Earlier this year, the Minnesota legislature amended the existing definition of hemp, thus altering the legal status of hemp-derived CBD products. CBD products include oils, topicals, and edibles and are highly available not only in Minnesota but across the US.

Prior to the amendment, THC was legal in any concentration and amount provided the source was a hemp plant. Hemp plants are cousins of marijuana plants, and pure CBD does not create the “high” that marijuana does. This “high” is courtesy of tetrahydrocannabinol (THC).

What is CBD?

CBD, or Cannabidiol, in an active ingredient in cannabis that is derived from the hemp plant. CBD oil is used to alleviate several conditions including:

• Insomnia
• Chronic pain
• Cancer-related symptoms
• Anxiety and depression
• Diabetes
• Inflammation
• Drug withdrawal
• Epilepsy
• Acne
• Autoimmune disorders

Cannabis with high CBD is specially grown to treat these and other conditions as well as being used a source of wellness. Because hemp has no psychoactive effect, it is both legal and unregulated.

In 2014, the Farm Bill was signed into law increasing research into the benefits of hemp. Then, in 2016, the US Department of Justice (DOJ) and US Drug Enforcement Agency (DEA) approved a commercial hemp licensing program in Minnesota. Thus, registered farmers were legally able to cultivate industrial hemp, thus resulting in more than 2,000 acres of hemp being planted in Minnesota.

The problem

CBD derived from hemp is currently legal; however, CBD cultivated from illegal marijuana plants is illegal. Thus, it is the source of the CBD that determines legality. However, hemp contains little CBD while marijuana creates the best CBD and, consequently, higher levels of THC.

Because hemp produces a relatively small amount of CBD, hemp growers must cultivate large amounts in order to produce an adequate amount of CBD when compared to the more efficient and higher quality marijuana-sourced CBD.

The legal status of CBD products depends upon the amount of THC in the source plant and not the end product. The legislature created a .3% maximum THC threshold for CBD products. One problem is that CBD products with no more than .3% THC by dry weight would still be illegal if sourced from a marijuana plant. In other words, even if a CBD product had zero THC, if it were sourced from a marijuana plant—and not a hemp plant—it would be illegal.

Changes in the law

Effective 1 July 2019, hemp-derived CBD is no longer considered legal hemp unless it has .3% THC or less. The legislature amended the law to include this .3% limit on all of the plants seeds, derivatives, and extracts. Thus, whereas before the new law, any CBD was legal provided it came from a hemp plant, this is no longer the case.

The manufacturing process for CBD involves growers cultivating cannabis plants with not more than .3% THC, processing the hemp to extract the CBD oil, and diluting the concentrate to ensure the end product complies with this .3% limit. The problem is that it is impossible to make CBD oil from hemp by staying within this threshold. Thus, even though the end product may be compliant with the law, because the second step does not adhere to the new legal requirements, this creates a trap for the Minnesota hemp-growing community.

Minnesota, like much of the rest of the country, has set its maximum blood alcohol concentration (BAC) at .08 for a DWI. Because it is illegal to operate a motor vehicle if any amount of alcohol has impaired the driver’s abilities regardless of said driver’s BAC, in some cases, drivers may still be charged with drunk driving even if their BAC is under the legal limit.

There are several situations where this may occur.

Drivers under age 21

Minnesota has a zero tolerance for drunk drivers under the age of 21 who have any level of alcohol above .00 in their systems. This applies to both underage drivers who are stopped for drinking and driving as well as those who have any presence of alcohol in their systems. Individuals caught risk not only getting a DWI charge but may also receive lesser penalties, driver’s license revocations, or other type of misdemeanor charges. Additionally, this can affect future eligibility for another driver’s license, a learner’s permit, or a provisional license.

Open bottle

In Minnesota, it is against the law to have an open bottle or can of alcohol in any vehicle that is being driven on any of Minnesota’s roadways even if the drink is not being consumed at the time. However, if the open bottle is in an area where there are no passengers—such as the trunk—then there is no violation. Of course, some exceptions—such as limousines, buses, motorboats, and pedal pubs are exempt from this regulation. 

Commercial vehicles

The minimum BAC level for those driving commercial vehicles is .04. Drivers who are caught with a higher BAC may have their driver’s licenses revoked. However, if their BAC is below .08, they may still drive their personal vehicles. Commercial drivers who have been caught for a second time with a BAC over .04 may face revocation of commercial driving privileges for a year. 

