Category Archives: drug laws

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.

How to Avoid a Marijuana Arrest in a Car in Minnesota: Top Nine Tips

The other day I was talking to a prosecutor.  I told him that we needed to keep client’s public record clean.  We don’t want words like “marijuana,” “drug paraphernalia,” and “criminal conviction” there.  And he mischievously said, “You know how he could avoid all that, don’t you?  Don’t get caught. He was joking, but like many jokes there was some truth in it.  So, how can you avoid a marijuana arrest in a car?

Safety in the final days of Prohibition

Avoid a marijuana arrest: do not consent to any search

Avoid a marijuana arrest: do not consent to any search

As of this writing, ten states have legal marijuana for responsible use by adults 21 years and older.  And, most of the U.S. population now lives in a state with legal medical marijuana, including Minnesota.  And hemp is now legal in Minnesota.  Today in Minnesota, not all marijuana is illegal to possess.

We should all know by now that marijuana is safer than alcohol.  After all, there is no lethal overdose possible with marijuana, unlike alcohol, aspirin, and many prescription drugs.

But in Minnesota in 2019 despite a majority in the polls favoring legalization, criminal Prohibition lingers on, destroying innocent lives.  We should re-legalize in Minnesota.  And here is What Marijuana Legalization Should Look like in Minnesota.

In the meantime, know your rights.  And watch your six!

What can you do to reduce the chance of getting caught? Here are nine tips for avoiding a marijuana arrest in a car:

1. Situational awareness

Guess where the vast majority of police contacts with people happen?  Correct – in or near a motor vehicle.  As a result, the best way to avoid a marijuana criminal charge is to avoid having marijuana in your vehicle.

Complacency can set in.  If it hasn’t happened yet, it never will.  Right?

Be smart.  Play the long game.  If a scenario is unlikely, with repetition (miles traveled in the car), it will inevitably happen.

There will be a traffic stop.  And when it does happen; marijuana should not be in the car.

Minnesota:  If the prudent marijuana smoker does carry marijuana in the car only when absolutely necessary, she:

  • keeps it under the “small amount” 42.5 grams, plant-form only (not concentrates), but
  • always in the trunk of the car (to avoid a “marijuana in a motor vehicle” charge).

Beware: a “small amount” of marijuana concentrates such as THC oil, dabs, marijuana wax, is always a crime under a loophole in Minnesota’s decrim law.  And over 1/4 gram of the resinous form of marijuana is a felony in Minnesota under that technicality.

The number one way to avoid a marijuana arrest in a car is: don’t have it the car.

2.  Odor

The most common excuse police officers use as probable cause to search after a traffic stop is “odor of marijuana.” The odor can be either fresh or burned.  But this is prone to abuse by police officers since it’s impossible to verify.

Even so, avoid having the odor of marijuana either on your person or in your car.

And, if the odor of marijuana is there, be sure not to have any actual marijuana in your car.

Have you or anyone you know experienced “nose blindness?”  A cigarette smoker may not be able to smell the odor of past cigarette use on another.  And a person who has been drinking alcohol– can’t smell the odor of alcohol on another person.  But non-users can smell it, right off.

Assume that if you’ve been smoking it that day, there is odor.  If it’s been smoked in the car, the odor is probably lingering in the car for a day or more.  (Tip: don’t ever smoke in the car.)

The second way to avoid a marijuana arrest in a car is: don’t smoke in the car. Don’t have fresh in the car.  And avoid any odor in the car.

3.  Consent? 

“No, officer, I do not consent to a search.”

Remember Paul Simon’s song “50 ways to leave your lover?”  Similarly, there are at least fifty ways to tell a police officer that you do not consent to any searches.

“I’m late, for a very important date.”

“Officer, am I being detained? I’m late, for a very important date.”

Make an excuse if you like: “I’m late, for a very important date.”  But no excuse is necessary.  You should not offer any justification for refusing a search.

