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One hundred years ago, marijuana possession laws in Minnesota were simple. Cannabis was always legal, all the time. Then in the 1930s, came Prohibition making possession a crime. But today Minnesota still has possession Prohibition laws. Minnesota’s Prohibition industry manufactures “criminals” out of otherwise law-abiding, peaceable people – causing irreparable harm.
Now, marijuana Possession is sometimes a crime. As of August 1, 2023, Minnesota rolled back some of its marijuana Prohibition laws. Today use is legal, and some forms and quantities of marijuana are legal to possess. But some are still a crime to possess or grow.
When is marijuana possession legal?
Marijuana possession is lawful for participants in Minnesota’s Medical Marijuana Program. The Minnesota Office of Cannabis Management (OCM) administers the program. But their cannabis must be in compliance with Minnesota law, from the two authorized providers. Minnesota does not yet have reciprocity with other states.
Medically prescribed Epidiolex is marijuana CBD is legal too in Minnesota, available at your local pharmacy.
Hemp defenses: hemp is legal cannabis
Not all cannabis is illegal to possess in Minnesota. One reason is that hemp is now legal to possess, under both Minnesota and federal law.
And this creates new burdens to the government in enforcing marijuana possession criminal laws. For example, hemp and marijuana both come from the same cannabis plant. As a result, the odor of marijuana alone is no longer probable cause for police to search a car. Why?
Because legal hemp has the same odor. And Gallagher covered this example of hemp defenses, and many other ways to use hemp law to defend marijuana possession cases. So don’t admit what it is. Make them prove it if they can.
Definition of Hemp: “the plant Cannabis sativa L. and any part of the plant, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis.”
Hemp is not “marijuana.” Marijuana is cannabis with more than 0.3 percent THC on a dry weight basis. Both are varieties of the cannabis plant. Hemp is another legal form of cannabis.
Low-THC Hemp Products: In 2022, Minnesota adopted a statute clarifying that Low-THC Hemp Products, in the form of edibles and drinks, are legal if compliant with Minnesota Statutes §151.72 “Certain Cannabinoid Products.” The legislature did this in response to a Minnesota court case which distinguished hemp in plant-form, from hemp products, both of which contain THC.
Decriminalized marijuana
A 1970s Minnesota reform law defined “a small amount” of marijuana as 42.5 grams or less; other than “the resinous form.” A person could possess “a small amount” in Minnesota without committing a “crime.” But it was still a petty misdemeanor “conviction.” And, federal courts have sent people to prison due to a prior petty misdemeanor “small amount” conviction. See, Why Minnesota Marijuana Decrim Law Is Broken.
But 2023 reforms to Minnesota marijuana laws changed quantity thresholds for criminal possession significantly, though they did not eliminate criminal possession Prohibition laws.
Beer, wine & spirits, no criminal quantity limits on possession: Note that you can possess any amount, no matter how much, of beer, wine or liquor in Minnesota without criminal prosecution. No one asks” “Why do you need a wine cellar!” or “Why do you need 60 kegs of beer for your wedding party!”
Effective August 1, 2023, Minnesota Statutes §342.09 explicitly authorize possession of a small amount of marijuana or cannabis products:
Subdivision 1. Personal adult use, possession, and transportation of cannabis flower and cannabinoid products. (a) An individual 21 years of age or older may:
Minn. Stat. §342.09, Subd. 1
(1) use, possess, or transport cannabis paraphernalia;
(2) possess or transport two ounces or less of adult-use cannabis flower in a public place;
(3) possess two pounds or less of adult-use cannabis flower in the individual’s private residence;
(4) possess or transport eight grams or less of adult-use cannabis concentrate;
(5) possess or transport edible cannabis products or lower-potency hemp edibles infused with a combined total of 800 milligrams or less of tetrahydrocannabinol;”
Though the same Minnesota Statute Section, in Subdivision 1(b) makes possession of any amount illegal for persons under 21, or in a motor vehicle, a school, a no-smoking area, etc.
Possession of other amounts may still be a crime in Minnesota.
“Is it legal for under 21 to possess marijuana?”
