In 1976, Minnesota decriminalized possession of a “small amount” of marijuana. Or did it? Minnesota has only partially decriminalized a small amount of marijuana. Here is how.
Hashish is marijuana (or cannabis). It is a compressed preparation of marijuana, that people around the world have safely used for thousands of years for recreational, medicinal and religious purposes. It’s made of cannabis-plant trichomes, flower and leaf fragments. Mechanical methods remove the trichomes from the plant, screening by hand or with motorized tumblers. The resulting powder is heated and compressed 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 chemically processed .
Chemical separation methods use a solvent like ethanol, butane or hexane to dissolve resin, which is filtered. Then the solvent is boiled off leaving behind the resins – called honey oil, “hash oil,” wax, dabs, shatter – the “resinous form.” The “resinous form of marijuana” is commonly an ingredient in medical marijuana edibles.
Minnesota Statutes contain technical definitions that don’t always make common sense, and are sometimes 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.”
Increasingly in Minnesota, people found by police to be in possession of a small amount of marijuana wax or similar “resinous form of marijuana” are being charged with felony crimes. Under current Minnesota law, any amount – even a small amount – of marijuana oil, cannabis wax, or a similar “resinous form of marijuana” can be charged as a felony crime. This includes people who are lawful medical marijuana users in other states, found with a small amount of the resinous form of marijuana in Minnesota.
In contrast, 42.5 grams (slightly less than 1.5 ounces) of plant-form marijuana is decriminalized 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 the exclusion of “resinous form of marijuana” makes no sense:
It’s marijuana: There is no question that the “resinous form of marijuana” (honey oil, 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 Public Policy favors the resinous form over the plant-form: In 2014 the Minnesota legislature and Governor adopted into law a medical marijuana program which specifically found that 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, as a matter of legislatively declared public policy. Minnesota medical marijuana program participants will be able to lawfully possess and use the resinous form of marijuana obtained through the program, but will be deemed criminal if they use or possess the plant-form of marijuana.
If someone does possess “a small amount” why should it make any difference whether it’s plant-form or the resinous form of marijuana? A small amount is a small amount. One should not be a felony crime while the other is decriminalized.
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 law continue to make felons out of people in Minnesota who possess a small amount of the “resinous form of marijuana”? The technical distinction between marijuana in plant form versus resinous form is lost on most people, who typically believe they are in compliance with the state’s decrim law – only to discover their error after it is too late.
The law should be consistent. It should treat people fairly. It should not create felons based upon arbitrary distinctions and technical legal definitions that don’t make sense.
The simple remedy?
The Minnesota legislature can fix this. How? Pass a Bill that amends Minnesota Statutes Section 152.01, subdivision 16, defining a “small amount” of marijuana, to delete the language “this provision shall not apply to the resinous form of marijuana.” That should solve the problem, and bring more common sense and equity into the law.
Thomas Gallagher is a Marijuana Lawyer in Minneapolis, and serves on the Board of Directors of Minnesota NORML.