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Invisibleveggie

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Growing Hallucinogenic Mushrooms Legal in New Mexico
    #4301044 - 06/15/05 09:30 PM (8 years, 9 months ago)

Growing Hallucinogenic Mushrooms Legal in New Mexico
June 15, 2005 - abqjournal.com

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.


Edited by veggie (06/15/05 10:08 PM)


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InvisibleRavus
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Re: Growing Hallucinogenic Mushrooms Legal in New Mexico [Re: veggie]
    #4301206 - 06/15/05 10:22 PM (8 years, 9 months ago)

Quote:

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."




:smirk:


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OfflinePink_buffalo2000
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Re: Growing Hallucinogenic Mushrooms Legal in New Mexico [Re: Ravus]
    #4301965 - 06/16/05 01:27 AM (8 years, 9 months ago)

I dont understand what happened to him though, does he get totally aquitted because they charged him with trafficing not manufacturing, or can they still charge him with manufacturing (the shotgun approach) or would that constitute "double jeapordy". 
In any case, this doesn't mean its legal to grow in NM, because now that the persecutor's:lol: office knows that they cant make trafficing stick, next time they'll just call it manufacture and it will stick.


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Invisibleveggie

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Re: Growing Hallucinogenic Mushrooms Legal in New Mexico [Re: Pink_buffalo2000]
    #4302194 - 06/16/05 02:21 AM (8 years, 9 months ago)

What happened was that conviction was overturned becaused the judge ruled that growing psilocybin mushrooms is not manufacturing psilocybin. Chemical synthesis, or the extraction of psilocybin would be illegal because it would be considered manufacturing.

So, unless the law is changed - It is legal to grow "magic" mushrooms in New Mexico.

As Ravus noted: <<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.">>

It's no wonder he won the case with that there fancy shmancy assistant PD legalese  :grin:

It makes me wonder how this ruling may affect anyone currently incarcerated, or have paid fines, for growing mushrooms. I suppose that legally they would have to be released and any fines returned.


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OfflinePink_buffalo2000
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Re: Growing Hallucinogenic Mushrooms Legal in New Mexico [Re: veggie]
    #4302470 - 06/16/05 03:49 AM (8 years, 9 months ago)

ah, my dyslexic ass read part of that story wrong. but it does say "
The hallucinogenic substance in the mushrooms, psilocybin, is an illegal controlled substance under state and federal law. "

so they can still charge people with possession of a controlled substance and worst of all steal "confiscate:shake:" your shroomz.
It's cool that the guy bucked the charges against him though, chalk one up for the good guys :usa:


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OfflineKalix
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Re: Growing Hallucinogenic Mushrooms Legal in New Mexico [Re: veggie]
    #4302715 - 06/16/05 08:51 AM (8 years, 9 months ago)

Quote:

veggie said:


It makes me wonder how this ruling may affect anyone currently incarcerated, or have paid fines, for growing mushrooms. I suppose that legally they would have to be released and any fines returned.




If they have legal skills, or could afford a lawyer, to appeal their charges, otherwise I'm sure the judicial system will just ignore them, and they will remain incarcerated..


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Invisiblekake
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Re: Growing Hallucinogenic Mushrooms Legal in New Mexico [Re: Kalix]
    #4302947 - 06/16/05 11:08 AM (8 years, 9 months ago)

Sweet...looks like I'll be moving to NM :laugh:


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InvisibleDiploidM
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Re: Growing Hallucinogenic Mushrooms Legal in New Mexico [Re: veggie]
    #4303347 - 06/16/05 01:18 PM (8 years, 9 months ago)

So, unless the law is changed - It is legal to grow "magic" mushrooms in New Mexico.

Don't count on this to keep you safe from arrest, search, seizure, and destruction of your grow op. Cops are more out to get you than they are to follow and enforce the law.

Also, notice that once again, the cops acted on a tip. If this guy had kept his mouth shut about his grow, he might have saved himself a lot of grief.


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InvisibleautomanM
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Re: Growing Hallucinogenic Mushrooms Legal in New Mexico [Re: veggie]
    #4304010 - 06/16/05 04:25 PM (8 years, 9 months ago)

Quote:

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.





this paragraph disturbs me. not for the uncertainty... but the fact that he/she would.


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Offlinechronicfatigue
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Re: Growing Hallucinogenic Mushrooms Legal in New Mexico [Re: veggie]
    #4305124 - 06/16/05 09:11 PM (8 years, 9 months ago)

This does not mean shrooms are legal in NM. New Mexico has special laws , where manufacturing controlled substances results in much harsher sentences than possession. Manufacturing seems to have riduculus sentences. He was convicted of drug trafficing due to the fact he was "manufacturing" shrooms. They ruled growing shrooms is not manufacturing; however, you can still be charged with possesion for growing them. Possession has way more lenient sentences than manufacture.

But looking at the big picture, 9 years for a fcking quarter ounce, reduced to 5 years probation. Is this really a victory? 9 years is wayyy beyond draconion. 5 years probation for what was clearly personal use still seems way excessive.


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Offlinemediman0078
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Re: Growing Hallucinogenic Mushrooms Legal in New Mexico [Re: chronicfatigue]
    #4941438 - 11/16/05 01:55 PM (8 years, 4 months ago)

but he's not rotting in a jail cell....


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OfflineOrizonsHorizon
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Re: Growing Hallucinogenic Mushrooms Legal in New Mexico [Re: mediman0078]
    #5092680 - 12/22/05 07:08 AM (8 years, 3 months ago)

So mushrooms are in and of themselves not scheduled but there contents infact are...So how does that differ from San Pedro that the law barely takes a second glance at when people buy there stalks from Home Depot.


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Offlinesmokescreen
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Re: Growing Hallucinogenic Mushrooms Legal in New Mexico [Re: OrizonsHorizon]
    #11041426 - 09/11/09 05:59 PM (4 years, 7 months ago)

Quote:

OrizonsHorizon said:
So mushrooms are in and of themselves not scheduled but there contents infact are...So how does that differ from San Pedro that the law barely takes a second glance at when people buy there stalks from Home Depot.




I was wondering the same here anyone know the reasoning behind this...


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Offlinethetechnician
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Re: Growing Hallucinogenic Mushrooms Legal in New Mexico [Re: veggie]
    #13495762 - 11/17/10 01:04 AM (3 years, 4 months ago)

So, is it still "legal", or has this changed?


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Invisibleveggie

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Re: Growing Hallucinogenic Mushrooms Legal in New Mexico [Re: thetechnician]
    #13495897 - 11/17/10 01:42 AM (3 years, 4 months ago)

This article was posted over 5 years ago.

But as far as I know, the law is the same. No change.


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