Is DUI-Marijuana a reason not to legalize in Minnesota?

Driving under the influence of marijuana is already a crime in Minnesota.  That will not change when Minnesota legalizes marijuana.  DUI-marijuana will still be a crime.

Some fear that legalization will equate to more DUI-marijuana cases.  An unstated premise of that fear is that more people will use marijuana because of legalization.  This, in turn, will lead to more DUI-marijuana cases, they say.  Let’s take a look at that premise first.

Will legalization lead to significantly higher rates of marijuana usage in Minnesota?

baby cannabis

baby cannabis

A majority of Americans have used marijuana at least once in their lifetime. But when it comes to regular users, in a 2017 survey, “overall, 14.6 percent said they had used cannabis in the past year, while 8.7 percent said they had used the drug in the past 30 days.”  One reasonable inference is that most people who tried marijuana, just don’t like it’s effects.

Some evidence supports the possibility that usage rates could eventually decline after legalization.

Why is that important?  Because opponents of legalization fear that legalization will increase the number of DUI-marijuana cases.  The implicit premise of that argument is that “no one uses marijuana now, but many will because of legalization.”

Don’t people already use marijuana?

Of course, we know that people already use marijuana, despite the laws criminalizing it in Minnesota.  In fact, more than half of the people have tried it at least once in their lifetime.  Yet, despite that, only a small percentage have used in the past year – less than 15 percent.  This shows that most people who try it, don’t like it.

After legalization, some may try marijuana out.  But as in countries and states where it’s legal now, most won’t like it.  The claim that legalization will increase usage rates in the medium or long-term, lacks evidence.  And lower usage rates in countries like Holland and Portugal contradict that claim.

Ok.  But regardless of whether usage rates increase or decrease, what about DUI-marijuana?  How does marijuana affect driving for those who do use it?

Do marijuana users drive under the influence?

There is no evidence to suggest that most people who use alcohol or other drugs drive under the influence.  Most people who use drugs like alcohol are responsible.  They do not drive while impaired.  Of course, some do.  And that is a big problem.

Why is it a problem?  Because impaired drivers are at greater risk of causing a car accident due to bad driving.  And some car accidents lead to injury or death.  That’s the real problem with DUI.

Most marijuana users are responsible too.  They avoid driving while impaired by marijuana.  But similarly, some few will be irresponsible and will drive DUI-marijuana.  When they do, are the risks of an injury or death accident similar to the risks for alcohol? 

No, the risks are less for marijuana than for alcohol.

Says who?  The scientific studies, and the National Highway Traffic Safety Administration (“NHTSA”).

Comparative risks of a car accident, with links to authorities

The psychoactive ingredient in marijuana is THC.  THC-positive drivers typically possess a low — or even no — risk of motor vehicle accident compared to THC-negative drivers.  Those drivers are not DUI-marijuana violators.

Blood THC has little effect on unfavorable traffic events

“The primary objective of this study was to analyse whether there is a significant association between driving under the influence of cannabis and unfavorable traffic events. … Our analysis suggests that the overall effect size for driving under the influence of cannabis on unfavorable traffic events is not statistically significant.” The association of unfavorable traffic events and cannabis usage: A meta-analysis, Frontiers in Pharmacology, 2018

“For both sober and drinking drivers, being positive for a drug was found to increase the risk of being fatally injured. When the drug-positive variable was separated into marijuana and other drugs, only the latter was found to contribute significantly to crash risk.”  Drugs and Alcohol: Their Relative Crash Risk, Journal of Studies on Alcohol and Drugs, 2014

Marijuana use can impair driving but does not always lead to a DUI-marijuana driver.

Compare Odds Ratios (OR): between 1.05 and 1.4 on motor vehicle crash risk for acute cannabis intoxication vs. THC positive

“Acute cannabis intoxication is associated with a statistically significant increase in motor vehicle crash risk. The increase is of low to medium magnitude (OR between 1.2 and 1.4).”  The effects of cannabis intoxication on motor vehicle collision revisited and revised, Addiction, 2016

“Adjusted odds ratios between drug class use and crash risk, adjusted for demographic variables: age, gender and race/ethnicity: THC = 1.05.”  US National Highway Traffic Safety Administration, Drug and Alcohol Crash Risk, 2015

When it comes to suspected DUI-marijuana, acute intoxication is not the same as presence of some THC.

Compare to Odds Ratios (OR) 2.2, for operating a vehicle with multiple passengers
DUI-marijuana vs Driving While Multiple Passengers risk

DUI-marijuana vs Driving While Multiple Passengers risk

Drivers with two or more passengers in the car possess a crash risk of more than two-fold (OR=2.2).  The contribution of passengers versus mobile phone use to motor vehicle crashes resulting in hospital attendance by the driver, ScienceDirect, 2007

Driving with two or more passenger is a greater risk of a crash than acute cannabis intoxication.  So does acute cannabis intoxication equate with DUI-marijuana, given the lower risk?

Compare to consuming slight amounts of alcohol

Driving with BAC levels .05 and .08 are more than six times more likely (OR=6.40) than of a sober driver to be responsible for a fatal motor vehicle accident.  Cannabis, alcohol, and fatal road accidents, PLOS One, 2017

Compare to driving while pregnant: 42 percent relative increase in crash risk

Driving while pregnant is equivalent to a 42 percent relative increase in crash risk.  Pregnancy and the risk of a traffic crash, CMAJ, 2014

Comparable to risk of driving while talking hands-free cell phone

“The maximum risk for cannabis intoxication alone, unmixed with alcohol or other drugs, appears to be more comparable to risks such as talking on a hands-free cellphone (legal in all states) than to driving with a BAC above 0.08, let alone the rapidly-rising risks at higher BACs.”  Driving while stoned: Issues and policy options, BOTEC Analysis/SSRN white paper, 2018

If cannabis intoxication is the same risk factor as a hands-free cell phone, does it amount to DUI-marijuana?

Compare to texting and driving: collision risk 23 times greater

“When the drivers texted, their collision risk was 23 times greater than when not texting.”  In Study, Texting Lifts Crash Risk by Large Margin, New York Times, 2009

 Compared to alcohol, medicinal opioids, and other drugs

“The highest risk of the driver being severely injured was associated with driving positive for high concentrations of alcohol (≥0.8 g/L), alone or in combination with other psychoactive substances. For alcohol, risk increased exponentially with blood alcohol concentration (BAC). The second most risky category contained various drug-drug combinations, amphetamines and medicinal opioids. Medium increased risk was associated with medium sized BACs (at or above 0.5 g/L, below 0.8 g/L) and benzoylecgonine. The least risky drug seemed to be cannabis and benzodiazepines and Z-drugs.”  Risk of severe driver injury by driving with psychoactive substances, Accident Analysis and Prevention, 2013

“The study concludes that drug use, especially alcohol, benzodiazepines and multiple drug use and drug–alcohol combinations, among vehicle drivers increases the risk for a road trauma accident requiring hospitalization. … No increased risk for road trauma was found for drivers exposed to cannabis.”  Psychoactive substance use and the risk of motor vehicle accidents, Accident Analysis and Prevention, 2004

Context deepens understanding

Conclusion?  Marijuana can impair driving.  But far less than alcohol impairs. And it’s less impairing than other common legal practices like multiple passengers, and driving while pregnant. While it can cause impaired driving, we should view DUI-marijuana fairly.  We should view it along with other common risk factors for drivers.

Safer than alcohol

NHTSA Marijuana Impaired Driving, Report to Congress

NHTSA Marijuana Impaired Driving, Report to Congress

When it comes to driving, marijuana is safer than alcohol.  And it’s safer than driving with two or more passengers.  Here are the facts, backed up with links to the science.

What does the science say about how marijuana intoxication affects driving?

Dosage matters.  But acute marijuana intoxication may influence psychomotor skills, such as reaction time, necessary to safe operation of a motor vehicle.

Effects short-lived

But these effects are relatively short-lived.  And they are less dramatic than changes in psychomotor performance associated with drivers under the influence of alcohol.

Marijuana associated with conservative driving; alcohol with aggressive driving 

In studies of on-road or simulated driving behavior, subjects under the influence of cannabis tend to drive cautiously.  They compensate for perceived intoxication.  They reduce speed and change lanes less.  But subjects under the influence of alcohol tend to drive in a more reckless, aggressive manner. 

“The compensatory behavior exhibited by cannabis-influenced drivers distinctly contrasts with an alcohol-induced higher risk behavior, evidenced by greater percent speed.”  Cannabis effects on driving longitudinal control with and without alcohol, Drug and Alcohol Dependence, 2016

 “Subjects seemed to be aware of their impairment after THC intake and tried to compensate by driving slower, alcohol seemed to make them overly confident and caused them drive faster than in the control sessions.”  Effects of THC on driving performance, physiological state and subjective feelings relative to alcohol, Accident Analysis and Prevention, 2008

“Experimental research on the effects of cannabis … indicate … that any effects dissipate quickly under one hour. Furthermore, while drivers feel high, they actually tend to compensate for their feelings.”  US National Highway Traffic Safety Administration, State of Knowledge of Drug-Impaired driving: FINAL REPORT, 2003

THC’s effects differ qualitatively from many other drugs, especially alcohol. For example, subjects drive faster after drinking alcohol and slower after smoking marijuana. … Very importantly, our city driving study showed that drivers who drank alcohol over-estimated their performance quality whereas those who smoked marijuana under-estimated it. … “[S]ubjects in the marijuana group were not only aware of their intoxicated condition, but were … attempting to compensate for it. [D]rivers become overconfident after drinking alcohol and … become more cautious and self-critical after consuming low doses of THC, as smoked marijuana.” US National Highway Traffic Safety Administration, Marijuana and Actual Driving Performance, 1993

Attempts to equate DUI-marijuana with DUI-alcohol are misguided.

