Identification of Marijuana

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Marijuana – Identification of Substance

Is it illegal? Is it a crime? What is “It?” Prosecutors must prove identification of the thing they claim is illegal cannabis. Minnesota’s marijuana statutes employ a scheme with general principles relating to the identification of the substance prohibited:

• Of the 5 schedules (lists) of “controlled substances,” marijuana was Minnesota “Schedule 1” with heroin & methamphetamine.
• But the 2023 legislature moved it to Minnesota’s “Schedule 3.”
• The government can charge “controlled substance crimes” first through fifth degree.
• Since 2023, additional Cannabis Possession Crimes come in four “degrees.”
• A main criteria for the severity level of the crime punishment is quantity.
• Form of the substance is another. There are four forms.
• Rebranding: Minnesota statutes 2023 often rebrand “marijuana” to the new “illegal cannabis.”

Quantity is a related issue. Quantity of what; a “mixture?” See:

Weight Thresholds Cannabis

Forms of cannabis

Legally, the form of marijuana claimed can make a difference. What forms matter in a criminal law context?

1. “Cannabis Flower” (Plant-form, dried).
2. Cannabis Concentrate (“resin extracted.”)
3. THC.
4. Growing “plants.”

A prosecutor must be able to prove identification of whatever form they claim to have, in court. Some of these legal criteria conflict with each other. For example, the definition of “marijuana” conflicts with the definition of “mixture.” See, for example:

Bong Water: Minnesota Waters Down Illegal Drug Definition.

What is it?

Identity crisis: Not all cannabis is marijuana. But, all marijuana is cannabis. All cannabis is a plant or from one. But not all cannabis is legal to possess. Marijuana is a form of the cannabis plant. But so is hemp. And hemp is not marijuana.

“’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.”

Minn. Stat. § 18K.02, Subd. 3 (2025)

So, 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, smells like marijuana, but isn’t. As a result, when we identify marijuana, we must distinguish it from hemp. And the prosecution must prove illegal cannabis is not legal hemp.

Marijuana vs. THC – does it matter?

Minnesota’s five “controlled substance crimes” and Cannabis Sale, Possession and Cultivation Crime statutes variously criminalize all of these forms of marijuana.

Marinol (Dronabinol), pharmaceutical THC, however, is a single-isomer, synthetic form, not plant-sourced. Here are some of the differences in the statutes. Federal statutes place Dronabinol in federal “Schedule 3,” available by prescription from pharmacies. And Epidiolex, is a marijuana-plant derived, prescription CBD, now on federal Schedule 5.

Problems of proof. The prosecutor can try to prove identification of the plant or flower form of cannabis (marijuana) in court two ways:

• morphologically (shape) and
• chemically (THC).

Identification of Tetrahydrocannabinols, or THC is proven one way, chemically. A lab tech may testify about identification evidence using laboratory procedures, such as visual examination under a microscope and Gas chromatography–mass spectrometry (GC–MS).

The government has the burden of proving that it is, what they say it is.

The defense has the right to have its expert examine the identification evidence. But many defendants are unable to pay for this. And in DUI-marijuana cases, lab evidence of a blood sample is key. But this page is about identification of non-blood substances.

Is CBD legal?

Cannabidiol, or CBD for short, is one of more than 100 cannabinoids in the cannabis plant.

The two most important of these are CBD and D-9-THC (or Tetrahydrocannabinol). They are not the same at all. THC can be psychoactive, giving users their desired “high.” But CBD is not psychoactive. So it won’t give you a high.

THC is listed in both the Minnesota and federal versions of the Controlled Substance Act. But some THC is now descheduled, when derived from hemp (cannabis plants with below 0.3% THC), both federally and in Minnesota. Both THC and CBD have medical treatment applications. And medical marijuana contains both.

CBD vs. CBD-products: Plant-sourced CBD is not listed in any government schedule of either the Minnesota or federal versions of the Controlled Substance Act. CBD itself is not illegal. However, most CBD products (“hemp concentrates”) do contain small, non-psychoactive amounts of THC.

Identification of source vs. 0.3% THC

CBD products with 0.3% THC or less (“hemp”), are legal under Minnesota and federal law:

CBD Legal Status in Minnesota

The Roots of CBD, Hemp & Law in Minnesota

Can a CBD product seller or possessor face prosecution?

