Selected Minnesota Drug Laws; Commentary

By Thomas C Gallagher, Minneapolis drug lawyer, Minnesota marijuana lawyer

Minnesota Drug Laws
Criminal law is conduct prohibited by statute upon a specified penalty which can be enforced as a matter of discretion of law enforcement government officials.  Statutes inevitably have gaps, are unclear, contain ambiguities, or cross the line and violate the highest law – the Constitution.  So, the courts interpret the statutes, and their written decisions modify and limit the effect of statutes.  In the end, defense lawyers, trial court judges, and juries are the final line of defense against unfair, immoral and corrupt criminal laws – such as Minnesota controlled substance laws.

Controlled substance?
Ironically, the only drugs which are truly “controlled substances” are the legal ones, such as coffee, tobacco, alcohol, and prescription medications.  Teenagers have a difficult time obtaining these “controlled substances,” and little difficulty at all obtaining “prohibited” substances like marijuana.  In Holland where marijuana is legal, the marijuana usage rate is one-half of that in the United States where it is “illegal.”

Marijuana legal issues, cannabis laws, other “controlled substance” laws:  
Marijuana and drug crime cases prosecuted in Minnesota State Court, are normally based upon Minnesota Statutes (and rarely, local ordinances).  A basic principle of criminal law is that a person can fairly be held accountable for violating a criminal law, only if the person has first been put on notice of the forbidden conduct in a statute (or local equivalent, such as an ordinance).  In drug prohibition cases, this has also meant long lists of chemicals and substances described with enough particularity to put individuals on notice.

Of course this is based upon what is nearly entirely a legal fiction – that individuals read statutes, and know what they contain.  Though most people may not know what the statutes say, since they are available to the public, they at least could know.  In the information age, this has become more true.  Minnesota Statutes are available at the Minnesota Legislature’s website, along with administrative rules (“Minnesota Rules”) that govern executive branch state agencies, and the Minnesota Constitution.

Most, though not all, drug crime-related statutes are contained in Chapter 152 of Minnesota Statutes.  Certain words defined by statute may be given special meanings, sometimes vastly different from commonly understood meanings.  Many Chapters and Sections of Minnesota Statutes contain definitions applicable to certain other statutory sections, for example Section 152.01.

Most felony drug crimes are announced in Sections 152.021 through 152.025, and are called “Controlled Substance crime in the __ degree,” where the blank would be filled in with first through fifth degrees (first degree being the most severe penalty).  The label “controlled substance” is ironic, in that illegal drugs are completely uncontrolled, in the underground black market – unlike currently legal drugs such as alcohol, nicotine, caffeine, and prescription drugs.  One consequence of this is that illegal drugs are far more accessible (less “controlled”) to high school students than alcohol, tobacco, and prescription drugs.

What factors make a felony crime more severe in terms of punishment if convicted?  The main ones are:

  • Possession vs. sale
  • Identity of substance (i.e., cocaine vs. marijuana)
  • Quantity thresholds (i.e. “total weight of six grams or more containing cocaine)
  • Mandatory minimum sentencing provisions, usually based on prior “controlled substance” conviction(s)

Crimes like possession controlled substance, including felony possession of marijuana charges, and drug possession charges, are examples of “possession crimes.” Possession can be actual possession, or so-called “constructive” possession (based on circumstantial evidence).  On the other end of the spectrum, is federal drug trafficking.  Attorney Gallagher can help protect people swept up in large law enforcement conspiracy investigations, including those with a role so minimal, as to be no role at all in the alleged “drug trafficking organization.”  Gallagher is a cocaine attorney, a marijuana lawyer – every type of drug lawyer – and has been for over 29 years.

Miscellaneous felony drug crimes:

Sale of a Simulated Controlled Substance, Minnesota Statutes Section 152.097, is a felony crime.

278_khatKhat.  In Minnesota, we have a significant Somali community.  A plant called “Khat” (or “Qat”) has been a significant aspect of Somali culture for hundreds of years.  Relatively recently, Khat – which contains a mild stimulant “cathinone” – has been made into a crime to possess or sell, similar to other drugs which have been criminalized.  Racism and cultural bias have long been associated with the United States’ relatively short history of criminalizing certain drugs.  In light of Khat’s mild physiological effects, is this yet another example?

Minnesota Statutes §152.02, subd. 2 (6) defines cathinone (not Khat) as a “schedule 1” “controlled” substance.

Sale of a “Schedule 1” substance can be a “controlled substance crime” in the:

“second degree” Minnesota Statutes §152.022, subd 1 (5).
“third degree”  Minnesota Statutes §152.023, subd 1 (3), (4).
“fourth degree” Minnesota Statutes §152.024, subd 1 (1).

