Category Archives: marijuana laws

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://www.nhtsa.gov/sites/nhtsa.dot.gov/files/809725-drugshumanperformfs.pdf

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.

Prohibtionist talking points

Despite majority support for legalization, a vocal minority loudly repeats the same old tired, disproven talking points to prop up Prohibition laws in Minnesota.  For example, Is DUI-Marijuana a reason not to legalize in Minnesota?

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.

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