But many, not yet knowing any better, assume this false equivalency.

Studies find that THC adverse effects are small, and sometimes improved driving performance

DUI-marijuana: Effects of THC on driving performance

DUI-marijuana: Effects of THC on driving performance

Compared to alcohol, subjects in on-road driving performance assessments typically demonstrate modest changes in psychomotor performance after administering THC.

While THC can reduce driving performance, it has sometimes improved driving performance; compared to control groups with no THC or alcohol.

“Most marijuana-intoxicated drivers show only modest impairments on actual road tests. … Although cognitive studies suggest that cannabis use may lead to unsafe driving, experimental studies have suggested that it can have the opposite effect.”  The effect of cannabis compared with alcohol on driving, The American Journal on Addictions, 2009

“THC’s adverse effects on driving performance appear relatively small.”  US National Highway Traffic Safety Administration, Marijuana and Actual Driving Performance, 1993

THC in the blood alone does not mean the driver is DUI-marijuana.

Driving with blood plasma THC in context

The main, psychoactive ingredient in marijuana is THC.  It can cause driving impairment in some drivers, though nowhere close to the effect of alcohol.

Odds of motor vehicle crash risk, compared to sober, normal driver:
  • Alcohol (BAC levels .05 and .08): more than 600% increase
  • Drivers with two or more passengers: 220% increase
  • Driving while pregnant: 42% increase
  • Acute cannabis intoxication: up to 40% increase (similar to driving while talking on hands-free cell phone)

Understanding the difference between THC and its metabolites

To understand the issue of DUI-marijuana, we need to know about metabolites.

The human body’s metabolism breaks down food and drug chemicals into other, different chemicals.  We call the products of this natural process “metabolites.”

Metabolites of alcohol
Alcohol molecule

Alcohol molecule

Take alcohol, for example.  After a person drinks alcohol, their body gets to working metabolizing it; breaking it down.

The body metabolizes alcohol in several steps. Enzymes help break up the alcohol molecule, for better elimination.  An enzyme metabolizes alcohol to acetaldehyde. Then, in the next step, the body metabolizes acetaldehyde down to another, less active byproduct called acetate.  Then the body breaks down acetate into water and carbon dioxide.

So, acetaldehyde, acetate, water and carbon dioxide are all metabolites of alcohol.

Metabolites of THC

In the case of THC (delta 9-tetrahydrocannabinol, or▵9_THC), labs test for two of its metabolites: hydroxyl-THC and carboxy-THC.  These common names for the metabolites can be confusing, because:

  • The metabolites, hydroxyl-THC and carboxy-THC, are not THC; but;
  • both have “THC” in their names.

This misleads many into thinking that the metabolites are THC.  But they are not.  They are chemicals other than THC, which result from the body metabolizing and breaking down THC into different chemicals.

Carboxy-THC is not psychoactive

According to information provided by the National Highway Traffic Safety Administration (“NHTSA”), Carboxy-THC is “not psychoactive.”  Drugs and Human Performance Fact Sheets, Cannabis / Marijuana (Δ 9 -Tetrahydrocannabinol, THC), NHTSA:

Plasma THC concentrations generally fall below 5 ng/mL less than 3 hours after smoking. THC is highly lipid soluble, and plasma and urinary elimination half-lives are best estimated at 3-4 days, where the rate-limiting step is the slow redistribution to plasma of THC sequestered in the tissues. … Plasma THC concentrations in occasional users rapidly fall below limits of quantitation within 8 to 12 h. THC is rapidly and extensively metabolized with very little THC being excreted unchanged from the body. THC is primarily metabolized to 11-hydroxy-THC which has equipotent psychoactivity. The 11-hydroxy-THC is then rapidly metabolized to the 11-nor-9-carboxy-THC (THC-COOH) which is not psychoactive.” https://one.nhtsa.gov/people/injury/research/job185drugs/cannabis.htm

While THC in the blood can impair some drivers, Carboxy THC cannot.  Carboxy THC is not evidence of DUI-marijuana, ever.

Blood THC vs. Carboxy THC

Unlike urine, blood tests combined with other evidence, can support allegations of being under the influence of marijuana.  Studies have shown that high THC blood levels can coincide with impaired driving. But low THC blood levels have almost no relation to bad driving.  And sometimes THC positive drivers have shown improved driving.

Carboxy-THC has zero psychoactive effect.  It cannot affect driving one way or another.  It’s a metabolite of THC.  But it’s not THC.   So then why test for it?

A positive lab test for Carboxy THC shows past marijuana use.  But it does not show recent use.

In fact, the first time you smoke marijuana you’ll immediately have THC in your blood, but no Carboxy-THC.  Your body will need time to break down the THC, first into Hydroxy-THC, then in Carboxy THC.

So Carboxy-THC can indicate lack of recent use, in this situation.  In any event, Carboxy THC cannot and does not indicate recent use, or possible impairment.  It’s not evidence of DUI-marijuana, as a result.

Just because you can, should you?

Lab report: THC vs metabolites

Lab report: THC vs metabolites

Labs can and do commonly test for THC and the metabolites Hydroxy THC and Carboxy THC.  Lab reports usually show levels for all three.

In other contexts, you may want to know about marijuana use in the past month or so.  For example, a probation officer might want to know, where a condition of probation is “no use of non-prescribed marijuana.”

But in a DUI-marijuana case, a positive lab result for Carboxy THC has no probative value.  Because it does not prove recent use.

On the other hand, an actual blood THC level is evidence of use within the past 12 hours or so.

Would legalization increase marijuana-DUI cases?

The truth?

People are using marijuana illegally in Minnesota right now.  Most are responsible and avoid driving under the influence.  And Driving Under the Influence of marijuana is already a crime.

No one really knows whether more people will use marijuana in Minnesota when it’s legal, compared to now.  Some may be less interested, once legal.  And though most people have tried it, most who try it do not become regular users.  They just don’t like the effect of marijuana.  Legalization is not going to change that.

But if there were an increase in users, even for a few years, how many would choose to drive after using?  And if they did, what risk to public safety does that present?

We know that driving with 0.08 BAC alcohol or with two or more passenger is riskier.  And we know that the risk is comparable to driving while pregnant or while talking on your hands-free cell phone.

All of those create elevated risks.  But the fear that driving after using marijuana is the same as driving after drinking alcohol is not based on evidence.

To equate the problem of DUI-marijuana with the problem of DUI-alcohol is a false equivalence.  They are not equal risks.  Not even close.

About the author

Minneapolis Attorney Thomas Gallagher explains DUI-marijuana law and science

Minneapolis Attorney Thomas Gallagher explains DUI-marijuana law and science

Thomas C. Gallagher is a Minneapolis criminal defense attorney.  Gallagher defends clients from charges of DUI-marijuana.

He teaches Continuing Legal Education courses on Marijuana DUI law to prosecutors, defense attorneys, and judges.

He also serves on the Board of Minnesota NORML, a nonprofit working to reform marijuana laws in Minnesota.

Marijuana Legalization in Minnesota: What Should It Look like?

Has the time come for marijuana legalization in Minnesota?

Opposing legalization is now political suicide

Opposing marijuana legalization for responsible adult use is now political suicide.  That might surprise a few.  But much has changed.

Last month Gallup reported its polling on the issue“Sixty-six percent of Americans now support legalizing marijuana.”

Democracy?  Bipartisan Majorities

And support is bipartisan.  Though more Democrats support marijuana legalization than Republicans, “Gallup found last year that a slim majority of Republicans supported legal marijuana for the first time, and this year’s figure, 53%, suggests continued Republican support.”

Pew Research Center reports similar polling, pointing out that support for marijuana legalization is now double what it was in 2000.

History doesn’t repeat; it rhymes

Students of history draw lessons from the alcohol Prohibition life cycle.  Why did it take so long to end it, even after a majority of Americans opposed it?

The five percent tipping point

Marijuana legalization at the Capitol.  Minnesota NORML.

Marijuana legalization at the Capitol. Minnesota NORML.

One answer?

The tipping point was when about five percent of the voters made legalization a wedge issue.  In other words they would disregard political party, other issues, and vote for a political candidate solely on the issue of re-legalization.

The alcohol Prohibition repeal soon followed.

Elections matter

In the 2018 general election, two single-issue marijuana legalization parties achieved major party status in Minnesota.  Their candidates for statewide office received more than the five percent threshold to qualify as major political parties.

How many elections are won or lost by less than five percent of the vote in Minnesota?  Opposition to the majority will now has a severe price: losing.

The time has come for marijuana legalization.  But what should it look like in Minnesota?

What should marijuana legalization look like in Minnesota?

The issue is Liberty, not marijuana.  Ending marijuana Prohibition is consistent with conservative political values.  Less government means more freedom.  Prohibition is a government bloat program, that destroys lives, destroys our freedom.

We the People have at least equal rights to marijuana as we do to beer and wine.  The fact that marijuana is safer than beer and wine, undercuts the Prohibitionist lie that “marijuana is a dangerous drug.”  Death by overdose happens with alcohol, but cannot happen with marijuana.  Marijuana has no toxic dose level, unlike caffeine, aspirin and many other commonly used, legal drugs.

The three legal models for marijuana 

We’ve seen three models for our legal rights to marijuana, in chronological order:

  1. The Tomato Model
  2. The Prohibition Model
  3. The Beer and Wine Model

The Tomato Model

The Tomato Model of marijuana legalization

The Tomato Model of marijuana legalization

Under the Tomato Model of marijuana laws, the people have rights to marijuana equal to our rights to tomatoes.  The law lightly regulates tomatoes.  Tomatoes are not a crime to grow, possess, or sell.

