Big news: Major Legalization Progress in Minnesota 2023
Effective Aug, 1, 2023, many important, new Minnesota marijuana reform laws will go into effect. We’ll be updating our website accordingly before then. Some highlights include:
- Adult Use is legalized;
- Rescheduling to Schedule 3 (though full legalization would mean descheduling, like beer and wine);
- Possession by adults still a Prohibition crime, but at higher weight thresholds: two pounds at home, and two ounces in most public places (age 21 and older);
- Legalizing home grow of up to four mature (flowering) plants per residence of persons 21 and older..
Summary of the laws after Aug 1, 2023:
In recent years, Minnesota has partially legalized cannabis – both hemp and medical marijuana. But, Minnesota still has laws making possession or sale of Marijuana a crime. Here is a summary of Minnesota Cannabis Laws focusing on consumers.
Criminal Laws relating to Marijuana in Minnesota are primarily state and federal statutes. In Minnesota, prosecutors can file a marijuana criminal charge in state or federal court (“Prohibition”). Which jurisdiction files charges may depend upon the facts claimed by police, and the exercise of prosecutor discretion.
The “Scheduling” schemes
Many don’t know that Minnesota has its own “Controlled Substance Act” statutes, with its own “Scheduling” scheme. (The word “schedule” means “list,” as in “listed drugs.”)
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 3;” at any time we want — regardless of the federal government. Minnesota cannabis laws can change to remove cannabis from the Minnesota Controlled Substance scheduling, as with beer and wine, which are not “scheduled.”
Still, the legacy federal “Schedule 1” classification of some forms, has troubling impacts on the States and the People.
Federal law generally criminalizes cultivation, possession, or distribution of “marijuana” or products from “marijuana” whether plants, extracts, oil, THC. 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. In Minnesota, beginning in 2023, the legislature is moving away from the use of the word “marijuana,” replacing it with the term “illegal cannabis.” But the term remains in Minnesota statutes, and in federal statutes.
General rule: Both Delta-9 THC, the psychoactive ingredient in marijuana, and “marijuana” itself, are currently listed in “Schedule 1” the federal version of the Controlled Substance Act; but as of 2023, in “Schedule 3” of the Minnesota version.
Exceptions: But other statutes carve out exceptions for THC and marijuana. Federally, hemp and hemp-THC is removed from federal Schedule 1. In Minnesota, hemp and hemp-THC is removed from Minnesota Schedule 3.
Hemp vs. marijuana: Minnesota Cannabis Laws
Minnesota cannabis laws define cannabis plants with over 0.3 THC by weight as “marijuana,“ or now as “illegal cannabis.” And “illegal cannabis” (“marijuana”) currently is on Minnesota’s “Schedule 3” list.
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.
Changes coming for hemp? On the federal front, proposals to amend federal statutes to change the Delta-9 THC threshold for “hemp” to an even one percent (1%) as part of the Federal Farm Bill, are gaining traction. Some states already use the one percent D-9 THC threshold for hemp. (Minnesota could, too.) This change would create a tremendous increase in jobs and wealth for Minnesotans.
How legal is marijuana in Minnesota?
Most forms of “marijuana,” products sourced from cannabis plants, are now legal under Minnesota cannabis laws.
Like beer, win and spirits, the use of marijuana or cannabis is now presumptively legal. Exceptions exist for persons under 21 years old, etc.
One category of legal 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 the federal version of the federal Controlled Substance Act now lists it in Schedule 5.
Yet another category is hemp and hemp-THC, which are among the exceptions to the federal Schedule 1 and Minnesota Schedule 3 status of marijuana (cannabis) and Delta-9 THC. In Minnesota, since 2022, low-THC Hemp Products, in the form of edibles and drinks, are legal if compliant with the statute, Minnesota Statutes §151.72 “Certain Cannabinoid Products.”
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 3 now 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 listed in Schedule 3.
To-Schedule or Not-to-Schedule: That is the Question
The “Schedule 1” label still lingering federally for marijuana, 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.
What is “Descheduling?” Marijuana and D-9-THC should be removed entirely from the state and federal “Controlled Substances Acts.” After all marijuana and THC are safer than alcohol and coffee; and neither of those is “listed” in a Controlled Substance schedule. Ending Prohibition of Cannabis means Descheduling – completely.
Minnesota Statutes Ch. 152 “Drugs, Controlled Substances”
Chapter 152 of Minnesota Statutes has most of the state’s criminal statutes on marijuana. Section 152.02, Subd. 2, now lists “marijuana” in “Schedule 3.” 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.”
These Minnesota cannabis laws define several drug crimes based on “marijuana.” (Possession of alcohol is no longer a crime for adults, regardless of quantity.)
