Category Archives: Proposed legislation

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 its 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.

Romeo and Juliet Law: Minnesota Sex Crimes Based On Age

Juliet is “not yet fourteen”

In Shakespeare’s Romeo and Juliet, Lady Capulet said her daughter is “not yet fourteen.”   Juliet was two weeks from her fourteenth birthday.  Ready for marriage, her mother said.  Though we never are told her lover Romeo’s age, it’s apparent that he is also a teen.  Romeo is older, but still of tender chin (without beard).  Today, that would be “statutory rape,” a crime.  Should we make young lovers into criminals?  Should Romeo have to register as a predatory offender in Minnesota?  Or should Minnesota pass a Romeo and Juliet law to  spare them?

Each from families bearing grudges towards each other, the star-crossed lovers’ fate is tragic.  But were they criminals?  Not then, as Juliet’s mother makes clear.

Romeo and Juliet Law

Would prosecutors charge Romeo and Juliet with age-based sex crimes in Minnesota today?  Prosecutions of young people like them are common in juvenile and adult criminal courts in Minnesota.  Should we change the laws in Minnesota to decriminalize young love?  Should foolish love be a crime?

“Oh, what a tangled web we weave; When first we practise to deceive!” (from Marmion; A Tale of Flodden Field, by Sir Walter Scott.)

“Statutory rape”

Age-based sex crimes are crimes based upon some aspect of sex, plus a too-young age.  Common law rape required an element of force, coercion or lack of consent.  A more recent invention, “statutory rape” does not require force or lack of consent, involves quite consensual acts.

But it rests upon a legislative fiat that a person younger than 16, for example, is mentally feeble; incompetent to consent to sexual acts.

See, Minnesota Statutes §609.342, subdivision 1 (a):

“Neither mistake as to the complainant’s age nor consent to the act by the complainant [sic] is a defense.”

The “complainant” usually opposes the prosecution.  Minnesota could make a Romeo and Juliet law so that consensual acts by young people are no longer a crime.

Double standard in Minnesota law

This premise “incompetence to consent” appears false.  After all, the minimum age for competence to be criminally prosecuted in a Minnesota delinquency petition is ten years old. See, Matter of Welfare of S.A.C., 529 N.W.2d 517 (Minn. App. 1995).

Why would the same laws deem a ten-year-old competent intend a criminal act, but consider a thirteen-year-old like Juliet incompetent to intend sex?  A tangled web, indeed.

“O Romeo, Romeo, wherefore art thou Romeo?”

O Romeo, Romeo, wherefore art thou Romeo? Rome and Juliet law, statutory rape in Minnesota

O Romeo, Romeo, wherefore art thou Romeo? Rome and Juliet law, statutory rape in Minnesota

Do we really want to permanently label our Romeos and Juliets “sex criminals,” for the crime of being young lovers?

Do we want them to have to Register as a Predatory Offender for ten years to life?

Many of Minnesota’s “statutory rape” laws contain exceptions for lovers within a range of 24 to 48 months.  But for those outside these exceptions “mistake of age,” they say, is not a defense.  Minnesota could pass a Romeo and Juliet law to end the criminalization of young lovers.

The Party was trying to kill the sex instinct, or, if it could not be killed, then to distort it and dirty it.”   — George Orwell (1984)

Sexting and proximity

These days, we can categorize the growing list of sex crimes based upon proximity: penetration, touch, and non-touch.  When sexual penetration is criminal, it is a more serious crime than touch.  Touch in turn is generally thought to be more serious than non-touch.  Examples of non-touch sex crimes include child pornography or indecent exposure.

21st Century Romeo and Juliet

Before our modern-day Romeo and Juliet became lovers, their flirting included sexting.

Young lovers have been around long before Minnesota criminalized them.  But some non-touch sex crimes are an artifact of recent technology, like smart phones.  Most kids have them these days, and take pictures with them, sometimes naked and arguably sexual images of themselves.

Then they share them with each other over cell phone towers and Wi-Fi connections to the internet.  The images may be on their phones or in the data cloud.  Sexting is a new word.  It merges and abbreviates “sex texting.” Sexting is sending images via text messaging applications.

Minnesota laws have not kept pace with the times.  Should every foolish act be made a crime?  Our laws criminalizing child pornography are now being used to prosecute young people.  Prosecutors are charging young people for taking naked and arguably sexual images of themselves, then sharing them with each other.

Can a picture of yourself be child pornography?

