THE MINNESOTA STATUTE REQUIRING A DEFENDANT TO SHOW THE SUBSTANCE IS NOT MARIJUANA UNCONSTITUTIONALLY SHIFTS THE BURDEN OF PROOF TO THE DEFENDANT.
Minnesota Statute §152.01 Subd. 9 states:
“Marijuana” means all parts of the plant of any species of the genus Cannabis, including all agronomical varieties, whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin, but shall not include the mature stalks of such plant, fiber from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, except the resin extracted therefrom, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. Marijuana does not include hemp as defined in section 152.22, subdivision 5a.(emphasis added).
Minnesota Statute §152.22 Subd. 5a states:
“”Hemp” has the meaning given to industrial hemp in section 18K.02, subdivision 3.”
“Subd. 3.Industrial hemp.
“Industrial hemp” means the plant Cannabis sativa L. and any part of the plant, whether growing or not, including the plant’s seeds, and all the plant’s derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. Industrial hemp is not marijuana as defined in section 152.01, subdivision 9.”
So, in order to be “marijuana”, the cannabis sativa L plant, or any part thereof, must contain a delta-9 tetrahydrocannabinol concentration more than 0.3 percent on a dry weight basis.
Therefore, in order to be prosecuted for the possession/sale of “marijuana” the prosecutor must first prove that the substance is, in fact, marijuana as defined by the legislature of this State.
The CrimJigs discussing marijuana crimes list, as the first element of the offense, that the defendant “sold” or “possessed” “one or more mixtures containing marijuana”. (see eg. CrimJig 20.34)
But instead of making the prosecution prove the first element of the offense, the legislature came up with Minnesota Statute 18K.08, which states:
“DEFENSE FOR POSSESSION OF MARIJUANA.
It is an affirmative defense to a prosecution for the possession of marijuana under chapter 152 if:
(1) the defendant possesses industrial hemp grown pursuant to this chapter; or
(2) the defendant has a valid controlled substance registration from the United States Department of Justice, Drug Enforcement Administration, if required under federal law.”
The problem with Statute § 18K.08 is that you can’t take an element of an offense and then require the defendant to disprove the element as “an affirmative defense.” See, State v. Cannady, 727 N.W.2d 403 (Minn. 2007- Due process does not permit the state to place on the defendant the burden of disproving an element of the crime with which he is charged.)
In Cannady, the Defendant was convicted of possession of child pornography. Cannady appealed his conviction, arguing that Minn.Stat. § 617.247,subd. 8 (2006), an affirmative defense provision, unconstitutionally shifts the burden of production and persuasion to the defendant on the element of age of the persons depicted in the alleged pornographic images.
The court of appeals affirmed Cannady’s convictions, relying on its 2002 decision in State v. Myrland, which upheld the constitutionality of section 617.247, subdivision 8, on the basis that only the burden of production is shifted to the defendant and not the burden of persuasion. 644 N.W.2d 847, 851 (Minn.App.2002), rev. denied (Minn. Aug. 6, 2002).
But the Minnesota Supreme Court held: “While we agree with the court of appeals that section 617.247, subdivision 8, shifts the burden of production to criminal defendants, we hold that this shift violates a criminal defendant’s right to due process because it also creates a de facto shift in the burden of persuasion.” Id. at 405.
The Cannady Court then explained:
“But the legislature did not indicate in subdivision 8 whether the affirmative defense shifts the burden of production or the burden of persuasion on the element of age to the defendant. The court of appeals in Myrland concluded that if the affirmative defense shifted the burden of production, it would be constitutional, but if it shifted the burden of persuasion, it would be unconstitutional. 644 N.W.2d at 851. The court of appeals held that the affirmative defense could be construed as “merely requir[ing] respondents to make a prima facie showing that the age of the persons involved is a disputed issue. As such, the state is never freed of its burden to prove the age of the persons involved and the charges will be dismissed if it fails to meet that burden.” Id. (internal footnote omitted).
“But the Myrland court did not consider what would happen if a defendant fails to make out a prima facie case on the element of age, which in this case is an essential element of the crime. (emphasis added). It is well-established law that a defendant’s failure to meet his or her burden of production on a defense prohibits the assertion of that defense. State v. Yang, 644 N.W.2d 808, 819 (Minn.2002); State v. Charlton, 338 N.W.2d 26, 30–31 (Minn.1983). By placing the burden of production of an essential element of the offense on the defendant, section 617.247, subdivision 8, creates a de facto shift in the burden of persuasion because a defendant’s failure to meet the burden of production on the issue of age would prevent the issue from ever reaching the jury. “It is well settled that due process ‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ” State v. Hage, 595 N.W.2d 200, 204 (Minn.1999) (quoting Patterson v. New York, 432 U.S. 197, 204, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)). As a result, “[d]ue process does not permit the state to place on a defendant the burden of disproving an element of the crime with which she is charged.” Id. Because the affirmative defense in subdivision 8 creates a de facto shift in the burden of persuasion to the defendant on the essential element of age, we hold that it is unconstitutional.”
So, doesn’t the affirmative defense of Statute 18K.08, also create “a de facto shift in the burden of persuasion to the defendant on the essential element of” marijuana and is, therefore, unconstitutional? I thinks so.
If you or a loved one have been charged with the possession or sale of marijuana, contact Minnesota Super Lawyer F. T. Sessoms at (612) 344-1505 today!