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

Navigating Minnesota’s New Drug Laws

A guide for criminal law practitioners

Minnesota substantially changed its criminal drug laws in 2016. The reforms, designed to better distinguish addicts from dealers, include new offenses and revised sentencing guidelines as well as new aggravating factors and mandatory minimums.

0417-Police-Officer-Drug-EvidenceFor the first time in 27 years, the Minnesota Legislature made significant reforms to the criminal drug laws in 2016.1 Observers on all sides criticized the old laws for being too tough on addicts and not tough enough on serious offenders.2 The reforms are designed to better distinguish addicts from dealers and to provide addicts with less punitive, more rehabilitative sentences.3

A number of these reforms affect practitioners. The primary changes include a new “aggravated first-degree” offense, increased quantity thresholds for certain offenses, new aggravating factors, a new firearm provision, a new sentencing guidelines grid, and new mandatory minimum sentences.

Minimum quantity thresholds

There are five degrees of controlled substance crime, first-degree being the most severe.4 The degree of offense is based on the type and quantity of drug involved and whether it was sold or possessed. The first change the Legislature made was to increase the minimum quantity thresholds for first-, second-, and third-degree offenses involving cocaine and methamphetamine.5 The Legislature also, interestingly, decreased the minimum quantity threshold for marijuana for first- and second-degree offenses.6 There were no changes to fourth-degree offenses or fifth-degree sale offenses.7 The following charts show the changes:

First-Degree Sale8 Old New
Cocaine, methamphetamine 10 g 17 g
Heroin 10 g 10 g
Other narcotic 50 g 50 g
Amphetamine, PCP, hallucinogen 50 g or 200 dosage units 50 g or 200 dosage units
Marijuana or THC 50 kg 25 kg

 

First-Degree Possession9 Old New
Cocaine, methamphetamine 25 g 50 g
Heroin 25 g 25 g
Other narcotic 500 g 500 g
Amphetamine, PCP, hallucinogen 500 g or 500 dosage units 500 g or 500 dosage units
Marijuana or THC 100 kg 50 kg or 500 plants

 

Second-Degree Sale10 Old New
Cocaine, methamphetamine 3 g 10 g
Heroin 3 g 3 g
Other narcotic 10 g 10 g
Amphetamine, PCP, hallucinogen 10 g or 50 dosage units 10 g or 50 dosage units
Marijuana or THC 25 kg 10 kg

 

Second-Degree Possession11 Old New
Cocaine, methamphetamine 6 g 25 g
Heroin 6 g 6 g
Other narcotic 50 g 50 g
Amphetamine, PCP, hallucinogen 50 g or 100 dosage units 50 g or 100 dosage units
Marijuana or THC 50 kg 25 kg or 100 plants

 

Third-Degree Sale12      (no changes) Old New
Cocaine, methamphetamine Any amount Any amount
Heroin Any amount Any amount
Other narcotic Any amount Any amount
Amphetamine, PCP, hallucinogen 10 dosage units 10 dosage units
Marijuana or THC 5 kg 5 kg

 

Third-Degree Possession13 Old New
Cocaine, methamphetamine 3 g 10 g
Heroin 3 g 3 g
Other narcotic 10 g or 50 dosage units 10 g or 50 dosage units
Marijuana or THC 10 kg 10 kg
Gross misdemeanor fifth-degree offense

The Legislature also created a gross-misdemeanor fifth-degree possession offense.14 If a defendant has a prior drug-related conviction15 in Minnesota or elsewhere, then possession of any schedule I through IV substance is a felony.16 But if the defendant does not have a prior drug-related conviction, then the minimum felony-level quantity threshold for all schedule I through IV controlled substances except heroin is 0.25 grams or 1 dosage unit, and the minimum felony-level quantity threshold for heroin is 0.05 grams.17 If a defendant does not have a prior drug-related conviction, and the quantity is under those thresholds, then the offense is a gross misdemeanor. There were no changes to the minimum thresholds for procuring a controlled substance by fraud or deceit.18 The following chart shows the changes:

Fifth-Degree Possession19 Old New
Schedule I, II, III, or IV (except heroin or a small amount of marijuana) Felony: Any amount

 

No gross-misdemeanor-level offense

If prior drug conviction: Any amount

 

If no prior drug conviction: 0.25 grams or more, or more than 1 dosage unit

 

Gross misdemeanor if no prior drug conviction and less than 0.25 grams or 1 dosage unit

Heroin Felony: Any amount

 

No gross-misdemeanor-level offense

If prior drug conviction: Any amount

 

