The Mn Criminal Defense, Personal Injury & Family Law Blog
A Hutchinson, MN Drug Crime Lawyer Talks About New CBD Oil Rules
November 6, 2019
Currently, marijuana products, specifically Cannabidiol (CBD oil), are in a legal grey area. Two new provisions which take effect in January 2020 seek to clear up this confusion. In reality, they may have muddied the waters even further.
Briefly, CBD oil is a marijuana extract that contains no Tetrahydrocannabinol. THC is the marijuana ingredient which makes people high or stoned. Several studies have concluded that CBD oil is an effective treatment for a wide range of conditions, from anxiety to Alzheimer’s disease, but almost none of this research occurred in the United States. CBD oil is an ingredient in many products, mostly topical gels and ingestible liquids.
A provision buried deep within the Minnesota Board of Pharmacy’s legislative actions states that, as of January 2020, “the sale of CBD products that meet certain labeling and testing requirements will be permitted under state law.” Note this legal change pertains to sale, and not possession. So, it may be legal to sell CBD products, but it may not be legal to possess or use them for personal reasons.
The law is even more confusing. Minnesota’s hemp legalization measure also takes full effect in January 2020. Legally, the Legislature defined hemp as anything with a THC content under 0.3 percent. Testing equipment to determine THC content is available, but it is not widely available, especially in smaller jurisdictions like McLeod County. Therefore, a Hutchinson, MN drug crime lawyer might be able to challenge the evidence in marijuana possession cases. If the state cannot prove the substance at issue had a THC content above 0.3 percent, prosecutors cannot meet their burden of proof.
Possession of Marijuana (POM) Laws in McLeod County
So, if you possess any CBD product, even after January 1, 2020, that possession might still violate Minnesota’s marijuana possession law. Possession under 42.5 grams is a misdemeanor punishable by a maximum $200 fine. That amount of marijuana is roughly thirty dime bags. So, unless you have a very large stash of marijuana or CBD products, you are probably looking at misdemeanor charges.
Since POM is a fine-only offense, peace officers normally have the option of arresting the defendant or issuing a citation, which is basically a traffic ticket. There is a big difference between the two. Even if you are booked and released, the arrest could go on your permanent record. That’s not true if police issue a citation.
If police arrest you for CBD or marijuana possession, call a Hutchinson, MN drug crime lawyer immediately. Given the nature of the offense, an attorney may be able to get you out of confinement before the official booking paperwork is processed.
Establishing Possession in Court
Overturning the arrest is only part of the job for a Hutchinson, MN drug crime lawyer. Next, an attorney must take on the possession charges in court. There are basically two lines of defense.
Many CBD oil and marijuana possession cases involve search warrant exceptions. Most police officers do not bother to obtain warrants in misdemeanor possession cases. Some common search warrant exceptions include:
Consent: Owners or apparent owners may consent to property searches. Apparent owners are people like roommates who are not on the lease. Generally, a vehicle passenger is not an apparent owner. Additionally, consent is limited. Even a homeowner cannot consent to a search of a locked container in a roommate’s bedroom.
Plain View: Officers who are lawfully in a certain place may seize any contraband they see in plain view. Often, the best way a Hutchinson, MN drug crime lawyer can challenge a plain view seizure is to challenge the reasonable suspicion for the stop.
Automobile Search: People have a lower expectation of privacy in their cars than in their homes. So, if officers have probable cause to search a vehicle, they do not need a search warrant.
There are other procedural defenses as well. For example, officers may not give the defendant his/her Miranda rights at the proper time.
Additionally, the legal definition of possession may be an issue. In addition to proximity, McLeod County prosecutors must also establish:
Knowledge: It is not enough to know that something illegal is under a car seat. It may not even be enough to know that there are drugs under the car seat. The knowledge requirement is fairly stringent.
Control: In a vehicle, it’s very difficult for someone in the back seat to control something in the front seat. The same thing applies to people who pass a joint at a party.
In a POM case, the state must establish proximity, knowledge, and control beyond any reasonable doubt. That’s the highest standard of proof in American law.
Hutchinson, MN Drug Crime Lawyers and POM Resolutions
Attorneys often leverage these defenses during pretrial negotiations. If the evidence is weak enough, and the defendant only had a small amount of weed, prosecutors may dismiss the case outright.
Additionally, McLeod County offers a number of pretrial diversion programs. The requirements vary in different courts. Generally, if defendants jump through a few hoops, like performing community service and attending a class, prosecutors will dismiss the charges.
In each case, the defendant has no conviction record. And, if a Hutchinson, MN drug crime lawyer overturned the arrest, the defendant may get through this ordeal with neither an arrest nor a conviction record.
Rely on Experienced Attorneys
Even after January 2020, possessing CBD oil could get you into trouble, and an experienced Hutchinson, MN drug crime lawyer could get you out of trouble. For assertive representation, call Carlson & Jones, P.A. We have several offices in the area.