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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

When the Grass Turns Brown: Prosecuting Marijuana Mixtures in Minnesota

[The following story is a work of fiction, and any resemblance to actual events or persons is entirely coincidental. However, the legal problem presented in this story is based on a series of real cases that occurred in 2011 in Minnesota’s 7th Judicial District]

A felony?” Mary Jane Baker exclaimed. “A felony? Possession of marijuana brownies is a felony?”

“Ms. Baker, please stay calm,” Minnesota Peace Officer Tom Friendly said. “I need to make a phone call to the county attorney to sort this out.”

Ms. Baker stood in shock. The last thing she expected to hear this morning was that her latest batch of baked goods could expose her to felony charges. Two days earlier she obtained a package of marijuana that weighed 42.5 grams. She separated the marijuana into approximate halves and placed each half into a separate baggie. Ms. Baker opted for this weight because possession of the same or less is a petty misdemeanor under Minnesota law.1 Yesterday police cited her for possession of one of the baggies and she paid the associated fine the same day.

This morning she baked the 21 grams of marijuana in the remaining baggie into a batch of chocolate brownies. In the process, she inadvertently drew Officer Friendly to her front door. Ms. Baker agreed to allow Officer Friendly to enter her home, and when asked, she admitted her treats contained marijuana. Officer Friendly removed the brownies from the pan and his digital scale indicated the product weighed 50 grams. At this point, he advised Ms. Baker she could face felony charges due to the total weight of the brownies.

Ms. Baker waited in her kitchen while Officer Friendly called the county attorney for legal advice. “How did I get into this mess,” she thought. “Isn’t possession of a small amount of marijuana a petty misdemeanor?”

Aggregate Weight

“Assistant County Attorney Nancy Justice speaking,” the voice on the other end of the phone stated. Officer Friendly explained the situation to Attorney Justice and  she referenced the applicable statutes to determine the appropriate course of action.

Controlled substance crime in the fifth degree is a felony, and it is defined as possession of “one or more mixtures containing a controlled substance classified in schedule I, II, III, or IV, except a small amount of marijuana.”2 Marijuana is a Schedule I controlled substance,3 and “mixture” is defined as “a preparation, compound, mixture, or substance containing a controlled substance, regardless of purity.”4 Finally, “small amount,” in reference to marijuana, refers to 42.5 grams or less.5

The brownies fit the definition of a “mixture,” and the brownies unquestionably contained a controlled substance. Further, the state need not weigh the marijuana separate from the brownies due to the “regardless of purity” language used in the “mixture” definition. Finally, the brownies do not receive protection under the “small amount” provision because of their weight. Thus, Attorney Justice adopted an “aggregate weight” interpretation of the statutes because the mixture weighed more than 42.5 grams and contained marijuana. Attorney Justice advised Officer Tooth to arrest Ms. Baker on suspicion of felony charges.

“Pure Weight”

“I think we can challenge probable cause in this case,” Attorney Atticus Liberty told a shaken Ms. Baker. “I need to research whether possession of a mixture that contains a small amount of marijuana is a felony. I’ll be in touch.” Ms. Baker thanked Attorney Liberty and left his office.

Attorney Liberty reviewed the same statutes as Attorney Justice, but his research caused him to take a closer look at the definition of “marijuana” and “small amount.”

“Marijuana” is defined as “all parts of the plant of any species of the genus Cannabis,” excluding the mature stalks of the plant and other non-hallucinogen byproducts.6 An appellate court in New York found a nearly identical statutory definition of marijuana referred to “pure” marijuana, and not a marijuana mixture.7

“Interesting,” he thought. “Marijuana is one of the only controlled substances specifically defined,8 and at least one court believes this definition does not refer to a marijuana mixture.”

Attorney Liberty next turned to the “small amount” provision. In its entirety, the statute reads:

“Small amount” as applied to marijuana means 42.5 grams or less. This provision shall not apply to the resinous form of marijuana. The weight of fluid used in a water pipe may not be considered in determining a small amount except in cases where the marijuana is mixed with four or more fluid ounces of fluid.”9

This research caused Attorney Liberty to espouse a “pure weight” interpretation of the relevant statutes. “Marijuana” refers to “pure” marijuana, and the “small amount” provision does not specifically reference a marijuana “mixture.” Hence, the state must have probable cause a mixture contains more than 42.5 grams of “pure” marijuana in order to charge a felony.