Operating an aircraft

As is the case with commercial vehicles, the threshold BAC level for pilots is also .04. Violation of this will result in a gross misdemeanor charge. Further, it is illegal to operate an aircraft within eight hours of the consumption of alcohol. Even if the pilot’s BAC is less than .04, this can still result in DWI charges.

School buses

School bus drivers are also included under the aforementioned zero-tolerance policy. A school bus driver operating a bus with any amount of alcohol in his/her system can be charged with DWI and face cancellation of his/her school bus driving endorsement. However, if the person didn’t register a BAC above .08, s/he can still drive his/her personal vehicle.

A note on drugged driving

Driving under the influence of drugs is a growing national health and safety problem. Because of the wide varieties of drugs and the lack of any standardized testing as is available for drunk drivers, if a driver is found to be under the influence of controlled or otherwise hazardous substances, authorities need not show a BAC above .08. The growing incidence of drugged driving has resulted in increased awareness by law enforcement as to how to properly identify drugged drivers through additional training and awareness.

What happens if a DWI suspect submits to a blood alcohol concentration (BAC) test but that test is completed several hours after arrest? Whereas Minnesota law criminalizes a motorist who is driving with a BAC of .08 or more at the time of driving—”or as measured within two hours of the time of driving, operating, or being in physical control” of a vehicle—it is still possible to obtain a conviction if the test was conducted after this two hour window.

Whereas many people—including some DWI defense attorneys—mistakenly believe that a person cannot be charged with DWI if police obtain a breath, blood, or urine sample beyond this two-hour stipulation, in some cases, prosecutors can calculate a motorist’s BAC at the time of driving through retrograde extrapolation. Retrograde extrapolation is a scientific guessing of sorts of someone’s BAC at an earlier point in time.

Reasons for delays in obtaining BAC measurements

Even though two hours seems to be a long time, most DWI BAC tests are conducted more than two hours after the motorist was stopped. Reasons for these delays include:

• The time needed to conduct field sobriety tests and preliminary breath test
• The time for the initial stop
• The time taken to wait for a tow truck for the suspect’s vehicle, if necessary
• The time taken to make contact with a suspect who has already arrived at another location
• The time needed to transport the suspect to the police department, hospital, or other testing location
• The time necessary to complete a search warrant application and obtain said warrant
• Extra time in cases where the breath test machine malfunctions

The science behind retrograde extrapolation

Whereas there is some scientific evidence when retrograde extrapolation is applied to alcohol consumption by utilizing known absorption and elimination rates, there are numerous other variables and considerations that come into play when trying to determine someone’s BAC level at an earlier time.

There is no standard time frame wherein a person will reach his/her peak blood alcohol concentration as it varies considerably from person to person. Many variables are necessary in order to use retrograde extrapolation correctly:

• Height
• Weight
• Time since first drink
• Time since last drink
• Gender
• Drinking pattern
• Type of alcoholic beverage(s)
• Whether there was food in the stomach

If these variables are known, one can reasonably estimate BAC from an earlier time. In most cases, however, police officers do not obtain this critical information, and unknown variables result in unreliable calculations.

Defenses to unreliable retrograde extrapolation

Generally, expert testimony is useful if said testimony has a reasonable basis, is relevant, assists the trier of fact, and has a probative value that outweighs any prejudice. Because police officers fail to obtain all of the aforementioned important variables, then any useful retrograde extrapolation is rendered irrelevant. Further, if the person providing the evidence is some type of forensic authority, then the potential for unfair prejudice to the defendant arises, and the evidence can be challenged and, ultimately, inadmissible in court.  In one court case out of Illinois, the state court of appeals found that expert testimony relating to retrograde extrapolation, in that particular case, was not reliable.

Recently, in Jensen v. State Commissioner of Public Safety, the Minnesota Court of Appeals was tasked with answering the question of whether the district court erred by denying the petitioner’s petition to reinstate her driver’s license in light of the fact that the deputy who arrested her failed to warn her that test refusal is a crime.

Pursuant to Minnesota Statutes Section 171.177, Subd. 5, the commissioner of public safety may not revoke a DWI suspect’s driver’s license based on blood alcohol concentration (BAC) testing without a hearing unless the officer provides the driver the required refusal-is-a-crime warning. In this case, a county sergeant obtained a search warrant for Pauline Jensen’s blood after she struck and injured a child with her vehicle and failed field sobriety tests. The sergeant, however, failed to administer the warning.

The subsequent blood test revealed Jensen’s BAC to exceed the statutory limit of .08, and, as a result, the commissioner of public safety revoked her driver’s license. Jensen petitioned for judicial review on the basis that the arresting sergeant failed to administer to her the statutory warning that test refusal is a crime.

