufacturing for personal use and the definition of “manufacturing” under state laws “excludes preparing or compounding” cannabis for personal use, according to court documents.

According to court documents, Alex Goodnough, a chemist at Precision Extraction Solutions and expert witness in the hearing, testified that Korkigian was “isolat[ing] the cannabinoids away from [the] carbon” in the cannabis plant “to increase THC concentration and make smoking healthier.” Further, Goodnough testified that both the primary extraction material and final product were “marijuana.”

Prosecutors argued that preparation and compounding of cannabis “involve simple activities” such as “rolling a joint or making ‘special’ brownies,” but “more complex activities, like converting powder cocaine into crack cocaine or ‘cooking’ methamphetamines, are manufacturing acts outside the scope of the personal-use exemption.”

“The open blasting used in this case was more akin to the second category, in the prosecutor’s estimation,” the ruling states.

The circuit court had previously agreed that while Korkigian’s extraction process both began and ended with the same substance – cannabis – he had engaged in “manufacturing” because the cannabis changed its form as a result of Korkigian’s manipulation.

And, the circuit court said, Korkigian “engaged in a significantly higher degree of activity involving the controlled substance beyond merely preparing or compounding it for use.” Rather, Korkigian’s extraction process constituted “conversion” or “processing” under the statute, precluding dismissal of the charge or reliance on the personal-use affirmative defense.

The Appeals Court determined that the butane extraction method makes cannabis “‘ready for use’ through multiple steps, none of which are easy or uncomplicated.”

“We reject the notion that the open-blasting technique merely “makes ready” marijuana plant material for personal use,” the court ruled, affirming the circuit court’s decision.

The ruling does not outlaw butane extraction by licensed cannabis companies.

In 2017, then-Gov. Rick Snyder signed into law a bill amending the state’s medical cannabis law specifically prohibiting butane and “open blasting” forms of extraction for registered patients.