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Marijuana Possession Laws

marijuana possession, hemp plant in hand
Is possession of marijuana a crime in Minnesota?

Marijuana Possession is sometimes a crime

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, as 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, vile laws?

But in recent decades the failed experiment in marijuana criminalization is beginning to crumble like the Berlin Wall.

We’re not there yet, however.  Today in Minnesota, some forms of marijuana are legal to possess.  But others are not, yet.

Legal marijuana:  Marijuana possession is lawful for participants in Minnesota’s Medical Marijuana Program. The Minnesota Department of Health 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: 

Hemp is: “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.

Decriminalized marijuana:  Minnesota law defines “a small amount” as 42.5 grams or less of marijuana; other than “the resinous form of marijuana.

A person in Minnesota can possess “a small amount of marijuana,”  without committing a “crime.” It is, however, a petty misdemeanor violation, subject to a fine only. Yet, a petty misdemeanor is “a conviction;” with a public conviction record. However, 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 possession of other kinds or amounts of marijuana is still a crime in Minnesota.

Thomas Gallagher, Minnesota Marijuana Possession Lawyer
Thomas Gallagher, Minnesota Marijuana Possession Lawyer

Consequences of Making People Criminals for Marijuana

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 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.

The solution? Prevention. With help from Attorney Thomas Gallagher, prevent that conviction in the first place.

Marijuana possession crimes in Minnesota


Minnesota law ranks the severity levels of marijuana possession crimes mainly by weight.  The Minnesota weight thresholds are:

  • 50 kilos plus
  • 25 kilos plus
  • 10 kilos plus
  • Any measurable amount, except “a small amount” of marijuana
  • 42.5 grams or less but more than 1.4 grams of “marijuana” in a motor vehicle. Does not include “the resinous form of marijuana.”
  • 42.5 grams or less “marijuana:” petty misdemeanor.  Does not include “the resinous form of marijuana

Plants – possession based on number:

  • 500 or more “marijuana plants”
  • 100 or more “marijuana plants”

Mixture – Bong Water Exception

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 conflicts with Minnesota’s statute defining “marijuana.” Minnesota statutes define “marijuana” as a specific mixture including parts of the plant while excluding others.

And this can make a difference in a marijuana possession case where weight or identification are at issue.

First, in order to make possession of a thing a crime, there must be evidence proving criminal intent.

The lowest level of criminal intent applicable to 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, frequently 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.

Dad, can I borrow the car?
“Dad, can I borrow the car?”

Where an inference of innocence is possible from circumstantial evidence; the law requires the jury to conclude the accused is not-guilty.

A common misconception 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. So, in a marijuana possession case, ownership is not evidence of possession.

Identification of the 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” marijuana or THC, a crime to knowingly possess.

But the definition of marijuana excludes parts of the cannabis plant from the definition of marijuana.  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 crime

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 incorporates 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

Mere possession

Defending a marijuana possession case requires helping the jury understand.

The jury needs to see the prosecuting attorney’s failure to prove the elements of the crime beyond reasonable doubt.

And depending upon case specifics, sometimes we assert affirmative defenses, as well.


Question about a Minnesota marijuana possession case? You can call Minneapolis Marijuana Lawyer Thomas C. Gallagher at 612 333-1500 for your personal consult.

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