A Flathead District Court judge has ruled that Tyler and Matthew Shepard were protected by law in attempting to make THC-infused oil from the marijuana they each legally obtained as medical marijuana cardholders.

The 23-year-old Kalispell brothers had been charged with felony criminal manufacture of dangerous drugs after Evergreen Fire Rescue responded to a fire at their home and discovered the pair had been attempting to make the oil by running butane through a plastic pipe containing tightly packed marijuana stems. THC, or tetrahydrocannabinol, is the active compound in marijuana.

The fire is believed to have started when a dryer turned on, igniting the butane fumes.

The Flathead County Attorney’s Office alleged that the brothers’ attempt to change the form of the material amounted to criminal manufacturing. Lane Bennett and Courtney Nolan, the Shepards’ attorneys, argued that was not the case and the brothers’ activity was protected under Montana’s Medical Marijuana Act.

“They were trying to get the last little bit of unrefined THC oil out to use it in making an edible product, which is legal under the act, like making brownies, making an ointment, making a tincture,” Bennett said. “They were going to make hard candy out of it in a sucker format like a cough drop. In the recipe for that hard candy you would use butter or vegetable oil, and you replace that with the THC oil in the recipe.”

He said the Shepards were attempting to make the candies because neither of them wanted to smoke the product.

“One of them has migraines or headaches and [smoking] constricts the blood vessels and makes it worse,” Bennett said. “My client, just for health reasons, doesn’t like to have to smoke every day.”

Bennett also argued that the two were making hashish oil, as stated in the state’s motion, but a more basic oil made not from the regularly used portion of the marijuana plant but from the leftovers.

Flathead District Judge Katherine Curtis sided with Bennett and Nolan, noting it didn’t matter what they were trying to make so long as it was being created from their legally obtained marijuana.

“The state’s position that medical marijuana cardholders are prohibited from manufacturing ‘hashish oil’ from their marijuana plants is not supported by the language of the [Medical Marijuana Act],” Curtis wrote in her Jan. 23 decision. “As long as the substance produced consists of a mixture or preparation of THC-containing plant material from a cannabis plant, it is permissable under the Act.”

Because the Shepards were alleged to have made such a substance and are legal cardholders, Curtis wrote, they are immune from prosecution and the case had to be dismissed.

If the charges had stood and the Shepards convicted, they would have each faced up to 10 years in prison and a fine of up to $50,000.