Psychedelics: In New Mexico, Growing 'Shrooms Not Drug Manufacture 6/24/05

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Persons who are caught growing hallucinogenic mushrooms in the Land of Enchantment cannot be prosecuted under the state's drug trafficking and manufacturing statute, the New Mexico Court of Appeals ruled last week. In handing down the decision, the court overturned the felony conviction of an Alamogordo man for growing psilocbye cubensis mushrooms in his home.

hallucinogenic
mushrooms
Although psilocybin, the active substance in the mushrooms, is illegal under both state and federal controlled substances laws, growing the funny fungus doesn't qualify as drug manufacture, the court held, citing a 1999 ruling that growing marijuana doesn't qualify as manufacture under the state law.

That law defines manufacture as "the production, preparation, compounding, conversion or processing of a controlled substance or controlled substance analog by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its container."

The appellant, David Ray Pratt, was convicted of drug trafficking by manufacture after police raided his home in 2002 and discovered a mushroom grow in progress. In his appeal, his attorney, assistant appellate public defender Cordelia Friedman argued that growing mushrooms was outside the scope of the law. The felonious fungi were in "a natural state of mushroomness when their 'cob-like' structures were ripped out of their mason jars by police," she told the court, in what was undoubtedly the first use of the word "mushroomness" in New Mexico jurisprudence. The psilocybin they generated was not manufactured, but naturally produced, she argued. "Genetic material in a seed or spore, brought to fruit by provision of soil and water, is not 'manufacturing' as contemplated by the Legislature" in the drug-trafficking law, Friedman wrote.

Prosecutors from the New Mexico attorney general's office argued that Pratt fell within the scope of the manufacture statute because he used "special equipment" to "artificially" grow the mushrooms. That "special equipment" is the standard stuff used in the fungus field -- glass jars, a foam cooler, and syringe with spores for inoculating the medium used to grow the mushrooms.

But the Court of Appeals wasn't buying it. "Because there is no evidence that defendant engaged in 'extraction from substances of natural origin or... chemical synthesis' as defined by (the drug-trafficking law)... his acts of cultivating or growing mushrooms, even if by artificial means, are not prohibited" by state law, the court said in an opinion written by Judge James Wechsler. In that opinion, Wechsler also noted that while New Mexico's drug laws were patterned after federal laws, they did not include a provision in federal law that explicitly says the "planting, cultivation, growing or harvesting of a controlled substance" constitutes drug manufacture. "We believe the Legislature acted intentionally when it omitted a similar definition" in New Mexico's drug laws, Wechsler wrote.

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Issue #392 -- 6/24/05

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