Marijuana Laws in Minnesota
by Thomas C. Gallagher, Minnesota’s Marijuana Attorney
This page lays out Minnesota marijuana laws and expert Marijuana Attorney Thomas Gallagher’s 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, people have used cannabis. Yet 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.
Until the 1930s in the United States, that is. Now, in the 21st Century, our nation may be coming to its senses. And we 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, by Marijuana Attorney Thomas Gallagher.
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.
Many don’t know that Minnesota has its own “Controlled Substance” statutes, with its own “Scheduling” scheme.
And the Minnesota schedules are completely separate and independent from those of the federal government.
So, Minnesota can de-schedule marijuana, or reschedule out of Schedule 1, at any time — regardless of the federal government.
Still, the federal “Schedule 1” classification of some forms, has troubling impacts on 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.). But now, the “hemp” form of cannabis is no longer illegal “marijuana,” as we discuss below.
“Marijuana” is an artificial, legal category of the cannabis plant. Until it is fully legal, people will need help from a Minnesota marijuana attorney.
Hemp vs. marijuana
Minnesota law defines cannabis plants with over 0.3 THC on a dry weight basis as “marijuana.“ And “marijuana” currently is on Minnesota’s “Schedule 1.”
But the law defines cannabis with 0.3 % or less THC as “Industrial Hemp.” And “industrial hemp is not marijuana, as defined in section 152.01, subdivision 9.” Minnesota Statutes Section 18K.02.
The general rule is that cannabis over 0.3 % THC, is marijuana. But if it’s cannabis 0.3 % or less THC, then it is not marijuana, and not illegal.
As a result, most hemp-sourced CBD, or Cannabidiol, is legal under Minnesota law.
For a detailed legal analysis of CBD and Hemp; see Marijuana Attorney Thomas Gallagher’s blog: Is CBD 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. Made from “marijuana;” Epidiolex is a new prescription form of CBD. And it’s now listed in the federal version of the federal Controlled Substance Act in 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 (in addition to “marijuana”). But non-psychoactive CBD is not listed.
As a result, THC is can be illegal to possess. So, until THC is fully legal, people may need help from a Minnesota marijuana attorney.
But we have an exception to that general rule. The synthetic, pharmaceutical form of THC (e.g., Marinol or Dronabinol), is now listed in Schedule 3.
The “Schedule 1” label means “no currently accepted medical use.”
But in 1988, DEA Administrative Law Judge Francis Young, recommended moving marijuana to Schedule 2. The DEA Administrative Judge’s decision rested on the ground that since in 1988 a significant minority of doctors endorse it; it then had a “currently accepted medical use.”
That was in 1988. But now a majority of the U.S. population lives in a state with legal medical marijuana; a frequently prescribed, state-legal medication.
Minnesota Statutes Chapter 152 “Drugs, Controlled Substances”
Chapter 152 of Minnesota Statutes has most of the state’s criminal statutes on marijuana. Section 152.02, Subd. 2, lists “marijuana” in “Schedule 1.” The Chapter lays out the felony drug crimes, ironically, as “Controlled Substances Crimes.” (Ironic, since the state has zero control over the underground, tax-free economy.)
These vary in severity from “first degree” (the most serious) to “fifth degree.” A Minnesota marijuana attorney can help protect you from all of them.
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?”
Some sale prosecutions involve what police call a “controlled buy.” They use an undercover police officer; or usually, an informant trying to work their way out of their own criminal case, often paid by police. And 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.
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’s power to take away your liberty (as compared to actual possession).
Another factor that affects the severity of the criminal charge in marijuana cases is quantity. So the larger the quantity sold or possessed, the more severe the penalty.
Just what counts as “quantity?” Weight. (Number of plants is now 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 weight thresholds. For example, 42.5 grams is the threshold between petty misdemeanor (non-criminal) possession 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:
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, when a court adjudicates a person guilty of this provision; he ends up with a “petty misdemeanor” record.
A petty misdemeanor in Minnesota is a civil violation, and is “not a crime.” So police cannot lawfully arrest a person 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 also 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 without a trunk. Police once wrote “Open Bottle – Marijuana” on these citations. The legislature passed the law soon after plant-form small amount decriminalization in Minnesota. Like the Open Bottle law, its purpose was deterring drivers from consuming while driving.
Possession of Drug Paraphernalia, Minnesota Statutes §152.092, is a petty misdemeanor. Minnesota Statutes §152.01, subd. 18 defines “drug paraphernalia.”
Well known Marijuana Attorney
If you’re from Minnesota, have you heard of Minnesota’s Marijuana Attorney Thomas C. Gallagher?
Experienced Marijuana Attorney
Thomas Gallagher is a Minneapolis criminal defense lawyer with over 30 years experience. Attorney Thomas Gallagher represents a big percentage of clients accused of marijuana crimes.
He represents good people accused of violating bad laws.
Recognized Expert Marijuana Attorney
After decades of defending people accused of drug crimes, and a large proportion of marijuana cases; Marijuana Attorney Thomas Gallagher has developed expertise in winning these cases.
So, Attorney Thomas Gallagher has taught many CLE courses on marijuana law to lawyers, judges, and police officers. They ask him to teach because of Thomas Gallagher’s marijuana law expertise.
And Attorney Thomas Gallagher’s many articles published on Minnesota marijuana laws can help you avoid legal problems, or solve them.
Benefitting you – outcome focused
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 with no priors, we try to keep their record clean. 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. And if not, then we can litigate the case to get charges dismissed by a judge.
Criminal history: For clients with criminal history, we try to avoid presumptive sentences of executed prison, or mandatory minimum sentences. So for these clients, sometimes their 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 motions ask the judge to suppress evidence or dismiss charges, on the law and the facts of the case. The judge conducts a Contested Omnibus Hearing to receive testimony and evidence. And typically the judge issues a written Order with their decision.
If the prosecution survives pretrial motions, the court holds a trial, to either a judge or to a jury. The difference is that in a jury trial the lawyers select a jury panel. And then the jury decides guilty or not-guilty of each charge.
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.
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 acted intentionally as prohibited by law.
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, that laws must change to reflect the conscience of the community.
As a re-legalization activist, Thomas Gallagher is aware of the two-thirds majority support in every major poll for marijuana legalization. Most Minnesotans in both major political parties support regulating marijuana like beer and wine. So 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 – and jury nullification – factors in marijuana cases in Minnesota.
The marijuana attorney you choose
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 Minnesota’s Marijuana Attorney Thomas 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 Thomas Gallagher, you get Thomas 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 Thomas Gallagher, he’s on your side 100%.
Question? You can call Minneapolis Marijuana Attorney Thomas Gallagher at 612 333-1500