Marijuana Laws in Minnesota

Marijuana, or Cannabis, is a plant that has been used by humans for many thousands of years – including its main uses as fiber (Hemp – especially the male plants) and as a psychoactive agent (Marijuana – the female plants).  This was true all over the world, as well as in the United States – though Marijuana use was associated more with 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.

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, it appears that our Nation is 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 Minnesota laws.

Criminal Laws relating to Marijuana in Minnesota are primarily state and federal statutes.  A criminal case related to Marijuana in Minnesota could potentially be prosecuted in either state of federal court (or both), depending upon the facts claimed by police, and upon the exercise of prosecutorial 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, appear 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 – often involving more than just marijuana.  The vast majority of criminal marijuana cases in Minnesota are prosecuted under state law, in state courts.

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 could 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 marijuana as a “Schedule 1” drug does have troublesome and unfair impacts upon the States and upon the People.  It should also be changed.

Under federal law it is generally illegal to cultivate, buy, possess, or distribute (sell, trade or give) marijuana (or cannabis) in every form (plants, extracts, oil, THC, etc.).  The form exception is synthetic THC (e.g., Marinol), now classified as Schedule III.  The “Schedule 1” labeling asserts “no currently accepted medical use.”  Yet, in 1988 Judge Francis Young, an administrative law judge for the DEA, presiding over a challenge to the federal scheduling of Cannabis, recommended that marijuana be reclassified as Schedule II on the ground that if a significant minority of doctors endorse it, then it has a “currently accepted medical use.”  Since 1988, a majority of the U.S. population now live in a state with legal medical marijuana.

Minnesota Statutes Chapter 152 “Drugs, Controlled Substances”
Most of the criminal statutes relating to marijuana are contained in Chapter 152 of Minnesota Statutes.  In Section 152.02, Subd. 2 “Schedule 1,” marijuana is defined as “Schedule 1.”  The felony drug crimes are mostly laid out, ironically, as “Controlled Substances Crimes” from “first degree” (the most serious) to “fifth degree.”  Marijuana is one of several drugs made criminal in these statutes.  (Possession of alcohol is no longer a crime.)

Possession vs. Sale
The Minnesota “Controlled Substance” crimes relating to marijuana are generally either “sale” or “possession” crimes.

What is “Sale?”
Some sale prosecutions involve what police optimistically 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 bizarre feature of the current criminal legal scheme is the legislative arrogance of 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.  The government invention of a crime of not-actual possession (constructive possession) is a tacit acknowledgment that it is harder to prove possession than most people initially realize.  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.  It is meant to increase the government’s power to take away your liberty when it wishes (as compared to actual possession).

Another factor that affects the severity of the criminal charge in marijuana cases under current Minnesota Statutes is quantity.  The larger the quantity sold or possessed, the more severe the criminal charge and potential sentence.  Just what counts as “quantity?”  It is measured by weight.  (Number of plants can be a measure of quantity in certain grow cases).  Just what should be counted 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 tends to be an issue only when close to one of the statutory thresholds – for example the 42.5 gram threshold between petty misdemeanor (non-criminal) possession (below) and felony Controlled Substance Crime – 5th Degree (above.)

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

cannabis plant aspectsThe most commonly charged Minnesota  misdemeanor drug crimes and petty misdemeanor violations are:

Possession of a Small Amount of Marijuana, Minnesota Statutes §152.027, subd. 4.  A “small amount” of marijuana is defined in §152.01, subd. 16 as 42.5 grams or less (roughly an ounce-and-a-half or less).  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.  If found guilty of a petty misdemeanor, however, this is called a “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.  This has been referred to as the “Open Bottle – Marijuana” law, making apparent its intended purpose to deter drivers from consuming while driving.

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

Question?  You can call Minneapolis Marijuana Lawyer Thomas Gallagher at (612) 333-1500.