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Growing Hallucinogenic Mushrooms Not Illegal in N.M.

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.''

..."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.