Minnesota Supreme Court Reverses Vape Liquid Conviction

The Minnesota Supreme Court just ruled in a case that we covered in September 2021 as Minnesota moves closer to legalizing marijuana. This case concerns the difference between marijuana and hemp. It is the state prosecutor’s responsibility to show which side a leafy or liquid cannabis substance falls. The ruling affected all parties involved in any liquid form of Hemp/CBD. We explained this two years ago. We predicted back then that the Minnesota Public Defender’s Office would appeal to the Minnesota Supreme Court on behalf of the defendant. The Minnesota Industrial Hemp Association, and the Minnesota Cannabis Association filed amicus briefs in light of the devastating practical consequences of the Court of Appeals’ decision on the hemp industry.
A warrant was issued by the Minnesota State Police for an arrest at a Brainerd home. Officers arrived at the residence to find the defendant and found cannabis smoking paraphernalia, including a pipe, rolling papers and a torch lighter. They also found a plastic bag and a plastic tote container. The officers obtained a warrant to search the house and found three pounds of “leafy material” and 89 vaporizers that contained an “amber-colored liquid.”
The defendant was convicted of possessing a controlled substance after being tried. His trial took place after the 2018 Farm Bill was passed, which defined hemp as “[t]he species Cannabis sativaL. and any part thereof. . . With a delta-9 tetrahydrocannabinol content of not more than 0.3% on a dry-weight basis.” The Farm Bill also removed hemp form the definition of marijuana. In 2019, Minnesota adopted an industrial hemp program.
Based on her visual inspection, the state’s expert at trial claimed that the plant material was “marijuana”. She also testified that the vape cartridges contained THC. The expert did not give any testimony about the THC content of the liquid mixture in the vape cartridges or the plant material contained in the plastic bags.
The defendant appealed, arguing that the state failed prove beyond a reasonable doubt that either plant material or vape liquid were (illegal) cannabis instead of (legal), hemp, because there was no evidence of total THC concentration.
The Minnesota Court of Appeals sided with the defendant regarding the plant material and overturned the conviction. Oddly, the Minnesota Court of Appeals affirmed the defendant’s conviction for vaping liquid. It concluded that Minnesota’s criminal law applied to liquids, but not plant material, and did not take into account the THC concentration.
Supreme Court reverses vape liquid conviction
Nearly two decades later, the Minnesota Supreme Court reversed the Court of Appeals decision. The court ruled:
Because Minn. Stat. Minn. Stat. 9 explicitly excludes hemp from the definition of marijuana. These substances are distinguished based upon their delta-9 delta-tetrahydrocannabinol content. To obtain a conviction under Minn. Stat. 5.3, the State must prove beyond reasonable doubt that the substance’s delta-9 delta-tetrahydrocannabinol level exceeds 0.3 percent. SS 152.025, subds. 1(1) and 2(1) (2022).
The Minnesota Supreme Court rescinded the vape liquid conviction, stating that the State had not provided sufficient evidence to prove “that the delta-9 Tetrahydrocannabinol content of the plant material and liquid mixture found in vaporizer cartridges found by the defendant exceeded 0.3 percent on dry weight basis.”
If Minnesota passes legislation allowing adult use of marijuana, this decision might not have much impact on Minnesota. This is a positive development for the defendant and a precedent for those in other states that legalize marijuana. This case demonstrates that it is the government’s responsibility to prove that a substance is the former, and not the former. If you would like a copy, please email me Minnesota v. Loveless Case No. A20-1254 (Mar. 22, 2023).