Although we don’t usually write about criminal cases, a recent decision by the Minnesota Court of Appeals caught our attention due to the potential impact on Minnesotans as well as businesses involved in the manufacturing, processing or possession of Hemp/CBD in Minnesota. This ruling will affect manufacturers, processors sellers, distributors and consumers of any form of CBD that is liquid.
Let me explain. A warrant was issued by the Minnesota State Police to detain a Brainerd resident. The officers arrived at the home to search for the defendant and discovered cannabis-related paraphernalia, including a pipe rolling paper, rolling papers, and an electric torch. They also discovered a plastic bag and a tote container. The officers obtained an order to search the home and discovered three pounds of “leafy material” and the 89 vaporizers contained an “amber-colored liquid.”
The defendant was tried and found guilty for possession of marijuana, as well as other offenses that aren’t relevant to this case.
The defendant appealed the marijuana convictions. Among his arguments were that the State failed to prove beyond a reasonable doubt that the substances that he owned contained a delta-9 concentration of THC that was higher than 0.3 percent on a dry basis of weight. The defendant cited an amendment that was recently made to the Minnesota statute defining marijuana to exclude hemp. The defendant argued that the state was unable to prove that he possessed marijuana as opposed to hemp.
After reviewing the evidence, the appellate court agreed in part. The court distinguished between “leafy material” and the tetrahydrocannabinol liquid. As to the former the court decided that the State’s forensic scientist did not have a sufficient evidence on which to conclude that the leafy plant material was marijuana rather than hemp. The court reversed the defendant’s conviction with regard to the “leafy material”.
So far so good for the Minnesota Public Defender’s Office who ably represented the defendant in appeal.
However, the appellate court took a different view of the vaporizer cartridges due to an error in Minnesota’s controlled substances law. To understand the court’s reasoning, it is important to understand that Minnesota has separate statutory definitions for “marijuana” and for “tetrahydrocannabinols”. I’ll skip parsing the statutes and jump straight to the conclusion:
“Unlike the definition of marijuana, the inclusion of tetrahydrocannabinols in Minnesota’s Schedule I does not make any exception for hemp or for a substance or mixture that has a concentration of delta-9 tetrahydrocannabinol that is 0.3 percent or less on a dry-weight basis.”
Because the State established that the vaporizer cartridges contained some amount of tetrahydrocannabinols, the State’s evidence was sufficient to uphold defendant’s conviction.
What this means is that a “liquid mixture” containing tetrahydrocannabinols is a Schedule I controlled substance under Minnesota law. The state doesn’t have to prove that the mixture contains delta-9 tetrahydrocannabinol at an amount greater than .3 percent on an average dry weight basis.
While the appellate court could be praised for its adherence to the book approach to statutory interpretation however, the impact of this decision has disastrous practical consequences. It is now legal to possess cannabis in the form of “leafy plant material” that contains delta-9 tetrahydrocannabinol in the range of less than .3 percent on an average dry weight basis. Also known as hemp. But it is a crime to possess a “liquid mixture” containing tetrahydrocannabinol, regardless of its delta-9 THC content.
This means that individuals or businesses who process or manufacture, sell, or possess any hemp in liquid form could be held liable under criminal law. Most likely, the term “liquid mixture” that contains tetrahydrocannabinol is comprised of tinct drinks, as well as certain cosmetics and other products. As this case shows it is certainly a vape cartridge.
What’s the fix? I expect an appeal to the Supreme Court is likely. The Minnesota legislature could modify the definition to include hemp to make it more likely that the Supreme Court will hear the case. This should be done regardless of what happens in this particular case.
The post Minnesota Cannabis: Appellate court Rules that Cannabinoids derived from hemp in Liquid (But not in Leafy!) Harris Bricken’s first form was published. illegal