Marijuana: No Hard-in-Fact Test Required to Establish Probable Cause for Trial

field test

Are hemp and other products such as delta-8-tetrahydrocannabinol (Delta-8) actually legal in Minnesota? In short, yes. But the newly released opinion in Minnesota Court of Appeals State v. Nixon allows the State to charge an individual with criminal possession without proving whether a substance is legal hemp or illegal marijuana. Without a proper field test being required, it calls into question how ‘legal’ these substances truly are.

The defendant in Nixon was charged with felony fifth degree possession of marijuana but moved to dismiss the charges for lack of probable cause. The defendant stated that although the substance field tested positive for delta-9-tetrahydrocannabinol (THC), the substance found in his possession was, in fact, legal hemp (with less than .03% THC).

However, the Court of Appeals held that the State did not have to provide hard-in-fact evidence that the substance contained an illegal concentration of THC to suffice probable cause for trial. Instead, the State only needed to produce circumstantial evidence that could result in a jury rendering a guilty verdict for illegal possession.

The stage of the criminal process affects the holding and decision, and in this case, it was being argued as a probable cause motion to dismiss. In these motions, the Court reviews the evidence in the light most favorable to the State in trying to decide if there is sufficient evidence to justify holding a trial. While one would think that having a legal product in your possession should mean the case gets dismissed, the Court is deferential to the State to a fault, unfortunately (and also a bit behind in the times in understanding the hemp/marijuana products out there).

This decision means that regardless of whether the drug/product is field tested, the State can survive a Motion to Dismiss for illegal possession by relying merely on circumstantial evidence (i.e. not actual evidence the product is illegal).

How Does This Affect Your Field Test Rights?

So, how does this implicate your rights as a citizen in Minnesota, and what might happen if you are approached by police with Delta-8 or hemp in your possession? Three situations typically arise:

  • the substance is legal hemp but tests positive for THC;
  • the substance is Delta-8 and trips a false positive test for THC;
  • or there is no substance to test (which normally occurs after consumption of the substance).

While none of these situations should result in a conviction, that does not mean that you cannot be charged with a crime and suffer through a lengthy pretrial period.

In other words, the legal possession of a cannabis product could result in multiple hearings before the discovery of its legality. And even then, the State could leave the decision to a jury, rather than making the right decision to dismiss the case. This requires you to incur the costs of attorney’s fees, significant time, and mental degradation.

Contact North Star Criminal Defense for Criminal Defense

Further, even if the case is ultimately dismissed, the charge and arrest will remain on your criminal record. If this happens, it could affect your ability to obtain employment, housing, and benefits. This is where the seasoned attorneys here at North Star Criminal Defense can help.

Circumstantial evidence and probable cause are found through a complete analysis of the evidence in the record. Our Minnesota attorneys can assist you in developing the record to best argue for a Motion to Dismiss for lack of probable cause, in negotiations, and fight at trial if we must. Further, we can assist you in petitioning the court for expungement, placing you in the same legal position you were in prior to the charge, once a dismissal is achieved.