Minn. Stat. Section 342.09, PERSONAL ADULT USE OF CANNABIS, Subdivision 1
Minn. Stat. §342.09, Subdivision 1 (b) (1)
(b) “Except as provided in paragraph (c) [medical], an individual may not:
(1) use, possess, or transport cannabis flower, cannabis products, lower-potency hemp edibles, or hemp-derived consumer products if the individual is under 21 years of age;”
Since Chapter 342 does not specify a penalty for that violation, if its legal for a person 21 or older, it’s a petty misdemeanor for a person under 21 (after Aug. 1, 2023), by operation of Minn. Stat. §645.241. But the various criminal provisions applicable to cannabis apply to adults, adults under 21, and juveniles.
Consequences: Criminalizing People
The Minnesota Sentencing Guidelines Commission publishes an annual report. And they report that judges sentence about 50 Minnesotans to serve more than a year in prison for marijuana. But that’s not counting the much larger number serving county jail time, as part of a probationary sentence. Speaking of probation, it can last as long as the maximum sentence for that crime. And sometimes that’s a decade or more.
But the biggest problem for most is their public record. A felony marijuana possession conviction closes door on some good employment, and strips civil rights for life. But apart from offense level, employers can legally discriminate based on any marijuana conviction, even a petty misdemeanor.
We hope that the 2023 marijuana reforms will reduce some of these harms caused by the laws, even though they will not eliminate them.
The solution? Prevention. With help from Attorney Thomas Gallagher, prevent that conviction in the first place.
Marijuana possession crimes
Weight: marijuana possession
Minnesota law ranks the severity levels of marijuana possession crimes mainly by weight. The 2023 law added multiple layers of complexity to the weight thresholds under the new criminal Prohibition scheme. The Minnesota weight thresholds are:
“Controlled Substance” crimes
- 50 kilos plus cannabis flower; 10 Kilos plus cannabis concentrate; edible cannabis products or lower-potency hemp edibles infused with One Kilo or more tetrahydrocannabinol. 1st Degree Controlled Substance Crime, Minn. Stat. §152.021, Subds. 2(a)(6), 3 (30 years prison max).
- 25 kilos plus cannabis flower; 5 Kilos plus cannabis concentrate; edible cannabis products or lower-potency hemp edibles infused with 500 Grams or more tetrahydrocannabinol. 2nd Degree Controlled Substance Crime, Minn. Stat. §152.022, Subds. 2(a)(6), 3 (25 years prison max).
- 10 kilos plus cannabis flower; 2 Kilos plus cannabis concentrate; edible cannabis products or lower-potency hemp edibles infused with 200 Grams or more tetrahydrocannabinol. 3rd Degree Controlled Substance Crime, Minn. Stat. §152.023, Subds. 2 (a) (5), 3 (20 years prison max).
“Cannabis Possession” crimes
- Two pounds cannabis flower; 160 grams cannabis concentrate; edible cannabis products, lower-potency hemp edibles, or hemp-derived consumer products infused with more than 200 grams tetrahydrocannabinol. 1st Degree Cannabis Possession Crime, Minn. Stat. §152.0263, Subd. 1 (5 years prison max).
- One pound cannabis flower, outside residence; 80 grams cannabis concentrate; edible cannabis products, lower-potency hemp edibles, or hemp-derived consumer
products infused with more than 16 grams tetrahydrocannabinol. 2nd Degree Cannabis Possession Crime, Minn. Stat. §152.0263, Subd. 2 (one year jail max). - Four ounces cannabis flower, outside residence; 16 grams cannabis concentrate; edible cannabis products, lower-potency hemp edibles, or hemp-derived consumer products infused with more than 1,600 milligrams tetrahydrocannabinol. 3rd Degree Cannabis Possession Crime, Minn. Stat. §152.0263, Subd. 3 (90 days jail max).
- Presumptively lawful for Personal Adult Use (exceptions for under 21, special locations):
- Adult Personal Residence: two pounds or less of adult-use cannabis flower; eight grams or less of adult-use cannabis concentrate; edible cannabis products or lower-potency hemp edibles infused with a combined total of 800 milligrams or less of tetrahydrocannabinol. Minn. Stat. §342.09.
- Public place (adult): two ounces or less of adult-use cannabis flower; eight grams or less of adult-use cannabis concentrate; edible cannabis products or lower-potency hemp edibles infused with a combined total of 800 milligrams or less of tetrahydrocannabinol. Minn. Stat. §342.09.
- Any measurable amount of marijuana in a motor vehicle, including concentrates, edibles, unless sealed in approved packaging, or trunk. Minn. Stat. §169A.36 (90 days jail max).
- Any amount for persons under 21, other than medical cannabis registry. Petty Misdemeanor, if legal for 21 and up.
