Justice HOOD delivered the Opinion of the Court.
¶1 When Austin Joseph Lente tried to extract hash oil from marijuana using butane, the butane exploded, engulfing his laundry room in flames. Worse yet, he was charged with processing or manufacturing marijuana or marijuana concentrate in violation of section 18-18-406(2)(a)(I), C.R.S. (2016).
¶2 The district court dismissed the charge, reasoning Amendment 64 decriminalized processing marijuana and therefore rendered section 18-18-406(2)(a)(I) unconstitutional as applied to Lente. The People appealed directly to this court.
¶3 We disagree with the district court. When Amendment 64 was approved, "processing" marijuana had a settled meaning that excluded hash-oil extraction, and we assume Amendment 64 adopted that meaning. We hold that, under Amendment 64, extracting hash oil from marijuana is manufacturing marijuana—not processing marijuana plants—and therefore does not fall within Amendment 64's protected personal uses of marijuana. Accordingly, the district court erred in dismissing the charge. We reverse and remand for further proceedings.
I. Facts and Procedural History
¶4 As relevant here, in 2012, Colorado citizens adopted Amendment 64 to the Colorado Constitution, legalizing under state law possession of one ounce or less of marijuana and some uses of marijuana for people twenty-one or older. Amendment 64 also decriminalizes under state law the "processing . . . [of] no more than six marijuana plants." Colo. Const. art. XVIII, § 16(3)(b).
¶5 In 2015, the Colorado Springs Police and Fire Departments responded to a report of a fire at Lente's house. Lente admitted he had caused the fire in the laundry room while trying to extract hash oil from marijuana. He had frozen a jar containing marijuana, removed the jar from the freezer, and injected butane into the jar through a hole in the lid. Before he could return the jar to the freezer, the bottom of the jar broke, spilling butane onto the freezer. The butane exploded, setting the room ablaze.
¶6 Lente was charged with processing or manufacturing marijuana or marijuana concentrate under section 18-18-406(2)(a)(I),
¶7 The People appealed directly to this court under section 16-12-102(1), C.R.S. (2016), and C.A.R. 4(b)(3).
¶8 Lente does not dispute that his alleged conduct—using butane to extract hash oil from marijuana—violated section 18-18-406(2)(a)(I). But he argues that statute is unconstitutional as applied to him because Amendment 64 legalized extracting hash oil by legalizing "processing . . . marijuana plants."
¶9 We begin with the standard of review for constitutional challenges to statutes. Next, we discuss Lente's challenge to the statute and explain how hash-oil extraction works. Then, we consider whether unlicensed hash-oil extraction is protected under Amendment 64. We conclude it is not. Amendment 64 distinguishes between processing marijuana plants, which doesn't require a license, and manufacturing marijuana, which does. Under the statutory scheme in place when voters approved Amendment 64, extracting hash oil was manufacturing, and we presume Amendment 64 adopted that meaning. Last, we reject Lente's assertion that the statute is either overbroad or vague in light of Amendment 64.
A. Standard of Review
¶10 We review the constitutionality of statutes de novo.
B. Lente's Challenge to the Statute
¶11 Lente was charged under section 18-18-406(2)(a)(I). That provision makes it "unlawful for a person to knowingly process or manufacture any marijuana or marijuana concentrate" except in circumstances inapplicable here. § 18-18-406(2)(a)(I). Article 18 of the criminal code does not define "process," but it defines "manufacture":
§ 18-18-102(17), C.R.S. (2016).
¶12 As applied to Lente's hash-oil extraction, he argues, that statute conflicts with Amendment 64. Amendment 64 legalized possession of one ounce or less of marijuana and some activities relating to marijuana.
¶13 Lente had no license,
C. Hash-Oil Extraction and the "Butane Method"
¶14 The psychoactive ingredient in marijuana is tetrahydrocannabinol, or "THC." Hash-oil extraction is the process of separating concentrated THC—a viscous liquid ("hash oil")—from the marijuana plant. The extractor puts parts of a marijuana plant— usually compressed by chopping or grinding—into a tube. He or she then pours a chemical solvent through the plant material. The solvent dissolves and holds the THC from the plant and then passes through a filter into another container. The extractor then separates the THC from the solvent by letting the solvent evaporate, a process which can be (and usually is) accelerated by applying heat.
