Marijuana Lawyers Guide

Estimated reading time: 12 minutes

Not all marijuana lawyers know in their hearts that Prohibition is the real crime. But marijuana defense attorney Thomas Gallagher does. You may know him from decades of working for legalization. His passion grew out of the plight of clients facing cannabis charges.

The Prohibition experiment has not been around long – only since the 1930s. It increased demand for Prohibited alcohol. And later, Prohibition laws increased demand for marijuana, too. Moreover, Prohibition created organized crime, gangs, and made crime pay.

The prohibition of marijuana is immoral – not only because it infringes on the inherent autonomy of individuals to make choices not harmful to others; but because the state lacks moral authority to deprive liberty for innocent conduct. In Minnesota today the government still criminalizes people possessing more than a small amount.

Is Marijuana Legal in Minnesota?

As of 2026, however, marijuana “use” is again legal in Minnesota. And we can now lawfully grow a limited number of marijuana plants in our home. But since possession of more than a small amount (e.g., four ounces of flower) remains a crime, criminal cannabis Prohibition continues. In Minnesota we can still face marijuana charges under the new “Prohibition lite.”

Marijuana Law in Minnesota

This page is a starting point for understanding Minnesota’s current Marijuana laws with links to more specific pages, with insights from a seasoned marijuana defense attorney and citations to the law.

What to do if seized, searched, arrested, or facing cannabis charges in Minnesota? Considering the serious, lifelong consequences, a marijuana defense attorney experienced in cannabis cases is essential.

And a marijuana charge can trigger a lifetime loss of civil rights to firearms; as well as serious immigration law consequences. So you’ll want the right Minnesota marijuana lawyer. After all, you need the best defense. And it will help you to understand more about cannabis laws in Minnesota.

Marijuana Small-Amount Legalization

Minnesota’s 2023 marijuana partial-legalization law included:

• Rescheduling to Schedule 3 – prescription drug (legalization would require descheduling);
• Personal-use, small amount possession legalized;
• Possession still a Prohibition crime. But higher felony weight threshold: two pounds;
• Legalizing home grow – four flowering plants.

Quantity: Minnesota marijuana laws

Prohibition is not over yet, because Minnesota’s current laws criminalize possession of more than a small amount, and greater quantity more severely.

But if the prosecutor claims a quantity close to an illegal weight threshold; that can be the difference between a higher and lower “degree” crime, or a legal amount. Marijuana lawyers like Thomas Gallagher can use a quantity defense to cannabis charges when the claimed weight is near a legal weight threshold.

Identity of substance: marijuana lawyer

The government has the burden of proving identity of the alleged substance they claim is marijuana or THC. But they usually don’t bother to do a lab analysis until shortly before the scheduled trial date.

They’ve also enacted an unjust “mixture” law. Some Minnesota courts interpreted it to mean that where trace amounts of hard drugs diluted in bong water, for example; the water’s weight alone (not the weight of the illegal drug) supports a prison sentence.

Thomas Gallagher is a marijuana defense attorney with experience challenging identification evidence. And the mixture law, though subversive to due process; can be transformed into a weapon for the defense, in some cases.

Flower, concentrates, edibles: marijuana lawyer

A rose by any other name: One characteristic of Minnesota’s continuing criminal Prohibition scheme, is distinguishing different levels of punishment for cannabis, dependent upon form. So, criminal marijuana charges vary depending upon whether the form is cannabis flower, cannabis concentrate, or cannabis edibles.

Why not change the laws to treat people equally under the laws, regardless of form? Or better yet, why not simply do away with the layers of complexity by repealing all cannabis Prohibition crimes entirely?

As a result of the artificial, complicated form distinctions in Minnesota marijuana laws, it can matter legally whether we have plant-form (“cannabis flower”) vs. cannabis concentrates. Plant-form marijuana identification includes plant morphology and THC level. Cannabis concentrates include hash oil, wax, shatter, vape carts, and are the result of various agricultural production methods using the plant as a starting point. See:

Identification of Marijuana, Plants, Concentrates

Medical marijuana laws: marijuana lawyers

Minnesota has a limited medical marijuana statute. So, an enrolled patient in the state’s medical marijuana program has a defense to a criminal charge, when in perfect compliance. But for other medical users facing cannabis charges, your Minnesota marijuana lawyer can consider the common law defense of medical necessity – lesser of two evils defense. See:

Medical Marijuana Defenses

“Hemp” is cannabis, is legal

Federal and Minnesota statutes divide the cannabis plant into two legal categories:

• “marijuana” (or “illegal cannabis”) and
• “industrial hemp.”

But of course, it’s all just one plant, cannabis.

Marijuana is now presumptively legal to possess in Minnesota (with exceptions for underage, or over a quantity threshold). But hemp is now always legal to possess both in Minnesota and under federal law. The difference is the 0.3 THC dividing line. Above is “marijuana.” While below is “hemp.”

And as a result, the “odor of cannabis” alone is no longer probable cause for a search, which requires reason to suspect a crime.

