Marijuana – Identity of Substance
Minnesota’s marijuana Prohibitionist statutes employ a scheme with broad general principles relating to the identity of the substance prohibited:
1. Of the five schedules (lists) of “controlled substances,” they placed marijuana in Minnesota’s “Schedule 1” along with heroin, methamphetamine, and the like.
2. Minnesota has five levels of “Controlled Substances Crimes” (not to be confused with the five “schedules”). Marijuana could be a crime charged in any one of those five “controlled substance crimes” first through fifth degree, depending upon the claims made by the government.
3. One of the main criteria for the severity level of the crime punishment is quantity. Closely related is the form of the substance: plant form, “the resin extracted from any part of such plant,” THC, growing “plants,” and diluted “mixture.” Some of these legal criteria conflict with each other. For example, the definition of marijuana conflicts with the definition of “mixture.”
Marijuana – what is it?
Marijuana is a form of the cannabis plant. But so is hemp, and hemp is not marijuana.
Minnesota Statutes §18K.02 DEFINITIONS (2017). Subd. 3. “Industrial hemp. ‘Industrial hemp’ means the plant Cannabis sativa L. and any part of the plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. Industrial hemp is not marijuana as defined in section 152.01, subdivision 9.”
Therefore, marijuana is cannabis with more than 0.3 percent THC concentration on a dry weight basis. Without THC, or too little, it’s not marijuana. Hemp looks like marijuana, but isn’t.
Forms of marijuana
Legally, the form of marijuana claimed can make a difference. What forms could matter in a criminal law context?
1. Plant form, dried marijuana.
2. “The resin extracted.”
4. Growing “marijuana plants.”
Marijuana vs. THC – does it matter?
Minnesota’s five “controlled substance crimes” statutes variously criminalize all four of these four forms of marijuana. (Some pharmaceutical THC, however, is not plant-sourced.) Here are some of those differences, listed:
“Fifth Degree Controlled Substance Crime” criminalizes unlawful sale of a mixture containing marijuana or tetrahydrocannabinols, “except a small amount of marijuana;” but, criminalizes unlawful possession of a mixture containing a controlled substance classified in Schedule I, II, III, or IV, “except a small amount of marijuana.” Notice that “marijuana or tetrahydrocannabinols” is different than “a controlled substance classified in Schedule I,” even though both categories currently include marijuana.
“Fourth Degree Controlled Substance Crime” criminalizes unlawful sale of a mixture containing a controlled substance classified in Schedule I, II, or III, except marijuana or Tetrahydrocannabinols;” and, criminalizes unlawful possession of a mixture containing a controlled substance classified in Schedule I, II, or III, except marijuana or Tetrahydrocannabinols, with the intent to sell it.” Here, “marijuana or tetrahydrocannabinols” is separated from other “controlled substances classified in Schedule I.”
“Third Degree Controlled Substance Crime” criminalizes unlawful sale of a mixture of a total weight of five kilograms or more containing marijuana or Tetrahydrocannabinols;” and, criminalizes unlawful possession of a mixture of a total weight of ten kilograms or more containing marijuana or Tetrahydrocannabinols.” Both refer to “marijuana or tetrahydrocannabinols.”
“Second Degree Controlled Substance Crime” criminalizes unlawful sale of a mixture of a total weight of ten kilograms or more containing marijuana or Tetrahydrocannabinols;” and, criminalizes unlawful possession of a mixture of a total weight of 25 kilograms or more containing marijuana or Tetrahydrocannabinols, or possesses 100 or more marijuana plants.” Now, “marijuana or tetrahydrocannabinols” is distinguished from “marijuana plants.”
“First Degree Controlled Substance Crime” criminalizes unlawful sale of a mixture of a total weight of 25 kilograms or more containing marijuana or Tetrahydrocannabinols;” and, criminalizes unlawful possession of a mixture of a total weight of 50 kilograms or more containing marijuana or Tetrahydrocannabinols, or possesses 500 or more marijuana plants.” Again, “marijuana or Tetrahydrocannabinols” is distinguished from “marijuana plants.”