Issue of First Impression

Ms. Brown’s case was assigned to the Hon. Learned Scholar, judge of the district court. Judge Scholar learned the Minnesota appellate courts have not interpreted the relevant statutory scheme in this context. As argued by the parties, the statutes can be interpreted to prohibit possession of a marijuana mixture that weighs more than 42.5 grams, or it can be read to prohibit possession of a mixture that contains more than 42.5 grams of marijuana. Judge Scholar initially leaned towards the state’s “aggregate weight” interpretation. However, on closer examination she realized this may not be what the legislature intended.

Punishing the Medium. Under an aggregate weight interpretation, it is a felony to possess a mixture that contains marijuana if the mixture weighs more than 42.5 grams. A brownie is unquestionably a “mixture” under the statute, and “marijuana” refers to pure marijuana. Although the “small amount” provision does not explicitly refer to a marijuana mixture, it does state “[t]he weight of fluid used in a water pipe may not be considered in determining a small amount except in cases where the marijuana is mixed with four or more fluid ounces of fluid.”10 Use of this wording suggests the legislature contemplated consideration of marijuana mixtures in small amount cases.

Judge Scholar identified at least two problems with this interpretation. First, Ms. Baker is punished more severely based on her chosen medium of consumption. When she possessed about 21 grams of loose marijuana, presumably to smoke, she was cited for a petty misdemeanor. Yet, Ms. Baker is exposed to a felony charge if she bakes that same 21 grams of marijuana into a batch of brownies that weighs 50 grams.

Second, although this interpretation is arguably supported by the “four ounces” clause, it appears inconsistent with legislative intent. Judge Scholar learned 42.5 grams equates to about 1.5 ounces,11 hence four ounces is more than 100 grams. The decriminalization of possession of less than 42.5 grams of marijuana, even when mixed with 100 grams of water in a pipe, evinces intent to keep marijuana possession cases outside the realm of felony prosecution.

Always one to evaluate both sides of the coin, Judge Scholar considered Ms. Baker’s argument for a “pure weight” reading of the statute. Unfortunately, this interpretation presented problems of its own.

Impossible Burden of Proof. Under a pure weight interpretation, a mixture must contain more than 42.5 grams of marijuana before a felony charge is warranted. Again, the language of the fifth-degree possession statutes indicates it is illegal to possess “one or more mixtures containing a controlled substance classified in schedule I, II, III, or IV, except a small amount of marijuana.”12 The first clause states it is unlawful to possess a mixture that contains some amount of any Schedule I, II, III, or IV controlled substance. However, the second clause indicates possession of a marijuana mixture does not trigger prosecution until more than 42.5 grams of marijuana is present. Thus, a “small amount” of marijuana does not include a marijuana mixture unless the mixture contains more than 42.5 grams of marijuana.

This conclusion is further bolstered by the language used in the first-, second-, and third-degree controlled substance crime statutes. Those laws provide criminal penalties for possession of “one or more mixtures of a total weight of [100 kilograms or more] [50 kilograms or more] [10 kilograms or more] containing marijuana … .”13 The absence of the same “total weight” language in the “small amount” provision suggests a “pure weight” reading is correct.

Nonetheless, Judge Scholar struggled with the practicality of this interpretation of the statutes. Under a “pure weight” construal, the state must extrapolate the weight of pure marijuana from the brownies before a fifth-degree possession prosecution can move forward. The New York State County Court acknowledged it is difficult, if not impossible, for a chemist to extrapolate pure marijuana from a mixture.14 An adoption of this reading would effectively decriminalize the possession of marijuana mixtures.

Judge Scholar initiated a telephone conference with the attorneys to discuss her concerns. Attorney Justice began the conversation with a new comprehension of the statute for the court’s consideration.

The “THC Mixture” Argument. “As the court knows, both marijuana and tetrahydrocannabinol, or THC, are separately listed as controlled substances in Schedule I,”15 Attorney Justice stated. “The Minnesota Supreme Court has recognized that THC is the active ingredient in marijuana.16 Marijuana and THC are referenced distinctly in the first-, second-, and third-degree controlled substance crime statutes.17 Clearly, the legislature listed these two substances independently for a reason.

“It is a felony to possess one or more mixtures that contain a controlled substance. The brownies are a mixture. THC is a controlled substance. Hence, it is the state’s theory of the case that Ms. Baker unlawfully possessed a mixture that contained a controlled substance, namely, THC. The court need not consider application of the small amount provision to this case.”