If no prior drug conviction: 0.05 grams or more

 

Gross misdemeanor if no prior drug conviction and less than 0.05 grams

Controlled substance procured by fraud or deceit Felony: Any amount

 

No gross-misdemeanor-level offense

Felony: Any amount

 

No gross-misdemeanor-level offense

Aggravated first-degree offense

Prior to the changes, there was no difference in presumptive sentence for a repeat offender who sold 200 grams of a controlled substance and a first-time offender who possessed 25 grams.20 To target so-called “kingpin” offenders, the Legislature created an aggravated first-degree offense.21 The aggravated first-degree offense carries a mandatory minimum prison commitment of 86 months, or the fixed duration in the guidelines box, whichever is greater.22

To qualify as an aggravated first-degree offense, the offense must involve (1) the sale or possession of 100 or more grams of cocaine, methamphetamine, heroin, other narcotic, or hallucinogen; or, if packaged in dosage units, 500 or more dosage units of amphetamine, PCP, or a hallucinogen; and (2) the presence of two or more aggravating factors or the possession or use of a firearm.23

Creation of aggravating factors and new firearm provision

The Legislature created new “aggravating factors” that reduce the minimum quantity thresholds for first- and second-degree offenses involving methamphetamine or cocaine. For first-degree offenses, the presence of two aggravating factors reduces the minimum quantity threshold for sale from 17 grams to 10 grams, and for possession from 50 grams to 25 grams.24 For second-degree offenses, the presence of three aggravating factors reduces the minimum quantity threshold for sale from ten grams to three grams, and for possession from 25 grams to 10 grams.25

There are 10 aggravating factors: (1) The defendant has a conviction for a crime of violence within 10 years of the offense; (2) the offense was committed for the benefit of a gang; (3) the offense involved separate acts of sale or possession of a controlled substance in three or more counties; (4) the offense involved the transfer of a controlled substance across a state or international border into Minnesota; (5) the offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to sell or transfer; (6) the circumstances of the offense reveal the defendant to have occupied a high position in the drug distribution hierarchy; (7) the defendant used a position or status to facilitate the commission of the offense, including positions of trust, confidence, or fiduciary relationships; (8) the offense involved the sale of a controlled substance to a person under 18 or a vulnerable adult; (9) the defendant or an accomplice manufactured, possessed, or sold a controlled substance in a school zone, park zone, correctional facility, or drug treatment facility; or (10) the defendant or an accomplice possessed equipment, drug paraphernalia, documents, or money evidencing that the offense involved the cultivation, manufacture, distribution, or possession of controlled substances in quantities substantially larger than the minimum threshold amount for the offense.26

The Legislature also created a new firearm provision that operates the same way as the new aggravating factors. If the defendant or an accomplice is in actual possession of a firearm or if a firearm is within their immediate reach, then the minimum quantity thresholds for first- and second-degree offenses involving methamphetamine and cocaine are reduced.27 For first-degree offenses, the firearm provision reduces the minimum quantity threshold for sale from 17 grams to 10 grams, and for possession from 50 grams to 25 grams.28 For second-degree offenses, the firearm provision reduces the minimum quantity threshold for sale from ten grams to three, and for possession from 25 grams to 10 grams.29 The new firearm provision is different from the firearm sentencing enhancement found in Minnesota Statutes section 609.11, subdivision 5. The new provision does not include constructive possession of a firearm beyond the person’s immediate reach.

Sentencing guidelines changes

Prior to the changes, drug offenses were part of the standard sentencing guidelines grid.30 Following the statutory reforms, the Minnesota Sentencing Guidelines Commission created a separate guidelines grid for drug offenses.31 Despite the new grid, the only changes to the presumptive sentences are to first- and second-degree offenses.

First-degree offenses used to be a severity-level 9 offense, which carried a presumptive prison commitment of 86 months with a criminal-history score of 0.32 Under the new grid, aggravated first-degree controlled substance crime is a severity-level D9 offense, which has the same presumptive sentence as the old severity-level 9.33 Non-aggravated first-degree offenses are now a severity-level D8, which carries a presumptive prison commitment of 65 months with a criminal-history score of 0.

Under the old grid, a second-degree offense was a severity-level 8 offense, which carried a presumptive prison commitment of 48 months.34 Second-degree offenses are now a severity-level D7, which carries a presumptive stayed sentence of 48 months with a criminal-history score of 0.35

Changes to mandatory minimum sentences

Under the old laws, mandatory minimum sentences were only triggered if the defendant had a prior drug conviction or statutory stay of adjudication under section 152.18.36 Under the new statutes, mandatory minimum sentences are triggered by four things: (1) quantity of the drug; (2) possession of a firearm; (3) a prior first- or second-degree drug conviction; and (4) application of the aggravated first-degree offense.

