The 2016 Minnesota Legislature made some changes to Minnesota “Controlled Substance” crime laws, effective August 1, 2016. One of those created a new Gross Misdemeanor level crime for certain “controlled substance” possession crimes, for less than 0.25 grams or one dosage unit or less – but only for a person “who has not been previously convicted of a violation of this chapter or a similar offense in another jurisdiction; and only for possession of “controlled substances” other than heroin. This is an improvement since before this new law, even these tiny amounts were charged as felony level crimes; and since a felony conviction can render a person unemployable in many jobs, lifetime loss of civil rights, severe immigration law consequences, and other big problems.
The statutory language is:
Minn. Stat. §152.025, Subd. 4 (a)(1) “the amount of the controlled substance possessed, other than heroin, is less than 0.25 grams or one dosage unit or less if the controlled substance was possessed in dosage units …”
Does this mean defense lawyer will no longer need to litigate trace amount issues and cases? No. A Gross Misdemeanor is still a serious crime. Also, this new law does not apply to heroin or federal cases.
What about marijuana, including derivatives such as hashish, wax, dabs? Minnesota law still defines possession of a “small amount” of plant-form marijuana as a petty misdemeanor (not a crime, violation-fine only). Minnesota Statutes §152.01, Subd. 16 defines Small amount: “‘Small amount’ as applied to marijuana means 42.5 grams or less. This provision shall not apply to the resinous form of marijuana.” So, 0.24 grams or less of plant-form marijuana could be charged a petty misdemeanor violation, not a gross misdemeanor. When it comes to the “resinous form of marijuana” (presumably hashish, wax, dabs, etc.), however, the “small amount” definition would not apply but the new trace amount Gross Misdemeanor possession law would apply – rather than a felony crime as before August 1, 2016.
What drugs could be charged as a quantity expressed in dosage units, rather than weight? These could be divided into two categories: prescription drugs and underground economy drugs. Most prescription drugs are made into and possessed in pill form. A “dosage unit” could be one pill, or could be more than one pill, depending upon the recommendation of the drug maker, pharmacist, or prescribing physician. For underground economy drugs, “one dosage unit” could be more than one pill, or more than one square of blotter paper with LSD on it. For example, see State v. Palmer, 507 NW 2d 865 (Minn.App. 1993) (“four small squares on each sheet constituted a ‘hit’ or dosage unit.”). Medical marijuana produced by a legal maker may be the same as prescription drugs, in terms of evidence of dosage units.
What about Minnesota Pretrial Diversion programs and statutory Stays of Adjudication under Minnesota Statutes §152.18? They are still available for those charged with Minnesota Fifth Degree “Controlled Substance” Crime Fifth Degree, Gross Misdemeanor, since the Gross Misdemeanor charge is a Fifth Degree charge against a person without prior drug convictions.