The Tomato model means laws the repeal of laws criminalizing it.  People are free to do with marijuana what they can do with tomatoes.  We call it decriminalization.

This was the state of the marijuana laws before the marijuana Prohibition era began.   Advocates of the tomato model say we should return to this.  Of the three legal models, the tomato model is the most conservative.  It protects the People’s Liberty most.

The Prohibition Model

The writing is on the wall: Vote Against Prohibition

The writing is on the wall: Vote Against Prohibition

Marijuana Prohibition never would have happened but for the alcohol Prohibition.  As the alcohol Prohibition was winding down in the 1930s, state by state, the government Prohibition bureaucracy ramped up its anti-marijuana propaganda; much of it with appeals to racism.

They succeeded.  They tricked the public into funding a massive anti-marijuana government bureaucracy.

It was a solution in search of a problem.  At the time, marijuana usage rate was infinitesimal.  Now almost every American has used marijuana at least once, thanks to Prohibition.

Though ten states have legalized marijuana for adult use, Minnesotans still live under the shadow of marijuana Prohibition.  The government still pays police officers to break down doors, toss people’s cars, searching for marijuana.  Then we pay prosecuting attorneys to charge people with marijuana with crimes, label us criminals, strip our civil rights and lock us up.

And enforcement disproportionately impacts African-Americans, despite equivalent usage rates with other ethnic groups.  Marijuana legalization ends these social evils.

The Beer and Wine model

Wine may not be for everyone, but a crime?

Wine may not be for everyone, but a crime?

Under “the beer and wine model,” the people of Minnesota have equal rights to marijuana just the same as to beer and wine.

The metaphor works because people are familiar with beer and wine.  The law treats marijuana the same as beer and wine in every way.  It also works because marijuana is safer than beer or wine.  This undercuts opponents’ “public safety” argument.

Wherever the law now says “beer” or “wine,” we can add the word marijuana.  What could be more simple?

Step one – decriminalization

Prohibition Still Doesn't Work. NORML.

Prohibition Still Doesn’t Work. NORML.

Of course, we need to delete all criminal laws referencing “marijuana” and “THC.”  This includes deleting both from the Schedules in Minnesota’s version of the Controlled Substances Act, now in Minnesota Statutes Chapter 152.  We call this “de-scheduling.”

In addition, the criminal drug laws will be amended to delete all references to THC and marijuana.  Most of these are also in Chapter 152.

That is the decriminalization component.  For supporters of The Tomato Model, that is all we should do.

Step two – regulation

Under the beer and wine model, we not only completely decriminalize, we also enact a set of laws regulating marijuana production and sale.  Here the existing beer and wine laws guide us.

We have equal rights to marijuana as to beer and wine.  So the marijuana laws mirror those regulating beer and wine.

Conservatives and Liberty advocates may prefer The Tomato Model for marijuana laws, as we had before Prohibition.  But here history has another lesson for us.

The legal framework for alcohol was The Tomato Model before the alcohol Prohibition.  But after the repeal of alcohol Prohibition, the laws regulated alcoholic beverages.  We’ll skip the reasons for that.

Suffice it to say, strong public support now exists for re-legalizing marijuana for responsible adult use under The Beer and Wine Model.  The ten states that have legalized so far have substantially followed The Beer and Wine Model.  Marijuana legalization in the Untied States so far means decriminalized and regulated like beer and wine.

What’s the Big Idea?

The Beer and Wine Model is the big idea.  Liberty.  Equal rights.  Civil rights.  Racial justice.  These core American values support the beer and wine model of legalization, far better the evils of Prohibition.

What should marijuana legalization look like in Minnesota?  The People should have at least equal rights to marijuana as to beer and wine.  With that core principle, the rest takes care of itself.

Details Matter Too

We’ll take a deeper dive into the details of proposed legislation in the future.  But now let’s take a look a few of the important details of re-legalization in Minnesota.

Home Grow is Alright With Me

Even with regulated beer and wine, we have the right to produce beer and wine at home in small batches.  Under the beer and wine model for marijuana regulation, we can grow marijuana on our own property, in small batches.  Current Minnesota marijuana cultivation laws include nonsense.

A little Minnesota history

Minnesota laws contradict each other when it comes to forms of marijuana.

A rose is a rose.

A rose is a rose.

In the 1970s, the laws favored plant-form marijuana and disfavored “the resinous form,” which we now call “wax.”  Then they thought “the resinous form” more dangerous than plant-form.

The distinction remains in Minnesota Statutes definition of a “small amount of marijuana.” That definition makes an exception for a small amount of the resinous form of marijuana, which currently remains a crime.

Yet in the 2010s, the Minnesota legislature crafted a Medical Marijuana law which favored “the resinous form” (concentrates) and disfavored plant-form marijuana.  More recently they thought that the resinous form was safer than plant-form.  The legislature then approved only the resinous form, for legal use within Minnesota’s original medical marijuana program.

The public policy in these two sets of laws conflict.

A rose is a rose is a rose

The time has come to end the legal distinction between plant-form and the resinous form.  We should treat all forms of marijuana as marijuana.  It’s the same plant, the same substance.  The distinction between forms creates needless confusion.  If it made any sense, the legislature would not have contradicted itself.

Repair the Minnesota Medical Marijuana Program

The once and future medical cannabis

The once and future medical cannabis

The lack of plant-form and home grow in Minnesota’s medical marijuana program has undermined it.  Now, Minnesota’s medical marijuana program is super-expensive and out of reach for disabled, sick people.  And insurance does not cover it.

The “concentrates only” approach of Minnesota’s medical marijuana program adds unnecessary cost.  Plant-form is less costly to produce.

The lack of legal home grow for Minnesota medical marijuana patients denies access to medical care to low-income, disabled people.  They can grow their own, cheap.

Suppliers and distribution

The law of supply and demand is stronger than criminal law

The law of supply and demand is stronger than criminal law

The “bad model” at this point is Colorado, the first state to legalize.  Why?  Because it  has a super-expensive seed to retail sale surveillance regimen then meant to reassure and deter diversion.  Now that ten states have legalized for adult use, this is an unneeded expense.

If retail cost is too high, the underground economy will continue.  We need to destroy the underground economy using the laws of economics, not failed criminal laws.

Suppliers and distribution.  The existing two medical suppliers and existing legal hemp growers are places to look for beginning suppliers.  With the recent federal farm Bill’s adoption, the hemp form of cannabis is now legal to possess under Minnesota and federal law.

Over-taxation

In some other states, over-taxation is a problem.  If retail cost is too high, the underground economy will continue.

Equal rights, and justice:  The “beer and wine model” comes to the rescue again.   We should not tax marijuana more than the beer and wine.  The “sin tax” on beer and wine is already sky-high.

Transitional issues

What are transitional issues?  These are issues that are big problems as we transition from a Prohibition Model, to a Beer and Wine Model of marijuana regulation.   But we expect that ten years after legalization many of these issues will subside.

There are many transitional issues.  Let’s mention a few.

Automatic record voiding of convictions and expungement

Minnesota’s legalization law should include automatic vacating of convictions and public records expungement.

Today, most people who qualify for criminal record expungement never file a Petition for Expungement in court due to cost barriers.

The law should require the government to automatically vacate every criminal conviction related to marijuana or THC, and expunge those public records.  We should remove the burden from the victims of Prohibition and put it on the government.

Many do not know that a typical Minnesota court expungement Order will not fully restore civil rights under federal law.  The conviction itself must be undone, vacated and dismissed, as if never happened.  We must do that, in order to fully restore all civil rights in a way the federal laws will recognize.  A simple sealing of public records will not fully restore civil rights.

Amnesty for Drug War P.O.W.s

We should immediately release all people locked up for any marijuana or THC crime, from jail or prison.

Force the Minnesota Department of Corrections to follow the law

Thomas C. Gallagher, Minnesota NORML

Thomas C. Gallagher, Minnesota NORML Member

When a court sentences a person to prison, it strips them of their civil rights and commits them to the Minnesota Department of Corrections (DOC).

The Minnesota DOC “policy” is to revoke supervised release for legal medical marijuana users.

We must stop this Minnesota DOC policy and practice.   We need a statute to reign in this Minnesota DOC violation of existing Minnesota law.

What do you think?

Drop your comment below.

About the author

Gallagher-Defense-logoWritten by Thomas C. Gallagher.  Gallagher has worked on re-legalization issues for over 30 years.

He is a former Chair of Minnesota NORML and is founding Board Member, since 2011.

Thomas Gallagher is a criminal defense lawyer in Minneapolis with a heavy portion of marijuana defense cases.

Felony doesn’t always impair Minnesota gun rights

A Minnesota felony doesn’t always impair gun rights.  But many still believe that “a Minnesota felony conviction will mean a lifetime loss of gun rights.”  That’s wrong.

Upon completion of probation, gun rights lost after a felony conviction are automatically restored along with other civil rights, under the general rule of Minnesota law.  We discuss exceptions to that general rule below.

The Right to Firearms

The right to self-defense and firearms is a natural, human right.  It belongs to you because you were born a human being.  The United States was born in revolution and violent struggle to force government to respect our natural rights.  The United States Constitution makes this respect clear.

Fighting for Natural Rights to Firearms, 1781

Fighting for Natural Rights to Firearms, 1781

As the U.S. Supreme Court recently ruled: “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”  District of Columbia v. Heller, 554 US 570 (2008).

The law, however, does limit our rights under some circumstances.  Even so, strict scrutiny must be given to any legal limitations upon our fundamental rights. We are skeptical of legal limitations of our rights.

