Marijuana – Identity of Substance
Minnesota’s Prohibitionist marijuana statutes employ a scheme with general principles relating to the identity of the substance prohibited:
- Of the five schedules (lists) of “controlled substances,” they placed marijuana in Minnesota’s “Schedule 1” along with heroin, and methamphetamine.
- There are five levels of “Controlled Substances Crimes” in Minnesota Statutes. The government can charge a crime in any one of those five “controlled substance crimes” first through fifth degree.
- One of the main criteria for the severity level of the crime punishment is quantity.
- The form of the substance is another. There are five forms:
- plant form,
- “the resin extracted from any part of such plant,”
- 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.”
What is it?
Identity crisis: Not all cannabis is marijuana. But, all marijuana is cannabis.
Marijuana is a form of the cannabis plant. But so is hemp, and hemp is not marijuana.
Minnesota Statutes §18K.02 DEFINITIONS (2019). Subd. 3. “”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, smells like marijuana, but isn’t.
So when we identify marijuana, we must distinguish it from hemp. And the prosecution must prove illegal marijuana is not legal hemp.
Legally, the form of marijuana claimed can make a difference. What forms matter in a criminal law context?
1. Plant-form, dried.
2. “The resin extracted.”
4. Growing “plants.”
A prosecutor must be able to prove the identity of whatever form they claim to have, in court.
Marijuana vs. THC – does it matter?
Minnesota’s five “controlled substance crimes” statutes variously criminalize all of these forms of marijuana. Marinol, pharmaceutical THC, however, is a synthetic form, not plant-sourced. Here are some of the differences in the statutes.
Fifth Degree Controlled Substance Crime
“Fifth Degree Controlled Substance Crime” criminalizes unlawful sale of a mixture containing marijuana or tetrahydrocannabinols, “except a small amount.”
But, it 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.”
Fourth Degree Controlled Substance Crime
“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, it 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, the statute separates “marijuana or tetrahydrocannabinols” from other “controlled substances classified in Schedule I.”
Third Degree Controlled Substance Crime
“Third Degree Controlled Substance Crime” criminalizes unlawful sale of a mixture of five kilograms or more containing marijuana or Tetrahydrocannabinols. And, it criminalizes unlawful possession of a mixture of ten kilograms or more containing marijuana or Tetrahydrocannabinols.
Both refer to “marijuana or tetrahydrocannabinols.”
Second Degree Controlled Substance Crime
“Second Degree Controlled Substance Crime” criminalizes unlawful sale of a mixture of ten kilograms or more containing marijuana or Tetrahydrocannabinols.”
And, it criminalizes unlawful possession of a mixture of 25 kilos or more containing marijuana, or THC; or 100 or more marijuana plants.
Now, the statute distinguishes “marijuana or tetrahydrocannabinols” from “marijuana plants.”
First Degree Controlled Substance Crime
“First Degree Controlled Substance Crime” criminalizes unlawful sale of a mixture of 25 kilograms or more containing marijuana or Tetrahydrocannabinols. And, it criminalizes unlawful possession of a mixture of 50 kilograms or more containing marijuana or Tetrahydrocannabinols; or 500 or more marijuana plants.
Again, the statute distinguishes “marijuana or Tetrahydrocannabinols” from “marijuana plants.”
Problems of proof
The prosecutor can try to prove identity of marijuana in court two ways: morphologically (shape) and chemically (THC). We identify Tetrahydrocannabinols, or THC, one way: chemically. A lab tech may testify about identity evidence using laboratory procedures.
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. 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 oil legal in Minnesota?
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 THC (or Tetrahydrocannabinol). They are not the same at all.
THC is psychoactive, giving users their desired “high.”
But CBD is not psychoactive, and won’t give you a high.
THC is listed in both the Minnesota and federal versions of the Controlled Substance Act.
Both THC and CBD have medical treatment applications. And medical marijuana contains both.
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.
Identity of the source vs. 0.3% THC threshold
CBD products sourced from a “marijuana” plant, share the legal status of its source; unless below 0.3% THC (“hemp”).
But, a CBD product with 0.3% THC or less (“hemp”), is legal under Minnesota and federal law:
Can a seller or person in possession of CBD oil face prosecution in Minnesota?
Yes, if the CBD oil is from “marijuana,” and over 0.3% THC. Unfortunately, marijuana is a better source for CBD. Hemp is a poor source for CBD both in terms of yield and in terms of safety and quality.
Currently (2020), regulation of CBD products is new. And many reports exist about CBD products with contaminants and quality problems.
Problems of proof
Problems of proving identity for CBD. If the government wanted to prosecute someone for CBD, how would they prove that the CBD is illegal? How can a prosecutor prove the identity of the source? It may be difficult.
But in a criminal prosecution for CBD, the prosecution could focus on THC found. THC is illegal, unless prescribed, within Minnesota’s medical marijuana program or 0.3% THC or less by dry weight volume.
But Hemp-CBD is legal because Minnesota Statutes say that hemp can contain small amounts of THC.
Read our blog article: Is CBD legal in Minnesota? for a more in depth look.
Forensic identity 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 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.
Cannabis plants, including hemp, have cystolith hairs. In addition, approximately 82 species of plants possess cystolith hairs similar to those found on cannabis.
Inaccurate screening tests
Courts don’t allow the Duquenois-Levine test as evidence of identity in trials. This is because of numerous problems with false positives. And it is a “color test” susceptible to subjective interpretation and bias.
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 and the Kurzman Mystery, 41 Tex. Tech L. Rev. (2008-2009). Issues in identification.
What is a “plant?”
Marijuana growers (plant growers) can prepare to growing 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 related to identity (relevant excerpts)
Minn. Stat. §152.01 (2017) DEFINITIONS
Subd. 4. “Controlled substance” means a drug, substance, or immediate precursor in Schedules I through V of section 152.02. …
Subd. 9. “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” 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 (2019) DEFINITIONS .
Subd. 3. “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 …:
(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 …;
Identity of the material that the government is claiming is illegal is an issue in many cases.
If the government can’t prove the material’s identity, then the accused is not-guilty of a sale or possession crime.
Question? You can call Minneapolis Marijuana Attorney Thomas Gallagher 612 333-1500
And see our article: Removing Marijuana from Minnesota’s Schedule 1 Law