As other states begin to review their laws on the criminality of the possession and use of marijuana, South Dakota continues to make it illegal for any person to possess or ingest the drug — whether a medicinal or recreational use. However, there is significant controversy and confusion regarding new derivatives of the marijuana drug. In the past few years, new techniques have emerged that allow for the extraction of the potent chemical found in marijuana, THC or Delta- 9 –Tetrahydrocannibinol to be made into a hashish, oil, wax or edible form that is much more potent than the original plant.
In many surrounding states, marijuana, as well as its derivatives, is listed as Schedule 1 Controlled Substances and possession is dealt with similarly by weight of the substance. However, in South Dakota, marijuana is not listed as a controlled substance, but its derivatives are listed as a controlled substance. This means that possession of marijuana may not be a felony, but the possession of wax, shatter, dab or an edible is a felony. Or is it?
In South Dakota, possession of 2 ounces or less of marijuana in its unaltered state is considered a Class 1 Misdemeanor punishable by up to 1 year in jail and/or a $2000 fine. However, possession of hashish, hash oil and marijuana derivatives containing THC is a Class 4 Felony punishable by up to 10 years in prison and/or a $20,000 fine. These laws and their distinctions have been untested for several years. But now, with the advent of newer types of concentrates as well as some high-profile offenders, the laws have come under scrutiny. The controversy is complex and its most basic premise comes from the fact that marijuana is the only precursor for hash, or other derivatives containing THC. The way the laws are written create a confusion that makes it impracticable for anyone to be able to distinguish what is and what is not “marijuana”.
A Fourth Circuit State Court in South Dakota has construed the applicable statutes and found two separate defendants not guilty of possession of a controlled substance in the form of marijuana concentrates. The reasoned opinions hold that the applicable statutes regarding marijuana when harmonized with each other say that if the substance contains an extraction of marijuana, it is marijuana and should not be considered a controlled substance, and any other interpretation of the applicable statutes creates a result that is ambiguous and contradictory — potentially creating confusion for the ordinary citizen. It should be noted that this is the opinion of just one State Circuit Court in South Dakota and is not the binding law of the State of South Dakota.
Until South Dakota legislature changes the statutes or the Supreme Court provides clarity by its judicial review of these statutes this controversy concerning what is and is not “marijuana” continues.
If you or someone you know has been charged with possession or any other crime, you can trust that the attorneys at Wilka, Welter & Ash, LLP are up to date on the law and can assist you in your defense.