Whereas the district court upheld the revocation, the appellate court reversed the lower court’s decision and remanded the case back to the district court to rescind the revocation.

Facts of the case

Responding to a call that a child had been hit by a car at a gas station, the deputy sergeant arrived to find a teenage boy being treated by emergency responders. A witness told the sergeant that Jensen had struck the boy with her car and then left the scene. The sergeant later located Jensen’s vehicle at a local bar and found her inside.

Jensen’s eyes were watery and bloodshot, she smelled of alcohol, and she was unstable. He arrested Jensen and transported her to the station where she failed field sobriety tests and was given a preliminary breathalyzer. The preliminary breath test registered Jensen’s BAC as .17—more than double the legal limit. He then obtained a search warrant for Jensen’s blood which, subsequently, proved that Jensen was, in fact, driving while intoxicated when she struck the boy.

The commissioner revoked Jensen’s license based on the tests; however, Jensen appealed citing that her license should be reinstated given that the arresting officer failed to administer the requisite warning that test refusal was a crime. She also argued that the sergeant failed to give her the opportunity to speak with an attorney prior to the test.

The district court denied the petition holding that the sergeant’s failure to give her the warning was irrelevant given that there was probable cause—enough probable cause to secure a warrant—to believe that Jensen committed DWI and criminal vehicular operation causing bodily harm. The case went to the appellate court.

Decision

The court of appeals held that even if Jensen refused to submit to the test, the sergeant could have had her blood tested anyway since he had obtained a search warrant; however, this does not eliminate his duty to provide the warning at the time a test is directed. Further, even though the commissioner of public safety may revoke a driver’s license using alternate procedures, the law still requires the officer to administer the refusal-is-a-crime warnings.

Jensen also argued that the sergeant should have given her a chance to consult with an attorney before submitting to the blood test; however, the Minnesota Supreme Court recently held that a motorist arrested for DWI has no right to consult with a lawyer before deciding whether or not to submit to a test authorized by a search warrant.

Effective as of August 1, 2019—alongside the state’s new hands-free cellphone law—is the state’s new slowpoke left lane law. This law authorizes police officers to issue citations for motorists who refuse to change lanes to yield to faster-moving vehicles. Thus, if a motorist is slowing up the left lane, then s/he can be cited. Whereas Minnesota already has laws on the books that require slower vehicles to yield to faster ones by merging right, effective August 2019, drivers could be fined for impeding traffic in the fast lane.

The impetus for this law arose from the impediment that a slow-moving vehicle causes to normal traffic flow—and the increased potential for road rage occurrences. Police troopers would have the discretion to determine whether to issue citations or warnings to slowpoke drivers. Included in the omnibus transportation bill, this law seeks to address the harm to the flow of traffic motorists driving even a few miles below the speed limit in the left lane have been shown to cause, according to the bill’s author House Minority Leader Kurt Daudt (R-31A). The Senate’s version of this bill was introduced by Senator John Jasinski (R-Faribault).

Prior to this law, simple courtesy dictated whether slower drivers would move from the left lane to the right. Now, however, it is law that applies to drivers on any freeway and two-lane road. For single-lane roads, slow moving drivers must move as close to the shoulder or curb as “practicable” to let other vehicles pass; however, many drivers continued to impede the fast lanes, particularly on more rural stretches of roadways between metropolitan cities.

Penalties

As mentioned, police now have the discretion under the law to issue tickets to slowpoke drivers. These drivers can now be assessed a $50 ticket plus a $75 surcharge for a $125 fine per occurrence. Tickets will only be issued to those motorists who are impeding the speed of other drivers in the left lane and fail to move over to the right to let them pass.

Exemptions to the law

The law is not applicable to vehicles that are in a left-hand highway exit, vehicles that are turning left on a four-lane expressway, and vehicles in a specifically designated left-hand lane such as a carpool lane. Emergency vehicles such as fire trucks and ambulances are also exempt.

Other concerns

Further, as is sometimes misinterpreted, this law does not permit motorists to increase speed in the left lane. Speed limits still apply; however, accelerating to five miles per hour over the speed limit specifically to pass another vehicle is acceptable.

Essentially, if someone is driving the speed limit in the left lane, then there is no reason to merge right to let other vehicles pass. Instead, this law is intended for those vehicles who are traveling under the speed limit in the left lane which must merge right to let vehicles behind them pass.

Additionally, once a driver passes traffic in the left lane, s/he should move back over.

