Minnesota Supreme Court Say Hemp is Not Marijuana

Last week the Minnesota Supreme Court issued another interesting decision that has the potential to have a major impact on criminal law in Minnesota.  In State v. Loveless, a man was charged with possession of a felony amount of marijuana.  The Supreme Court held that the government must prove that plant material believed to be marijuana is in fact marijuana and not hemp before a person can be convicted of marijuana possession.  On its face, this is nothing new – the state has always had to prove that suspected drugs were in fact drugs before getting a conviction.  However, a statute changed in 2019 added an interesting twist to this case.

In 2019, the legislature legalized possession of hemp.  Both hemp and marijuana are derived from the same plant, and in most respects are identical substances.  The difference lies in the amount of delta-9 tetrahydrocannabinol contained in each.  If the plant contains more than .3 percent, on a dry weight basis, of delta-9 THC, then it is illegal (for now, anyhow) marijuana.  Less than that, and it’s legal hemp.  The critical point here is that the two are indistinguishable without chemical analysis of the delta-9 THC content of each. 

The Court held that the convictions must be overturned because the State failed to present evidence that the suspected marijuana contained THC in excess of the legal threshold of .3.  That’s not an altogether surprising outcome given the facts of this case, but it does open the door for some interesting questions.  If the only difference between marijuana and hemp is the precise chemical composition of each, then a police officer on the street is obviously not able to differentiate between the two.  Before 2019, when hemp was legalized, this distinction wasn’t important.  But today it is.  Can an officer legally seize suspected marijuana when he or she has no way to know whether the substance is actually marijuana or hemp?  Can an officer search a person’s car based an odor which may be marijuana but could also be perfectly legal hemp?   These sorts of questions might seem trivial, but they are the sorts of issues that major cases can turn on.  And they’re exactly the sort of issue that a skilled criminal defense attorney can use to help achieve a great outcome for their clients.

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