Problems of proof
Marijuana is identified in court two ways: morphologically (shape) and chemically (THC). Tetrahydrocannabinols, or THC, is identified chemically. Both are done using laboratory procedures often by a lab tech. The government has the burden of proving beyond all reasonable doubt that it is what they claim it to be. The defense has the right to have its expert examine the evidence for identity of the substance, though many accused people are unable to pay for this to be done.
CBD Oil – A Case Study
Is CBD oil legal in Minnesota? That is a frequently asked question, and for good reason.
Cannabidiol, or CBD for short, is one of more than 100 cannabinoids found in the cannabis plant. The two most important of these 100 plus are CBD and THC (or Tetrahydrocannabinol). They are not the same at all. THC is psychoactive, giving adult-use marijuana users their desired “high.” But CBD is not psychoactive, and won’t give you a high at all. Legally THC as a chemical is listed in the Minnesota and federal version of the Controlled Substance Act and is illegal to possess without a prescription. Both THC and CBD have medical treatment applications. And both are contained in medical marijuana.
Plant-sourced CBD is not listed in any schedule of either the Minnesota or federal versions of the Controlled Substance Act. CBD itself is not illegal.
But if CBD is sourced from a “marijuana” plant, then it is legally going to be viewed as “marijuana” and share in “marijuana’s” legal status, usually illegal under federal and state laws in 2018.
On the other hand, if CBD is sourced from “industrial hemp,” then it is legal under state law and federal government is currently (2018) prohibited from spending money to prosecute a person for hemp-CBD that is legal under Minnesota or state law.
As a result in 2018, CBD either is legal or is decriminalized federally if sourced from a plant other than “marijuana” such as “industrial hemp” — even though both are legal categories of the cannabis plant.
Can a seller or person in possession of CBD oil be prosecuted in Minnesota? Yes, if the CBD oil is derived from “marijuana.” (See definitions of “marijuana” and “industrial hemp” above). To make matters worse, it’s easy and better on many levels to use marijuana as a source for CBD. Hemp is a relatively poor source for CBD both in terms of yield and in terms of safety and quality. But-for the market distortion created by the current laws, it’s doubtful anyone would source CBD from hemp.
Currently (2018), CBD products are basically unregulated and many reports exist about CBD products with contaminants and quality problems.
Problems of proof for CBD. If the government wanted to prosecute someone for CBD, how would they prove that the CBD is illegal — sourced from marijuana not hemp? It may prove difficult to impossible; and the burden of proof in a criminal case rests with the government lawyers. If a person was being prosecuted for CBD, would he or she have evidence available to prove that it was legally sourced, from a plant other than “marijuana” such as industrial hemp?
In a criminal prosecution for CBD oil or CBD products, the prosecution could try to focus on any THC found, since THC is illegal regardless of source (unless prescribed or within Minnesota’s medical marijuana program). But if CBD is, in fact, sourced from hemp, it is not marijuana, and it is legal since Minnesota Statutes provide that hemp can contain trace amounts of THC up to a low, defined threshold.
Read our blog article: Is CBD legal in Minnesota? for a more in depth look.
Identification as marijuana:
Field test vs. lab analysis. Probable cause vs. trial evidence. Now, DNA testing can be done.
“Identifying a plant sample as Cannabis sativa is the first step in determining if an illegal substance has been seized. Methods for the identification of marijuana include: botanical identification through inspection of the intact plant morphology and growth habit, microscopical examination of leaves for the presence of cystolith hairs, chemical screening tests such as the Duquenois-Levine test, THC identification through biochemical methods, and the use of molecular sequencing to identify DNA sequence homology to reference marijuana samples.” Coyle, Heather Miller, Timothy Palmbach, Nicholas Juliano, Carll Ladd, and Henry C. Lee. “An overview of DNA methods for the identification and individualization of marijuana.” Croatian Medical Journal 44, no. 3 (2003): 315-321.
Note that not all cannabis is marijuana, since hemp is also a variety of cannabis. Also, approximately 82 species of plants possess cystolith hairs similar to those found on cannabis.
The Duquenois-Levine test is not used to identify marijuana in trials because has numerous problems with false positives and also is a “color test” susceptible to subjective interpretation.
