                                                                                      July 20 2012


                                         DA 11-0480

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2012 MT 155



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

BUDDY WADE PIRELLO,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and For the County of Mineral, Cause No. DC 2010-18
                      Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Nancy G. Schwartz; NG Schwartz Law, PLLC, Billings, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; Mardell Ployhar,
                      Assistant Attorney General, Helena, Montana

                      Marcia Boris, Mineral County Attorney, Superior, Montana



                                                  Submitted on Briefs: May 9, 2012

                                                             Decided: July 20, 2012


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Appellant Buddy Wade Pirello (Pirello) appeals from an order of the Fourth

Judicial District Court, Mineral County, denying his motion to dismiss one felony charge

of criminal possession of dangerous drugs. Pirello had argued that the pending charges

should be dismissed on the grounds that the hashish oil that led to his charges was legally

possessed pursuant to the Montana Marijuana Act (MMA). See §§ 50-46-101 to -210,

MCA (2009). We affirm.

¶2     We restate the issues in the case as follows:

¶3     Issue one: Did the District Court err in denying Pirello’s motion to dismiss

because it determined that he could not legally possess hashish oil under the Montana

Marijuana Act, §§ 50-46-101 to -210, MCA (2009)?

¶4     Issue two: Does the rule of lenity require that the Montana Marijuana Act be

interpreted in Pirello’s favor?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶5     On June 30, 2010, Pirello was observed by law enforcement pulling into the center

median between the lanes of Interstate 90. The officer stopped to check on Pirello, who

explained that he had a flat tire. The deputy observed that Pirello had red, watery eyes,

and that the smell of burnt marijuana emanated from the truck. A green, leafy substance

was also plainly observed within the truck.

¶6     Pirello indicated to the deputy that he had a medical marijuana card from

Washington State and consented to a search of the vehicle. The deputy found various

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items of paraphernalia, three marijuana cigarettes, 20 small baggies containing a total of

52 grams of marijuana, and two one-gram bottles of liquid that were labeled “hash.”

¶7      Pirello was charged with felony possession of dangerous drugs for the hashish

(Count I) and misdemeanor criminal possession of dangerous drugs for the marijuana

pursuant to § 45-9-102, MCA. He was also charged with misdemeanor possession of

drug paraphernalia pursuant to § 45-10-103, MCA, and driving under the influence of

drugs in violation of § 61-8-401, MCA.

¶8      He moved to dismiss Count I on the basis that his medical marijuana card entitled

him to possess the hashish. His motion was denied by the District Court. He then

entered a conditional guilty plea, which reserved his right to appeal the denial of his

motion to dismiss. Pursuant to the terms of the agreement the additional misdemeanor

charges were dismissed.     The District Court sentenced him to a three-year deferred

sentence, from which he timely appeals.

                               STANDARD OF REVIEW

¶9      The denial of a motion to dismiss in a criminal case presents a question of law

which we review de novo. State v. LeMay, 2011 MT 323, ¶ 27, 363 Mont. 172, 266 P.3d

1278.     The District Court’s denial of Pirello’s motion to dismiss based on its

interpretation of the MMA was a conclusion of law, which we review for correctness.

State v. Roundstone, 2011 MT 227, ¶ 11, 362 Mont. 74, 261 P.3d 1009.

¶10     Statutes enjoy a presumption of constitutionality. Wing v. State ex rel. Dept. of

Transp., 2007 MT 72, ¶ 12, 336 Mont. 423, 155 P.3d 1224. A defendant challenging a



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statute’s constitutionality bears the burden of proving it unconstitutional beyond a

reasonable doubt. Wing, ¶ 12.

                                       ANALYSIS

¶11   Pirello claims that the MMA’s exception for “usable marijuana” necessarily

includes the hashish for which he was charged because the term is defined as “any

mixture or preparation of marijuana.”           Otherwise, he claims that the term is

unconstitutionally vague, and that the rule of lenity requires the MMA to be interpreted in

his favor. The State argues that the MMA provides a limited exception to the prohibition

of possession of marijuana, and that hashish is unambiguously excluded from this

exception.

¶12   Issue one: Did the District Court err in denying Pirello’s motion to dismiss

because it determined that he could not legally possess hashish oil under the Montana

Marijuana Act, §§ 50-46-101 to -210, MCA (2009)?

¶13   At the time of Pirello’s arrest, the MMA provided patients limited exceptions to

the provisions of Montana law that make possession of marijuana illegal:

             (1)    A person who possesses a registry identification card issued
      pursuant to 50-46-103 may not be arrested, prosecuted, or penalized in any
      manner or be denied any right or privilege, including but not limited to civil
      penalty or disciplinary action by a professional licensing board or the
      department of labor and industry, if:
             (a)    the qualifying patient or caregiver acquires, possesses,
      cultivates, manufactures, delivers, transfers, or transports marijuana not in
      excess of the amounts allowed in subsection (2); or
             (b)    the qualifying patient uses marijuana for medical use.
             (2)    A qualifying patient and that qualifying patient’s caregiver
      may not possess more than six marijuana plants and 1 ounce of usable
      marijuana each.


