Certain THC products made from hemp recently became legal in Minnesota. In this post, we answer some of your most commonly asked questions.
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Which types of products has the new law legalized?
The recently-passed health and human services policy-only omnibus bill included provisions that legalized edible cannabinoid products (i.e. THC-infused food and beverages) so long as they meet certain criteria. The edibles products must be derived from hemp and may not contain more than 0.3 percent of any tetrahydrocannabinol (THC). Such a product must not contain more than 5 milligrams of any tetrahydrocannabinol in any one serving, nor can any package contain more than 50 total milligrams of THC. An edible may contain more than one type of THC (i.e. delta-8 THC, delta-9 THC, or delta-10 THC) but the total volume of THC may not exceed the 5 milligrams per dose or 50 milligrams per package. Similarly, the 0.3% limit is cumulative of all types of THC in a given product. The products may not be sold to anyone under age 21.
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Does this mean that all recreational marijuana is now legal in Minnesota?
No.
Only hemp-derived, nonintoxicating cannabinoids, including edible cannabinoids, that meet the criteria listed above are now legalized. Hemp, or “industrial hemp,” is defined as the Cannabis sativa L. plant (or any part of the plant), including its seeds and all derivatives, including cannabinoids, with a delta-9 tetrahydrocannabinol (delta-9 THC) concentration of not more than 0.3 percent on a dry weight basis. Industrial hemp is not marijuana.
Marijuana refers to all parts of the Cannabis plant, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. It does not include the mature stalks of such plant or fibers, oil or cake made from the stalk or seeds of such plant or sterilized seeds incapable of germination. As of now, Minnesota law has not changed as it pertains to marijuana, which is considered a Schedule 1 controlled substance.
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What are the punishments for using THC that is not derived from hemp?
Because Minnesota’s laws regarding marijuana have not changed, the penalties for the possession and/or sale of non-hemp-derived THC remain the same. Possession of a small amount of marijuana was decriminalized several years ago, making possession of 42.5 grams or less a petty misdemeanor. Petty misdemeanors are not criminal offenses in Minnesota. But, the penalties for possessing larger amounts (or even a very small amount in a motor vehicle) or selling marijuana are severe and can range from misdemeanor to felony.
Also, consumers should be aware marijuana is still prohibited under federal law. All cannabis except hemp is illegal under federal law.
The chart below outlines the penalties someone convicted of various marijuana crimes in Minnesota could face. “Marijuana,” as used in the context of this chart, refers to the plant form of the substance. THC liquid, wax, and other products containing more than 0.3 percent delta-9 THC are arguably not included in this definition.
Minnesota Marijuana Crimes & Penalties
Source: Minnesota Sentencing Guidelines Commission and Minnesota Statute 152
| Statute | Degree | Sale | Possession | Penalty | ||
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Minn. Stat. § 152.021 |
First Degree | 25+ kilos marijuana
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50+ kilos or
500+ marijuana plants |
0-30 yrs.; 4-40 yr. minimum if prior drug felony; up to $1 million fine. | ||
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Minn. Stat. § 152.022 |
Second Degree | 10+ kilos of marijuana;
5+ kilos marijuana in a zone offense area. *A zone offense is the sale or possession within a park, school, public housing, or drug treatment facility zone. |
25+ kilos or
100+ marijuana plants. |
0-25 yrs., 3-40 yr. minimum if prior drug felony; up to $500,000 fine. | ||
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Minn. Stat. § 152.023 |
Third Degree | 5+ kilos marijuana;
The sale of any Schedule I drug to a minor; or employment of a minor to sell the same. |
10+ kilos marijuana | 0-20 yrs., up to $250,000 fine. | ||
| Minn. Stat.
§ 152.024 |
Fourth Degree | Zone offense sale of any amount of marijuana, except a small amount for no remuneration. | 0-15 yrs., up to $100,000 fine. | |||
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Minn. Stat. § 152.025 |
Fifth Degree | Any amount of marijuana, except small amounts* for no remuneration.
*Small amount of marijuana = 42.5 grams or less |
Greater than 42.5 grams to less than 10 kilos plant-based marijuana
(or .025 grams or more of non-plant-based delta-9 THC, i.e liquid or wax). |
0-5 yrs., up to $10,000 fine. | ||
| Minn. Stat. § 152.027, subd. 3 | Misdemeanor | Greater than 1.4 grams of plant-based marijuana in vehicle (except trunk) | Up to 90 days in jail and/or a $1,000 fine | |||
| Minn. Stat. § 152.027, subd. 4 | Petty Misdemeanor | Small amount (42.5 grams or less) of plant-based marijuana | Up to $300 fine | |||
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Will a test show what kind of THC I’ve consumed? Is there some way to distinguish from the legal and illegal THC?
A blood test can differentiate between different types of cannabinoids in your system. The presence of delta-9-tetrahydrocannabinol is believed to show that a person was actively under the influence of THC at the time of the test. 11-hydroxy-delta-9-tetrahydrocannabinol is a psychoactive metabolite of THC. The presence of this chemical shows whether someone has used THC in the past, but does not show whether or not they were impaired at the time of the test. 11-nor-9-carboxy-delta-9-tetrahydrocannabinol is a non-psychoactive metabolite of THC. This test shows the build-up of THC in someone’s system over time.
These tests will not show the difference between THC ingested from legal products under the new law and marijuana/marijuana products that are still illegal because both forms contain the same active ingredient, delta-9 THC, even if the concentrations are different among the products.
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It seems this law has created certain gray areas. What legal challenges may it present?
One issue folks may encounter as a result of the new law is officers not knowing whether a given substance is a legal, hemp-derived product with less than 0.03% delta-9 THC, versus illegal Cannabis. This could unfold in a number of ways: an officer might arrest (or cite) someone believing they have probable cause for an arrest based on an illegal substance when the substance is, in fact, legal. Of course, there would be ways to fight this later, but it might not prevent the arrest in the first place. There could also be potential search and seizure issues related to an officer erroneously believing that there is a contraband substance on a person or in a vehicle that they think permits a further search, when in fact it should not.
Another issue that could arise relates to Minnesota DWI laws. If a person is pulled over and suspected of being under the influence of an intoxicating substance, whether otherwise legal or illegal, they might be asked to perform field sobriety tests. If an officer has probable cause to believe someone is driving while impaired, the officer could get a warrant for a blood test to determine whether someone is under the influence. However, as noted above, this test might not actually reveal whether someone is presently under the influence but could subject the driver to penalties based on drugs being in their system from prior to driving.
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What should I do if I’m arrested after using legal THC?
Anyone charged with a drug offense should seek the advice of an experienced marijuana attorney such as those here at Sieben Edmunds Miller. Drug crimes, including marijuana offenses, can have serious and lasting consequences. Don’t try to fight it on your own!