Certain pending criminal charges or convictions historically have limited our civil rights to firearms.   As criminal defense attorneys, part of our job representing our clients is to understand how to protect their civil rights.

Will any felony conviction cause a lifetime loss of civil rights to firearms?

A common misconception holds that “any felony conviction will destroy your civil rights to firearms forever.”

But a Minnesota felony doesn’t always impair gun rights.

We have heard that wrong statement of the law (that a felony always means a lifetime loss of gun rights) from people who should know better.

Is there any explanation for such a widespread misconception about the law?  The two main reasons for this common misunderstanding of the laws are:

  1. Gun laws are complex – short of in-depth study.
  2. The laws have changed – many have failed to update their knowledge.

Solution:  This article will walk you through the law.  And it explains why “a felony conviction” doesn’t always impair Minnesota gun rights indefinitely.  Two common exceptions to that general rule are:  1) “felony crimes of violence” and 2) “misdemeanor crimes of domestic violence.”  If lost, these rights may either be automatically be restored by operation of law; or, their restoration may be possible through a court order or pardon.

Loss of gun rights upon certain pending criminal charges and convictions

Civil rights to firearms can be temporarily suspended while certain criminal charges are pending before the Minnesota court.  They can be also be temporarily or indefinitely lost upon conviction of certain crimes under Minnesota law.  For example, Minnesota Statutes §624.713, subd. 1 (10) (i), says:

Subdivision 1.  Ineligible persons. The following persons shall not be entitled to possess ammunition or a pistol or semiautomatic military-style assault weapon or, except for clause (1), any other firearm:
(10) a person who:
(i) has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;

For someone who has not fully studied the web of Minnesota gun laws, the above excerpt, in isolation, could be misleading.  It seems to say that a felony conviction will result in an indefinite loss of civil rights to firearms.  But below we discuss the other, specific Minnesota statutes to the contrary. 

Every person convicted of a Minnesota felony will lose their civil rights to firearms from the moment of adjudication or conviction until the moment the person is discharged from probation or sentence. Minnesota Statutes §624.713, subd. 1 (10) (i).  Unless their conviction was for a “felony” “crime of violence” or other exception; their rights are automatically restored upon completion of sentence (e.g., probation).

Why a Minnesota felony conviction doesn’t trigger loss of gun rights

The general rule:  Following a Minnesota conviction, civil rights to firearms are restored by operation of statute at the completion of, or discharge from sentence “the same as if such conviction had not taken place.”  Minnesota Statutes §609.165:

“RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION, Subdivision 1. Restoration. When a person has been deprived of civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place, and the order of discharge shall so provide.”

Note that it doesn’t matter what level the conviction was – felony or misdemeanor.  Gun rights are restored under this general rule statute upon discharge from sentence.  Clearly, a Minnesota felony doesn’t always impair gun rights.

But a Minnesota “felony crime of violence” conviction now causes a default lifetime ban

One of the two major exceptions to the general rule stated above is Minnesota’s statute stripping civil rights to firearms for life for a “felony crime of violence” conviction.   Minnesota Statutes §609.165 RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION:

“Subd. 1a. Certain convicted felons ineligible to possess firearms or ammunition. The order of discharge must provide that a person who has been convicted of a crime of violence, as defined in section 624.712, subdivision 5, is not entitled to ship, transport, possess, or receive a firearm or ammunition for the remainder of the person’s lifetime. Any person who has received such a discharge … whose ability to possess firearms and ammunition has been restored under subdivision 1d, shall not be subject to the restrictions of this subdivision.“

The specific list of crimes defined as “felony crimes of violence” is in Minnesota Statutes §624.712, subdivision 5.  A listed crime triggers a lifetime loss of civil rights.  Otherwise, discharge from felony probation or sentence will generally restore gun rights by law.  It’s important to check the list, since despite the label, many convictions on the list are factually non-violent and listed as a technicality, notably marijuana crimes.

Exception to the exception: restoration of gun rights after a Minnesota “felony crime of violence” indefinite ban

What if “felony crime of violence” conviction impairs civil rights to firearms?   A court order or a pardon can restore them.  For more on that see our page: Restoration of Civil Rights to Firearms in Minnesota

What about a federal statute saying a felony conviction triggers a loss of gun rights?

Federal laws are in need of some housecleaning, to convey clear meaning. Bottom line – federal law says that state laws take away and restore civil rights to guns.

The Untied States Supreme Court explains

This United States Supreme Court case offers the most succinct explanation:

A federal statute forbids possession of firearms by those convicted of serious offenses. An abbreviated version of the statute is as follows:

“It shall be unlawful for any person—

“(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; …

“to … possess in or affecting commerce, any firearm or ammunition …” 18 U.S.C. § 922(g). …

Until 1986, federal law alone determined whether a state conviction counted, regardless of whether the State had expunged the conviction. Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 119—122 (1983). Congress modified this aspect of Dickerson by adopting the following language:

“What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, …” §921(a)(20).

The first sentence and the first clause of the second sentence define convictions, pardons, expungements, and restorations of civil rights by reference to the law of the convicting jurisdiction. See Beecham v. United States, 511 U.S. 368, 371 (1994). …

We note these preliminary points. First, Massachusetts restored petitioner’s civil rights by operation of law rather than by pardon or the like. This fact makes no difference. Nothing in the text of §921(a)(20) requires a case-by-case decision to restore civil rights to this particular offender. While the term “pardon” connotes a case-by-case determination, “restoration of civil rights” does not.

Caron v. United States, 524 U.S. 308 (1998)

Minnesota law controls

Minnesota law controls

Minnesota law controls

Therefore, Minnesota law, not federal law determines whether a Minnesota felony conviction makes a person ineligible to possess a firearm.  See, also 18 U.S. Code § 921, (a) (20) The term “crime punishable by imprisonment for a term exceeding one year;” and, 27 CFR 478.11.

This is Black Letter Law.  The law is clear and unambiguous.  Minnesota law, not federal law, determines whether a person loses their civil rights to firearms for a felony conviction.  And Minnesota law determines how those rights can be restored.

If you hear anyone repeating the old misinformation, send them this article for a simple explanation of the law.  At minimum, know that a Minnesota felony conviction doesn’t always impair gun rights.

“What if I had a felony conviction reduced to a gross misdemeanor after successful completion of a Stay of Imposition?

Short answer: When it comes to gun rights, it doesn’t matter.  Why?

The law automatically restores rights upon discharge from probation or sentence, if the Minnesota felony conviction was for a crime not listed in the section 624.712, subdivision 5, list of “felony crimes of violence.”

If the conviction level was later reduced to a non-felony under Minnesota Statutes § 609.13, Subdivision 1; if the conviction was for a “felony” listed as a “crime of violence,” the person convicted is banned from possessing firearms under Minnesota Statutes §724.713, Subd. 1 (10), because the charge was “punishable by imprisonment for a term exceeding one year.” 

What about juvenile adjudications for felony crimes?

For purposes of gun rights a Minnesota juvenile adjudication triggers the same gun rights disabilities as a conviction for an adult.  A juvenile “adjudication” is the functional equivalent to an adult “conviction.”   See, Minnesota Statutes §242.31, RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS.  For juveniles, a Minnesota felony adjudication doesn’t always impair gun rights.

What about civil rights to firearms after a Minnesota “misdemeanor crime of domestic violence” conviction?

See our recent article for a thorough discussion of: Civil Rights to Firearms after a Minnesota “misdemeanor crime of domestic violence” conviction.

Significant events along a criminal law & gun rights timeline

Let’s consider a timeline in a person’s life with the effect of criminal law events on their civil rights.  The person is born in the U.S.A. with their natural rights to firearms subject to mild regulation for age, etc.

Then a felony or selected misdemeanor charge may temporarily suspend the person’s gun rights pending the outcome of those charges in court.  Dismissal, a not-guilty verdict, or a conviction could result. 

If convicted of a felony and selected misdemeanor crimes, the person loses their civil rights to firearms.  After that, the general rule Minnesota statute restores their civil rights to firearms upon completion of sentence, with exceptions.  For some felony and selected misdemeanor crimes, the Minnesota law exceptions trigger an indefinite or lifetime ban.  Gun rights can later be restored, for example by court order or pardon for people so affected.

The key event periods along the timeline are:

  1. Pending criminal charge
  2. Pending sentence (after conviction, before completion of probation, sentence)
  3. After discharge from sentence, before restoration of civil rights to firearms
The legal grey area between the black letter law

Gun laws are more complex than they need to be.  And we have both Minnesota and federal laws to review – statutes and case-law.  Grey areas of ambiguity exist between the clear, unambiguous areas of gun laws on either side.  Looking forward, no one wants to be on the wrong side of the law or even in a legal grey area.  Once already charged with a crime, however, no one can change the past.  In criminal defense, the legal grey area usually means “not guilty.”

Retrospective view:

When defending against a criminal charge like “Ineligible Person in Possession of Firearm,” that grey area in between is something that we term “reasonable doubt.”  (A person with a pending criminal charge should be sure their defense lawyer is knowledgeable and capable of protecting their civil rights to firearms as part of the defense objective.)

Some prosecutors and some defense attorneys fail to understand gun laws.  This can result in a wrongful conviction for felony “ineligible person in possession of a firearm” of an innocent person, based on a non-listed past Minnesota felony conviction.  Be sure to to retain a criminal defense attorney who knows not only criminal law, but gun law.  One basic test: does the attorney know that a Minnesota felony doesn’t always impair gun rights?  Be sure your defense attorney knows the law.