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             (3)(a) A qualifying patient or caregiver is presumed to be engaged
      in the medical use of marijuana if the qualifying patient or caregiver:
             (i)    is in possession of a registry identification card; and
             (ii)   is in possession of an amount of marijuana that does not
      exceed the amount permitted under subsection (2).
             (b)    The presumption may be rebutted by evidence that the
      possession of marijuana was not for the purpose of alleviating the
      symptoms or effects of a qualifying patient’s debilitating medical condition.

Section 50-46-201(1)-(3), MCA (2009).

¶14   The MMA adopts the definition of marijuana found within the Controlled

Substances Act (CSA), stating, “‘Marijuana’ has the meaning provided in 50-32-101.”

Section 50-46-102, MCA (2009). The CSA, in turn, provides that “marijuana” is “all

plant material from the genus cannabis containing tetrahydrocannabinol (THC) or seeds

of the genus capable of germination.”          Section 50-32-101(17), MCA (2009).

Significantly, the CSA also specifically differentiates hashish: “as distinguished from

marijuana, [hashish] means the mechanically processed or extracted plant material that

contains tetrahydrocannabinol (THC) and is composed of resin from the cannabis plant.”

Section 50-32-101(14), MCA (2009) (emphasis added).

¶15   The issue in this case arises from the fact that in addition to “marijuana,” the

MMA also defines “usable marijuana,” which is “the dried leaves and flowers of

marijuana and any mixture or preparation of marijuana,” excluding “the seeds, stalks, and

roots of the plant.” Section 50-46-102(10), MCA (2009). Thus, Pirello argues that

hashish is one such “mixture or preparation of marijuana” under the MMA, regardless of

differentiation provided by the CSA.     He argues that “[i]t is only when looking to




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statutes in other parts of the code that the definition of ‘useable marijuana’ is called into

question.”

¶16    To the contrary, when interpreting statutes within an act, we interpret individual

sections of the act in a manner that ensures coordination with the other sections of the act.

State v. Johnson, 2012 MT 101, ¶ 20, 365 Mont. 56, 277 P.3d 1232. “Where there are

several provisions or particulars, such a construction is, if possible, to be adopted as will

give effect to all.” Section 1-2-101, MCA.        Thus, in addressing this inquiry, it is

necessary to consider the MMA and CSA in their entirety.

¶17    The State argues that to be “useable marijuana” as defined by 50-46-102(10),

MCA (2009), the substance in question must first be “marijuana” as defined in 50-32-

101(17), MCA (2009). We agree. When read together, it becomes clear that in order to

have been considered “useable marijuana,” the substance Pirello possessed needed to be a

preparation of the intact “plant material from the genus cannabis.” Once that plant

material was “mechanically processed or extracted” in a manner that reduced it to resins,

the substance ceased to fall within the definition of “marijuana,” and therefore could not

be contained within the definition of “useable marijuana.”

¶18    We conclude in this case that the MMA was clear and unambiguous on its face,

and that the District Court’s interpretation appropriately harmonized the statutes.

Hashish does not fall within the MMA’s narrow exception to the CSA. Accordingly, we

hold that the District Court did not err in denying Pirello’s motion to dismiss the charge

of criminal possession of dangerous drugs.



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¶19        Issue two: Does the rule of lenity require that the Montana Marijuana Act be

interpreted in Pirello’s favor?

¶20        Pirello argues that the MMA’s definition of “useable marijuana” is only

ambiguous when read in conjunction with other statutes. Accordingly, he argues that the

rule of lenity requires the act to be interpreted in his favor. The State argues that the rule

of lenity is inapplicable to his situation because the definitions within the MMA are not

ambiguous.

¶21        “It is well settled that a statute must be specific enough to give fair notice of the

conduct prohibited and to provide a meaningful differentiation between culpable and

innocent conduct.” State v. Stanko, 1998 MT 323, ¶ 59, 292 Mont. 214, 974 P.2d 1139.

Here, it is important to note that the MMA as it existed at the time provided a narrow

exception to the general policy within the law that the possession of marijuana was

illegal.

¶22        In addressing Pirello’s argument that the definition of “useable marijuana” is an

unnecessarily manufactured ambiguity, this Court’s duty is to harmonize statutes relating

to the same subject in order to give effect to each statute. State v. Brendal, 2009 MT 236,

¶ 18, 351 Mont. 395, 213 P.3d 448 (citing Oster v. Valley Co., 2006 MT 180, ¶ 17, 333

Mont. 76, 140 P.3d 1079). As we noted above, the MMA specifically defines marijuana

by reference to the CSA. Under the CSA, hashish is not marijuana. The definitions of

“marijuana” and “useable marijuana” are clear and unambiguous and do not provide an

exception to the CSA for hashish. Accordingly, we decline to apply the rule of lenity to

Pirello’s case.

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                                   CONCLUSION

¶23   Based upon the foregoing, the judgment of the District Court is affirmed.




                                               /S/ MIKE McGRATH



We concur:


/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS




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