Marijuana possession laws in Minnesota: One hundred years ago, things were simple. Cannabis was always legal, all the time.
Then, in the 1930s, came Prohibition. Minnesota’s Prohibition laws still, to this day, are on the books and enforced. Minnesota’s marijuana Prohibition industry manufactures “criminals” out of otherwise law-abiding, good people causing irreparable harm by stigmatizing innocent people and their children, to their jobs and livelihoods. They even orphan hundreds of children each year by ending their parents to prison, over something as trivial as marijuana. What motive could they possibly have for these evil laws?
Marijuana Possession: sometimes a crime
But in recently the failed experiment in marijuana criminalization is beginning to crumble like the Berlin Wall. And effective August 1, 2023, Minnesota rolled back some of its marijuana Prohibition laws.
But we’re not there yet. Today in Minnesota, some forms and quantities of marijuana are legal to possess. But others are not.
When is marijuana possession legal?
Legal marijuana possession:
Marijuana possession is lawful for participants in Minnesota’s Medical Marijuana Program. The Minnesota Department of Health (MDH) administers the program. But their cannabis must be in compliance with Minnesota law, from one of two authorized providers. Minnesota does not yet have reciprocity with other states.
Medically prescribed Epidiolex is marijuana CBD. It’s legal too in Minnesota; available at your local pharmacy.
Hemp is legal cannabis:
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 new 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.
A 1970s reform of Minnesota law defined “a small amount” as 42.5 grams or less of marijuana; other than “the resinous form.” A person could possess “a small amount” in Minnesota without committing a “crime.” But it was a petty misdemeanor “conviction.” And, federal courts have sent people to prison over a prior petty misdemeanor “small amount” conviction. See, Why Minnesota’s Marijuana Decrim Law Is Broken; How To Fix It.
But reforms to Minnesota marijuana laws in 2023 changed the quantity thresholds for criminal possession significantly, though they did not do away with criminal Prohibition laws.
Possession of beer, wine & spirits, no criminal quantity limits: Note that you can possess any amount, no matter how much, of beer, wine or liquor in Minnesota without exposure to 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 lawful 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 a person under 21 to possess marijuana?”
Minn Stat Section 342.09, PERSONAL ADULT USE OF CANNABIS, Subdivision 1Minn 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 for Possession
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 these harms caused by the laws, though of course they will not eliminate them.
The solution? Prevention. With help from Attorney Thomas Gallagher, prevent that conviction in the first place.
Marijuana possession crimes
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 (marijuana possession)
- 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 our marijuana weight thresholds page for details.
Plants growing in adult personal residence – number:
- 21 or more “marijuana plants”
- 16 or more “marijuana plants”
See our marijuana grow page for more on plants.
“Can my wife & I each have 2 lbs. in our home; or each have 2 oz. in a car?”
The statute says “an individual 21 years of age or older may possess, or transport …” in relation to 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 people 21 or older live there.
- Special laws criminalize possession in a motor vehicle, in many situations where otherwise lawful.
Mixture – Bong Water Exception
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.
Possession as legal fiction: actual vs. “constructive”
First, in order to make possession of a thing a crime, there must be evidence proving criminal intent.
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. 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 assert 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 of marijuana or THC
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.
Importing Marijuana Across State Borders
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.
Marijuana Possession Defense
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.