Prospective view:

But a person with a past conviction, does not want to risk being on the wrong side of the law.  Especially as some random law enforcement officer or prosecutor may interpret it.  The law may have fully restored their civil rights.  But they may still have trouble with a gun purchase permit denial by someone who fails to understand that a Minnesota felony doesn’t always impair gun rights.  To avoid grey-area trouble, that person may wish legal help to ensure recognition of their full civil rights as a citizen.

If someone says that a felony conviction always means a loss of civil rights to firearms, remember that a Minnesota felony conviction doesn’t always impair gun rights.  And recommend that they read this article for the map of the law.

Thomas Gallagher, Minneapolis Criminal Lawyer

Thomas Gallagher, Minneapolis Criminal Lawyer

About the Author:

Thomas C. Gallagher is a Minnesota Defense Attorney who handles criminal cases involving self-defense, and gun crimes cases.  A Second Amendment and Bill of Rights supporter, Gallagher has taught and written extensively on firearms law and the law of self-defense.

You might be interested in our article on Restoring Gun Rights after a Minnesota Misdemeanor Domestic Conviction.

Restoring Gun Rights After a Domestic Misdemeanor in Minnesota

“Can my rights to firearms be restored after a conviction for a misdemeanor crime of domestic violence?”

Yes, you can restore gun rights after a misdemeanor domestic.  But it’s complicated.  There was a time when the law stripped a person’s civil rights for a felony conviction , but not for a misdemeanor.  A nice bright line.  Well, not any more.

What happened?  Politics, legislation, new laws.

On the bright side, problems caused by new laws can be solved by even newer laws.  The Minnesota legislature could solve this problem; and so could the United States Senate and Congress.  But here the focus will be practical, on the law as it now stands.

Felony vs Misdemeanor

Gun safety practice

Gun safety practice

felony conviction triggering loss of civil rights, including Second Amendment rights, is not new.  But their loss from selected misdemeanors only goes back to around 1996.  (Go here for a summary of restoration of gun rights after a felony conviction.)

The federal Violence Against Women Act, a/k/a the Lautenberg Amendment, created a definition of a “misdemeanor crime of domestic violence.”  That definition stripped persons convicted of their civil rights to guns.  The federal law affects your gun rights after misdemeanor domestic conviction.

Does the Minnesota Conviction fit within the Federal Definition?

The federal definition of “misdemeanor crime of domestic violence:”

“(A) the term ‘misdemeanor crime of domestic violence’ means an offense that—

(i) is a misdemeanor under Federal, State, or Tribal  law; and

(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian ... .

(B)

(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless

(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and

(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial … , either

(aa) the case was tried by a jury, or

(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

18 U.S.C. § 921(33) (a).

Federal definition is narrower than the Minnesota’s

This definition is narrower than Minnesota’s definition in at least three ways.  First, it requires an element of physical force (or a deadly weapon) which is lacking in most Minnesota cases.  Second, the federal relationship element is narrower than Minnesota’s broad relationship definition (which includes for example, college roommates).  Third, the due process protection qualifiers exclude cases with a right to counsel violation, or missing factual basis.

Gun rights after a misdemeanor domestic: the Minnesota ban is shorter but broader than the federal ban

Gun rights after a misdemeanor domestic: the Minnesota ban is shorter but broader than the federal ban

As a result, convictions which might appear to qualify as federal “misdemeanor crimes of domestic violence” may actually not qualify.  If the Minnesota case does not fit the federal definition, then the federal law does not impair gun rights.

Even if the federal ban doesn’t apply, there are Minnesota statutes which strip gun rights after a domestic assault conviction.  Let’s take a look at the Minnesota three-year ban now, before we get back to the federal laws.

Minnesota’s three-year ban and automatic restoration

Three-year loss of gun rights after a misdemeanor domestic assault:  The general rule is an automatic three-year ban for a Minnesota domestic assault conviction. Minn. Stat. § 609.2242, subd. 3:

“(e) … a person is not entitled to possess a pistol if the person has been convicted after August 1, 1992, or a firearm if a person has been convicted on or after August 1, 2014, of domestic assault under this section or assault in the fifth degree under section 609.224 and the assault victim was a family or household member as defined in section 518B.01, subdivision 2, unless three years have elapsed from the date of conviction and, during that time, the person has not been convicted of any other violation of this section or section 609.224. …  A person who possesses a firearm in violation of this paragraph is guilty of a gross misdemeanor.”

Minnesota Statutes Section 624.713, subd. 1 (8), says the same – broad ban on firearm possession for three years after date of conviction.

What happens after the Minnesota automatic three-year ban?

Does the statute automatically restore gun rights?  Or is it necessary to petition the court?

Minnesota law automatically restores gun rights three years after the date of conviction.   The date the judge accepted the guilty plea or verdict, usually the sentencing date is the date of conviction.  However, you may need to petition the Minnesota court to restore rights to satisfy the requirements of the federal ban; if the conviction fits within the narrower federal definition. 

For convictions that are outside the federal “misdemeanor crime of domestic violence” definition, no further court action should be necessary.

The Federal Law Puts the States in Charge

The states can restore gun rights after a domestic conviction:  The courts have summarized the legal history and current situation that the states decide who has their civil rights to firearms restored, as this court held:

“The Second Circuit Court of Appeals has concisely stated Congress’s purpose in enacting § 921(a) (20). ’The exemption at issue was passed in 1986 in response to a 1983 Supreme Court decision which held that the definition of a predicate offense under the Gun Control Act of 1968 was a matter of federal, not state law.’ McGrath v. United States, 60 F.3d 1005, 1009 (2d Cir.1995); see Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 111-12, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), superseded by statute, Firearms Owners’ Protection Act, Pub.L. No. 99-308, 100 Stat. 449 (1986).

‘Section 921(a)(20) was expressly crafted to overrule Dickerson’s federalization of a felon’s status by allowing state law to define which crimes constitute a predicate offense under the statute, and thereby to determine which convicted persons should be subject to or exempt from federal prosecution for firearms possession.” McGrath, 60 F.3d at 1009. ‘Calling its new legislation the `Firearms Owners’ Protection Act [FOPA],’ Congress sought to accommodate a state’s judgment that a particular person or class of persons is, despite a prior conviction, sufficiently trustworthy to possess firearms.’ Id.

Thus, the determination of “whether a person has had civil rights restored [for purposes of § 921(a) (20)] . . . is governed by the law of the convicting jurisdiction.Beecham v. United States, 511 U.S. 368, 371, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994).”

DuPont v. Nashua Police Department, 113 A. 3d 239 (New Hampshire Supreme Court 2015).

States can restore gun rights for misdemeanors

Minnesota police car

States can restore gun rights after a domestic conviction

Another court emphasizes this, including gun rights after misdemeanor convictions:

“It is clear from the federal law that the majority of domestic violence offenders will not regain their firearms possession right. However, there are procedures for the restoration of the right … It is up to state legislatures to constrict or expand the ease with which convicted misdemeanants may apply for a receive relief under these measures.” U.S. v Smith, 742 F.Supp.2d 862 (S.D.W.Va. 2010), cited in, Enos v. Holder, 855 F. Supp. 2d 1088, 1099 (Dist. Court, ED California 2012).

Conclusion?  Yes – Minnesota courts can restore gun rights after a “misdemeanor crime of domestic violence.”  The federal courts and federal law acknowledge it.

But how?

If your case fits within the narrower federal definition, Minnesota can still restore rights

We’ve already discussed how the moment of conviction automatically triggers the Minnesota three-year ban.  And it automatically expires three years later assuming no further convictions. 

What remains is this question.  What will it take to get relief from a Minnesota court to end the federal ban for those convictions within the narrow federal “misdemeanor crime of domestic violence” definition?

The federal law’s three pathways to full civil rights

Let’s begin with a look at the applicable federal statute, 18 U.S. Code § 921 (a) (33):

(B)  (ii) A person shall not be considered to have been convicted of such an offense [“misdemeanor crime of domestic violence”] for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”

The three pathways to restore your rights
Three paths to restoring gun rights after a misdemeanor domestic

Three paths to restoring gun rights after a misdemeanor domestic

This federal statute, as interpreted by the courts, currently contains three potential pathways.  The pathways lead to full civil rights after a “misdemeanor crime of domestic violence.”  We’ll explain, but first the list from 18 U.S. Code § 921 (a) (33) (B) (ii):

  1. “the conviction has been expunged or set aside;”
  2. “the person has been pardoned;” or
  3. “the person has … had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).”

1. Pardon

In Minnesota, a convicted person can apply to the Minnesota Pardons Board for a pardon.  If it grants a pardon, this restores civil rights to firearms to the satisfaction of the federal law’s requirement.  A person can apply for a pardon without a lawyer, or can retain a lawyer to help with it.  A pardon is one way to restore your gun rights after a misdemeanor domestic conviction.

2. “Conviction has been Expunged or Set Aside”

Can an expungement restore gun rights after a misdemeanor domestic conviction?  Or, should we get an Order Setting Aside?

A plain reading of the phrase “expunged or set aside” communicates either of two separate ideas.  Yet, rarely in English usage we use the conjunctive “or” to really mean “and.”  This redundancy is unusual in our written language; more common in speech, used for emphasis, to unwind our thoughts into words.

In the legal context, “to expunge” has a meaning different from the meaning of “to set aside.”  In Minnesota at least, expungement means to retroactively erase criminal history records, including records or arrest, charge, conviction, and so on.  It’s a legal remedy with a range of possibilities but all give the person the benefit of a fresh start.

To set aside

The meaning of “to set aside” in the legal context is different, connoting setting aside a conviction. Other similar words used in Minnesota include “vacate and dismiss.”  The essence of “to set aside” is to undo the problematic conviction.  When this is done, the conviction could be undone completely by court Order.  Or, the prosecuting attorney and the defense attorney could agree to vacate the conviction.  The agreement could replace it with another that will not trigger the federal disability.

