Wednesday, June 15, 2005
Court: Growing Hallucinogenic Mushrooms Not Illegal in N.M.
By Barry Massey/
SANTA FE Growing hallucinogenic mushrooms isn't prohibited by a New Mexico law against manufacturing an illegal drug.
That's the legal conclusion of the state Court of Appeals, which has overturned the felony drug trafficking conviction of an Alamogordo man for growing psilocybin mushrooms in his home.
Under state law, drug trafficking includes the manufacturing of illegal drugs.
However, the court said growing mushrooms was not covered by the drug trafficking law's definition of "manufacture.''
The hallucinogenic substance in the mushrooms, psilocybin, is an illegal controlled substance under state and federal law. Street terms for the mushrooms include "magic mushrooms'' and "shrooms,'' according to a U.S. Justice Department Web site.
The court, in making its decision, cited a 1999 ruling that concluded that growing marijuana does not constitute manufacturing under New Mexico's law against drug trafficking.
The 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.''
Police raided David Ray Pratt's home in Alamogordo in June 2002 based on information from a confidential informant. They found mushrooms growing in glass jars, syringes containing psilocybin spores for inoculating a mixture used to grow the mushrooms, a foam cooler with a humidifier apparatus and instructions for growing the mushrooms.
At his trial, Pratt testified he was trying to grow the mushrooms for his own use and didn't intend to sell them. He said he was a heavy user of the mushrooms and they were expensive, worth about $15 a gram. About seven grams of the mushrooms were found by police.
Pratt was convicted of drug trafficking by manufacture a second-degree felony and sentenced to nine years in prison. The sentence was suspended and he was placed on five years' probation.
He also was convicted of possession of drug paraphernalia, a misdemeanor. In the raid of Pratt's house, police had found pipes used to smoke marijuana.
Pratt did not appeal the drug paraphernalia conviction.
The attorney general's office argued Pratt's felony conviction should be upheld because he used special equipment to artificially grow the mushrooms.
Pratt's lawyer in the appeal, Cordelia Friedman, an assistant appellate public defender, contended in a brief that the mushrooms were in "a natural state of mushroomness when their 'cob-like' structures were ripped out of their mason jars by police.'' The illegal hallucinogenic substance is produced naturally by the mushroom during a certain stage of its development, according to the court.
"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.
The Court of Appeals agreed.
"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.
The court pointed out New Mexico's anti-drug laws are patterned after a federal law. However, state law does not include a federal provision that makes clear the "planting, cultivation, growing or harvesting of a controlled substance'' is illegal because those are defined as the production of a drug.
The court said "we believe the Legislature acted intentionally when it omitted a similar definition'' of production in New Mexico's law against drug trafficking.
Attorney General Patricia Madrid will ask the state Supreme Court to consider overturning the appeals court's ruling, said spokesman Sam Thompson. She said Wednesday it was uncertain whether the attorney general would ask the Legislature next year to change the state's drug trafficking law because of the court ruling in the mushroom case.