Just over a year ago, Colorado began a grand experiment with the legalization of marijuana. Unlike Washington state, which has taken the state-backed dispensary route to production, the Colorado model favors the individual pot farmer; think craft beers and spirits, and apply the concept to marijuana.

The past year has showed Coloradoans, however, that the process has become more complicated -and dangerous- in order to produce a much more potent strain of the crop. One consequence of the production process: explosions.

Marijuana at its Best.  These days, the cutting-edge in marijuana production is a concentrated, golden honey-like substance known as: wax, hash oil, or shatter.  To produce this substance, mature marijuana leaves are infused with butane under pressure. When the butane is removed, the spent plant matter yields a potent residue containing a high concentration of THC, the psychoactive ingredient found in the marijuana leaf.

Collateral Damage.  Here's a problem: when folks rush through the production of their pot wax, and do not take proper care or precaution -because they are anxious to get their product onto the street and make some money- bad things can happen. For example, the butane used in the production causes combustible fumes to build-up in any enclosed, poorly ventilated structure. If the venue used in the production process is, say, an ordinary residence, then errant sparks can happen when a furnace kicks on, or a gas stove burner is lit. Under such circumstances, a spark can lead to an explosion when the butane fumes ignite.

The Stats.  According to a recent article in the NYT, thousands of people are producing marijuana wax with butane all across Colorado. In 2013, a dozen pot-production-related house explosions occurred; last year the number rose to 32 according to the pro-law enforcement group Rocky Mountain High-Intensity Drug Trafficking Area.

Legal Consequences.  What is a county prosecutor or judge to do with an individual that blows-up a house in the production of marijuana wax? Well, so far such individuals do not just get a pass. County prosecutors are charging individuals with arson. This gives rise to some interesting criminal defense lawyering, and has led to disparate results.

In one case currently pending against a 22-year old, the county judge would not dismiss the arson charges against him on the grounds of Colorado's new pot law; the defendant is facing prison time if convicted.  In another case, a 77-year old man pled guilty to arson and was sentenced to probation.

Going Forward.  As Colorado boldly sets the pace for marijuana legalization, we see the classic disconnect between the law and the realities of human activity. Nowadays, the classic grow-your-own style of marijuana production, where plants are lovingly nurtured, cultivated and smoked in cigarettes or pipes, is rapidly giving way to a more dangerous intensive process aided by explosive materials.

If the explosion trend continues, we here at the Law Blogger look for two things to occur: first, production will shift to a more state-run or subsidized dispensary model; and second, some pot growing conduct will be regulated or criminalized either by the federal government, or via state laws and regulations.

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On the last day of the month, the Colorado Supreme Court will hear oral argument on a wrongful termination case pitting legal medical marijuana use against an employer's right to regulate its work environment.  A wheelchair-bound Dish Network employee, disabled since age 16 from a serious car accident, filed suit against his former employer challenging his termination for failing a drug screen; the man used marijuana in the evenings to control his regular painful spasms.

The case highlights how, even as marijuana has gained legal ground and wide-spread acceptance across the country, it continues to pose a tricky policy obstacle to a drug-fee work place.  Contemporary ads for employment in Colorado and Washington, where recreational marijuana use is legalized, routinely warn of companies' zero-tolerance policy.

Basically, it's: "do not bother to apply if you use marijuana."  This Dish Network case tests the legality of that policy.

Employers, like this Blogger, see the advantage of a drug-free workplace: more focus on the job [who wants a stoned workforce]; a safer work environment; and, in some cases, compliance with state and federal laws in order to obtain government contracts.  On the other hand, Brandon Coats, the plaintiff in the Colorado case, argues persuasively that a person can drink to obliteration every night and, so long as they show-up for work the following day, they will not be fired on the basis of a positive alcohol screen.

This case, and the other marijuana employment cases, also highlight the persistent conflict of law issue that begs resolution: despite 23 states legalizing medical marijuana use, and two states legalizing its recreational use, marijuana remains a Schedule I controlled substance under the federal Controlled Substance Act.