A federal court decision has rendered a Minnesota Expungement Order a potentially ineffective way to restore gun rights.

“While this interpretation only addresses the term “expunge,” given our determination that Congress intended the two terms to have equivalent meanings, we find that this interpretation offers persuasive support in favor of our conclusion that § 921(a)(33)(B)(ii) requires the complete removal of all effects of a prior conviction to constitute either an expungement or a set aside.”

Wyoming Ex Rel. Crank v. United States, 539 F.3d 1236 (10th Cir. 2008) (holding “expunge” and “set aside” interpreted to have equivalent meanings under 18 U.S. Code § 921 (a) (33) (B) (ii))

Time will tell whether other courts, especially those with jurisdiction over Minnesota, will agree with this Tenth Circuit case.  But prudence dictates navigating around its dangers prospectively.

Response?  Remedy?

The lawyer seeking restoration of civil rights after a misdemeanor domestic conviction can seek an Order Setting Aside Conviction.  This should overcome the problems presented by the 10th Circuit’s Wyoming v. US.

3. “Person has had Civil Rights Restored”

Now, the third pathway mentioned in the federal statute to get back gun rights after a misdemeanor domestic conviction.

The law’s third way is  “the person has … had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).”  On the surface, the plain language reading is good for the person seeking to solve this problem.  But, courts have interpreted this language in a restrictive way, rendering this path uncertain for people with Minnesota misdemeanor convictions.

bike finish line

The finish line

Unlike the bad “expungement” case, the 10th Circuit’s Wyoming v. US, here there are numerous court cases repeating the unhelpful interpretation – though a few take an opposing view.  Though there are several published court opinions on these issues, few are Minnesota specific.

For criminal defense lawyers like Thomas Gallagher, defending an ineligible person in possession charge, this may be a fruitful area for inquiry.  But for a person seeking full civil rights restoration, it’s easier to navigate around via a safer path.

A legalistic approach

Take for example, US v. Keeney, 241 F. 3d 1040 (Court of Appeals, 8th Circuit 2001), holding that defendant’s civil rights to firearms could not be restored within the federal statute’s meaning because as a misdemeanor in that state, no other civil rights had been taken away in the first place (voting, jury duty, hold public office.)  Other cases held that where a defendant served even one day of executed jail time, they lost all of their civil rights while locked up.   Therefore they qualify for restoration of civil rights.

A lawyer defending a person on a new, criminal charge based on a prior may want to challenge this restrictive interpretation of the statutory language.  But, prospectively a person seeking a clear and unequivocal full rights restoration would be better served by taking another path.

Minnesota is better than that

If we can look specifically at Minnesota’s law, we can observe that Minnesota Statutes automatically take away gun rights after a misdemeanor domestic assault conviction, for a three-year period.  And the law automatically restores these civil rights after that period, assuming no other convictions. 

In addition, Minnesota has a Statute that automatically restores civil rights lost due to any conviction, including to firearms, upon discharge from sentence (most commonly, discharge from probation or supervised release).  That statute, Section 609.165, titled “RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION,” lays out the general rule of rights restoration, with an exception for “felony crimes of violence.”

Minnesota Statutes §609.165 RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION.
“Subdivision 1. Restoration. When a person has been deprived of civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place ... .”

Therefore, these two Minnesota statutes restore  gun rights of a person with a “misdemeanor crime of domestic violence” conviction, after three-years without a new conviction. 

Federal law leaves it to the states to restore gun rights.  So a person in that situation has their gun rights restored under both state and federal law.

The nitty gritty

This legal analysis seems plain enough.  Still, a person may wish something that others will be accept as clear evidence of restoration.

Bottom line on a Petition to “Restore Civil Rights to Firearms” after a misdemeanor crime of domestic violence” conviction? It’s not the best solution.  Why?  Because several cases hold that since the other core civil rights are not lost for a misdemeanor, gun rights cannot be restored.   Though some cases take an opposing view.  Note the cases saying any defendant who served any executed time in jail lost all civil rights during that time.

The best remedy

What is the best remedy, then? How should the remedy be characterized?

  1. Seek a full pardon from the Minnesota Pardons Board.
  2. Don’t call the remedy a “restoration of civil rights,” at least not just that. Instead use the other remedy pathway labels.  Avoid the term “expungement.”  Instead use the term “set aside.”

That was a lot of law, boiled down to an outline. There is more law on this topic, but these are the main related points for now.  Need an even briefer recap?

Summary

Minnesota and federal laws affect the gun rights after a misdemeanor domestic conviction.

The Minnesota gun rights disability general rule is an automatic three-year ban beginning on the date of conviction.

The federal statutes provide for a lifetime ban for convictions for a narrowly defined federal “misdemeanor crime of domestic violence.”  Unlike the Minnesota statute, the federal definition requires “physical force” or a “deadly weapon,” and due process protections.

For Minnesota convictions that fit within the federal definition, the States decide when to restore gun rights.  State law restores gun rights either by operation of statute, court Order, or both.

Best solutions

What are the best remedies to ensure recognition of gun rights restoration after a “misdemeanor crime of domestic violence” conviction?  They are (1) a full Pardon; or (2) a court Order fully Setting Aside Conviction.  Such a court Order could result from either litigation, or from an agreement with the prosecutor. 

Either way, we amend the record to a conviction that does not fit the federal definition.  That can be a way to clean up problems caused by an unclear court record.   If the court record fails to detail the specific statutory subdivision of conviction, one subdivision may fall within the federal definition and another may not.  For example, domestic assault cause fear vs. bodily harm; or disorderly conduct speech vs fighting or brawling.

New legislation, either Minnesota or federal, could fix the problems presented here.  Until they are, it’s easier to prevent the loss of gun rights after a domestic than to regain them once lost.  A good criminal defense lawyer like Thomas Gallagher can help you do that.

But if it’s already too late for prevention, this article lays out the pathways to redemption.  No one can guarantee efforts to restore civil rights will be successful, but knowing the paths will help.

What about gun rights after a Minnesota felony conviction?

See our article for an in-depth discussion of gun rights after a Minnesota felony conviction.

About the Author:

Thomas C. Gallagher, Minneapolis Criminal Lawyer, explains gun rights after a misdemeanor domestic

Thomas C. Gallagher, Minneapolis Criminal Lawyer, explains gun rights after a misdemeanor domestic

Thomas C. Gallagher is a Minnesota Defense Lawyer who handles criminal cases involving domestic crimes, self-defense cases, and gun crime cases.  Gallagher is a Second Amendment and Bill of Rights supporter, who has written extensively on firearms law and the law of self-defense.  Here is more information on restoration of civil rights in felony cases in Minnesota.

Comments are welcome below.

CBD, Hemp & Law in Minnesota

Is CBD legal in Minnesota?

The law could be easier to follow, but the answers are here.  CBD sourced from hemp is legal under Minnesota law.  And a federal law prohibits spending on federal prosecution of people with state-legal hemp CBD.  Here is the breakdown, with the related Minnesota and Federal laws.

Cannabidiol, CBD, is trending strongly.  Why?

The main reasons are:

  1. CBD has desirable health and wellness benefits.
  2. CBD has no psychoactive effect, unlike psychoactive drugs such as alcohol, etc.
  3. It is not now, nor has it ever been, illegal. And, it’s unregulated.

Only the third reason listed — the laws — could change.  The biology of the plant and of humans will not change.

Green Light for Hemp

Green Light for Hemp

Despite the fact that CBD itself is not illegal, its federal legal status is still more complicated in 2018, than that statement seems to imply.  We’ll dig into it here.

First though, what is Cannabidiol, or CBD?  The second-most researched chemical in cannabis is Cannabidiol.  CBD relaxes muscles, has other therapeutic effects, and is non-psychoactive.

Commercially extracted from cannabis plant resin, CBD is then concentrated into an oil high in CBD, low in THC.

What is THC? 

Tetrahydrocannabinol (THC) is one of the other 113 cannabinoids found in cannabis plants.  THC is the principal psychoactive constituent of cannabis, giving adult-use users the desired marijuana “high.”  In marijuana, CBD and THC balance each other.  CBD counters and mitigates (reduces) the psychological effects of THC.

Cannabis with high CBD is specially bred, grown or both with the goal of producing a high CBD-yielding plant.  Medical marijuana can contain more than twenty percent CBD, while most adult-use marijuana has one percent CBD or less.

Science vs. Law – Two Worlds, Three Words

“Cannabis” has generally been a botanical, scientific name for the plant.  The word “marijuana” came into common usage mainly because it was used in laws.  The definition of marijuana was purely legal, defined by statute – not defined by science.  The word “hemp” was in usage apart from its legal definition, but it now has a legal definition embedded in statutes.

As a result, cannabis is primarily a scientific term for the plant. “Marijuana” and “hemp,” on the other hand, are primarily legal terms, defined by statute as two  separate categories of cannabis.

Currently under the law in Minnesota, “hemp” is not “marijuana,” and “marijuana” is not hemp.

The Resin

The cannabis plant has many varieties – high resin varieties as well as low resin varieties.

The resin contains most of the THC and CBD and other, entourage cannabinoids.

The older legal definition of “marijuana” focused on the resin as being problematic.  The 1970 Controlled Substance Act definition of “marijuana” demonstrates this.  The Minnesota version’s definition focuses on resin as well.  Minnesota Statutes §152.01, subd. 9 (2018):

“Marijuana.”Marijuana” means all parts of the plant of any species of the genus Cannabis, … 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.”

(Despite this statutory definition language: “all parts of the plant of any species of the genus Cannabis,” another statute defining hemp provides that the hemp form of cannabis is not “marijuana.”  Discussion of the Minnesota hemp statute follows.)

