Marijuana Laws in Minnesota

by Thomas C. Gallagher, Minnesota Marijuana Attorney

This page lays out Minnesota marijuana laws and Marijuana Attorney Thomas Gallagher’s expert qualifications.

A valued plant through history

Humans used the cannabis plant for thousands of years.  Since the dawn of history, people grew the cannabis as fiber and food (Hemp) and as a psychoactive agent (Marijuana).

All over the world, and in the United States, people have used cannabis – though adult-use Marijuana was dominant in the warmer climate areas of the world.

In fact, George Washington himself grew Cannabis on his farm.  There was no such thing as a criminal law prohibiting Marijuana or Cannabis.

George Washington growing marijuanaGeorge Washington grew Cannabis on his farm.

Until the 1930s in the United States, that is.  Now, in the early 21st Century, our Nation may be coming to its senses, and may End Prohibition again, and Re-Legalize Marijuana.

In the meantime however, Minnesota still has laws making possession or sale of Marijuana a crime.  Here is a summary of those laws.

Criminal Laws relating to Marijuana in Minnesota are primarily state and federal statutes.  In Minnesota, a prosecutor can file a marijuana charge in state or federal court.  Which jurisdiction charges may depend upon the facts claimed by police, and the exercise of prosecutor discretion.

State or Federal Court?

The state and federal criminal statutes treat marijuana less harshly than other illegal drugs, for similar quantities.  Federal law enforcement and prosecutors, similarly, seem less interested in targeting marijuana cases than other illegal drug cases.

Criminal Marijuana cases in federal court are more likely to involve larger quantities, or larger group conspiracies.

Most marijuana cases in Minnesota charge under state law, in state courts.

State or federal court, a marijuana attorney can lead the way to a legal solution.

Scheduling

Many do not realize that Minnesota has its own “Controlled Substance” statutes with its own “Scheduling” scheme, completely separate and independent from that of the federal government.

Minnesota can de-schedule marijuana, or reschedule out of Schedule 1, at any time — regardless of the federal government. 

Still, the federal government’s current classification of some forms of marijuana as a “Schedule 1” drug does have troublesome impacts upon the States and the People.

Under federal law it is generally illegal to cultivate, possess, or distribute (sell, trade or give) “marijuana” or products sourced from “marijuana” whether plants, extracts, oil, THC, etc.).

“Marijuana” is an artificial, legal category of the cannabis plant.

Hemp vs. marijuana

Minnesota law defines cannabis plants with over 0.3 THC on a dry weight basis as “marijuana,” currently listed in Minnesota’s Schedule 1.

Hemp is legal in Minnesota
Hemp is legal in Minnesota

The law defines cannabis with a 0.3 or less THC level as “Industrial Hemp.”  “Industrial hemp is not marijuana as defined in section 152.01, subdivision 9.”  Minnesota Statutes Section 18K.02.

The general rule is that if it’s from a “marijuana” plant it is marijuana.  But if it’s from an “industrial hemp” plant, then it is not marijuana, and not illegal.

As a result, hemp-sourced CBD, or Cannabidiol, is legal under Minnesota law.  However, most “marijuana”-sourced CBD is not legal.  For a detailed analysis of CBD, Hemp and the law, see Marijuana Attorney Gallagher’s blog article: Is CBD oil legal in Minnesota?

Is marijuana legal in Minnesota?

Some forms of “marijuana,” products sourced from “marijuana” plants, are currently legal.

One such category is marijuana within the limits of Minnesota’s medical marijuana program, by registered, lawfully participating patients.

Another example is Epidiolex, a new prescription form of CBD derived from “marijuana,” currently in the federal version of the Controlled Substance Act’s Schedule 5.

THC is the component of marijuana that gives adult-users their desired psychoactive effect.  (CBD, the other most important component, has no psychoactive effect.)  Minnesota’s Schedule 1 lists THC separately.

As a result, THC is normally illegal to possess.

An exception to that general rule is the synthetic, pharmaceutical form of THC (e.g., Marinol or Dronabinol), now classified as Schedule III.

The “Schedule 1” label means “no currently accepted medical use.”  Yet, Judge Francis Young, an administrative law judge for the DEA, presiding over a challenge to the federal scheduling of marijuana, recommended reclassification to Schedule II, in 1988.  The DEA Administrative Judge’s decision rested on the ground that if a significant minority of doctors endorse it, then it has a “currently accepted medical use.”