Quantity of drugs

The mandatory minimum sentence based on the quantity of the drug only applies to first-degree offenses.37 For possession offenses, the mandatory minimum sentence applies if the defendant possessed 100 or more grams of methamphetamine, cocaine, or heroin; or, if packaged in dosage units, 500 or more dosage units. For sale offenses, the mandatory minimum applies if the person sold 100 or more grams of methamphetamine, cocaine, heroin, other narcotic, or hallucinogen; or, if packaged in dosage units, 500 or more dosage units. If triggered, the mandatory minimum is 65 months, or the fixed duration in the applicable guidelines box, whichever is longer. The sentencing judge can depart from this mandatory minimum if the defendant does not have a prior first-, second-, or third-degree drug conviction. If the defendant has a prior first-, second-, or third-degree conviction, then the sentencing judge cannot depart.

Possession of firearm

The mandatory minimum sentence based on possession of a firearm only applies to first- and second-degree sale offenses.38 The mandatory minimum sentence applies if the defendant or an accomplice were in actual possession of a firearm or a firearm was within their immediate reach. If applicable, the mandatory minimum sentence is 36 months or 60 months if previously convicted of an offense involving this mandatory minimum.39 A judge cannot depart from this mandatory minimum.40

This mandatory minimum is different from the firearm-related mandatory minimum found in Minnesota Statutes section 609.11, subdivision 5. That mandatory minimum applies to actual possession of a firearm and constructive possession of a firearm beyond the immediate reach of the defendant or an accomplice; it applies to first- through fifth-degree offenses, and a judge can depart from the mandatory minimum.41

Prior drug conviction

Under the old laws, mandatory minimum sentences were only triggered if the defendant had a prior drug conviction or stay of adjudication under section 152.18.42 The mandatory minimum sentence was a 48-month prison commitment for a first-degree offense, a 36-month prison commitment for a second-degree offense, a 24-month prison commitment for a third-degree offense, a 12-month and 1-day prison commitment for a fourth-degree offense, and a 180-day jail sanction for a fifth-degree offense. The sentencing judge could not depart from the mandatory minimum for first- through fourth-degree  offenses.43

Under the new statutes, the mandatory minimum sentence only applies to first- or second-degree offenses, and only a prior first- or second-degree drug conviction triggers the mandatory minimum sentence.44 There are no mandatory minimum sentences for third-, fourth-, or fifth-degree offenses based on a prior conviction. The judge cannot depart from this mandatory minimum.45

Aggravated first-degree offense

Finally, as mentioned above, a person convicted of an aggravated first-degree drug offense faces a mandatory minimum sentence of at least 86 months.46 The judge cannot depart from this mandatory minimum.

Statutory stay of adjudication

One of the biggest changes for practitioners is the expanded eligibility for statutory stays of adjudication under section 152.18. Under the old law, only first-time offenders who committed a fifth-degree possession offense were eligible for a statutory stay of adjudication.47 Under the new law, statutory stays of adjudication are permissive for third-, fourth-, and fifth-degree possession offenses, and mandatory for certain fifth-degree offenses.48

A statutory stay of adjudication is now permissive for third-, fourth-, and fifth-degree possession offenses if the defendant (1) does not have a prior diversion adjudication for a drug offense, (2) does not have a prior statutory stay of adjudication under section 152.18, and (3) does not have a felony-level drug conviction in Minnesota or elsewhere within the past 10 years.

A statutory stay of adjudication is mandatory for fifth-degree possession offenses if (1) the above criteria are met, and (2) the defendant does not have a prior gross-misdemeanor fifth-degree drug conviction.

Conclusion

It is too early to tell whether the new reforms will achieve their intended purpose, but the early returns have been positive. The increased quantity thresholds, expanded eligibility for statutory stays of adjudication, and retooling of the mandatory minimum sentences will certainly keep more addicts out of prison and jail. At the same time, the increased penalties for kingpin offenders and firearm offenses will keep serious offenders off the street.


JUSTIN COLLINS has been an Assistant Anoka County Attorney since 2012. He has prosecuted primarily drug offenses for the last three years. He graduated magna cum laude from William Mitchell College of Law in 2009.


Notes  

1 Tad Vezner, “Minnesota to Overhaul Drug Laws for the First Time in 27 Years,” St. Paul Pioneer Press, 4/28/2016, updated 5/9/2016.