New Minnesota Cannabis Crimes
The 2023 legislature also created new cannabis crimes, Minnesota Statutes Sections:
152.0263: Cannabis Possession Crimes
152.0264: Cannabis Sale Crimes
152.0265: Cannabis Cultivation Crimes
Illegal Cannabis Sales Crimes were moved from the “Controlled Substance Crime” statutes; to new Minnesota Statutes Section 152.0264 “Cannabis Sale Crimes,” First through Fourth Degrees. First Degree has the heaviest penalty. Fourth Degree has the least.
But the legislature kept illegal cannabis possession crimes; and kept them in the Controlled Substance Crimes section, though with higher weight thresholds. And it added illegal cannabis possession crimes, in its new Minnesota Statutes section 152.0263.
And effective August 1, 2023, Minnesota Statutes Section 342.09 “PERSONAL ADULT USE OF CANNABIS,” explicitly and affirmatively legalizes possession small amounts of cannabis and THC products. The statutes create various weight thresholds for three categories:
- Cannabis Flower (plant-form)
- Cannabis concentrate
- Edible cannabis products
The many various weight thresholds are detailed at Weight Thresholds Marijuana.
But two ounces or less of Cannabis Flower is now lawful to possess in public, and two pounds or less within one’s residence. Lower thresholds apply to Cannabis Concentrates and Edibles.
Possession vs. Sale vs. Cultivation in Minnesota Cannabis Laws
The Minnesota “Controlled Substance” crimes on marijuana are generally either “sale,” “possession,” or “cultivation” 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.
Did you know that the Minnesota Constitution protects a citizen’s right to sell the lawful “products of the farm or garden occupied and cultivated by him?” See our article: Minnesota Constitution: After Legalization, about how the 2023 legalization law has breathed new life into this Minnesota constitutional right.
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).
Is Odor of Marijuana still probable cause to search? Not anymore in some states. In Minnesota, we have a conflict in the courts. But eventually the Minnesota Supreme Court or the Minnesota legislature could make clear the odor of marijuana is no longer probable cause of crime.
What is “Cultivation?
Cannabis Cultivation Crime in Minnesota, criminalizes growing cannabis without a state-approved license. But, Minnesota Statutes Section 342.09, Subd. 2 explicitly and affirmatively legalizes small home grows:
“Subd. 2. Home cultivation of cannabis for personal adult use. Up to eight cannabis plants, with no more than four being mature, flowering plants may be grown at a single residence, including the curtilage or yard, without a license to cultivate cannabis issued under this chapter provided that cultivation takes place at the primary residence of an individual 21 years of age or older and in an enclosed, locked space that is not open to public view.”Minnesota Statutes Section 342.09, Subd. 2
More on Marijuana Grow Laws in Minnesota.
Quantity: Minnesota Cannabis Laws
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, under Minnesota cannabis laws.
Just what counts as “quantity?” Generally, weight. (Number of plants is now a measure of quantity in certain grow cases, however.)
In practice, weight is an important issue only when close to one of the statutory weight thresholds.
The most common Minnesota misdemeanor drug charges
The 2023 Minnesota legislature replaced Minnesota Statutes §152.027, subd. 3, (“Possession of Marijuana in a Motor Vehicle”), with the new Cannabis Open Package in a Motor Vehicle crime. Still a misdemeanor crime, it no longer has a 1.4 grams minimum threshold. Now any amount of “illegal cannabis” (marijuana) in a motor vehicle is a crime, 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.
Limits on “Public Consumption”
Minnesota Statutes §342.56 (2023) Limitations on consumption; locations of consumption, generally provides:
- Except for the use of medical cannabis flower or medical cannabinoid products,
- vaporizing or smoking of cannabis flower, cannabis products, hemp-derived consumer products is prohibited in a multifamily housing building
- including balconies and patios
- violation punishable through a civil administrative fine of $250
- Private areas vs “public.”
- Odor, Second-hand smoke
- Lease could prohibit if signed (agreed).
Employment Limitations and Testing
Employer testing: Minn Stat §181.953 RELIABILITY & FAIRNESS SAFEGUARDS, generally provides:
- Subd. 10a. limitations for cannabis
- Employer may discipline, discharge, for cannabis use, possession, impairment, or transfer while an employee is working, on the employer’s premises, or operating the employer’s vehicle, machinery, equipment if:
- (1) Impaired clearness of intellect or self-control;
- (2) confirmatory test verifies THC presence;
- (3) as provided in the employer’s written work rules containing info required by section 181.952; or
- (4) otherwise authorized under state or federal law, or if a failure to do so would cause an employer to lose a monetary or licensing-related benefit under federal law.
About the Author – Minnesota Cannabis Laws
Minnesota NORML volunteer and Board Member, Attorney Thomas Gallagher defends a large percentage of his clients from marijuana charges. In addition to working for legalization, Minnesota Marijuana Defense Attorney Thomas Gallagher uses Minnesota cannabis laws as both sword and shield.