See my marijuana weight thresholds page for details on marijuana possession quantities.
And see this page about: In a Public Place.
Plants growing in adult residence: number
- 21 or more “marijuana plants”
- 16 or more “marijuana plants”
See my marijuana grow page for more on plants.
“Can wife & I each have 2 lbs. at home; or each have 2 oz. in car?”
The statute says “an individual 21 years of age or older may possess, or transport …” in relation to marijuana possession weight limits.
But “… plants may be grown at a single residence, … provided that cultivation takes place at the primary residence of an individual 21 years of age or older and in an enclosed, locked space that is not open to public view.” Marijuana Grow.
And, the cannabis in a motor vehicle crime statute could create criminal liability, unless in the trunk or equivalent. So, to simplify:
- Marijuana Possession weight limits are per individual.
- Home grow limits are per “single residence” no matter how many adults 21 and older live there.
- Special laws criminalize possession in a motor vehicle, in situations where otherwise lawful.
Mixture: Bong Water
Controlled Substance Crime 1st, 2nd, 3rd degree: In measuring the weight of a “mixture,” prosecutors may not use the weight of fluid in a water pipe, at least four fluid ounces. The fact that Minnesotans have been sent to prison for bong water shows how arbitrary the “mixture law” is.
But for “marijuana,” Minnesota’s controlled substance mixture law conflicted with Minnesota’s statute sections defining “marijuana.” Minnesota statutes define “marijuana” as a specific mixture including parts of the plant while excluding others.
The 2023 reform law mostly remedies this issue, for cannabis, by removing “mixture” from both the pre-existing “Controlled Substance Crime” statutes, and the new “Cannabis Possession Crimes” statutes, in Chapter 152, for cannabis flower, cannabis concentrates and edibles. Presumably courts will no longer allow prosecutors to attempt to impose criminal liability for non-cannabis materials in containers with cannabis, in marijuana possession cases.
Legal fiction: actual vs constructive
First, in order to make possession of a thing into a crime, there must be evidence proving criminal intent.
And a threshold issue for the lowest level of criminal intent required for a criminal possession of contraband case is “knowledge.” In other words, finding some prohibited item near or on your person is not enough. The prosecutor must prove that you actually knew it was there. And they must prove you knew what “it” was.
Where possession is the crime, often the central issue is whether the accused actually knew where the forbidden item was, or what it was. If they did not know, they cannot be guilty of “knowing possession.”
In fact, the first questions police officers ask suspects in a marijuana possession case invite an admission of knowledge. “Is this your marijuana?”
Circumstantial evidence of knowing
The government will often attempt to prove knowing possession with circumstantial evidence (“constructive possession”). This is indirect evidence that they claim supports an inference of knowledge.
But by definition, an inference can support more than one conclusion. And frequently circumstances also support an inference of a lack of knowledge. Where an inference of innocence is possible from circumstantial evidence; the law requires the jury to conclude the accused is not-guilty.
A common misunderstanding is that ownership is the same as possession. But it is not. So, let’s consider an example. If a child borrows and drives the parent’s car, the child is in possession of the car. But the owner is still the parent, who is not in possession of it. Similarly, in a marijuana possession case, ownership is not evidence of possession.
Identification: marijuana or THC
The Hemp Defense: The government will try to prove that their material is marijuana or THC. And they will argue that statutes make a “mixture containing” THC, a crime to knowingly possess. But the definition of marijuana, excludes parts of the cannabis plant. These laws directly conflict with each other.
The statute defining marijuana is more specific. So under principles of statutory construction, the more specific statute overrides the more general “mixture” statutes.
Across state borders: marijuana possession
Minnesota has a marijuana crime for “importing across state borders.” Prosecutors rarely charge it. But when they do, the penalty is heavy.
This is no surprise. After all, it contains the lesser-included offense of Controlled Substance Crime First Degree — Possession, Minnesota Statutes 152.021, subd. 2. But the cases we’ve had with this charge, had serious problems of proof for the state.
See: How to Avoid a Marijuana Arrest in a Car: Nine Tips.
Marijuana Possession Defense
Mere possession: Defending a marijuana possession case requires helping the jury understand.
The jury needs to see the prosecutor’s failure to prove the elements of the crime beyond reasonable doubt. And in some cases, we assert affirmative defenses, as well.
Question? Call Lawyer Thomas Gallagher, 612 333-1500
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