Yes, if the CBD oil is over 0.3% THC, and the product does not meet other legal criteria, they could face prosecution in Minnesota. See:

Low-THC Hemp Products Legal in Minnesota.

Problems of proof: But in a criminal prosecution for a CBD product, the prosecution would focus on THC-level found. THC is legal, depending on form and amount, including within Minnesota’s medical marijuana program, or 0.3% THC or less by dry weight volume (hemp).

Hemp-CBD is legal because Minnesota Statutes say that hemp can contain small amounts of THC.

Forensic identification evidence

Field test vs. lab analysis. Probable cause vs. trial evidence. And now, DNA testing can also 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, et al. “Overview of DNA methods for identification & individualization of marijuana.” Croatian Medical Jnl 44, no. 3 (2003): 315-321

Cannabis plants, including hemp, have cystolith hairs. In addition, approximately 82 species of other plants possess cystolith hairs similar to those found on cannabis.

Inaccurate screening tests: false identification

Minnesota courts don’t allow the Duquenois-Levine test as identification evidence in trials. This is because of numerous problems with false positives. And it is a “color test” susceptible to subjective interpretation and bias. See, 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.“

Forensic Analysis of Marijuana & the Kurzman Mystery, 41 Tex. Tech L. Rev. (2008-2009). Issues in identification

What is a “plant?”

Cannabis growers (plant growers) can prepare to grow 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.

You can clone many plants by taking a cutting of the plant. And then place 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: substance identification

Minn. Stat. § 152.01 (2025) DEFINITIONS

“Subd. 4. “Controlled substance” means a drug, substance, or immediate precursor in Schedules I through V of section 152.02. The term shall not include distilled spirits, wine, malt beverages, intoxicating liquors or tobacco.

Subd. 9. Marijuana. (a) “Marijuana” means :
(1) cannabis plants;
(2) cannabis flower;
(3) cannabis concentrate;
(4) cannabis products;
(5) cannabis seed; or
(6) a mixture containing any tetrahydrocannabinol or artificially derived cannabinoid in a concentration that exceeds 0.3 percent as measured by weight.

(b) Marijuana does not include:
(1) the mature stalks of a cannabis plant;
(2) fiber from such stalks;
(3) any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, except the resin extracted therefrom, fiber, oil, or cake;
(4) oil or cake made from the seeds of a cannabis plant;
(5) the sterilized seed of a cannabis plant which is incapable of germination; or
(6) industrial hemp as defined in section 18K.02, subdivision 3.

Subd. 9a. “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. § 152.01 (2023) DEFINITIONS

Hemp statute

Minn. Stat. § 18K.02 DEFINITIONS.

“Subd. 3. “Industrial hemp” means the plant Cannabis sativa L. and any part of the plant, whether growing or not, including the plant’s seeds, and all the plant’s derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, 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” has the meaning given in section 152.01, subdivision 9.”

Minn. Stat. § 18K.02 (2025) DEFINITIONS

Scheduling statute

Effective August 1, 2023, marijuana and THC have moved from Minnesota’s Schedule 1, to Schedule 3. Though a positive step, ending Prohibition means reverting back to pre-1970 law, and removing marijuana and THC from the Controlled Substance Schedules entirely. We call this descheduling. But for now, they remain on Minnesota Schedule 3. THC has been partially descheduled though, when derived from hemp.

Minn. Stat. § 152.02 SCHEDULES OF CONTROLLED SUBSTANCES

“Subdivision 1. Five schedules. There are established five schedules of controlled substances, to be known as Schedules I, II, III, IV, and V. …

Subd. 4. Schedule III. (a) Schedule III consists of the substances listed in this subdivision.

(i) 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:
(1) marijuana;
(2) tetrahydrocannabinols naturally contained in a plant of the genus Cannabis, except that tetrahydrocannabinols do not include any material, compound, mixture, or preparation that qualifies as industrial hemp as defined in section 18K.02, subdivision 3; 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.”

Minn. Stat. § 152.02 (2025) SCHEDULES OF CONTROLLED SUBSTANCES

Identification of the material that the government claims to be illegal, is an issue in many cases.

Question? Call Attorney Thomas Gallagher, 612 333-1500

If the government can’t prove identification of the material, then the accused is not-guilty of a sale or possession crime. See:

Marijuana Lawyers Guide

Marijuana Possession Crimes and Defenses

If you have a question, call defense attorney Thomas Gallagher at 612 333-1500.

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