Not all Minnesota marijuana lawyers truly believe in their hearts that Prohibition laws are the real crime. But Minnesota marijuana lawyer Thomas Gallagher does. You may already know him from his political re-legalization work. Gallagher’s passion grew out of the plight of his clients facing marijuana charges; devastated by evil laws.
Marijuana Law in Minnesota
Prohibition has not been around long in human history — only since the early 20th Century. It made the demand for Prohibited alcohol increase. And later, Prohibition law increased the demand for marijuana, too. Moreover, Prohibition made organized crime pay, everywhere.
As of 2023, more than half the United States’ population now live in a state where marijuana use is legal again, and now Minnesota is one of those states.
Minnesota’s 2023 laws reduced Prohibition, persists
This page focuses on Minnesota state laws. The information here is not exhaustive. But we provide a starting point for understanding Minnesota’s current Marijuana laws, with several pages linked here, on cannabis and marijuana laws.
What to do if seized, searched, arrested, charged with a marijuana crime in Minnesota? Considering the serious, lifelong consequences, it’s essential to have a good lawyer experienced in marijuana defense.
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 marijuana laws in Minnesota. Here are some important aspects.
Marijuana Partial-Legalization Law
Effective August 1, 2023, we have a new marijuana partial legalization law in Minnesota. It includes:
- Rescheduling to Schedule 3 (full legalization would require descheduling);
- Personal-use, small amount possession legalized;
- Possession by adults still Prohibition crime, but at higher felony weight threshold: two pounds;
- Legalizing home grow of up to four mature (flowering) plants.
Quantity: Minnesota marijuana laws
Prohibition is not over, because, in general, Minnesota’s current laws punish greater quantity more severely. Seems simple enough. But there are only a few weight thresholds that matter. If the prosecution claims a quantity close to a threshold; that can be the difference between a higher and lower “degree.” Minnesota marijuana lawyers like Thomas Gallagher will use a quantity defense when the claimed weight is near a threshold.
Identity of the alleged substance
The government has the burden of proving identity of the alleged substance they say is marijuana or THC. They usually don’t bother to do a lab analysis until shortly before the scheduled trial date.
They’ve also enacted a questionable “mixture” law.
Some Minnesota courts interpreted it to mean that where trace amounts of hard drugs diluted in bong water, for example; the water weight supports a prison sentence. Thomas C. Gallagher is a Minnesota marijuana lawyer with experience challenging evidence of identification.
And the mixture law, subversive to due process, can be transformed into a weapon for the defense, in select cases.
Flower, concentrates, edibles
One characteristic of Minnesota’s continuing criminal Prohibition scheme, is distinguishing different levels of punishment for cannabis, dependent upon its form: cannabis flower, cannabis concentrate, and cannabis edibles.
How about changing the laws to treat people equally under the laws, regardless of form?
As a result of these artificial distinctions in Minnesota marijuana laws, it can matter whether we have plant-form (“cannabis flower”) vs. cannabis concentrates. Plant-form marijuana is marijuana as defined in the statutory definitions. Its identification includes plant morphology and THC level. Cannabis concentrates include hash oil, wax, shatter, vape carts, and are the result of various methods using the plant as a starting point.
Medical: Minnesota marijuana laws
Minnesota now 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 compliance.
In our experience, police will not trouble enrolled patients in compliance with the Minnesota MDH medical marijuana program.
But for everyone else, we can consider the common law defense of medical necessity – a lesser of two evils defense. However, a couple old Minnesota appellate court cases denied defendants their right to a necessity defense even with clear evidence of medical use.
So, the legislature should enact a medical necessity defense statute, to overturn those court cases. But much has changed since those old cases, And, the U.S. Supreme Court has repeated that the defendant has the Constitutional Right to Present a Defense. And without the right to present any defense, the “right” to a jury trial is a thin sham.
“Hemp” cannabis is now legal
Federal and Minnesota statutes divide the cannabis plant into two legal categories:
- “marijuana” (or “illegal cannabis”) and
- “industrial hemp.”
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 in Minnesota and under federal law. The difference is the 0.03 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.
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.
Cannabidiol — CBD
The cannabis laws are in a transitional period. CBD products are legal if 0.30 percent THC or less. But here again, legal medical marijuana and prescription CBD are legal, regardless.
For an in-depth look at this see our blog articles:
Low-THC Hemp Products – Edibles & Drinks
Low-THC Hemp Products Legal in Minnesota were re-legalized in Minnesota in 2022. For details, see our article: Low-THC Hemp Products Legal in Minnesota.
Key takeaways include:
- Descheduling of THC, for Certain Hemp Products specified.
- Sale of those hemp products regulated.
- Certain low-THC hemp products are legal to possess.
Sale vs. Possession
The seller scapegoat: “Hmm. Who shall we blame?”
