Crime Lab Testing Not Required to Find Probable Cause: MN Fifth Degree Possession

Recently, the Minnesota Court of Appeals determined that the prosecution does not need to have a definitive scientific test establishing a criminal level of THC to survive a probable cause challenge in a fifth degree possession case. In most drug possession cases in Minnesota, officers start by NIK testing a substance to determine what it is. This is a field test that a cop can conduct on scene, or back at the police department, that will quickly give results. Commonly, no further drug testing will be conducted until a trial date is scheduled in a case. Therefore, all the other court appearances (Arraignment, Omnibus Hearing, Pre-Trial, etc.) will be conducted without an actual test at a lab.

In State v. Dixon, the defense challenged probable cause at the district court level and won by arguing that the prosecution needs to have chemical testing to establish that the THC concentration in plant material exceeds the legal limit. The cops discovered 58.93 grams of marijuana, which is above the felony threshold, in the defendant’s vehicle. The field test merely detected THC and did not quantify its concentration. Thus, there was no distinction between legal hemp and illegal marijuana.[1] This is what the defense’s argument relied on in its probable cause challenge at the district court; and the trial court judge agreed.

The Minnesota Court of Appeals disagreed and reversed the trial court. In its reasoning, the court emphasized the probable cause standard, which is much lower than the proof beyond a reasonable doubt standard needed for a prosecutor to win at trial. Besides the field test, the court reasoned that other evidence existed to show the defendant possessed marijuana, such as the officer’s observations, the defendant admitting to smoking marijuana earlier that day, and the defendant’s confession that the plant material was marijuana. The district court admitted this was not the perfect test case for this issue, but was troubled about the lack of a test to distinguish between THC and hemp.

The court of appeals refused to adopt a bright-line-rule requiring conclusive proof to survive a probable cause challenge. Specifically, the court of appeals decided that “chemical testing establishing that plant material contains THC concentration greater than 0.3% on a dry-weight basis is not required if there is other sufficient evidence to support a finding of probable cause.” Unfortunately, this decision may embolden many prosecutors to not ask for lab testing in the pre-trial stages of a case. The defendants that will suffer the impact of this decision are the ones that had hemp, Delta-8, or other legal substances in their possession, but are being treated as if they had illegal amounts of THC. We will see if this case ends up at the Minnesota Supreme Court or if it stands as a bad case for defendants.

Robert H. Ambrose is a criminal defense lawyer and DWI lawyer in Minnesota. Super Lawyers named him a Rising Star for the past six years; and the National Trial Lawyer’s Organization named him a Top 40 Under 40 Trial Lawyer the past seven years. He is an adjunct professor at the University of Minnesota Law School. Criminal Defense Attorney Woodbury MN; Criminal Defense Lawyer Minnesota; and Criminal Lawyer Near Me.

[1] Previously, we blogged about the Legalities of CBD, Delta-8, and Other Hemp Products here.

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