Butane Hash Oil Possession

Butane Hash Oil Possession

Is Butane Hash Oil Possession a Felony Crime in Florida?

Butane hash oil (BHO) possession is clearly a crime in Florida.  The only real question is whether BHO possession is a felony or a misdemeanor crime.  The Florida law which defines controlled substances, 893.03, does not clearly address this issue.  Butane hash oil is not specifically listed under the statute.  As of February 2017, there are no appellate decisions which answer this question.  The best answer after doing my own research is that it is a felony charge.

So what exactly is butane hash oil?  Although it can be made with hashish, BHO is most commonly created using marijuana.  Butane hash oil is designed to be a stronger, more potent form of marijuana.  The active psychoactive ingredient of marijuana is tetrahydrocannabinol, or THC. To make butane hash oil, the marijuana goes through a process where a solvent, usually butane, is added to the plant material. The butane is filtered and then removed from the marijuana plant, leaving a resin like material.  The resin extracted supposedly contains a much higher concentration of THC than the marijuana plant itself.  The resin which is extracted is called butane hash oil.  Another nickname for BHO is “honey oil”.

Marijuana possession is a clearly defined crime in Florida.  Depending upon the weight, possession of marijuana can either be a misdemeanor or a felony.  Marijuana possession of 20 grams or less is a first degree misdemeanor, punishable by up to one year in jail, and/or a $1000 fine.  Marijuana possession of more than 20 grams is a third degree felony, punishable by up to five years in state prison, and/or a $5000 fine.

Because butane hash oil is a derivative of marijuana, it would be logical to assume that the degree of crime should also be based upon the weight. However, this does not appear to be correct.  In Florida, the standard jury instruction for possession of marijuana makes a distinction between marijuana versus its resins, stating the following:

Cannabis means all parts of any plant of the genus Cannabis, whether growing or not, and the seeds thereof [but does not include any resin extracted from the plant]

The language of the jury instruction clearly excludes resins.  Butane hash oil is clearly a resin derived from the marijuana plant.  Also, the statute which defines controlled substances in Florida, statute 893.03(1)(c)(190)(a) specifically mentions resins when it states:

Any tetrahydrocannabinols naturally contained in a plant of the genus Cannabis, the synthetic equivalents of the substances contained in the plant or in the resinous extracts of the genus Cannabis

Like butane hash oil, hashish is not clearly defined under Florida statute 893.03.  However, hashish possession has long been recognized by Florida courts to be a felony crime, regardless of its weight.  Hashish is often defined as being a marijuana resin.  Based upon these facts, it is my opinion that butane hash oil possession is a third degree felony, punishable by up to five years in prison, and/or a $5000 fine.