Finding clarity: With new recreational cannabis law comes plenty of questions

Published 6:48 pm Friday, August 4, 2023

A new Minnesota law, that makes recreation cannabis use legal in the state, went into effect on Tuesday.

Hailed throughout by supporters leading up to the day, the law also brings with it questions, especially for those in law enforcement and civil government who will need to enforce it.

Supporters of the law, passed by Democratic-controlled House and Senate and signed by Gov. Tim Walz on May 30, celebrated the law’s passing on Tuesday as a progressive step forward for the state.

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Meanwhile, critics have voiced concerns of what the impacts on public safety and public health will be, feeling that the law was rushed through and doesn’t thoroughly address those worries.

Among the areas of concern is that the regulatory agency that will be charge of licensing dispensaries, the Office of Cannabis Management, still hasn’t been set up and it could be another 18 months before it will begin licensing businesses to sell.

Currently, there are only two dispensaries for the entire state: NativeCare, located on the Red Lake Indian Reservation, and that opened on Tuesday alongside the new law. The second site, Waabigwan Mashkiki, was opened Thursday by White Earth Nation. 

This raises concerns for some that illicit sales of marijuana could fill the gaps left behind.

“I think that it’s been decoupled from what can be legally possessed versus what can be legally sold,” Austin Police Chief David McKichan said. “We’re going to have a time period where the possession is going to be more open versus what’s available for retail sales. I worry about what’s going to fill the void.”

Mower County Sheriff Steve Sandvik has similar concerns as thoughts turn to how this new law can be interrupted on the roadways.

“The statute lays out that you can’t sell it unless you are a legal dispensary,” he said. “It really doesn’t address any of these issues as far as where it came to be  and where it is. We have no roadside testing capability and very little guidance as to how to deal with that.”

While the new law legalizing cannabis mirrors current smoking laws in terms of where it can be publicly used, it remains illegal while operating a moving vehicle, but without a reliable roadside test, similar to breathalyzers used in cases of alcohol, it becomes more difficult to prove intoxication.

And it’s going to be a while before the tests are available. A year-long experiment on an oral fluid test will begin in September, but results won’t be admissible in court leading agencies to lean heavily on  officer observations.

This could leave gaps that will add to the difficulty in determining whether or not someone is breaking the law or even provide probable cause in order to gain a blood test.

“It’s just more of a challenging, different environment,” McKichan said. “We’ll just have to see what that means for our time and for the state in general.”

Another aspect of this is the lack of drug recognition evaluators (DRE) within the ranks of law enforcement around the state. A Minnesota Public Radio story reported that there are about 300 DRE’s across the state as of this July.

Of those, one-third work for the Minnesota State Patrol, while the rest are split among local law enforcement entities within the state. The state has set a goal to certify 100 more within the next year on the way to an overall goal of 500.

The state has set aside money to help with this, but Sandvik pointed out that training is still expensive, which could limit how many are trained, especially in smaller department, in the near future. 

“It’s 40 to 80 hours of intensive training because you are learning medical effects,” Sandvik said, noting that Mower County is  lucky enough to have a few properly trained deputies on staff. “You are becoming a doctor of what chemicals do to a human body.”

Many in law enforcement attribute the rushed nature of the law’s passage as a factor in many of these areas, with some even feeling as if their concerns weren’t heard leading up to the law’s passage, similar to when THC edibles were legalized for sale and consumption last year.

“I thought last year with the (edibles law), which allowed low potency, that it was done in a way that did not allow a lot of input from stakeholders just to get a foot in the door,” McKichan said. “You don’t have an enforcement mechanism.”

The law stipulates that use is only for adults 21 and older. Possession is limited to two ounces or less in public with up to eight grams of cannabis concentrate, edibles with up to 800 milligrams of THC and two pounds of cannabis at home.

People can also now grow cannabis at home, but can only possess eight plants at a time and of those, only four can be mature enough to be flowering at the same time.

The law allows for municipalities to restrict where cannabis can be used as well as sold through ordinances, something both the City of Austin and Mower County are actively looking at.

“Marijuana has a more pungent order and differs from tobacco smoking in this regard and can serve as a broader concern for those in proximity of those smoking,” said City Administrator Craig Clark. “As a result, a staff recommendation will be to restrict public consumption by local ordinance as allowed by the state. This will be considered at the next council work session for their direction on this topic.”

That discussion is on the work session portion of this Monday night’s City Council meeting.

County Administrator Trish Harren echoed Clark’s thoughts, referring to the cap of one retailer per 12,500 people as something the county will have to look at within the broader scope. She said that could mean just one, maybe two retailers in Austin given the population, and another possible retailer in the county.

She also raised concerns of enforcement as well, but felt good that the law gives municipalities the time to figure out where to go.

“We are grateful that there was some thoughtful work done … and that we have some time to create ordinance and be ready before retail is available,” she said, noting the state has given governmental bodies until Jan. 1 of 2025 to get ordinances into place.

However, while cities and counties have time to figure out ordinances and law enforcement are adjusting to the new law, there is another point of frustration — how does this law work within federal standards?

While recreational cannabis use in Minnesota is now legal, it’s still illegal on the federal level and can’t be transported across state lines. The two areas are often contradictory.

Both gun laws and correctional laws fall into that gray area.

“Federal law bars the possession of firearms if you are a controlled substance user,” Sandvik said. “State law is in direct opposition with federal law on the legality of cannabis.”

Sandvik is especially concerned when it comes to correctional facilities. Despite the new law, there remains a Minnesota statute that bars cannabis from being introduced into correctional facilities.

When inmates are booked into jail , any contraband found on their person is confiscated, however, the new law muddies that water.

They can’t destroy the cannabis because then you are destroying public property and could be liable for damages but Sandvik also added that corrections can’t simply give it back either. 

“If we hand it to them when they are released, we’re in violation of federal law,” Sandvik said. “Now we are violating federal law. We are literally handing somebody a controlled substance under federal law.”

McKichan brought up the specter of the unknown. Will there be unknown medical side effects later on down the road, and how will cannabis impact the number of medical and mental health calls?

McKichan and others in law enforcement would have preferred to have these answers in place before the law went on the books, but for now it could be years before the picture becomes completely clear.

“When retail sales are truly available and this is widespread, then I think we’ll be able to get a handle on what we got ourselves into,” McKichan said, adding that he hopes for a smooth future. “Two, three years, if things stay the way they are, it will be the state’s best opportunity to assess it. I think we’ll be assessing what the effects are from a health standpoint for a decade to come.”

Either way, McKichan said that all parties should want an equal footing going forward.

“You absolutely should want a robust regulatory system,” he said. “If you are a retailer trying to sell things under the rules, you should absolutely want a fair playing field where everybody is following the rules.”