The hemp defense: Better yet, prosecutors can no longer rely on just qualitative tests for THC at trial. They now must have quantitative lab tests, for THC levels, to prove it’s not hemp. Your Minnesota marijuana lawyer can make sure they do.

Cannabidiol — CBD

We are in a transitional period for Cannabis laws. CBD products are legal if 0.30 percent THC or less. But small amounts of cannabis, legal medical marijuana and prescription CBD are legal, regardless of THC level. For an in-depth look at CBD and hemp see my blog articles:

CBD legal status in Minnesota

The Roots of CBD, Hemp & Law in Minnesota

Low-THC Hemp Products: Edibles & Drinks

Low-THC Hemp Products Legal in Minnesota were re-legalized in Minnesota in 2022. For details, see:

Low-THC Hemp Products Legal in Minnesota.

Key takeaways include:

• Descheduling of THC, for Certain Hemp Products.
• Sale of those hemp products regulated.
• Certain low-THC hemp products legal to possess.

Sale vs. Possession: marijuana lawyer

The seller scapegoat: “Hmm. Who shall we blame?” The false narrative holds “drug users” to be idiotic dupes; while “drug” sellers must have horns and a tail. But the truth is marijuana enjoyers share purchases (sell to each other).

Governor Mark Dayton’s famous 2014 suggestion to mothers of sick children asking his support for a legal medical marijuana Bill; was that they could just buy pot illegally on the street, or in another state, to treat their children. True, but at risk of cannabis charges and a marijuana criminal conviction.

But are these underground economy cannabis sellers really “evil drug pushers?” Or do sellers provide needed medicine to the mothers of sick children on the advice of the Governor?

What is a basic difference between a sale and a possession marijuana crime? The “sale” quantity threshold is lower, for every “degree” of “Controlled Substance Crime” and “Illegal Cannabis” crime.

Growing & Minnesota marijuana laws

Prosecutors can charge growing marijuana as a crime. But since 2024, Minnesotans 21 and older can legally home grow marijuana without fear of government persecution, by complying with their rules.

These days people grow more marijuana in Minnesota than they import into the state. Until a few years ago, Minnesota statutes criminalized growing based on weight only. But now prosecutors can base cannabis charges on more than 21 growing plants as a Felony “Cannabis Cultivation Crime,” or more than 16 plants as a Gross Misdemeanor crime.

But what is “a plant?” The government tortures the meaning of words, like “plant.” Your marijuana defense attorney needs to be aware. More on:

Marijuana Grow Crimes and Defenses in Minnesota.

Non-felonies: marijuana lawyer

Marijuana lawyer Thomas Gallagher sees many felony cannabis charges, and even more non-felony cases. The non-felonies since 2023 can include:

• Criminal possession of an illegal quantity, depending on type
• Criminal sale, outside the legal market; or
• Illegal growing, outside adult residence or more than 8 plants

Cannabis Petty Misdemeanors

A petty misdemeanor is “not a crime.” But, a guilty plea to a petty misdemeanor charge in Minnesota results in “a conviction.” And a public court record. So, most people want to avoid:

• a public record with the words “marijuana” or “cannabis” and
• petty misdemeanor “conviction.”

Moreover, federal courts held that a prior Minnesota conviction for possession of a “petty misdemeanor” small amount, was a “criminal conviction” – resulting in federal prison due to inclusion in the defendant’s criminal history score. See:

Why Minnesota’s Marijuana Decrim Law Is Broken; How To Fix It.

Marijuana in a Motor Vehicle

“Marijuana in a motor vehicle” is analogous to the “open container of alcohol in a motor vehicle” (open bottle law). So, the new 2023 “Open Package in a Motor Vehicle” statute covers otherwise lawful amounts of cannabis and cannabis products, in the passenger compartment of a motor vehicle, unless sealed in original retail packaging.

And it makes marijuana in a motor vehicle a misdemeanor crime. Most people wish to avoid (1) a public court record saying “marijuana” and “conviction,” and (2) a conviction on the drivers license record. So see:

How to Avoid a Marijuana Arrest in a Car in Minnesota: Top Nine Tips.

More on Minnesota Statutes Section 169A.36 “OPEN PACKAGE LAW”:

Minnesota Marijuana in a Motor Vehicle – Open Package Law.

DUI Marijuana: Minnesota marijuana lawyer

Most DUI marijuana charges are groundless. But it takes an experienced marijuana DUI attorney to bring the truth to light. While alcohol increases impulsivity and risk-taking, marijuana decreases both. More on:

DUI Marijuana Defense in Minnesota

Marijuana DUI: Myth vs. the Science

FAQ: “Is marijuana wax a crime in Minnesota?”

First, a frequently asked question. Is marijuana wax (or, dabs, THC oil, “cannabis concentrate”) a crime to possess in Minnesota? The answer is, “yes, if:”

• more than 16 grams (more than 8 grams is a petty misdemeanor);
• the government can prove it’s not hemp.
• Or, in a motor vehicle, not sealed in original packaging.

Lawfully enrolled Minnesota medical marijuana program patients in compliance are an exception.

FAQ: “Are carts a crime in Minnesota?”