The THC level dividing line — hemp is not marijuana

More recent developments in the law draw a THC-level line between “marijuana” and “hemp.”  Hemp has “no more than 0.3 percent THC by dry weight” under federal and now Minnesota law.  (Other states, however, have higher THC thresholds for hemp than Minnesota does –and for good reason.)

This historical, legal development over time has created unintended consequences and legal ambiguities.  Such as?

The Problem

Here is the big problem.  People want to be able use CBD products for health and wellness support.  No one seems to object to CBD itself, as CBD, after all, it has no intoxicating effects; has no euphoric effect.  But, the best CBD comes from “marijuana” not hemp, as legally defined under the federal and Minnesota legal definitions.

CBD from legal hemp is currently legal.  But CBD from illegal marijuana is currently illegal. 

It’s the source that makes it legal or not, in 2018.

Hemp as a Source of CBD

Though CBD can be extracted from a hemp source, hemp has little resin (compared to marijuana); and so has little CBD.  CBD, like its sister THC,  concentrates in the plants’ resin.

Absolute vs. Relative Levels of cannabinoids

Hemp is a less efficient source of cannabinoids, including CBD (two-to-four percent).  But the low-level of THC in hemp does not prevent the ratio of CBD-to-THC from being high, ten-to-one, or more.  In this relative sense, hemp varieties can be claimed to be “CBD rich.”

Cannabis plant varieties with higher absolute levels of CBD exist.  If a plant  contains more than twelve percent CBD in the flower buds, it will also normally contain more than three percent THC.  (Over the three percent level of THC would make the cannabis “marijuana,” not “hemp.”)

The extract from that sort of plant can be purified to produce crystalline CBD.  (Note the difference possible between the THC level of the plant vs that of the end product.)  Again, the current laws make CBD legal if from a legal source (i.e., hemp), but illegal if from an illegal source (i.e., illegal “marijuana”).

Manipulation of the plant to comply with the law

Plants can be genetically bred and crossbred, as well as specially cultivated to increase the CBD level while decreasing the THC level to less than the legal threshold for hemp.

hemp stHemp is a low-yield source of CBD.  Large amounts of hemp must be used to extract a relatively tiny amount of CBD, as compared to “marijuana.”  A side effect of that is that hemp-sourced CBD is at risk of containing high levels of environmental contaminants, because hemp is a bio-accumulator.  The quality of the soil should be tested, since large amounts of hemp are cultivated to produce small amounts of CBD, 

Marijuana-sourced CBD is not only more efficient, but results in a higher quality and safer end product.

Clear Legal Landmarks and Ambiguities

The plant vs. the end product

The legal status of CBD products, in Minnesota in 2018, depends upon the THC level in the source plant, not the end product.  In other words, a CBD-product with “no more than 0.3 percent THC by dry weight” would still be illegal if it was sourced from a “marijuana” plant (a cannabis plant with 0.3 percent THC by dry weight). This, even if the product has zero THC.  What sense does that make?

The current situation with CBD, hemp and the law in Minnesota:
  1. It’s not a crime if it’s not listed in the federal or state version of the Controlled Substances Act, CSA schedules.
  2. Both “marijuana” and THC are listed; in both Minnesota and federal CSAs.
  3. CBD is not listed in either the Minnesota or the federal CSA, and so is not illegal as CDB.
  4. The only commercially feasible sources for CBD are “marijuana,” and to a lesser extent “hemp” – both legally-defined categories of the cannabis plant.
  5. CBD sourced from “marijuana” plants, is a crime to possess.
  6. Hemp sourced CBD (or theoretically another non-“marijuana” source) is not a crime to possess. It is unregulated.
  7. Products marketed as CBD may be contaminated due in part to the lack of regulation and the legal push away from “marijuana” as a source.  Compared to marijuana, hemp is an inferior source of CBD.
Proposed solutions:
  1. Simple solution: Completely legalize marijuana.  Then legally source CBD from “marijuana” – a better source for safe, quality CBD.
  2. Baby step: Increase the THC threshold for hemp from .03 percent to 1.0 percent or more. (For example, West Virginia defines hemp as cannabis with a THC concentration of less than 1 percent.)  This would improve the quality of hemp sourced CBD.
  3. Baby step: Law authorizing and regulating the maximum THC-levels of CBD products, regardless of plant source.

The Legal Grey Areas

Historical development

As is often the case with the law, the law relevant to the legal status of CBD is the result of history.  Metaphorically, lawyers and judges are like archaeologists – digging down through the layers to discover how the past influenced later developments, to arrive at the current state of the law.

The development of laws relating to the cannabis plant strongly influence the legal status of CBD is a because it is a component of the cannabis plant.  Those laws have been buffeted by controversy since about the end of the U.S. Alcohol Prohibition era, when the marijuana Prohibition era began. 

Since then, the political back-and-forth on marijuana laws over time has resulted in a ragged edge in the laws – legal ambiguities.  It’s a bit messy, but lawyers are trained to sort out such messes.  So here we go.

Conflicts

First, a succinct topical description of the conflicting policies and laws, will be followed by explanation.  The following legal factors interact and often conflict with each other:

  1. Restrictive Federal Hemp Research law (“Farm Bills”), vs.
  2. federal statutory recognition of State authority, vs
  3. preemption of State laws by federal laws, vs
  4. federal comity or non-enforcement policies (“Appropriations Acts” – no money to enforce; plus local U.S. Attorney discretion).

In Minnesota, the ambiguity seems to come from the federal laws, not our state laws, so we’ll look at the federal laws first.

Federal Legal Timeline

1970, Federalism, Down for the Count

The 1970 Controlled Substances Act introduced the idea of five “schedules” ostensibly based upon social risk vs. benefit.   Schedule 1 drugs are those claimed to have a high potential for abuse; and no currently accepted medical treatment use.

Despite expert disagreement with claims that marijuana had “a high potential for abuse and no currently accepted medical treatment use,” “Marijuana” was included in Schedule 1 in 1972,  

In 2018, thirty-one states now have legal medical marijuana programs, and fifteen states (e.g., Wisconsin) allow marijuana-sourced “low THC, high cannabidiol (CBD)” products for health use.  The majority of the U.S. population now lives in a state where medical marijuana is legal.  How do these facts square with the claim that it has “no currently accepted medical treatment use?”

Note that Minnesota adopted its own state version of the federal CSA, with five schedules of listed drugs.  It is not identical to the federal version.

Minnesota state sovereignty

Many do not know that Minnesota can remove or re-schedule marijuana out of Schedule 1, without regard to the federal CSA Others states have.  The State of Oregon rescheduled marijuana to its Schedule 2 in 2010.

Schedule 1:  marijuana and THC are listed, CBD is not listed

The federal CSA schedule defines “marihuana,” as the cannabis plant except for the mature stalks and non-germinating seeds.  THC is separately scheduled under the federal CSA — the only natural cannabinoid specifically scheduled.

chlorophyll

chlorophyll

CBD is not a scheduled drug under the CSA.  Plant components chlorophyll and CBD share the same legal status.  When sourced from marihuana, both chlorophyll and CBD are “schedule 1 drugs.”   Nevertheless, CBD itself is not scheduled. You won’t find it listed on the CSA.  Go ahead and check.  It’s not there.

Despite this welcome clarity in the law, some remain confused about this easily verifiable law.  For example, the Wikipedia entry for “Cannabidiol” (as of this writing), incorrectly claimed that Schedule 1 of the federal Controlled Substances Act lists Cannabidiol (CBD).  A five-minute online fact-check of the statute proves that CBD is not in Schedule 1 of the federal Controlled Substances Act.

2008, the Dawn of the Federal Non-enforcement policy

By 2008, state after state had passed laws decriminalizing marijuana, and legalizing medical marijuana; and the trend was clearly accelerating.

Prosecutorial discretion era

2009: “the Ogden memo” in 2009, instructed all U.S. Attorneys to make federal prosecution of marijuana possession a low priority, especially for people complying with a state’s medical marijuana law.

By 2012 in Colorado’s November 2012 general election, marijuana legalization got more votes than the winning Presidential candidate, Barack Obama.  Clearly, legalization transcended partisan politics and politicians took note.

2013: “The Cole memo” in 2013, suggested that federal prosecutors rely on the states to enforce state law except “marijuana-related conduct” within one of eight limited federal “enforcement priorities.”

The memos identified Controlled Substance Act enforcement priorities.  They encouraged federal prosecutors to avoid enforcing federal drug laws against “seriously ill individuals” using marijuana consistent with state laws.

In January 2018, U.S. Attorney General Sessions issued a Marijuana Enforcement Memorandum that rescinding the Cole Memorandum, and asking federal prosecutors to decide how to prioritize enforcement of federal marijuana laws. The Sessions memorandum asks local U.S. Attorneys to “weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General … .”

These administrative directives encourage federal comity to the states, and non-enforcement of federal marijuana laws against people legally authorized under state law.

2014, The Rebirth of Federal Legal Hemp – Baby Steps

Federalism returns – the statutory era
Hemp growing legal

Hemp growing legal

2014 “Farm Bill,” the Agricultural Act of 2014, 7 U.S.C. § 5940:  While legal experts insist CBD is already legal under the 2014 Farm Bill, some government agencies claimed the contrary.

Much of this confusion is due to a lack of attention to the importance of the source of the CBD under current law.  CBD is not the subject of these laws; hemp is.

Section 7606 of the 2014 Farm Bill provided for the legal cultivation by states of “industrial hemp” without a permit from the federal DEA (“Hemp Pilot Programs”).  The 2014 Farm Bill protected cultivators registered under a state’s hemp research pilot program, who cultivate cannabis containing no more than 0.3% of THC, and who meet the requirements imposed by their state department of agriculture.