2 Id.

3 Ricardo Lopez, “Minnesota House Unanimously Approves Drug-Sentencing Reforms,” Minneapolis Star Tribune, 5/21/2016.

4 Minn. Stat. §§152.021-.025 (2016).

5 Minn. Stat. §§152.021-.023 (2016); Minn. Stat. §§152.021-.023 (2015).

6 Minn. Stat. §§152.021-.022 (2016); Minn. Stat. §§152.021-.022 (2015)

7 Minn. Stat §152.024 (2016); Minn. Stat. §152.024 (2015); Minn. Stat. §152.025, subd. 1 (2015).

8 Minn. Stat. §152.021, subd. 1 (2016); Minn. Stat. §152.021, subd. 1 (2015).

9 Minn. Stat. §152.021, subd. 2(a) (2016); Minn. Stat. §152.021, subd. 2(a) (2015).

10 Minn. Stat. §152.022, subd. 1 (2016); Minn. Stat. §152.022, subd. 1 (2015).

11 Minn. Stat. §152.022, subd. 2(a) (2016); Minn. Stat. §152.022, subd. 2(a) (2015).

12 Minn. Stat. §152.023, subd. 1 (2016); Minn. Stat. §152.023, subd. 1 (2015).

13 Minn. Stat. §152.023, subd. 2(a) (2016); Minn. Stat. §152.023, subd. 2(a) (2015).

14 Minn. Stat. §152.025, subd. 4(a) (2016).

15 “Prior drug-related conviction” means any conviction under chapter 152 or a similar law of another jurisdiction, including misdemeanor- and gross-misdemeanor-level offenses.

16 Minn. Stat. §152.025, subd. 4(b) (2016).

17 Minn. Stat. §152.025, subd. 4(a) (2016).

18 Minn. Stat. §152.025, subd. 2(2) (2016); Minn. Stat. §152.025, subd. 2(2) (2015).

19 Minn. Stat. §152.025 (2016); Minn. Stat. § 152.025 (2015).

20 Minn. Sent. Guidelines 4.A. (2015).

21 Minn. Stat. §152.021, subd. 2b (2016).

22 Minn. Stat. §152.021, subd. 3(d) (2016).

23 Minn. Stat. §152.021, subd. 2b (2016).

24 Minn. Stat. §§152.021, subd 1(2)(ii); 152.021, subd. 2(a)(2)(ii) (2016).

25 Minn. Stat. §§152.022, subd. 1(2)(ii); 152.022, subd. 2(a)(2)(ii) (2016).

26 Minn. Stat. §152.01, subd. 24 (2016).

27 See, e.g., Minn. Stat. § 152.021, subd. 1(2)(i) (2016) for firearm possession definition.

28 Minn. Stat. §§152.021, subd. 1(2)(i); 152.021, subd. 2(a)(2)(i) (2016).

29 Minn. Stat. §§152.022, subd. 1(2)(i); 152.022, subd. 2(a)(2)(i) (2016).

30 Minn. Sent. Guidelines 4.A. (2015).

31 Minn. Sent. Guidelines 4.C. (2016).

32 Minn. Sent. Guidelines 4.A. (2015).

33 Minn. Sent. Guidelines 4.C. (2016).

34 Minn. Sent. Guidelines 4.A. (2015).

35 Minn. Sent. Guidelines 4.C. (2016).

36 Minn. Stat. §§152.021-.025, subd 3(b) (2015).

37 Minn. Stat. §152.021, subd. 3(c) (2016).

38 Minn. Stat. § 609.11, subd. 8(c) (2016).

39 Minn. Stat. §609.11, subd. 5 (2016).

40 Minn. Stat. §609.11, subd. 8(c) (2016).

41 Minn. Stat. §609.11, subd. 5 (2016).

42 Minn. Stat. §§152.021-.025, subd. 3(b) (2015).

43 State v. Turck, 728 N.W.2d 544, 547-48 (Minn. Ct. App. 2007); Minn. Stat. §§152.021-.024, subd. 3(b) (2015).

44 Minn. Stat. §§152.021, subd. 16a.; 152.021, subd. 3(b); 152.022, subd. 3(b) (2016).  Minn. Stat. 152.021, subd. 16a. (2016).

45 Turck, 728 N.W.2d at 547-48.

46 Minn. Stat. 152.021, subd. 3(d) (2016).

47 Minn. Stat. §152.18, subd. 1 (2015).

48 Minn. Stat. §152.18, subd. 1 (2016).

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