¶15 The "butane method" of hash-oil extraction—using butane as the solvent—is particularly dangerous due to the nature of butane. Butane gas is highly flammable, odorless, and heavier than air. Because it is heavy, it falls and pools, where it can be ignited by heat sources like pilot lights, cigarettes, or even static electricity. Explosions typically occur because of inadequate ventilation or because people move the butane-THC mixture from a well-ventilated area to an unventilated space (like a freezer) before the butane has finished evaporating.
D. Lente's As-Applied Challenge Fails Because Amendment 64 Does Not Protect Unlicensed Hash-Oil Extraction
1. Standards of Interpretation and Controlling Precedent
¶16 To determine whether hash-oil extraction is a protected personal use under Amendment 64, we begin with our standards for interpreting citizen initiatives. Our goal in interpreting a citizen initiative is to "give effect to the electorate's intent."
¶17 Additionally, if an amendment's language had a settled meaning under the existing law at the time of the amendment, we presume the electorate intended to adopt that meaning.
¶19 We explained, "[T]o resolve [the] case, we determine if there was a settled definition of `express advocacy' when the voter initiative was adopted. . . ."
2. We Presume Amendment 64 Adopted the Settled Meaning that Extracting Hash Oil Is Manufacturing—Not Processing
¶20 Because Amendment 64 displaced portions of the Controlled Substances Act ("CSA"), §§ 18-18-101 to -605, C.R.S. (2012), we look to the CSA to determine whether the terms at issue—"manufacturing" and "processing"—had settled meanings. We conclude they did, at least sufficiently settled to answer the question before us today. Although the CSA is unclear as to exactly what does fall within "processing," it tells us specifically what does not: extraction or chemical synthesis. We derive this meaning from two provisions of the CSA.
¶21 First, under section 18-18-406(6)(a)(I), C.R.S. (2012),
¶22 Second, the CSA narrowly defines "manufacturing" as extraction or chemical synthesis. While the statutory definition covers a broad range of actions—"produce, prepare, propagate, compound, convert, or process"—it limits the covered forms of those actions to two specific methods: extraction or chemical synthesis.
¶23 So, under the CSA, "manufacturing" means extraction or chemical synthesis, and "processing" must mean something else. Thus, processing must exclude extraction and chemical synthesis. Because the method of making hash oil at issue here clearly involves extraction, it is manufacturing, not processing, under the CSA.
¶24 This meaning under the CSA was settled when citizens approved Amendment 64, so we presume Amendment 64 adopted it.
3. The Plain Language of Amendment 64 Supports Classifying Hash-Oil Extraction as Manufacturing—Not Processing
¶25 The plain language of Amendment 64 is consistent with the statutory approach of classifying hash-oil extraction as manufacturing rather than processing. Just as the CSA distinguished between manufacturing and processing, so does Amendment 64. Important here, manufacturing is protected only as a licensed facility-operation activity, not as a personal use.
¶26 Further, the language of the personal-use section suggests it protects only mechanical or physical processes, like chopping and drying, rather than chemical processes, like extraction. Although the constitution defines "marijuana" broadly to include marijuana concentrate and extracted resin, the personal-use section does not protect processing "marijuana." It protects "processing . . . marijuana
4. The Statute Is Not Unconstitutional as Applied to Lente
¶27 We conclude that, under Amendment 64, making hash oil by extraction is manufacturing, not processing. Because Amendment 64 presents no barrier to a prosecution for unlicensed hash-oil extraction, Lente has failed to show that section 18-18-406(2)(a)(I) is unconstitutional as applied to him. Thus, the trial court erred by dismissing the manufacturing charge on these grounds.
E. Lente Has Not Shown that the Statute Is Overbroad or Vague
¶28 We reject Lente's alternate arguments that section 18-18-406(2)(a)(I) is either overbroad or vague.
¶29 Lente argues that the statute is overbroad because it sweeps in conduct that is protected by Amendment 64. This argument fails because the overbreadth doctrine applies only to statutes "that burden constitutionally protected speech or expressive conduct."
¶30 Lente also contends that the statute is unconstitutionally vague in light of Amendment 64 because it is difficult to discern where the boundary lies between permissible and impermissible processing. However, "[a] litigant who engages in conduct that is clearly proscribed by a statute cannot complain of the vagueness of the law as applied to the conduct of others."