That was in 1988.  Now a majority of the U.S. population lives in a state with legal medical marijuana.

Minnesota Statutes Chapter 152 “Drugs, Controlled Substances”

Chapter 152 of Minnesota Statutes has most of the criminal statutes on marijuana.  Section 152.02, Subd. 2 “Schedule 1,” defines “marijuana” as “Schedule 1.”  The Chapter lays out the felony drug crimes, ironically, as “Controlled Substances Crimes.”  These vary in severity from “first degree” (the most serious) to “fifth degree.”

These statutes define several drug crimes based on “marijuana.”  (Possession of alcohol is no longer a crime for adults.)

Possession vs. Sale

The Minnesota “Controlled Substance” crimes on marijuana are generally either “sale” or “possession” crimes.

What is “Sale?”
Tomato grow
Tomato grow

Some sale prosecutions involve what police call a “controlled buy.”  They involve the use of an undercover police officer or usually, an informant trying to work their way out of their own criminal case, often paid by police.  Police attempt surveillance, electronically and otherwise, while the informant makes the buy.

Possession of growing marijuana: One irrational feature of the current legal scheme is the legislature’s defining “cultivation” to mean “manufacture;” and then, to define “manufacture” to mean “sell.”

If you grow a tomato in your backyard and eat it right off the vine, fresh, according to the logic of current Minnesota law, by doing so you have “sold” a tomato.

What is “Possession?”

Possession cases are more common than sale cases.  Just what is “possession?”  In criminal law, there are two types of criminal “possession” of contraband: actual possession and constructive possession.  This not-actual possession crime (constructive possession) is a tacit acknowledgment that it is harder to prove possession than most people think.

Constructive possession is the legal construct that even though you don’t actually possess something, the government may claim that circumstances give rise to an inference that the thing is within your dominion and control.  “Constructive possession” is based solely upon circumstantial evidence.  This law increases the government power to take away your liberty (as compared to actual possession).

Quantity

Another factor that affects the severity of the criminal charge in marijuana cases is quantity.  The larger the quantity sold or possessed, the more severe the penalty.  Just what counts as “quantity?”  Weight.  (Number of plants is a measure of quantity in certain grow cases, however.)

Just what counts as weight of “marijuana?”  Section 152.01, subd. 9 says:

“all the parts of the plant… but shall not include the mature stalks of such plant, fiber from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture or preparation of such mature stalks, except the resin extracted therefrom, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”

In practice, weight is an important issue only when close to one of the statutory thresholds.  For example the 42.5 grams is the threshold between petty misdemeanor (non-criminal) possession (below) and felony Controlled Substance Crime – 5th Degree.

A 2016 law affects prosecution of cases involving marijuana concentrates: Less Than One-Quarter Gram Possession Gross Misdemeanor Crime.

The most commonly charged Minnesota  misdemeanor drug crimes and petty misdemeanor violations are:
cannabis sativa drawing
cannabis sativa

Possession of a Small Amount of Marijuana, Minnesota Statutes §152.027, subd. 4.  The definition of a “small amount” of marijuana 42.5 grams or less (roughly an ounce-and-a-half or less).  Minnesota Statutes §152.01, subd. 16.

Normally a person adjudicated guilty of violating this provision ends up with a “petty misdemeanor” — with rare exceptions noted in that section.

A petty misdemeanor in Minnesota is a civil infraction, and is not a crime.  A person cannot lawfully be arrested for a petty misdemeanor, nor is any jail sentence possible from a petty misdemeanor.

But, a guilty plea or verdict will result in a public, petty misdemeanor conviction.”  There are possible criminal misdemeanor consequences in this section of statute however, at Minnesota Statutes §152.027, subd. 4 (b), (c).

Possession of Marijuana in a Motor Vehicle, Minnesota Statutes §152.027, subd. 3, is a misdemeanor crime, for 42.5 grams or less but more than 1.4 grams of marijuana, unless in the trunk of the motor vehicle or similar area of a vehicle not equipped with a trunk.  “Open Bottle – Marijuana” was the name police once wrote on citations   The legislature passed the law soon after small amount decriminalization in Minnesota.  Like the Open Bottle law, deterring drivers from consuming while driving or in a car is its purpose.

Possession of Drug Paraphernalia, Minnesota Statutes §152.092, is a petty misdemeanor.  Minnesota Statutes §152.01, subd. 18 defines “drug paraphernalia.”

Marijuana Attorney

Well known

If you’re from Minnesota, have you heard of Marijuana Attorney Thomas C. Gallagher?