The Non-Specificity of the Duquenois-Levine Field Test for Marijuana, Kelly, John F., et al., Open Forensic Science Journal; January 2012, Vol. 5, p. 4:
“Abstract: The purpose of this study is to determine the specificity, or lack thereof, of the Duquenois-Levine (D-L) field test kit in the identification of marijuana. Out of the forty-two samples tested, patchouli, spearmint, and eucalyptus tested positive for marijuana using the D-L field test. From these results, it can be concluded that the test is non-specific and can yield false positives. Therefore, it cannot be legitimately used for the prosecution or conviction of an individual for violations of the anti-marijuana laws as it does not provide proof beyond a reasonable doubt of the presence of marijuana. In fact, law enforcement personnel and the test kit manufacturer claim that the D-L field test is a specific, identification test with near perfect accuracy. In court, police officers testify falsely to the identification of marijuana in a seized substance based solely on the D-L test and other non-specific, screening tests leading to convictions. The result is the denial of the Constitutionally-guaranteed right to a fair trial, due process and countless wrongful marijuana convictions.“ Forensic Analysis of Marijuana and the Kurzman Mystery, 41 Tex. Tech L. Rev. (2008-2009). Issues in identification.
What is a “plant?”
Marijuana growers (as well as other plant growers) can begin the growth process of a plant in two ways: by seed, and by clone. Most of us are familiar with how a seed can grow into a plant under proper conditions. Many are less familiar with cloning a plant. Many plants can be cloned by taking a cutting of the plant and placing it in soil or other growing material with water. Eventually the clone or cutting may produce roots and become a plant. A plant grown from a clone will have identical DNA as the mother plant. Seeds and cuttings (clones) are not plants.
Minnesota Statutes related to identity of marijuana (relevant excerpts)
Minn. Stat. §152.01 (2017) DEFINITIONS
Subd. 4. Controlled substance. “Controlled substance” means a drug, substance, or immediate precursor in Schedules I through V of section 152.02. …
Subd. 9. Marijuana. “Marijuana” means 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 of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin, 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.
Subd. 9a. Mixture. “Mixture” means a preparation, compound, mixture, or substance containing a controlled substance, regardless of purity except as provided in subdivision 16; sections 152.021, subdivision 2, paragraph (b); 152.022, subdivision 2, paragraph (b); and 152.023, subdivision 2, paragraph (b).
Minn. Stat. §18K.02 (2017) DEFINITIONS .
Subd. 3. Industrial hemp. “Industrial hemp” means the plant Cannabis sativa L. and any part of the plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. Industrial hemp is not marijuana as defined in section 152.01, subdivision 9.
Subd. 4. Marijuana. “Marijuana” has the meaning given in section 152.01, subdivision 9.
Minn. Stat. §152.02 (2017) SCHEDULES OF CONTROLLED SUBSTANCES; ADMINISTRATION OF CHAPTER
Subdivision 1. Five schedules. There are established five schedules of controlled substances, to be known as Schedules I, II, III, IV, and V. …
Subd. 2. Schedule I. (a) Schedule I consists of the substances listed in this subdivision.
(h) Marijuana, tetrahydrocannabinols, and synthetic cannabinoids. Unless specifically excepted or unless listed in another schedule, any natural or synthetic material, compound, mixture, or preparation that contains any quantity of the following substances, their analogs, isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of the isomers, esters, ethers, or salts is possible:
(2) tetrahydrocannabinols naturally contained in a plant of the genus Cannabis, synthetic equivalents of the substances contained in the cannabis plant or in the resinous extractives of the plant, or synthetic substances with similar chemical structure and pharmacological activity to those substances contained in the plant or resinous extract, including, but not limited to, 1 cis or trans tetrahydrocannabinol, 6 cis or trans tetrahydrocannabinol, and 3,4 cis or trans tetrahydrocannabinol;
Identity of the material that the government is claiming is marijuana may be at issue in many cases. If the government is unable to prove that some material is marijuana, it’s resinous form, THC or a marijuana plant, then the accused is not guilty of a marijuana sale or possession crime.
Question about a Minnesota marijuana case? You can call Minneapolis Marijuana Lawyer Thomas Gallagher about it at 612 333-1500