Tag Archives: drug prohibition

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.”

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.


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.

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:


Legislative Update: The Minnesota Bong Water Crime Case

Remember the recent Minnesota Supreme Court bong water case? The one that took a literal interpretation of a statute – to an absurd result?  The case rules that the weight of water can send you to prison.

Minnesota’s Prison for Bong Water case

It was a bare majority decision, 4-3, with a concurring opinion and strongly worded dissents.  Yet after we tally the majority, concurring and dissenting opinions; five of seven Justices wrote that the legislature should amend the statute. 

The case rules that Bong Water is “a mixture” of “25 grams or more.”   So, it supports a conviction for First Degree Controlled Substance crime, and prison.  And this despite the fact that it contained only trace amounts of illegal drugs. 

The punishment was based on the weight of the water, not the drugs.

Minnesota bong water case: Tap Water Contains Drugs

Minnesota bong water case: Tap Water Contains Drugs

The case is Minnesota v  Peck, Minnesota Supreme Court, October 22, 2009.  And our blog article, written the day the opinion was published is: Minnesota Court Waters Down Legal Definition of Illegal Drugs: Toilet Water Now Criminal to Possess.

The case gained infamy worldwide. 

Trace amounts of illegal drugs in bong water could be a crime based upon the weight of the water “mixture.”  Therefore, trace amounts of illegal drugs in our drinking water must also be a crime to possess. 

And if that is the case, then every citizen of Minnesota is a drug criminal – if possessing river sourced tap water.  But those with well water presumably can rest easy, without fear of a drug-police home invasion.

A partial legislative fix?

A Bill in now being considered by the Minnesota Legislature, for the Safe Drug Disposal Act is attempts to reduce the pharmaceutical drugs in our drinking water supply, and rivers.  And remember, it is a crime in Minnesota to possess prescription drugs without a prescription.

Will Minnesota lawmakers heed the call of the Minnesota Supreme Court and public outrage?

Will they undo the “Minnesota Bong Water Case?”

A Bill in the Minnesota House, H.F. No. 2757, would amend Minnesota Statutes section 152.01, subdivision 9a, to read:

Subd. 9a. “Mixture” means a preparation, compound, mixture, or substance containing a controlled substance, regardless of where purity is relevant only when weighing the residue of a controlled substance.

And if adopted into law, this would bring back proportionality of the severity of a drug crime to quantity.

Advocates of drug legalization (regulation and taxation) may have mixed feelings about this reform.  But yes – it would cure a gross injustice to people facing prison for possession of water or other non-drug media.

On the other hand, the Prohibitionists really shot themselves in the foot on this one.  The Minnesota Bong Water case has helped undermine what public confidence there was in criminal drug laws and their enforcement.  And as stated in the dissent in the Peck case:

“The majority’s decision to permit bong water to be used to support a first-degree felony controlled-substance charge runs counter to the legislative structure of our drug laws, does not make common sense, and borders on the absurd…the result is a decision that has the potential to undermine public confidence in our criminal justice system.”

Peck, the Minnesota Bong Water Case undermines public confidence in our criminal justice system.  But perhaps this may hasten the Repeal of all drug Prohibition laws in Minnesota.

Written by Thomas C Gallagher, Minneapolis Criminal Defense Attorney.