Monthly Archives: January 2015

Minnesota’s Incomplete Marijuana Decriminalization – Resinous Form Exception

Minnesota 1970s partial decriminalization of marijuana

In 1976, Minnesota decriminalized possession of a “small amount” of marijuana. Or did it?  Minnesota has only partially decriminalized a small amount of marijuana, in plant-form only.  But the law left a loophole for “the resinous form of marijuana,” which was still a felony.  The resinous form comes in many forms under many names.  These include THC oil, dabs, marijuana wax, and concentrates.

Prehistoric marijuana forms

Hashish is marijuana. It is a compressed plant-form of marijuana.

People around the world have safely used it for thousands of years for social, medicinal and religious purposes.  See: Religious use of marijuana defense prevails in Minnesota Rastafarian case.

Cannabis-plant trichomes, flower and leaf fragments are hashish.

Hashish: compressed plant material

Hashish: compressed plant material

Mechanical methods remove the trichomes from the plant, screening by hand or with motorized tumblers.  Just heat and compress the resulting powder into hashish. 

Does hashish fit the definition of “the resinous form” of marijuana in Minnesota Statutes?  Probably not, since it is still plant-form, not the chemically processed “resinous form.”

Hashish is less common these days in Minnesota.  It generally comes from parts of the world where traditional.  Most marijuana in Minnesota today is from the United States.

The resinous form – extracted resin

Chemical separation methods use a solvent like ethanol, butane or hexane to dissolve resin.  Then, filter the result.  And boil off the solvent to leave behind the resins – called honey oil, THC oil, marijuana wax, dabs, shatter.  All of these are the “resinous form.” 

It’s also a common an ingredient in medical marijuana edibles.

The problem:

Minnesota Statutes contain technical definitions that don’t always make common sense.  Sometimes statutory definitions are inconsistent with a dictionary definition or common understanding of a word.  In this case, Minnesota Statutes Section 152.01, subdivision 16, defines a “small amount” of marijuana as 42.5 grams or less, but says “this provision [defining a “small amount”] shall not apply to the resinous form of marijuana.”

In Minnesota, prosecutors can charge possession of 1/4 gram or more of “the resinous form of marijuana” as a felony.  That includes a “small amount” or less than 42.5 grams – about 1.5 ounces.  Victims of the law include medical users from other states, found with a small amount of resinous form in Minnesota.

In contrast, the law decriminalizes 42.5 grams (slightly less than 1.5 ounces) of plant-form marijuana in Minnesota.  It’s a petty misdemeanor; not a crime; cannot legally be the basis of an arrest; with the only penalty being a fine.  See, Minnesota Statutes Section 152.027, subdivision 4.

Why exclusion of “resinous form of marijuana” makes no sense:

THC Oil. Similar to dabs, marijuana wax

THC Oil. Similar to dabs, marijuana wax

It’s marijuana:  There is no question that the “resinous form of marijuana” (honey oil, dabs, cannabis wax, etc.) is marijuana.  It’s simply a form of marijuana.  Another provision of Minnesota law explicitly recognizes this.

The definition of “Marijuana” in Minnesota Statutes Section § 152.01, subdivision 9, defines it as:

“all parts of the plant of any species of the genus Cannabis, including all agronomical varieties, whether growing or not; the seeds thereof; the resin extracted from any part such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin…”

Minnesota Legislative Public Policy favors the resinous form:

In 2014 the Minnesota legislature and Governor adopted into law a medical marijuana program.   They specifically found that the resinous form of marijuana was safer and preferable to the plant-form of marijuana.  Minnesota law now contains a preference for the resinous form of marijuana, over the plant-form.  This is the legislature’s declaration of public policy.

Minnesota medical marijuana program participants can lawfully possess and use the resinous form of marijuana obtained through the program.  But they now become criminal if they use or possess the plant-form of marijuana.

Marijuana is marijuana. But is a small amount a small amount? 

Minnesota law makes clear that THC oil, dabs, marijuana wax, and concentrates – “the resinous form of marijuana” – is marijuana.

If someone possesses “a small amount” why should it matter whether it’s the plant-form or the resinous-form?  A small amount is a small amount.  One should not be a felony crime while the other is “not a crime.”

Close the loophole in the law?

Has the time come to update Minnesota’s 1970s era decriminalization law?  To treat small amounts of all forms of marijuana equally? 

More importantly, should Minnesota make felons out of people who possess a small amount of the “resinous form of marijuana”?  Most people don’t comprehend a meaningful distinction between marijuana in plant form versus resinous form.   People typically think they’re complying with the state’s decrim law – only to discover their error after it is too late. 

The law makes felons on a technicality.

The law should be consistent.  Simplicity is a virtue in the law.  And it should treat people fairly.  It should not create felons based upon arbitrary distinctions and technical legal definitions that don’t make sense.

The recent reduction of less than one-quarter gram of less to a Gross Misdemeanor is nearly meaningless.  Marijuana should be legal.  Two-thirds of the voters polled want legalization.  But if politicians keep us waiting, at least close the loophole in Minnesota’s “small amount” decriminalization law.

The simple remedy?

The Minnesota legislature can fix this.  How?  Pass a Bill amending Minnesota Statutes Section § 152.01, subdivision 16, defining a “small amount” of marijuana.  Just delete the language “this provision shall not apply to the resinous form of marijuana.

That simple solution should solve this problem, and bring a little more common sense and equity into the law. logo

Thomas Gallagher is a Marijuana Lawyer in Minneapolis, and serves on the Board of Directors of Minnesota NORML.