The first question is “what is in the cart?” If nicotine juice or CBD-hemp product below 0.3% THC, then the cart’s content would be legal to possess in Minnesota, for example. But if the content of the cart is above 0.3% D-9 THC, for example, as of 2024 it would still be illegal to possess in Minnesota over eight grams for an adult. “Carts” is short for cartridges, or vape cartridges. The container itself is not illegal, but the contents might be.

If the contents are 0.03% THC or more, and more than 16 grams, then a criminal penalty is possible (and more than 8 grams is a petty misdemeanor). So you could need a marijuana defense attorney.

FAQ: “Can I legally give away cannabis if I receive nothing?”

Yes, if you give it away, literally for free, to a person 21 or older, and the quantity within the small amount limits in the statute, they cannot file marijuana charges.

“An individual 21 years of age or older may:
(6) give for no remuneration to an individual who is at least 21 years of age:
(i) two ounces or less of adult-use cannabis flower;
(ii) eight grams or less of adult-use cannabis concentrate; or
(iii) an edible cannabis product or lower-potency hemp edible infused with 800 milligrams or less of tetrahydrocannabinol;”

Minn. Stat. § 342.09, Subd. 1 (a) (2025) PERSONAL ADULT USE OF CANNABIS

FAQ: “Can I use marijuana if I am on probation in Minnesota?”

Minnesota law prohibits a judge from imposing a “no use of cannabis or THC” provision as a condition of probation, unless the defendant undergoes a chemical use assessment which recommends abstinence, consistent with a recommended level of care for the defendant in accordance with preset criteria. Here is the statutory language:

“Terms and conditions.
(e) The court may prohibit a defendant from using adult-use cannabis flower as defined in section 342.01, subdivision 4, or adult-use cannabis products as defined in section 342.01, subdivision 2, if the defendant undergoes a chemical use assessment and abstinence is consistent with a recommended level of care for the defendant in accordance with the criteria under section 254B.04, subdivision 4.”

Minn. Stat. § 609.135, Subd. 1. STAY OF SENTENCE

Federal or State

Though most criminal marijuana charges are filed in state court, the United States Attorney’s Office sometimes prosecutes federal cannabis crimes. When they do, it may be for a jurisdiction with primary federal jurisdiction (federal land); or in areas with dual jurisdiction with states, or for other factors that they view as more serious. Federal drug prosecutions tend to be criminal conspiracy cases involving multiple co-defendants. See:

Inchoate Crimes: Attempt, Solicit, Aid, Conspiracy

Defenses: marijuana lawyers

Defenses include those challenging whether enough evidence exists to prove the elements of the charge. The burden of coming up with proof of the government’s claims, remains with the State.

In addition, there are affirmative defenses such as the medical marijuana necessity defense which can negate or excuse guilt. And First Amendment religious liberty is another affirmative defense. For example see:

Religious use of marijuana defense prevails in Minnesota Rastafarian case.

The marijuana defense attorney must admit some evidence to support an affirmative defense. And if we do, then the ultimate burden of persuasion falls back again on the government. Another example is:

Duress Defense | Complete or Partial.

And we argue most defense motions to suppress evidence, to a judge in pretrial Contested Omnibus Hearing.

In the end, with cannabis cases, we can appeal to the jury. After all, the jury is the conscience of the community and the last defense for our Constitutional rights. And so the jury has the lawful power to veto bad laws.

Suppression of illegal evidence

Before trial defenses, we look to how the government obtained their evidence. If one person goes free because a court suppresses illegal evidence, that person could be a risk to “public safety” of some. But if the government breaks the law, we are all at risk.

Marijuana lawyers like Thomas Gallagher look to the chain of events, for a violation of law by police.

• Was the initial stop or Fourth Amendment seizure illegal?
  
• Is odor of marijuana probable cause to search or detain?
  
• Did police unlawfully expand the detention?
  
• Did police search the person, car or home illegally?
  
• Was the confession unreliable, involuntary?
  
• Did police give Miranda warning before in-custody questioning?

Your defense attorney can raise and litigate these issues and more at a pretrial evidentiary or Contested Omnibus hearing.

Jury rights

That, and jury nullification. The jury has absolute legal power to deliver a verdict of “not guilty,” regardless of the facts and the law. The jury court is the ultimate decider of both the facts and the law.

Minnesota Marijuana Lawyer Information

Cannabis cases are a large part of the practice of Gallagher Criminal Defense. So, you can access many online information resources on related topics on this website. And here are links to some of the most popular.

Marijuana Sale Felony

Legalization of Marijuana in Minnesota: What Should It Look like?

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“Minneapolis criminal defense attorney Thomas Gallagher doesn’t just want to clear his clients of marijuana charges; he wants Minnesota to legalize … once and for all.” City Pages Minneapolis: New Minnesota NORML chair is a Republican lawyer with tips on driving with marijuana, October 10, 2017.

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Question? Call Marijuana Lawyer Thomas Gallagher, 612 333-1500

Thomas Gallagher is a cannabis criminal law expert. And he regularly teaches classes on marijuana laws. He’s been working on legalization for decades. And he has three decades of experience as a marijuana defense attorney defending clients from criminal cannabis charges.

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