Therein lies the cover that the Colorado Court of Appeals used in affirming the trial court's summary dismissal of Mr Coats' case.  The Court of Appeals held:

Thus, forbidding a Colorado employer from terminating an employee for federally prohibited off-the-job activity is of sufficient policy import that we cannot infer, from plain statutory language to the contrary and silence in the legislative discussions, the legislative intent to do just that.

Moreover, a review of Colorado statutes shows that if the legislature had wanted to insulate employees from discharge for off-the-job activities illegal only under federal law, it knew how to do so.

Long ago, Congress placed marijuana in the same category as cocaine, heroin and opiates: the dreaded Schedule I [i.e. no known medicinal value, with significant potential to harm].  In more recent times, SCOTUS held in 2005 that state marijuana laws [California] did not circumvent the federal prohibition.

Over here at the Law Blogger, we are not going to hold our breath until Congress removes marijuana from Schedule I, as that day will probably not come within the lifetime of anyone now living.

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Attorney General Eric Holder

U.S. Attorney General Eric Holder has been asked by the Attorney General of Colorado for an indication of how the DOJ will treat the marijuana legalization initiatives passed into law by Colorado and Washington.  Holder has promised to address the issue, "soon".

The USAG made the promise at a national conference of Attorneys General in response to a question posed to him by Colorado Attorney General John Suthers.  Holder indicated that the DOJ was working on formulating the policy response and that it was complicated.

Although marijuana has been legalized in two states, and is legal for medical purposes in a third of the states and the District of Colombia, it remains classified as an illegal "controlled substance" under federal law.  Thus, businesses within states that have legalized pot are wary of going too far down the road with the development of industry infrastructure if the DEA can, at any time, come crashing in and shut them down.

Although marijuana has been a key component in the federal government's 3-decade long "war-on-drugs", the popularity of marijuana among the mainstream citizenry, and its success at the polls, has given the feds pause.  Last fall's successful outright legalization initiatives has brought the matter to a head.  Conflicts between federal and state laws must be resolved in our federalist system of governance.

We here at the Law Blogger expect some sort of marijuana-equivalent of the "don't ask; don't tell" policy.  For the industry, this will be like getting served a bowl of luke warm soup.

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Even as Connecticut became the 17th state to legalize marijuana for medicinal purposes last week, the DEA continues to bring the heat on some of the more visible pot crusaders across the country.  The latest to be busted is Richard Lee of Oaksterdam University fame in Oakland, California.

Despite assurances from the U.S. Department of Justice early in the Obama administration that enforcement of the federal Controlled Substances Act would not be a law-enforcement priority, in April the DEA capped a mounting campaign to arrest dispensary owners across California, Colorado, and Montana.  Many dispensary owners claim to have received letters from the DEA threatening criminal prosecution if the businesses do not cease and desist.

What has changed since the Ogden memo of October 2009, when Obama's DOJ signaled it would leave marijuana enforcement to the states?

One explanation is that when it came to dispensing marijuana, medicinally or otherwise, some folks started to make money; big money.  This led to the DOJ's so-called Cole memo last spring, which sought to "clarify" the previous memorandum, and which provided a mandate to U.S. Attorneys to vigorously prosecute marijuana distributors and to "follow-the-money".

Strong voices in the pot lobby are crying foul, suggesting that operators within the DOJ [particularly in California and Colorado] are acting on their own, ignoring the official White House script on this issue.  For their part, some of the medical marijuana states are seeking an end to this chaos; bi-partisan legislators from five of those states signed an open letter to President Obama requesting that the DEA not interfere with their respective medical marijuana laws.

Well folks, because this is a presidential election year, don't look for the Chief to weigh in decisively on this one anytime soon.  For a glimpse into the mind of the voting public, you can peruse the 100+ comments to an article in the Economist on this subject.  Some excellent points on both sides of the issue are made in the forum.

No wonder Mr. Lee is calling it quits out in California at Oaksterdam; he obviously doesn't want to do a dime in the federal penitentiary as all this gets sorted out.  We here at the Law Blogger will, of course, keep you posted; we've been tracking this issue since 2008.

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