Lawyers for the hemp industry argued that 2014 Farm Bill’s language is broad enough to include market research, including sales of hemp-based CBD products.  The federal Drug Enforcement Administration (DEA) had emphasized their view that CBD remains illegal under the Controlled Substances Act, leading to lawsuits by the hemp industry.

Court interprets the Farm Bill

Regardless of the DEA’s prior position, courts have recently weighed in, and clarified the law:

“The Agricultural Act provides that “[n]otwithstanding the Controlled Substances Act . . . or any other Federal law, an institution of higher education . . . or a State department of agriculture may grow or cultivate industrial hemp,” provided it is done “for purposes of research conducted under an agricultural pilot program or other agricultural or academic research” and those activities are licit under the relevant State’s laws. 7 U.S.C. § 5940(a). The Agricultural Act contemplates potential conflict between the Controlled Substances Act and preempts it.” HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, Court of Appeals, 9th Circuit 2018

The court emphasized that the 2014 US Farm Bill federally legalizing hemp where legal under state law, overrides any conflicting language in the 1970 Controlled Substances Act (such as the definition of “marijuana”).  Section 7606 of the 2014 US Farm Bill (the “Farm Bill”) allows states to grow “Industrial Hemp” defined as having less than 0.3% THC on a dry weight basis in states that have implemented agricultural pilot hemp programs.  Minnesota has done so. 

The Court found that the Farm Bill “contemplates potential conflict between the Controlled Substances Act [CSA] and preempts it.”  HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, No. 17-70162, 9th Circuit Court of Appeals, 2018.

2015:  Federal Nonenforcement – the Sequel, this time with Congress

2015: Consolidated Appropriations Act of 2016, Pub. L. No. 114-113, § 763, 129 Stat. 2242, 2285 (2015), limits the Justice Department from spending federal dollars to intervene in, or prosecute state-sanctioned activities involving marijuana or industrial hemp.

The court removed any doubt about the plain language of the federal statute, mandating federal non-intervention in state legal marijuana and hemp rights.

“The Consolidated Appropriations Act forbids the use of federal funds from being used “in contravention of . . . the Agricultural Act” or “to prohibit the transportation, processing, sale, or use of industrial hemp that is grown or cultivated in accordance with subsection section 7606 of the Agricultural Act of 2014.” Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 763, 129 Stat. 2242, 2285 (2015).”  HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, No. 17-70162, 9th Circuit Court of Appeals, 2018.

In 2014 and 2015, Congress passed the landmark Rohrabacher-Farr amendment to the Commerce, Justice, Science and Related Agencies (CJS) Appropriations Act, which prevents the federal Department of Justice from using any funds to interfere in state medical cannabis programs and bars ongoing federal cases.  Subsequently, state medical marijuana programs increased from 20 states to 31 states.

2017: DEA Rule by Fiat Fizzles

The court lays it out

New DEA Drug Code (7350) for Marijuana Extract – “went into effect on January 13, 2017:”

“Petitioners Hemp Industries Association, … (collectively “Petitioners”) petition this Court to review a final Drug Enforcement Agency (“DEA”) rule that establishes a new drug code for marijuana extract. We … deny the petition. … The rule went into effect on January 13, 2017, and Petitioners timely filed the instant petition for review that same day.  A party may petition a Court of Appeal for review of a final DEA decision, 21 U.S.C. § 877, but if the party fails “to make an argument before the administrative agency in comments on a proposed rule,” they are barred “from raising that argument on judicial review.”… The Final Rule put this question to rest when it rephrased the definition to apply to an “extract containing one or more cannabinoids [.]” 81 Fed. Reg. 90195 (Dec. 14, 2016).” HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, No. 17-70162, 9th Circuit Court of Appeals, 2018.

Then the DEA backtracks

The DEA’s Clarification of the New Drug Code (7350) for Marijuana Extract, concedes that the legal status of CBD is dependent upon the legal status of its source, though it fails to acknowledge the clear language of the law as quoted with approval by the court that the Farm Bill legalizing hemp overrides the federal Controlled Substances Act definition of “marihuana:”

“Because recent public inquiries that DEA has received following the publication of the Final Rule suggest there may be some misunderstanding about the source of cannabinoids in the cannabis plant, we also note the following botanical considerations.

As the scientific literature indicates, cannabinoids, such as tetrahydrocannabinols (THC), cannabinols (CBN) and cannabidiols (CBD), are found in the parts of the cannabis plant that fall within the CSA definition of marijuana, such as the flowering tops, resin, and leaves. 

According to the scientific literature, cannabinoids are not found in the parts of the cannabis plant that are excluded from the CSA definition of marijuana, except for trace amounts (typically, only parts per million) that may be found where small quantities of resin adhere to the surface of seeds and mature stalk.  …  

However, as indicated above, if a product, such as oil from cannabis seeds, consisted solely of parts of the cannabis plant excluded from the CSA definition of marijuana, such product would not be included in the new drug code (7350) or in the drug code for marijuana (7360), even if it contained trace amounts of cannabinoids.

Hemp CBD is effectively legal in Minnesota

After all of the above, the conclusion must be that CBD is effectively legal federally if sourced from federally-legal hemp.  Hemp is federal-legal if it complies with the federal “Farm Bill” which requires it be state-legal.  But CBD from “marijuana” sources remains, in 2018, illegal-federally.

Well, technically illegal.  “The Appropriations Act” language prohibits spending funds on federal prosecution where people are in compliance with State laws on marijuana and hemp.

So, though some state-legal hemp might arguably not be federally-legal (due to violating the Farm Bill’s restrictions), the Appropriations Act prohibits federal criminal enforcement.

In other words, CBD is legal if sourced from “Farm Bill”-complaint-hemp.

But even if not “federally legal,” the “Appropriations Act” language prohibits federal prosecution, provided it’s:

  • state legal-hemp sourced (even if not “Farm Bill” compliant); or
  • it is made from “marijuana” and state legal as part of the state’s medical marijuana program.

Non-cannabis sourced CBD products?

Beware claims that CBD is from a non-cannabis source and therefore legal.  Although theoretically possible, claims of commercially available, non-cannabis sourced CBD lack credibility, proof or factual support.  It’s just not commercially feasible, at least to date.  Beware claims made to the contrary.

2018:  Good Things Ahead?

These two key federal laws, often referred to as the “Farm Bill” and the “Appropriations Act,” have been renewed in subsequent laws with some variation in the intervening years since their first enactment.  A potential “Farm Bill” successor, the Hemp Farming Act of 2018 (the “2018 Farm Bill”) appears unlikely to pass in 2018.  It would have further improved the U.S. trade and economy from Hemp Agriculture, and included more protections for Hemp-sourced CBD.  Given its bipartisan support, it may yet be adopted in 2019.

IN MINNESOTA

Minnesota State Laws

General rule:
Minnesota flag

Minnesota law

Under Minnesota law, anything sourced from “marijuana,” is marijuana and as a result criminal to sell or possess in any amount.

Exceptions:

  1. Possession or gifting 42.5 grams or less plant-form marijuana, “a small amount,” has been decriminalized.
  2. Marijuana-CBD legally from the Minnesota Medical Marijuana program by a state authorized patient; or medically prescribed, pharmaceutical Epidiolex.
  3. Hemp-sourced-CBD. If from non-“marijuana” sources, it’s legal under Minnesota law.

There is no law that specifically addresses the legal status of CBD itself, in Minnesota.  Now, its legal status depends entirely upon its source.  If “marijuana” sourced, CBD is “marijuana” even if it contains zero THC.  Of course, that could change.

Of course, Minnesota could pass a law clarifying that CBD itself is legal regardless of source, perhaps also regulating production, content, and sale.

Non-“marijuana” sources of CBD:  Industrial hemp

Minnesota “Industrial Hemp Development Act.” Minnesota Statutes Chapter 18K (2018):

“18K.02 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” has the meaning given in section 152.01, subdivision 9.

18K.03 AGRICULTURAL CROP; POSSESSION AUTHORIZED.

Industrial hemp is an agricultural crop in this state. A person may possess, transport, process, sell, or buy industrial hemp that is grown pursuant to this chapter.

Minnesota law is clear; federal laws are a mess

Minnesota law on hemp is cleaner than federal law in that it avoids the convoluted federal “notwithstanding …” layered definitions and non-enforcement laws.

Minnesota law simply draws a clean and clear line, saying above the 0.3 percent on a dry weight basis THC threshold – it’s “marijuana.”  Below that threshold it’s “industrial hemp” and that “industrial hemp is not marijuana.”

Though, as discussed above, Minnesota should consider increasing the THC threshold to one percent, as West Virginia has done.  This compromise would allow for safer, quality hemp-derived CBD, and help solve some of the problems we are seeing today with unregulated CBD products.

Recommendations.  What solutions make the most sense? 
  1. Minnesota:  Legalize marijuana for responsible adult use, including small batch home-production commensurate with home-production of beer and wine.

  2. Federal: Repeal all laws criminalizing marijuana, resume federalism by leaving it to the States.  Carve out federal recognition of legal hemp and hemp products, and their free trade in interstate commerce.

  3. Baby step solutions – detailed above.

Thomas C. Gallagher, Minneapolis Criminal Lawyer

Thomas C. Gallagher, Minneapolis Criminal Lawyer

DISCLAIMER:  Nothing in this article, comments, or this blog is legal advice.

COMMENTS are welcome below.

Author Thomas C. Gallagher is a Marijuana Lawyer with a criminal defense practice in Minneapolis; and is a Minnesota NORML Board Member.