A criminal Complaint or Petition for Adjudication of Delinquency accuses them of Possession or Dissemination of Child Pornography. Minnesota Statutes §617.247.  Such prosecutions violate the young person’s right to freedom of speech and expression under the U.S. Constitution as well as the Minnesota Constitution.

We can do better.  Let’s change the laws to make them less unfair.  Let’s pass a Romeo and Juliet law to spare young people from being made into criminals.

Predatory Offender Registration for juveniles

Can a juvenile be a “predatory offender” due to sexting or being a young lover?

Labeling juveniles “predatory offenders,” requires them to register their whereabouts, vehicles, schools, addresses, and on and on.  And it sends them to prison if they slip up any little part of doing so.  Is that what we really want to do after a juvenile had consensual sex with her beloved, or after sexting?

Rehabilitation vs. Predatory Offender Registration for ten years to life.

Juvenile courts were a result of social reform movements of the late 19th Century.  Rather than criminally prosecute juveniles like adults, we set up a separate juvenile court.  Juvenile courts have a greater focus on rehabilitation for those adjudicated responsible for some “criminal” act.

An important aspect of juvenile courts is that they have traditionally been non-public – confidential.  This protects the juvenile from severe collateral consequences.  It allows the kid to leave youthful mistakes in the past.  In recent years, that has eroded.

In Minnesota, if a prosecutor charges juvenile 16 years or older with a felony, the case is now public. (Almost all “sex crimes” are felonies in Minnesota.)

Juveniles are not safe from predatory offender registration

Current Minnesota statutes contain no juvenile exception for “predatory offender registration.”   See, Minnesota Statutes § 243.166.  This conflicts with the main, rehabilitative purpose of juvenile court and its protection of juveniles from life-long public exposure.

Adjudication is the trigger

How can we save a juvenile from having to register as a sex criminal for ten years or more?  We must get a dismissal of the entire case, an acquittal, or a stay of adjudication.  An adjudication triggers registration, under current law.

Reform Minnesota laws

Criminal lawyers and courts can wrestle with these things.  We can try to save some young people from the jaws of a bad law.  But wouldn’t it be better to change the laws to make them less unfair and less harmful?

Why not enact a Romeo and Juliet law in Minnesota to stop turning young people into criminals?  You don’t have to be Christian to recognize the wisdom in Jesus as Defense Lawyer: The Woman Accused of Adultery.

Until then, your Minnesota criminal defense lawyer can help

Liberty-Lawyer.com logo sm wideThomas C. Gallagher is a Minneapolis criminal lawyer who handles sex crime defense cases and juvenile sex crime delinquency cases in Minnesota, including those involving claims of criminal sexual conduct based on age, and sexting child porn cases.

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.

Marijuana Medical Necessity: Why Minnesota Needs a Law Affirming Your Defense

Minnesota needs to adopt a new statute affirming your right to present the defense of medical necessity to a marijuana criminal-charge.  Why?

Marijuana, or cannabis, has been used by humans as medicine for thousands of years successfully for relief and treatment of disease.  Modern medical research, as well as clinical practice, has proven its efficacy in relieving symptoms as well as curing diseases — from the bothersome all the way to cancer.

Marijuana had never been a crime.  But beginning in the 1930s in the United States, as the alcohol Prohibition regime was disintegrating, a new experiment in Prohibition was being developed to replace it — the marijuana Prohibition.  Marijuana was widely used as medicine at the time, and its medicinal use persisted for decades but was eventually driven underground after increased criminalization policies in the United States, and in Minnesota.  Its use, including medical use, continued but was made criminal.

Necessity has been a recognized legal defense to what otherwise would be a crime, since ancient times.  In The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil some of this history is summarized:

The English courts stated the principle of necessity in 1551 in Reninger v. Fagossa (1 Plowd. 1, 75 Eng. Rep. 1): “A man may break the words of the law, and yet not break the law itself … where the words of them are broken to avoid greater inconvenience, or through necessity, or by compulsion.” The case cites the New Testament example of eating sacred bread through necessity of hunger or taking another’s corn. Mathew 12:3-4. Older English cases contain many examples which recognize the general principle of necessity. It was a defense to breaking a law that the person committed the act to save a life or put out a fire. Jurors could depart without the permission of the judge in case of emergency. Prisoners might escape from a burning jail without committing a crime. A person did not commit the misdemeanor of exposing an infected person in public if the person was being carried through the streets to a doctor.

The necessity defense is sometimes called the lesser-of-two-evils defense.  It is often a justification type defense.

If the defense is accepted by the jury, it does not mean the defendant did not intentionally do the prohibited act, but rather that he or she reasonably did so to avoid a greater evil, out of necessity.

