1970s partial decriminalization of marijuana; the loophole
In 1976, Minnesota decriminalized possession of a “small amount” of marijuana. Or did it? Minnesota has only partially decriminalized a small amount of marijuana. Why partially? Minnesota’s decrim law applies to plant-form only. But the law left a loophole for “the resinous form of marijuana,” still a felony. And the “resinous form” comes in many forms, under many names. These include THC oil, dabs, carts, marijuana wax, edibles and concentrates.
Should Minnesota simplify its law? Of course, it should not be any level of crime.
But let’s at least delete “the resinous form” loophole from Minnesota’s small amount decrim law.
Prehistoric marijuana forms
Hashish is marijuana. It is a compressed plant-form of marijuana.
People around the world have safely used it for thousands of years for social, medicinal and religious purposes. See: Religious use of marijuana defense prevails in Minnesota Rastafarian case.
Cannabis-plant trichomes, flower and leaf fragments are hashish.
Mechanical methods remove the trichomes from the plant, screening by hand or with motorized tumblers. And just heat and compress the resulting powder into hashish.
Does hashish fit the definition of “the resinous form” of marijuana in Minnesota Statutes? Probably not, since it is still plant-form, not a chemically processed “resinous form.”
Hashish is less common these days in Minnesota. Because it comes from other parts of the world where traditional. But most marijuana in Minnesota today is grown and made in the USA.
The resinous form is extracted resin
Chemical separation methods use a solvent like ethanol, butane or hexane to dissolve resin. And then, filter the result. Next, boil off the solvent to leave behind the resins. We call these resins honey oil, THC oil, marijuana wax, vape cartridges, dabs, shatter.
All of these are the “resinous form.”
And it’s also a common an ingredient in medical marijuana edibles.
The problem:
Minnesota Statutes contain definitions that don’t always make sense.
And sometimes statutory definitions are inconsistent with a dictionary definition or common understanding of a word.
In this case, Minnesota Statutes Section 152.01, subdivision 16, defines a “small amount” of marijuana as 42.5 grams or less. But it then says:
“this provision [defining a “small amount”] shall not apply to the resinous form of marijuana.”
Minnesota Statutes §152.01, subdivision 16
Weight matters: Minnesota prosecutors charge possession of 1/4 gram or more of “the resinous form of marijuana” as a felony.
That includes a “small amount” or up to 42.5 grams – about 1.5 ounces.
Victims of the law include medical users from other states, found with a small amount of resinous form in Minnesota. (Minnesota does not yet have a medical reciprocity law.)
In contrast, the law decriminalizes 42.5 grams (slightly less than 1.5 ounces) of plant-form marijuana in Minnesota. It’s a petty misdemeanor; not a crime; cannot legally be the basis for an arrest; with the only penalty being a fine. See, Minnesota Statutes Section 152.027, subdivision 4.
Excluding the “resinous form of marijuana” makes no sense
It’s marijuana: No one questions that the “resinous form of marijuana” (honey oil, dabs, cannabis wax, etc.) is marijuana. It’s simply a form of marijuana. And another provision of Minnesota law explicitly recognizes this.
The definition of “Marijuana” in Minnesota Statutes §152.01, subdivision 9, defines it as:
“all parts of the plant of any species of the genus Cannabis, including all agronomical varieties, whether growing or not; the seeds thereof; the resin extracted from any part such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin…”
Minnesota Statutes §152.01, subdivision 9
Minnesota Legislature Public Policy favors the resinous form
In 2014 the Minnesota legislature and Governor adopted into law a medical marijuana program. And their specific, legislative finding, was the resinous form of marijuana was safer and preferable to the plant-form of marijuana. So Minnesota law now contains a preference for the resinous form of marijuana, over the plant-form. And this is the legislature’s declaration of public policy.
Minnesota medical marijuana program participants can lawfully possess and use the resinous form of marijuana only.
“‘Medical cannabis’ means … the genus cannabis plant, or any mixture or preparation of them, including whole plant extracts and resins, … in the form of … liquid, including, but not limited to, oil; pill; but not … dried leaves or plant form…”)
Minnesota Statutes §152.22, subd. 6
But they now become criminal if they use or possess the plant-form of marijuana.
Marijuana is marijuana. But is “a small amount,” a small amount?
Minnesota law says that “the resinous form of marijuana,” is a form of marijuana. And THC oil, dabs, marijuana wax and concentrates, are examples of “the resinous form of marijuana.”
They are all forms of marijuana.
So if someone possesses “a small amount” why should it matter whether it’s the plant-form or the resinous-form? After all, a small amount is a small amount.
One should not be a felony crime; while the other is “not a crime.”
We can close the legal loophole
Has the time come to update Minnesota’s 1970s era decriminalization law? To treat small amounts of marijuana equally, regardless of form?
More importantly, should Minnesota make people felons for possessing even a small amount of the “resinous form of marijuana”?
After all, most people don’t comprehend a meaningful distinction between marijuana in plant form versus resinous form.
So the current law is confusing.
And people assume they’re good under Minnesota’s “small amount” law; only to discover their technical error after it is too late.
The law makes people felons on a technicality.
The law should be simple, consistent
Simplicity is a virtue in the law. And the law should treat people fairly. So the law should not create felons based upon arbitrary distinctions and technicalities.
But the recent reduction of one-quarter gram or less to a Gross Misdemeanor adds complexity, with little reform.
Marijuana should be legal. After all, two-thirds of voters polled want legalization. But if politicians keep us waiting, at least close the loophole in Minnesota’s “small amount” decriminalization law.
The simple remedy
The Minnesota legislature can fix this. And we can fix this.
How?
Pass a Bill amending Minnesota Statutes Section §152.01, subdivision 16, defining a “small amount” of marijuana.
Just delete the language “this provision shall not apply to the resinous form of marijuana.”
And problem solved: So that simple solution should solve this problem, and make the law more fair.
And see our article: Why Minnesota’s Marijuana Decrim Law Is Broken; How To Fix It. It’s about how a “petty misdemeanor” can lead to ten years or more in federal prison; by counting as a prior “conviction.”
Thomas Gallagher is a Marijuana Lawyer in Minneapolis.
And he serves on the Board of Directors of Minnesota NORML.