Minnesota’s Incomplete Marijuana Decriminalization – Resinous Form Exception

Minnesota 1970s partial decriminalization of marijuana

In 1976, Minnesota decriminalized possession of a “small amount” of marijuana. Or did it?  Minnesota has only partially decriminalized a small amount of marijuana. Why partiallly? Minnesota’s decrim law applies to plant-form only.  But the law left a loophole for “the resinous form of marijuana,” still a felony.  And the “resinous form” comes in many forms, under many names.  These include THC oil, dabs, carts, marijuana wax, and concentrates.

Should Minnesota simplify its law?  It should be legal, now.  But shall we at least delete “the resinous form” loophole from Minnesota’s small amount decrim law?

Prehistoric marijuana forms

Hashish is marijuana. It is a compressed plant-form of marijuana.

People around the world have safely used it for thousands of years for social, medicinal and religious purposes.  See: Religious use of marijuana defense prevails in Minnesota Rastafarian case.

Cannabis-plant trichomes, flower and leaf fragments are hashish.

Hashish: compressed plant material. resinous form
Hashish: compressed plant material

Mechanical methods remove the trichomes from the plant, screening by hand or with motorized tumblers.  Just heat and compress the resulting powder into hashish. 

Does hashish fit the definition of “the resinous form” of marijuana in Minnesota Statutes?  Probably not, since it is still plant-form, not a chemically processed “resinous form.”

Hashish is less common these days in Minnesota.  It generally comes from other parts of the world where traditional.  But most marijuana in Minnesota today is from the United States.

The resinous form – extracted resin

Chemical separation methods use a solvent like ethanol, butane or hexane to dissolve resin.  Then, filter the result.  And boil off the solvent to leave behind the resins. We call the resins honey oil, THC oil, marijuana wax, vape cartridges, dabs, shatter

All of these are the “resinous form.” 

And it’s also a common an ingredient in medical marijuana edibles.

The problem:

Minnesota Statutes contain definitions that don’t always make sense.

Sometimes statute definitions are inconsistent with a dictionary definition or common understanding of a word.

In this case, Minnesota Statutes Section 152.01, subdivision 16, defines a “small amount” of marijuana as 42.5 grams or less.  But it then says:

“this provision [defining a “small amount”] shall not apply to the resinous form of marijuana.”

In Minnesota, prosecutors can charge possession of 1/4 gram or more of “the resinous form of marijuana” as a felony.  That includes a “small amount” or up to 42.5 grams – about 1.5 ounces.

Victims of the law include medical users from other states, found with a small amount of resinous form in Minnesota. (Minnesota does not yet have a medical reciprocity law.)

In contrast, the law decriminalizes 42.5 grams (slightly less than 1.5 ounces) of plant-form marijuana in Minnesota.  It’s a petty misdemeanor; not a crime; cannot legally be the basis of an arrest; with the only penalty being a fine.  See, Minnesota Statutes Section 152.027, subdivision 4.

Why exclusion of “resinous form of marijuana” makes no sense:

THC Oil. Resinous form. Similar to dabs, marijuana wax
THC Oil. Similar to dabs, marijuana wax

It’s marijuana:  No one questions that the “resinous form of marijuana” (honey oil, dabs, cannabis wax, etc.) is marijuana.  It’s simply a form of marijuana.  And another provision of Minnesota law explicitly recognizes this.

The definition of “Marijuana” in Minnesota Statutes Section § 152.01, subdivision 9, defines it as:

“all parts of the plant of any species of the genus Cannabis, including all agronomical varieties, whether growing or not; the seeds thereof; the resin extracted from any part such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin…”

Minnesota Legislative Public Policy favors the resinous form:

In 2014 the Minnesota legislature and Governor adopted into law a medical marijuana program.   And they specifically found that the resinous form of marijuana was safer and preferable to the plant-form of marijuana.  So Minnesota law now contains a preference for the resinous form of marijuana, over the plant-form.  This is the legislature’s declaration of public policy.

Minnesota medical marijuana program participants can lawfully possess and use the resinous form of marijuana obtained through the program.  But they now become criminal if they use or possess the plant-form of marijuana.

Marijuana is marijuana. But is “a small amount,” a small amount? 

Minnesota law clearly says that THC oil, dabs, marijuana wax and concentrates – “the resinous form of marijuana” – is a form of marijuana.

So if someone possesses “a small amount” why should it matter whether it’s the plant-form or the resinous-form?  After all, a small amount is a small amount.

One should not be a felony crime; while the other is “not a crime.”

Close the loophole in the law?

Has the time come to update Minnesota’s 1970s era decriminalization law?  To treat small amounts of marijuana equally, regardless of form

More importantly, should Minnesota make felons out of people who possess even a small amount of the “resinous form of marijuana”?

Most people don’t comprehend a meaningful distinction between marijuana in plant form versus resinous form.  So the law is confusing.  And people typically assume they’re good under the state’s “small amount” law – only to discover their error after it is too late. 

The law makes felons on a technicality.

The law should be consistent

Simplicity is a virtue in the law.  And it should treat people fairly.  So the law should not create felons based upon arbitrary distinctions and technicalities.

But the recent reduction of one-quarter gram or less to a Gross Misdemeanor adds complexity, with little reform.

Marijuana should be legal.  After all, two-thirds of voters polled want legalization.  But if politicians keep us waiting, at least close the loophole in Minnesota’s “small amount” decriminalization law.

The simple remedy?

Gallagher Criminal Defense logo sm

The Minnesota legislature can fix this.

How?  Pass a Bill amending Minnesota Statutes Section § 152.01, subdivision 16, defining a “small amount” of marijuana.

Just delete the language “this provision shall not apply to the resinous form of marijuana.

That simple solution should solve this problem, and make the law more fair.

Thomas Gallagher is a Marijuana Lawyer in Minneapolis.

And he serves on the Board of Directors of Minnesota NORML.

4 thoughts on “Minnesota’s Incomplete Marijuana Decriminalization – Resinous Form Exception”

  1. I concur with everything Thomas says in this article. This has changed my immediate life and future. There was a lack of depth and diligence taken when Minnesota made a step in the right direction with decriminalizing cannabis. No form of cannabis should be or ever should have been a felony. Hoping for change in the future.

  2. Robert Gehrman III

    NOT ONLY should it be COMPLETELY decriminalized WITH NO FINES, but every cop and politician worldwide should be FORCED to smoke it for a month, as a JOB PREREQUISITE !!!

  3. Well written article, just needs an update that mentions the 2019 Special Session by MN lawmakers changing the definition of marijuana. The change goes into effect on 1-1-2020

    1. See our update: New Minnesota Definition of Hemp changes Hemp-CBD Oil legality.

      Below is the text of the Minnesota Statutory definition of “marijuana” with the 2019 amendment underlined. The definition of “Industrial Hemp” in Minnesota Statutes § 18K.02, subd. 3 already said that hemp is not “marijuana.” The 2019 amendment to definition of “Industrial Hemp” in Minnesota Statutes § 18K.02, subd. 3, on the other hand, will make a big difference for Hemp CBD.

      “Sec. 77. Minnesota Statutes 2018, section 152.01, subdivision 9, is amended to read:
      Subd. 9. Marijuana. “Marijuana” means all parts of the plant of any species of the genus Cannabis, including all agronomical varieties, whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin, but shall not include the mature stalks of such plant, fiber from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, except the resin extracted therefrom, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. Marijuana does not include hemp as defined in section 152.22, subdivision 5a.”

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