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.
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.
The “Scheduling” schemes
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 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.
Still, the 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.
Both Delta-9 THC, the psychoactive ingredient in marijuana, and “marijuana” itself, are currently listed in “Schedule 1” of both the Minnesota and federal versions of the Controlled Substance Act.
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 1.
Hemp vs. marijuana under Minnesota Cannabis Laws
Minnesota cannabis laws define 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.
How legal is marijuana in Minnesota?
Some forms of “marijuana,” products sourced from “marijuana” plants, are currently legal under Minnesota cannabis laws.
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 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 exceptions to the Schedule 1 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 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 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, 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.”
These Minnesota cannabis laws define several drug crimes based on “marijuana.” (Possession of alcohol is no longer a crime for adults.)
Possession vs. Sale in Minnesota Cannabis Laws
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, under Minnesota cannabis laws.
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.”Minnesota Statutes Section 152.01, subd. 9
In practice, weight is an important issue only when close to one of the statutory weight thresholds.
A 2016 law affects prosecution of cases involving marijuana concentrates: Less Than One-Quarter Gram Possession Gross Misdemeanor Crime.
The most common Minnesota misdemeanor drug charges 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, under current Minnesota cannabis laws.
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).
And federal law deems a Minnesota small amount possession petty misdemeanor conviction to be a criminal conviction; for purposes of prison time under the federal Sentencing Guidelines, for example.
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.”
About the Author – Minnesota Cannabis Laws
Minnesota NORML volunteer and Board Member, Attorney Thomas Gallagher defends a big 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.
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