Possession of a “Schedule 1” substance can be a “controlled substance crime” in the:

“third degree” Minnesota Statutes §152.023, subd 2 (4).
“fourth degree” Minnesota Statutes §152.024, subd 2, (2).

Federal criminal prosecutions relating to Khat tend to be similar in many ways to other federal drug crime prosecutions.  See, for example, U.S. vs Sheikh, Case No. 03-2634, United States Court of Appeals 8th Circuit, May 7, 2004.

Often what some courts have called “Collateral Consequences” of criminal cases are worse than the narrowly defined criminal consequences of prison, jail or fines and other typical conditions of a stayed prison or jail term.  Most people are unaware of these.  Here are some related to criminalized-drug cases.

Drivers license revocation, Minnesota Statutes §152.0271, if convicted of most drug crimes and the sentencing court finds that the person unlawfully possessed or sold the “controlled” substance while driving a motor vehicle; then the court can notify the Minnesota drivers license agency and order the license revoked for 30 days.  Perhaps worse than this, is the notation that results on the drivers license record, which is currently somewhat more available (to insurance companies, police during traffic stops).

Asset Forfeitures.  It seems appropriate that asset forfeiture statutes associated with “controlled” substance “crimes” are located in the part of the criminal code for “Theft and Related Crimes” (Minnesota Statutes §§609.52 – 609.552).  After all, many people view asset forfeiture laws as a corrupting influence on law enforcement and government, as well as “legalized theft” where the powerful few in government are stealing from the many people with vulnerable assets.  The general asset forfeiture section is Minnesota Statutes §609.531, and includes some term definitions.  A section specific to property associated with controlled substances is Minnesota Statutes §609.5311, which includes an “instrumentality” basis for asset forfeitures as well as certain defenses and limitations on the scope of what the government can seize and keep.

Government forfeiture actions are generally of two types in Minnesota courts, administrative or judicial.  A “judicial forfeiture” is one commenced like any other case in the judicial branch of government, in the sense that a Complaint must be filed with the court, with notice to the property’s owner or possessor, and the case can proceed in a largely similar fashion as other nominally “civil” cases.  See Minnesota Statutes §609.5313.

The other more common type is called “Administrative Forfeiture.”  It is “administrative” because the statutes say the give power to executive branch, law enforcement agencies to seize and keep your assets under specified conditions with only a slip of paper giving you “notice.”  Minnesota Statutes §609.5314, lays out the procedures to be followed by the government (their police officers) who take property from people, and by property owners who wish to challenge that “taking” of property by the government.  Upon proper challenge by the property owner(s) the case more or less is converted to a judicial forfeiture, since there is no administrative decision to be reviewed by the court.

Legalized corruption?  Some have said so.  Here are the laws that give government bodies, prosecutors and police a large dollar financial incentive to allocate resources towards vulnerable assets, rather than a reduction of violent crime, Minnesota Statutes §609.5315 et seq.  (They get to keep much of the money from property they seize, then auction off, or drive and use the vehicles they “seize.”)

Statutes sometimes seem attempt to define “black” as white, and vice versa.  Whatever direct harm can be caused by drug abuse, no reasonable person could believe that the victim of that abuse is anyone other than the abuser himself or herself.  If in recent times governments have asserted a crime out of a substance, like alcohol or marijuana, then at least these must be “victimless crimes.”  No amount of sophistry and Rube Goldberg strings of complicated “logic” can change that truth.  To argue otherwise is to invite the death of individual, human rights against the state.  Yet Minnesota Statues §609.1095, define “Violent crime” to include “a violation of … any provision of chapter 152 (drugs, controlled substances) that is punishable by a maximum sentence of 15 years or more.”  And, relating to firearms, Minnesota Statutes §624.712, subd. 5, defines “Crime of violence” to include felony convictions of “chapter 152 (drugs, controlled substances).”  Minnesota Statutes call drug “crimes” violent, therefore the laws treat people convicted of these “crimes” as if they are violent criminals, even though they are not.  How is possessing two ounces of marijuana grown in your basement “violent?”

Other so-called collateral consequences can include:

  • Student Financial Aid ineligibility, due to federal statutes
  • Health Insurance, premium increases or denials
  • Housing, reduced availability
  • Employment, loss and reduction of employment opportunities
  • Professional and Occupational Licenses, loss or ineligibility
  • Annual Income Reduction, as a result
  • Travel restrictions
  • Criminal Records, publicly available