Experienced

Thomas Gallagher is a Minneapolis criminal defense lawyer with over 30 years experience.  Gallagher represents a big percentage of client accused of marijuana crimes.  He represents good people accused of violating bad laws.

Recognized Expert

After decades of defending people accused of drug crimes,including a large proportion of marijuana cases, Marijuana Attorney Gallagher has developed expertise in winning these cases.

The numerous CLE courses where Gallagher has taught marijuana law to other lawyers, judges, and police officers demonstrate Gallagher’s expertise in marijuana laws.

Gallagher many articles published on Minnesota marijuana laws show his expertise as well.

Online reviews are mostly five-star. (Google Reviews are linked at the bottom of this page.)

Peers reviews by other lawyers and judges awarded Gallagher the best AV-Rating possible.

Benefit to you – outcome focused
Client defined outcome goal
Client defined outcome goal

The winning formula begins with focus on outcome.  We identify the client’s desired outcome for the case.  Of course, the more desirable outcomes tend to carry the greatest risk.  And we may want more than one feature in the outcome.  But one becomes the priority.

No priors:  For the client who has no priors, we want to keep their public criminal record as clean as possible.  There is more than one way to do that.  First, we can try to persuade the prosecuting attorney to agree to a “clean record eventually” outcome.  If not, then we can litigate the case to get charges dismissed by a judge.

Criminal history:  For clients with criminal history, we seek to avoid Minnesota Sentencing Guidelines presumptive sentences of executed prison time, or mandatory minimum  sentences.  For these clients, sometimes the client’s goal is to get probation instead of prison, or to keep the number down.

The client decides their outcome goal, not the lawyer.

Pretrial motions – jury trials

If an agreement with the prosecutor cannot meet the goal, then we litigate.  We litigate until we either achieve the client’s goal or fail in the attempt.

Pretrial defense motions generally ask the judge to suppress evidence or dismiss charges based on the law and the facts of the case.  Often judges conduct a Contested Omnibus Hearing to hear testimony and receive evidence relevant to the defense motions before the court.  Typically the judge issues a written Order with their decision.

If the prosecution survives pretrial motions, a trial will be held either to a judge or to a jury.  The difference is that in a jury trial the lawyers select a jury panel and the jury will decide guilty or not-guilty of each charge made.

A guilty verdict accepted by the judge would lead to sentencing.  At sentencing, the judge will consider the lawyers arguments as well as the Pre-Sentence Investigation (PSI) Report prepared by a Probation Officer.  A defense appeal may follow.

A not-guilty verdict on all charges means the accused won the case and it’s over.

Jury nullification.

What is jury nullification?  Under American law, the right to a jury trial means that the jury is the final finder-of-fact.  The jury can decide to make a Not-guilty verdict even where the facts show the accused did intentionally do the act prohibited by law.

NORML Legal Committee Member Thomas Gallagher
NORML Legal Committee Member Thomas Gallagher

In other words, a jury has the power to acquit good people who violate bad laws.

This is a cornerstone of our democratic republic.  Jury nullification is a sign of laws that need to be changed to reflect the conscience of the community.

As a re-legalization activist, Gallagher is aware of the majority support in every major poll for marijuana legalization.  Most Minnesotans in both major political parties support regulating marijuana like beer and wine.  A majority now oppose laws making marijuana a crime.

That means a majority on any jury panel in Minnesota object to making marijuana a crime.  This makes the rule of jury lenity – or jury nullification – a factor in marijuana cases in Minnesota.

The marijuana attorney you choose
Thomas C Gallagher, Minnesota Marijuana Attorney
Thomas C Gallagher,
Minnesota Marijuana Attorney

Which marijuana attorney should you choose?

Many criminal defense attorneys near you may be able to do a good job for you.  Do you really need one of the best?

This is your one chance with this case.  Once done, it will be too late to go back and change things.

Good may be good enough for others, but you don’t want to take any chances.  You wan the best marijuana attorney you can find.

Why Thomas C. Gallagher

In addition to the advantages offered by Thomas C. Gallagher as a Minnesota marijuana attorney, when you choose him, you get him.  When you hire Gallagher, you get Gallagher — not a substitute.  Gallagher will not have a younger, less experienced lawyer take over your case.  You will get the real deal.  When you hire Gallagher, he’s on your side 100%.

Fight back 

Question?  You can call Minneapolis Marijuana Attorney Thomas Gallagher at 612 333-1500