The false narrative holds “drug users” to be well-meaning but pathetic idiots; while “drug” sellers must have horns and a tail. People in the beverages industry had best be careful, too.
Governor Mark Dayton famous 2014 suggestion to mothers of sick children asking his support for a legal medical marijuana Bill; that they could buy pot illegally on the street, or in another state, to treat their children. True. And then risk a marijuana conviction.
But are these underground economy marijuana sellers really “evil drug pushers?” Or do sellers provide needed medicine to mothers of sick children on the advice of the Governor? Minnesota marijuana lawyers would like to know.
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.”
Growing & Minnesota marijuana laws
Prosecutors can charge growing marijuana as a crime. But beginning in 2023, we can home grow marijuana in our own homes 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.
Now though, prosecutors can use more than 21 plants to charge a Felony “Cannabis Cultivation Crime,” or more than 16 plants to charge a Gross Misdemeanor crime.
What is “a plant?” Sometimes the government overreaches by claiming that clones are “plants.” Any backyard gardener knows better. But the government often tortures the meaning of words, like “plant.”
Minnesota marijuana lawyer Thomas Gallagher sees many marijuana felony charges, and even more non-felony cases.
The non-felonies after August 1, 2023 are either
- Criminal possession of an illegal quantity, depending upon 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 results in “a conviction.” And a public court record. As a result, most people so charged desire to avoid
- a public record with the words “marijuana” or “cannabis” and
- petty misdemeanor “conviction.”
But federal courts have held that a prior Minnesota conviction for possession of a “petty misdemeanor” small amount, was actually a criminal conviction — resulting in federal prison time due to inclusion in the defendant’s criminal history score. See our: 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). But the new “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. The common desire is to avoid
- public court record saying “marijuana” and “conviction,”
- conviction on the drivers license record
So see our article for tips on prevention : How to Avoid a Marijuana Arrest in a Car in Minnesota: Top Nine Tips
Minnesota Statutes Section 169A.36 “OPEN PACKAGE LAW,” is a similar 2023 law with significant difference:
- No minimum amount threshold (no 1.4 gram minimum, as before)
- Approved Packaging broken or unsealed, or no approved packaging
- cannabis flower, a cannabis product, lower-potency edible, a hemp-derived consumer product
- non-present owner liability
- use in vehicle prohibited
A high percentage of DUI marijuana cases are false accusations.
But it takes an experienced marijuana DUI attorney to bring the truth to light.
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 another exception.
Now that that’s out the way, let’s make the law simple for a change (while we’re waiting for full legalization anyway).
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 now 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 2023 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).
FAQ: “Can I legally give away cannabis if I receive nothing?”
Yes, if the person you are giving it away for free to is 21 or older, and the quantity within the small amount limits in the statute.
Minnesota Statutes Section 342.09 (2023) PERSONAL ADULT USE OF CANNABIS, Subdivision 1 (a) 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;
Federal or State
Most marijuana criminal cases are in Minnesota state court. But Minnesota marijuana lawyer Thomas Gallagher sees some charged in United States District Court (federal court).
Federal prosecutors view Illegal drugs other than marijuana as a higher priority for prosecution. But the United States Attorney’s Office does sometimes prosecute federal marijuana crimes.
When they do, it could be based on a jurisdiction with primary or more present federal jurisdiction (federal land); or in areas with dual jurisdiction with states, other factors that they view as more serious. Federally prosecuted drug cases often tend to be criminal conspiracy cases involving multiple co-defendants.
Defenses: by your Minnesota marijuana lawyer
Every year, the cracks in the evil Prohibition laws grow ever wider. We hope for the day when the people are free again, and no longer need Minnesota marijuana lawyers.
Marijuana is usually legal in Minnesota
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 either 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 defense must come up with some evidence to support an affirmative defense. And if we do, then the ultimate burden of persuasion falls back again on the prosecutor.
There are many types of defenses to a marijuana criminal charge in Minnesota:
- defense challenges to the admissibility of evidence,
- challenges to prosecution evidence required to prove elements of the charge,
- affirmative defenses
And we argue most defense motions to suppress evidence, to a judge in pre-trial Contested Omnibus Hearing.
In the end, with marijuana 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.
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. But if the government breaks the law, we are all at risk.
Minnesota marijuana lawyers like Thomas Gallagher look to the chain of events, for a violation of law by police.
Your defense attorney can raise and litigate these issues at a pretrial evidentiary or Contested Omnibus hearing.
That, and jury nullification. The jury has absolute legal power to deliver a verdict of “not guilty,” regardless of the facts and the law.
Our Minnesota Marijuana Laws Information
Marijuana cases are a large part of the practice of Gallagher Criminal Defense. So, we have many online information resources on related topics and issues. And here are links to some of the most popular.
“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.
Question? Call Lawyer Thomas Gallagher, 612 333-1500
Thomas Gallagher is a marijuana 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 defending clients from criminal marijuana charges.