It is a common law defense — old and widely accepted.  Like many other common law defenses, it has often been codified in statutes over the past several decades, in many jurisdictions.

med-mj-mn-signThe term “medical necessity defense” is a special application of the more general, necessity defense.

If you are sick with glaucoma or cancer and marijuana provides you with relief or cure, even though marijuana may be a crime to possess or grow in some states, you may decide that preserving your health (or your child’s life) is a greater necessity than complying with the criminal Prohibition.

A super-majority of people in the United States today, according to poll after poll, agree that medical use of marijuana should not be a crime.  As a result it is likely that many if not most jurors may share that majority view, that medical marijuana is not a real crime.  But in Minnesota jurors are not currently empowered to decide cases with all of the evidence.

You are constitutionally guaranteed the right to a jury trial, and the right to present a complete defense — to present the jury with your true defense, for the jury to do with it as it will.  So how could it be that the Minnesota appellate courts have so far held that you have no right to present a medical necessity defense in a marijuana case?

To find out, you can read the Minnesota Court of Appeals case from 1991, State v. Hanson.  Though every court case is fact specific to a great extent, the court’s main rationales in the State v. Hanson case are captured in this excerpt:

“The statutory classification of marijuana as a Schedule I substance implies a determination that marijuana has “no currently accepted medical use in the United States.” Minn.Stat. § 152.02, subd. 7(1) (1990). The legislature has enacted a single exception, in the THC Therapeutic Research Act (TRA), exempting from criminal sanctions possession or use of marijuana for cancer patients undergoing chemotherapy who are receiving the drug under the strict controls of an approved medical research program. Minn. Stat. § 152.21, subds. 1, 3, 6 (1990). These statutory provisions demonstrate that the legislature has specifically addressed and determined the possible medical uses of marijuana.”

The first point, that marijuana’s Minnesota classification as “a Schedule I substance” implies that it has “no currently accepted medical use in the United States,” if ever true, is certainly not true today.  Though marijuana is still arbitrarily classified by Minnesota as “Schedule I,” the majority of the United States population now lives in states with legal medical marijuana programs, and marijuana is now currently accepted as having medical use — including by the United States Surgeon General.

The second argument advanced in Hanson, was that since the Minnesota legislature had enacted the THC Therapeutic Research Act (which created a “research” program so restrictive that nothing ever came of it); that therefore the legislature must have intended to preclude any other consideration of any other exception or defense for medical use of marijuana (though it never said so).  Not particularly persuasive here, the argument is of the classic rhetorical form — expressio unius est exclusio alterius, a Latin phase meaning “the expression of one thing is the exclusion of the other.”

And perhaps ironically, the THC Therapeutic Research Act, Minnesota Statutes Section 152.21, subd. 6, removes marijuana from Schedule 1 to Schedule 2:

“For the purposes of this section, THC is removed from Schedule I contained in section 152.02, subdivision 2, and inserted in Schedule II … .” 

The Hanson case was from 1991.  Much has changed since then, politically, legally, and in the medical research community, has it not?  So would a modern Minnesota appellate court right this 1991 wrong?  In 2014, it didn’t.

In a 2014 decision the Minnesota Supreme Court, in State v. Thiel left intact the Schedule I classification despite a constitutional challenge by a defendant convicted of marijuana possession who had not been allowed to let the jury know the truth about his medical  condition, his medical recommendation for marijuana as medicine, or his California medical marijuana card.

It seems reasonable to conclude then, that the Minnesota courts are unlikely to remedy this injustice and restore our right to a fair jury trial, and our right to present a complete defense in Minnesota — at least not in the near term.

That is why we need the Minnesota legislature to restore some measure of Liberty and Justice in Minnesota, by passing a Bill for a new statute guaranteeing your right to let the jury hear the truth, that medical marijuana is a lesser evil (if it is an evil at all) than violating the criminal law prohibiting marijuana.

The Bill currently in the Minnesota legislature would restore the necessity defense to medical marijuana patients charged with a marijuana crime in Minnesota.  It would guarantee that the accused could use this as an affirmative defense — meaning the defendant would have the burden of showing prima facie evidence of medical necessity, and if successful, the ultimate burden of proving criminal guilt would then shift to the prosecution.

This would help restore the right to a jury trial to an extent as well.  The jurors have the right to hear the truth before condemning a person.

Contact your Minnesota House of Representatives member, your Minnesota State Senator, and the Governor to urge support of the medical necessity Bill, HF 542.

Thomas Gallagher is a Minnesota Marijuana Lawyer with a criminal defense practice based in Minneapolis.