Be confident and politely insist. After all, it’s your legal right to be secure from searches and seizures, unless they have a search warrant or an exception to the warrant requirement.  That’s the Fourth Amendment.

The rape metaphor:  One of those exceptions is a consent search.  Police often ask people “do you mind if I search”?  The correct answer is, “I do not want to be searched.”  And if police coerce you into “consent to a search,” is that really consent?

Change it to sex.  If someone coerces you into sex, did you consent?  Your lawyer may need to make that argument.  Far better if you resist all coercion, and do not consent.

If you do consent to a search, you’ve waived your right to object to it later.  Also, if police know they have no legal basis to search without “consent,” then they may leave without searching.

The third way to avoid a marijuana arrest in a car is: do not consent to any search.

4.  You can do both

Don’t lie and don’t admit. How?

Remain silent.  Or if words do come out of your mouth make sure that they are:

  • not lies, and
  • do not relate to illegality.

More than half the people stopped by police in traffic, when questioned about “marijuana in the car?” after the police officer claims “odor” will either lie or admit having marijuana in the car, often then telling the police where it is.  Wrong answer!

Instead, remain silent – meaning you do not produce words.  Tightening your lips may help your resolve.  If you do say something, change the subject.  And avoid talking about whether there is marijuana in the car or not.  And again, do not consent to a search.

Police will try to make you think: “Busted.  The jig is up. May as well come clean now.  Give up.  You cannot win at this point.”

But don’t believe that for a minute!  Be ready for that trick.  Knowing the law can help keep your confidence level up, and help you avoid or minimize legal trouble.

The fourth way to avoid a marijuana arrest in a car is: avoid talking to police.

5.  Unlawfully prolonged detention

“Am I free to leave?”  Police stop you for a headlight out.  Normally it takes ten minutes to complete the stop.  Then they hand you the ticket, and walk away.  The government intrusion upon your liberty is over.  And you are “free to leave.”

Now, let’s change the scenario.  Police stop you for something normally resulting in a traffic ticket in ten minutes.  But this time the officer prolongs the detention.  Is that legal?

The courts apply a “totality of the circumstances” balancing test.  Courts balance the intrusion upon your Liberty, against the reasonable suspicion of criminal activity.

Avoid a marijuana arrest: "Officer, am I free to go?"

Avoid a marijuana arrest: “Officer, am I free to go?”

But one factor is: “did the person acquiesce to the detention?  Did the person communicate a desire to leave?

Police may say in court that “at that point, the person was free to leave; the prolonged time was consensual.”  If believed, then the prolonged detention needs less justification; fewer facts supporting a reasonable suspicion of criminal activity.

Since “Fleeing a police officer” is a crime, whether police are detaining should be a simple black and white question.  Either you are “free to leave,” or not.

It’s best to make a record.  Ask: Officer am I free to go? And do it more than once.  Say it loud and clear, for the camera.  If you’re asking, you’re winning.

This will help your lawyer challenge the legality of the prolonged detention, search and arrest later.

Or, just start slowly walking away, to force the police officer to tell you to stop.  (Yes, you can walk away from a car stop even if you’re the driver.)

The fifth way to avoid a marijuana arrest in a car is: if you’ve been detained for a while, ask “officer, am I free to go?” Repeat as necessary.

6.  “You have the right to remain silent.”

Button your lip: Remain silent

Button your lip: Remain silent

When you hear that, that is your cue to – what?  It’s your cue to stop forming words and allowing them to escape your mouth!

It’s best to say nothing.  But if you want to say anything:  “Officer, I am not a lawyer or a police officer. I need to assert my legal right to remain silent, and to consult legal counsel before talking.”  Repeat as necessary.

No matter what they do or say, they cannot require you to speak.  So don’t.

But follow physical police commands to:

  • show your hands,
  • lie down,
  • hands behind your back,
  • stand over there. 

Again, however, do not speak.

The sixth way to avoid a marijuana arrest in a car: do not talk about marijuana, smoking, if you have any, where it is, anything at all.