¶31 We hold that Amendment 64 does not protect unlicensed hash-oil extraction. Therefore, the trial court erred by ruling that section 18-18-406(2)(a)(I) is unconstitutional as applied to Lente. We reverse the trial court's order dismissing the charge against Lente, and we remand for further proceedings.
Chief Justice RICE, dissenting.
¶32 Applying what it views to be the plain language of Amendment 64 to the Colorado Constitution, Colorado Constitution article XVIII, section 16(3)(b), and sections 18-18-102(17) and 18-18-406(2)(a)(I), C.R.S. (2012), the majority concludes that hash-oil extraction via the butane method is "manufacturing" marijuana or marijuana concentrate and therefore affirms Lente's conviction for manufacturing marijuana or marijuana concentrate. Maj. op. ¶ 3. In my view, however, the butane method of hash-oil extraction falls under the definition of "processing," which Amendment 64 legalized. Further, the statutory scheme under which Lente was convicted defined "manufacturing" and "processing" as separate terms and—in another section—defined "manufacturing" as including the term "processing." Therefore, the statutory scheme was so vague that an ordinary person would not have known that it proscribed hash-oil extraction via butane, and Lente's conviction should be vacated. Accordingly, I respectfully dissent.
¶33 I begin by considering whether, under the plain language of the Controlled Substances Act ("CSA"), sections 18-18-101 to -605, C.R.S. (2012), and Amendment 64, hash-oil extraction via butane could qualify as "processing" marijuana or marijuana concentrate. From there, I determine that, under the plain language of the statute, hash-oil extraction via butane qualifies as "processing." Second, I conclude that, in any event, due to confusion over the interplay between the terms "manufacturing" and "processing," the statute as applied to Lente is overly vague and his conviction for manufacturing marijuana or marijuana concentrate should be vacated. Finally, I argue that because of the vagueness of the existing law, we should apply the rule of lenity to Lente.
A. The Butane Extraction Method is "Processing"
¶34 Amendment 64 to the Colorado State Constitution legalized, for "persons twenty-one years of age or older," "processing . . . no more than six marijuana plants[.]" Colo. Const. art. XVIII, § 16(3)(b). This case hinges on whether hash-oil extraction via butane qualifies as "processing"—and thus is legal—or if it is "manufactur[ing] any marijuana or marijuana concentrate" and therefore is illegal under section 18-18-406(2)(a)(I).
¶35 As the majority noted, Amendment 64 displaces portions of the CSA, and, therefore, the CSA controls whether the terms "manufacturing" and "processing" had settled meanings at the time Amendment 64 was enacted.
¶36 Under section 18-18-406(2)(a)(I), "[i]t is unlawful for a person to knowingly process or manufacture any marijuana or marijuana concentrate[.]" If we were to look only at subsection 406(2)(a)(1), we would conclude that "process" and "manufacture" must have independent meanings.
¶37 But subsection 406(2)(a)(1) is not the only portion of the CSA that discusses processing and manufacturing. In subsection 18-18-102(17), the CSA states that "`manufacture' means to produce, prepare, propagate, compound, convert, or
¶38 Further, subsection 102(17) states that "`manufacture' means to . . . process . . . directly or indirectly, by
¶39 The butane method of hash-oil extraction uses butane as a chemical solvent to extract tetrahydrocannabinol ("THC") from marijuana plants.
B. The Current Statutory Scheme is Vague as Applied to Lente
¶40 Even assuming the statutory language is not clear that Lente's actions qualified as "processing," Lente's conviction for manufacturing marijuana or marijuana concentrate should be vacated because the CSA, in conjunction with Amendment 64, is vague. Vagueness is a doctrine "rooted in principles of due process," which "requires laws to give fair warning of prohibited conduct so that individuals may conform their actions accordingly."
¶41 Here, two sections of the CSA define "manufacturing" and "processing" differently. One, section 18-18-406(2)(a)(I), treats the two as different terms. But section 18-18-102(17) states that the definition of "manufacture"
¶43 Finally, this is a case in which the intents of the electorate and the General Assembly remain obscured after "utilizing the various aids of statutory construction," and therefore I believe we should turn to the rule of lenity.
¶44 For these reasons, I would vacate Lente's conviction for manufacturing marijuana or marijuana concentrate. Accordingly, I would affirm the judgment of the court of appeals. I therefore respectfully dissent.
I am authorized to state that JUSTICE GABRIEL joins in this dissent.