South Dakota marijuana possession laws may be the nation's harshest
Last update: January 3, 2019
Possession of just a small amount of marijuana in South Dakota carries a potential penalty of a year in jail and a $2,000 fine. Even more alarmingly, individuals who have consumed marijuana elsewhere are also subject to this penalty if they test positive for past use — even if they consumed marijuana in a state where it was legal. South Dakota appears to be the only state with such an “internal possession” law. In addition, possession of any amount of hash or concentrates is a felony, punishable by up to five years in prison and a fine of up to $10,000. Even just possessing drug paraphernalia, like a marijuana pipe, in South Dakota can land you a misdemeanor charge, up to 30 days in prison, and up to a $500 fine.
A study by the American Civil Liberties Union found that South Dakota was among the top 10 states for racial disparity in marijuana possession arrest rates. Despite people of all races using marijuana at very similar rates, blacks in South Dakota are nearly 4.8 times more likely than whites to be arrested for marijuana possession.
In 2017, 15 lawmakers introduced Senate Bill 129, which would have revised the penalty for ingestion of marijuana and undone the uniquely severe law of criminalizing internal possession. Unfortunately, the bill did not make it out of committee. No marijuana policy reform bills were introduced in 2018. Let's make sure that's not the case this year.
Click here to ask your legislators to treat marijuana possession as civil offense, eliminating jail time for adults who choose to use a substance that is safer than alcohol and the life-changing collateral consequences triggered by a criminal conviction.
South Dakota allows controlled access to cannabidiol, fails to protect medical cannabis patients
In 2017, South Dakota's legislature enacted the most restrictive and limited of any state law that acknowledges some form of cannabis’ medical value. The law (Senate Bill 95) removed cannabidiol (CBD oil) from the definition of marijuana and made it a Schedule IV controlled substance, if and only if CBD oil was approved by the Food and Drug Administration. (A House committee had approved a version of the bill that would have eliminated the FDA approval requirement.)
In 2018, the FDA approved Epidiolex, a nearly pure pharmaceutical extract of cannabidiol, for Lennox-Gastaut and Dravet Syndromes, types of epilepsy.
Unfortunately, this will not help patientswho need some THC in order to get relief for their symptoms, so an effective medical marijuana program is still needed. It will also not help patients who benefit from other types of CBD products or who have other medical conditions.
Timeline of marijuana reform in South Dakota
1977: During a short-lived wave of decriminalization in the country, South Dakota decriminalized cannabis, but repealed that law "almost immediately" afterward.
2003: In South Dakota v. Matthew Ducheneaux, the state Supreme Court ruled that Mr. Ducheneaux — who was convicted of marijuana possession in 2000 — could not rely on a state necessity defense law that allows illegal conduct when a person is being threatened by unlawful force. The court stated that it would strain the language of the law if it could be used to show that a health problem amounts to unlawful force against a person.
2006: The South Dakota Medical Marijuana Initiative, also known as Initiative 4, was on the November 2006 ballot in South Dakota as an initiated state statute, where it was defeated by a vote of 52-47%. The measure would have allowed persons, including minors with parental consent, with a debilitating medical condition to be certified to grow up to six marijuana plants, possess up to one ounce, and use small amounts of marijuana for medical purposes.
2010: The South Dakota Medical Marijuana Initiative, also known as Initiative 13, was on the November 2010 ballot in South Dakota as an initiated state statute, where it was defeated by a percentage of 63-36%. The measure would have legalized the possession, use, distribution, and cultivation of marijuana by persons registered with the South Dakota Department of Health.
2016: The South Dakota Medical Marijuana Initiative did not make the 2016 ballot in South Dakota as an initiated state statute. The measure would have legalized medical marijuana in South Dakota.
2017: The South Dakota State Senate passed legislation removing cannabidiol from the definition of marijuana and making it a Schedule IV controlled substance and legal to use so long as any recommended CBD oil is approved by the Food and Drug Administration.
2018: Initiatives to legalize medical and adult-use marijuana fail to qualify for the 2018 ballot in South Dakota.
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