7.  Field Exercises

Sometimes police want to build a case for marijuana impaired driving.  They ask you to perform “Field Sobriety Tests.”

But these are not scientifically valid.  And their purpose is to incriminate.  Even completely sober people have a difficult time “passing” them.  If you do them, you will fail.  If you don’t, you won’t.

What to do?  Don’t! 

Police cannot legally require you to do these field exercises.  They include the “Nine-step walk and turn,” “One leg stand,” “Horizontal Gaze Nystagmus” eye test.  So, you can and should refuse to do any of these.

When you do, the police officer may invite an excuse.  But don’t take that bait!

Any excuse could be incriminating.  Instead say: Officer, I am aware of my legal rights.  And I respectfully choose not to do any field exercises or tests.”  Police will ask you again and again.  So just keep repeating that you choose not to do them – no excuses.  (Who cares if you have one leg! That’s beside the point.)  It’s your legal right.

Important:  (If the police officer has a factual basis to suspect impaired driving, she can request that you blow into a Preliminary Breath Test (PBT) machine.  And if you refuse, she can arrest you for that refusal.)

The seventh tip for avoiding a marijuana arrest in a car is: politely decline any request to perform Field Sobriety Tests.

8.  Smile, you’re being recorded

From the traffic stop, to sitting in a squad car, to the police station, assume that you are being recorded.

This recording may later hurt you, or help you.  And even when alone or with another person in the back of a police car, this is recorded.  The recording is on, even when no police officer is in the car.  Heads up!

Phone calls from jail are recorded for later use as evidence.  Be aware of this.  Avoid talking about the case in any of these contexts.

The eight tip for avoiding a marijuana arrest in a car is: be camera aware.

9.  Keep your cool

If arrested, hitting the panic button will only make it worse.  Police may try to exploit your trauma and emotional upset.  So remain calm, cool, collected.

You can win the long game, by playing defense in the short game.  You or someone on the outside can help you contact a Minnesota criminal defense lawyer and if need be, a bail bond agent.  And most people will be able to get out within a few days or less.

The ninth and final tip for avoiding a marijuana arrest in a car is: don’t let them push your buttons.  Keep your cool.  Quiet confidence wins.

Liberty-Lawyer.com logo sm wideThomas C. Gallagher is a Minneapolis marijuana lawyer frequently representing people charged with possession of marijuana and related “crimes” in Minnesota.  In his spare time, he works on legalizing marijuana as a Board Member of Minnesota NORML.

Have a comment?  You are welcome to leave comments and responses below.

Thomas C. Gallagher Elected Chair of Minnesota NORML Board of Directors

On September 16, 2017 the Board of Directors of Minnesota NORML elected Thomas C. Gallagher to the position of Chair of the Board.  Gallagher is a Minneapolis Criminal Lawyer who twice campaigned for election as a Representative in the Minnesota House in District 61B (incumbent Paul Thissen) in 2014 and 2016.  He was the endorsed candidate of Republican Party of Minnesota in both election cycles.

Minnesota NORML is a non-partisan Minnesota Nonprofit with 501(c)(4) status,” Gallagher noted.  “Our goal is legal marijuana in Minnesota for responsible adult use.  Minnesotans should have equal rights to cannabis as to beer and wine.  This means age 21 and older, taxed and regulated the same as beer and wine, and legal small batch home production.”

Thomas C. Gallagher, Chair, Minnesota NORML

Home grow” Gallagher said, “is essential.  Ending marijuana prohibition is only incidentally about marijuana; it is really about personal freedom.  We want to empower the People, support Liberty for all.  With legal home grow, anyone can grow their own cannabis for medicinal or personal use with little money.  Freedom should not be limited to people with money.”

“Now that all major polling shows majority support for legalization of marijuana (and a super-majority for medical marijuana), why – in a democracy – is the will of the People not yet enacted into law?” Gallagher asks.

