May 6 2015 12:07 PM

It's legal, but law enforcement regulations remain hazy

Michael McShane takes his lunchtime dose of hash oil.
Photo by Joshua Emerson Smith

    About a month ago, Michael McShane moved to San Diego from Detroit with very little money and a limited supply of hash oil.

    "That's the end of mine right there," he said pointing to a blunt-tipped syringe filled with less than 10 grams of a brown substance, roughly the consistency of honey.

    With little in the way of financial resources, the thought of running out of the cannabis extract makes him feel "scared," he said. "Fuck yeah, man, that's my medicine."

    Living with AIDS for the last 30 years, McShane, 55, has endured multiple bouts of squamous cell carcinoma skin cancer. He's undergone surgery, radiation and chemotherapy, spending hundreds of thousands of dollars on medical procedures that he now views as unnecessary.

    About four years ago, he stopped all conventional treatments for cancer and AIDS. Instead, he now swallows a dose of hash oil with breakfast, lunch and dinner, totaling about a gram a day.

    "I've taken nothing but these," he said filling a clear capsule with the brown oil from the syringe. "I'm still alive, and the doctors told me if I didn't take their pills, in three months, I'd be dead."

    Beyond orally ingesting the hash oil, McShane said he's used it as a topical balm to heal cancerous lesions on his skin.

    "I don't know what to tell you, man; I take the oil, and it replaces my medication," he said. "This oil is an absolute fountain of youth."

    Wanting to ensure quality control for the large amounts of hash oil he ingests, McShane, like a growing number of people, started extracting the concentrated cannabis himself. However, while hash oil is legal to possess in California with a doctor's recommendation, making the stuff can get you up to seven years in prison.

    In response to deadly explosions caused by using butane to make hash oil—often referred to as BHO—law enforcement has cracked down. To extract the hash oil, the solvent is pressed through a tube of cannabis and into a dish, collecting as a yellowish concentrate that dries into smokable form often referred to as "wax" or "shatter." Butane is extremely volatile and can be ignited by subtle sparks.

    Advocates for medical cannabis have argued there are safe ways to extract hash oil, but without state guidelines, like so many aspects of the state's medical-cannabis system, local law enforcement has wide prosecutorial discretion on the matter.

    "It's not the resultant product that we're concerned about; it's the process of making it," said San Diego County Deputy District Attorney Steve Walter, with the office's narcotics division. "If you're engaging in something that's going to blow up and endanger people's lives, you're going to get our attention."

    Absent state guidelines for how to safely manufacture hash oil, many local patients will continue to face significant legal risks, said Eugene Davidovich, president of the Alliance for Responsible Medical Access.

    "I'm hopeful that we can keep our community safe by creating regulations and clarity on the extraction process," he said. "Unfortunately, law enforcement hasn't been very helpful. They've taken the strictest interpretation and prosecuted folks for doing it, whether it's safely or unsafely."

    "We are very much opposed to patients experimenting with butane in their homes," he added. "It's unsafe and it's unnecessary."

    If the District Attorney's office can charge an individual with illegally manufacturing hash oil, it will, regardless of the method being used, Walters said. "Safe is not the determining factor."

    Extracting hash oil using butane has caused approximately 20 explosions and fires in San Diego County since October 2013, according to the Drug Enforcement Administration. Last year, statewide, eight children were injured and one killed in such incidents.

    The most popular method of smoking BHO doesn't do its image any favors, either. Using a glass bong, the hash oil is incinerated, often referred to as "doing a dab," on a red-hot metal bowl called a "nail," which is heated up using a blowtorch.

    There are the explosions and ominous-looking contraptions. And, according to numerous longtime cannabis users CityBeat talked to for this story, smoking hash oil gets you really, really high. It's easy to see why many law enforcement officials have compared hash-oil extraction to meth labs.

    San Diego District Attorney Bonnie Dumanis has co-sponsored new legislation from state Senator Patricia Bates, SB 305, which would increase penalties for those manufacturing "concentrated cannabis" in the presence of children.

    At the same time, many of the most severely ill patients using cannabis rely solely on hash oil, Davidovich said. "Many cannot or do not wish to ingest cannabis by smoking and rely on infused foods and beverages. The dosage of cannabis needed to treat serious conditions is often high and consuming it in the form of cannabis oil is a much more effective way to administer the medicine rather than combusting it."

    McShane uses the so-called "Rick Simpson" method of soaking cannabis in high-proof alcohol, evaporating the liquid using a rice cooker and extracting the hash oil with a heat gun. While he acknowledges the process can be relatively "dangerous" if done carelessly, he argues, "so is running a space heater."

    Michael McShane shows off his method of making hash oil.
    Photo by Joshua Emerson Smith

    Extracting hash oil using alcohol is far safer than using butane, said an extraction specialist, who asked to be identified as Tyler.

    "There's no comparing the two," he said. "People don't walk around with a shot of 151 particularly concerned about the guy who's smoking a cigarette next to them. Reducing an alcohol solution is basic cooking."

    Done in a responsible manner, extraction is a routine manufacturing process, said Tyler, who works for a business that uses carbon dioxide to commercially extract botanicals from coffee, kava, lavender and, yes, cannabis.

    "It is being done in a safe and responsible manner in states like Washington and Colorado, where they're able to have their facilities set up in a proper manner, but they're regulated commercial facilities, which we have nothing like here in California," he said.

    The most significant guidelines on making homemade hash oil come from a 2008 court case known as The People v. Bergen. Before that, making hash oil using butane was legally untested. With explosions making headlines, the court ruled that such a practice was tantamount to running a drug lab to make methamphetamine.

    While the ruling found that making traditional hash using ice water wasn't illegal, it didn't address other methods of making hash oil, such as using alcohol or pressurized carbon dioxide, said Michael Cindrich, lawyer and executive director of the San Diego County chapter of the National Organization for the Reform of Marijuana Laws.

    "There definitely needs to be a legislative solution. I think everyone's sitting and waiting," he said. "It would be easy to provide guidelines. There's equipment that can be used to minimize the dangerous environment.

    "In my opinion, law enforcement would go after those individuals the same as if they had a BHO lab," he added. "Time and time again, we see law enforcement and the District Attorney's office taking a narrow interpretation of the marijuana law."

    That means making homemade hash oil, even with alcohol, could land someone, such as McShane, in a lot of hot water. Still, he doesn't seem to care.

    "I would make oil every day for somebody with cancer," he said. "I wouldn't even think about the police when it came to that. It's more important for me to help people."

    After being diagnosed four years ago, he quit an $85,000- a-year job in Michigan to grow weed and make hash oil. A paint-finishing engineer in the automotive and aerospace industries for 30 years, he said making hash oil is very similar to what he did for a living.

    However, growing cannabis didn't pencil out for McShane, and he didn't want to go back to a job he believes exposed him to cancerous chemicals. Even tually, he lost his home to foreclosure. Now, without a steady income, his main concern is procuring his medicine, which could run him more than $1,500 a month if purchased at a medical-cannabis storefront.

    "It's not a fucking dab experience," he said. "If you're running back and forth like an addict to the dispensary paying for oil, you're not going to make it." 

    Write to or follow him on twitter at @jemersmith.


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