Judge Scholar considered this argument for a moment and realized it had support in the plain language of the statute. She inquired of Attorney Liberty’s response.

“Your honor,” Attorney Liberty stated, “application of the state’s new interpretation of the statute would destroy the small-amount provision. Every marijuana mixture contains THC. Under the state’s new reading of the statute, a marijuana mixture that weighs 10 grams can be relabeled as a THC mixture and charged as a felony because it is a mixture, and it contains a controlled substance. This goes against the spirit of the law and the purpose of the small amount provision.”

Judge Scholar ended the phone call and advised counsel she would consider the state’s argument and render a decision. Two days later, and before issuing her decision, Judge Scholar learned Ms. Baker’s case settled via a plea agreement. The agreement allowed Ms. Baker to avoid a felony conviction, 18 but required that she waive her challenge to probable cause. Consequently, the parties never received a ruling from the district court, and perhaps more importantly, the Minnesota Court of Appeals never received the opportunity to consider this issue of first impression.

Legislative Action Needed

It is incumbent upon the legislature to clearly define criminal activity, and as Ms. Baker’s case illustrates, the lack of “mixture” language in the definition of “marijuana” and the “small amount” provision places certain marijuana mixtures
in statutory limbo.19 The controlled substance statutory scheme is generally clear and straightforward. Controlled substances are defined or listed in the schedule,20 and the statutes criminalize possession of the same based on weight.21 The “mixture” language present in most portions of the statutes also negates any argument a defendant has relative to the purity of a controlled substance.22 As a result, possession cases generally turn on whether a defendant had actual or constructive possession of a controlled substance,23 and not whether possession of a certain mixture is illegal.

Consequently, the legislature should amend the law to provide direction to prosecutors, defense attorneys, law enforcement officials, and the courts. If an “aggregate weight” interpretation is desired, the statutes need designate as much. Alaska presents one example of this type of law. In Alaska, it is unlawful to possess “one or more preparations, compounds, mixtures, or substances of an aggregate weight of less than one ounce containing [marijuana].24

A “pure weight” statute is practically unworkable due to the difficulty of extrapolation. Hence, it would be ill-advised to write a law that requires the state to prove a mixture contains more than 42.5 grams of marijuana. However, if the legislature is concerned about divergent penalties between those who possess marijuana brownies and those who possess loose marijuana, separate provisions could be crafted and placed in the statutory scheme. Hypothetically, possession of a marijuana mixture that weighs less than 60 grams could be included in the small amount provision. Additionally, the fifth-degree possession statute could be amended to prohibit possession of “one or more mixtures containing a controlled substance classified in schedule I, II, III, or IV, or one or more mixtures of a total weight of more than 60 grams containing marijuana.”

The lack of appellate case law on marijuana brownies implies this issue does not arise often. Nevertheless, these cases do not always result in an appeal and may be more frequent than the absence of case law suggests. Additionally, these cases present a zero sum game in which a defendant is either arrested and charged with a felony, or cited and released with a payable ticket in hand. The legislature is tasked with adoption of criminal statutes, and it is imperative the statutes clearly set forth what activities are prohibited by law. Legislative action is needed to clarify the issue presented by Ms. Baker’s case and to ensure a just and proper result is achieved in future cases.

Steven Bader is the law clerk to the Hon. Mary Mahler, judge of the 7th Judicial District Court, Stearns County Minnesota. He graduated from Gonzaga University School of Law, cum laude, in 2010.

Notes

2 Comments


  1. Donna M. Byrne
    Mar 29, 2012

    Thanks for an interesting read! I think the THC argument might have won the day. I’ve been looking at various food law issues, and in that context, I Googled marijuana brownies. Most recipes start with instructions for extracting THC, so the stuff in the brownies may have been just THC, not full leaves. Of course, the defendant may have used ground leaves, but from the article it sounds like she knew what she was doing, in which case she would have extracted the THC first.

    The issue that got me here was whether it’s actually a separate crime to EAT the brownies, but that seems not to be the case. The crime is possession.

    Donna Byrne, Professor of Law, William Mitchell College of Law


  2. Marcus
    Mar 08, 2015

    Does anybody have any updates on this subject. It would have been great if a decision was rendered. I am researching a similar story in Missouri, but the edibles came from Colorado, were bought legally there and would have know quantities labeled on the package. But it is clearly a “mixture”. It just seems not in line with the intent of the law to measure the sugar, flour and other ingredients as a controlled substance. Thank you

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