If our elected officials lack the political courage to enact the will of the People, then we say “Let the People Decide!”  Bills in the Minnesota legislature would place a constitutional amendment on the general election ballot to, finally, legalize marijuana for responsible adult use like beer and wine.  Even politicians unwilling to support legalization should be able to support democracy, the vote and “allowing” the People to decide.  We support these Bills.

“It’s not inevitable.  There are vested interests who now profit from the current Prohibition regime fighting hard to reverse the progress we’ve made, and to stop the return of Freedom to the People of Minnesota,” Gallagher warned.  “’How soon will it be legal?’ people ask me.  ‘How soon will you join us working hard to make it happen?’ is my smiling reply” says Gallagher.

For the City Pages article: New NORML chair is a Republican lawyer with tips on driving with marijuana.

Minnesota NORML holds monthly Members Meetings and other events and activities to help people connect and get involved.  For further information:
https://mnnorml.org/
https://www.facebook.com/mnNORML

#LetThePeopleDecide

Less Than One-Quarter Gram Possession Gross Misdemeanor Crime < Minnesota Laws 2016

One quarter gram marijuana wax threshold

Quarter gram marijuana wax:  The Minnesota Legislature made some changes to Minnesota “Controlled Substance” laws, effective August 1, 2016.  One created a Gross Misdemeanor level crime for certain “controlled substance” possession crimes, for less than 0.25 grams or one dosage unit or less.

Limitations

Limited to first-timers, this law applies to a person “who has not been previously convicted of a violation of this chapter …”  And the law applies to all “controlled substances” other than heroin.

Before this 2016 law, even these amounts of marijuana wax were charged as felonies.  A felony drug conviction can trigger lost jobs, lost of civil rights, immigration consequences.  The law steps in the right direction.

The statutory language:

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 …”

hash-quarter-gram-lighter

one-quarter gram of hash relative to the size of a lighter

Does this mean defense lawyers 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 marijuana wax, dabs?

Small Amount Currently Plant-form Only

Minnesota law 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.

However, when it comes to the “resinous form of marijuana” exception (presumably marijuana wax, dabs, THC oil),  the “small amount” definition would not apply.  But the new trace amount Gross Misdemeanor possession law would apply – rather than a felony as before August 1, 2016.

Dosage units

When could quantity be charged in dosage units, rather than weight?

We can be divide these into two categories: prescription drugs and underground-economy drugs.  Most people possess prescription drugs in pill form.  A “dosage unit” could be one pill, or more than one, 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”).  

A grey area:  What about edibles like THC gummies?  Is one a “dosage unit?”  What about a marijuana wax cartridge?

Medical marijuana produced by a legal-maker should be treated like prescription drugs.

Pre-trial Diversion & Statutory Stay of Adjudication

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, Gross Misdemeanor, since the charge is a Fifth Degree charge against a person without prior drug convictions.

New Legislation Needed

Is it fair to charge a person with a Gross Misdemeanor or Felony crime for possession of a small amount of marijuana wax?  The “small amount of marijuana” definition statute, quoted above, should be amended to delete the words “This provision shall not apply to the resinous form of marijuana.” 

We, the People, should have our rights respected by government to marijuana and marijuana wax, equal to our rights to beer, wine and liquor.

Short of legalization, however, we should at least delete the “resinous form” exception to the definition of a “small amount of marijuana.”  If Minnesota did so, at least People with a small amount of marijuana wax (42.5 grams or less) would not be treated like criminals.

Gallagher-Defense-logo-gr-ps-sm

Thomas Gallagher is a Minneapolis Drug Defense Lawyer, since 1988.  He is also serves on the Board of Directors of Minnesota NORML, since 2011.

Remove Marijuana from Schedule 1 in Minnesota?

Has the time come to remove marijuana from Minnesota’s Schedule 1 of the Minnesota Controlled Substances Act?  Yes, the time has come.  Here is an explanation of why; and how you can help make it happen before more lives are destroyed by this irrational and unjust law. we-the-people-norml

The Minnesota Controlled Substances Act (Minnesota Statutes Chapter 152) is similar to the Federal Controlled Substances Act (21 United States Code Sections 801 et seq) in that it creates lists, or “schedules” of drugs, numbered one through five.

