Minnesota Supreme Court Reverses Vape Liquid Conviction

As Minnesota approaches the legalization of marijuana, the Minnesota Supreme Court has just ruled on a case we covered in September 2021.  The case involves the difference between hemp and marijuana and a state prosecutor’s burden to prove what side of the line a leafy or liquid cannabis substance falls. As we explained two years ago, the ruling impacted manufacturers, processors, sellers, distributors, and consumers of any liquid form of Hemp/CBD. Back then we predicted an appeal to the Minnesota Supreme Court by the Minnesota Public Defender’s Office on behalf of the defendant. Notably, the Minnesota Industrial Hemp Association and the Minnesota Cannabis Association both filed amicus briefs the in light of the terrible practical effects of the Court of Appeals’ ruling on the hemp industry.

Our summary of the case from our earlier coverage

State troopers executed an arrest warrant at a home in Brainerd, Minnesota. The officers found the defendant at the home and observed cannabis smoking paraphernalia (a pipe, rolling papers, a grinder, and a torch lighter) and a plastic tote box. The officers then obtained a search warrant and found three pounds of a “leafy plant material” and 89 vaporizer cartridges containing an “amber-colored liquid.”

The defendant was tried and convicted of possession of a controlled substance. But his trial occurred after enactment of the 2018 Farm Bill, which defined hemp as “[t]he plant species Cannabis sativa L. and any part of that plant . . .  with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” It also imposed a controversial “total” THC testing requirement.” The Farm Bill also removed hemp from the definition of marijuana. Not long after, Minnesota adopted an industrial hemp program in 2019.

The state’s expert at trial testified the plant material was “marijuana” based on her visual inspection. And she testified that the liquid in the vape cartridges contained THC. But the expert did not provide any testimony regarding the THC concentration of either the liquid mixture in the vaporizer cartridges or the plant material in the plastic bags.

The defendant appealed arguing, among other things, that the state failed to prove beyond a reasonable doubt that either the plant material or the vape liquid was (illegal) marijuana instead of (legal) hemp because there was no evidence as total THC concentration.

The Minnesota Court of Appeals agreed with defendant as to the plant material and reversed the conviction. Oddly, however, it affirmed his conviction for the vape liquid, concluding that Minnesota’s criminal code applied to liquids (but not plant material) without regard for the THC concentration.

Supreme Court reverses vape liquid conviction

Nearly two years later, the Minnesota Supreme Court has reversed that portion of the Court of Appeals’ decision. The court held:

Because Minn. Stat. § 152.01, subd. 9, explicitly excludes “hemp” from the definition of “marijuana” and these substances are distinguished based on their delta-9 tetrahydrocannabinol concentration, the State must prove beyond a reasonable doubt that the delta-9 tetrahydrocannabinol concentration of a substance exceeds 0.3 percent on a dry weight basis to obtain a conviction for a fifth-degree controlled substance crime under Minn. Stat. § 152.025, subds. 1(1) and 2(1) (2022).

So the Minnesota Supreme Court reversed the vape liquid conviction because the State offered insufficient evidence to establish “that the delta-9 tetrahydrocannabinol concentration of the plant material and liquid mixture in vaporizer cartridges found in the defendant’s possession exceeded 0.3 percent on a dry weight basis.”

Going forward, the decision may not mean much in Minnesota if enacts legislation permitting adult use marijuana. But this is certainly welcome news for this defendant and an important precedent for persons in other states where “hemp” is legal and “marijuana” is illegal. This case establishes that the government bears the burden of proving a substance is the latter, not the former. Feel free to email me if you’d like a copy of the decision, Minnesota v. Loveless, Case No. A20-1254 (Mar. 22, 2023).