Drugs listed in Schedule 1 are supposed to be a drug or other substance that has a high potential for abuse, has no currently accepted medical use in treatment in the United States, or lacks accepted safety for use of the drug or other substance under medical supervision.  Examples of Schedule 1 drugs include the opiates, such as heroin, morphine, etc.

A “Schedule 2” drug is meant to include drugs with a high potential for abuse, a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions, and, abuse of the drug or other substance may lead to severe psychological or physical dependence.  Examples of Schedule 2 drugs include cocaine, methamphetamine, and phenobarbital.

Schedules 3 and 4 are thought to include drugs less harmful or prone to abuse than those the government has listed in Schedule 1 and 2. Schedule 5 includes drug or concentrations of drugs the government thinks are less dangerous or prone to abuse relative to the drugs or other substances in schedule IV, has a currently accepted medical use in treatment in the United States, or abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV.

Where has the government seen fit to categorize marijuana within this scheme?  Currently, they still list marijuana as a “Schedule 1” category drug, right in there with heroin.  Apparently the government views marijuana as more dangerous than methamphetamine, which is only a Schedule 2 drug.

What difference does it make?  Lots.  But here are two big ways it makes a difference where the government categorizes marijuana within its laws: harming people and public safety with criminalization, and harming people and public health by creating a legal barrier to legal medical marijuana treatment.

Criminalization

As the Minnesota Controlled Substances Act (Minnesota Statutes Chapter 152) is currently written, removing marijuana from all “schedules” listed (sometimes called “descheduling”) would have limited impact since most controlled substance crimes specifically list marijuana by name.  Moving it from Schedule 1 to Schedule 2 would appear to make no difference at all, as far as criminalization is concerned.

Medical Treatment with Marijuana

How can  there be a legal medical marijuana program under Minnesota law, and yet still have marijuana listed as a “Schedule 1 drug,” which is defined as having no currently accepted medical use in treatment?  Is Schedule 1 marijuana really more dangerous than Schedule 2’s methamphetamine?  After all, at least 23 of the 50 states now have legal medical marijuana programs and nearly half the U.S. population lives in states where medical marijuana is legal today.  “No currently accepted medical use in treatment?”  Really?  To the contrary, marijuana is currently accepted medical treatment, across the United States.

Allowing inertia to continue marijuana in Schedule 1 has harmful implications for public health of the people of Minnesota.  It creates innumerable difficulties for sick people who are just trying to treat their illness, including insurance issues.  This in turn creates unfairness for the ill and disabled who have a low-income, or could be driven into the underground market for medicine.

We ought to take our laws seriously and change them to reflect reality and truth, as best we can.  We need to amend Minnesota law to remove marijuana from Schedule 1, either into Schedule 2 or complete descheduling (remove from all Minnesota Controlled Substances Act schedules).

A bipartisan Bill recently introduced into the United States Senate would move marijuana from the federal Schedule 1 to Schedule 2 (titled the Compassionate Access, Research Expansion and Respect States or “CARERS” Act.)  We should get this done in Minnesota at our state legislature, first. The Minnesota State Senate now has a Bill pending to amend the Minnesota Controlled Substances Act to add various drugs and substances to the various Schedules.

This is a perfect opportunity for us to urge the Minnesota Senate and Minnesota House to amend that Bill to either deschedule marijuana, or at least move it down to Schedule 2. In 2011, the Minnesota law was changed so that the Minnesota Pharmacy Board no longer has authority to move drugs or other substances out of Schedule 1.  Only the Minnesota legislature can do it now.

So pick up the phone, send a letter, or otherwise contact your Minnesota State Senator and House Representative and ask them to support an amendment to SF 1219 and HF1376 to deschedule marijuana or reschedule it to Schedule 2.

Thomas C. Gallagher is a Minneapolis Defense Attorney representing people accused of marijuana crimes, and serves on the Board of Minnesota NORML.