Lawmakers stress that they do not advocate tailgating behind slowpokes who may be driving in the left lane. Instead, they suggest calling the police if the slowpoke driver is causing any traffic issues and let officers handle the situation. Lawmakers also stress not trying to enforce others’ speeds by staying in the left lane to slow down speeders. Again, let the police handle any potential problems.

Last month, the Minnesota Supreme Court ruled that motorists who are suspected of DWI are not constitutionally entitled to consult with an attorney if law enforcement has a search warrant for a blood sample.

The case, State v. Rosenbush, revolved around the defendant, Jennifer Rosenbush, who crashed her car into a ditch in Dakota County in July 2017. Following the accident, Rosenbush—who was suspected of being under the influence—was taken to a hospital where she was served with a search warrant ordering her blood to be taken and tested for intoxication.

At the time, the officer did not provide Rosenbush the opportunity to consult with an attorney.

Background of the case

Rosenbush’s blood alcohol concentration (BAC) was .113%–well above the legal limit in the state—and she was charged with misdemeanor 4^th degree DWI. If she refused the test, however, she would have been charged with a gross misdemeanor.

Even if Rosenbush did, in fact, contact an attorney, her choices would have been exactly the same: either submit to the testing and receive a lesser charge or refuse and face a more serious one under the state’s implied consent law.

Rosenbush filed to suppress the test results, stating that she was denied access to counsel, and the district court agreed. The Court of Appeals overturned the decision, and the case made it to the state’s high court.

Court rationale

In a 4-3 decision, the State Supreme Court held that a motorist suspected of DWI is not constitutionally entitled to consult with an attorney prior to submitting to a search warrant for a blood sample because a search warrant is provided by a “neutral judicial officer [who] has determined that the police may lawfully obtain a sample of the driver’s blood.”

In prior cases, the Supreme Court has held that defendants have the right to legal counsel at critical prosecutorial stages including pretrial procedures, and that a request for BAC testing under the state’s implied consent law was, in fact, a critical stage. Thus, suspects do have a limited right to consult with an attorney at this stage.

However, this case is different in that police had a search warrant which is now required for blood or urine tests, and the majority held that the Minnesota Constitution has never provided the subject of a search warrant the right to consult with an attorney before a warrant can be executed. Quite simply, a search warrant for a driver’s blood sample is no different than a search warrant for potential evidence at a home or other property. If the court ordered a search—and provided a warrant—nobody has the right to refuse said search and potential seizure.

Dissent

The three dissenting justices asserted that a motorist’s decision whether to submit to a chemical test and provide potentially incriminating evidence or refuse to submit and be subject to the state’s implied consent law is a decision that requires consulting with a neutral party, not a police officer. Thus, forcing the motorist to submit to the test in the warrant violated his/her constitutional rights. Justice Natalie Hudson stated that the mere presence of a search warrant does not simply alleviate concerns about the potential legal ramifications of deciding to submit or refusing to do so.

Of course, officers could provide DWI suspects the opportunity to contact a lawyer if they so desired, but the law doesn’t require it.

Effective August 1, 2019, Minnesota’s became the 17^th state to enact its new hands-free cell phone law. While texting while driving was already illegal in the state, this new law prohibits even holding a cell phone while driving and gives law enforcement the freedom to stop anyone who is seen driving while holding a phone.

The impetus for the new law is, first and foremost, to make the roads safer. Other states that have enacted hands-free laws have enjoyed a 15-percent decrease in traffic-related fatalities due to cell phone distractions per National Highway Traffic Safety Administration (NHTSA) data.

Specifics of the law

Under the law, motorists may use their cell phones in limited capacity while driving: specifically, to make calls, text, get directions, or listen to music and podcasts only by voice commands or single-touch activation. They may not hold the phone while driving, nor can they use their phone for video calling, live streaming, gaming, Snapchat, using non-navigation apps, or looking at text or photos on the phone.

The only time a motorist can handle his/her phone is to obtain emergency assistance. Authorized emergency responders working in their official capacity may also hold their phones if performing official duties.

Stopping on the shoulder of a freeway or controlled access highway to use one’s phone is already illegal in the state. Similarly, doing so along a US or state highway or county road is not recommended. Instead, finding a safe place to pull off the road completely such as a gas station to use one’s phone is highly recommended.

Other concerns

Drivers may not pick up and use their phones while at a stoplight because, technically, they are still operating the vehicle.

The law does not specifically ban voice-to-text; however, some lawmakers have voiced their concerns because there’s not way to prove whether a text was sent via voice or manually.

Under the law, it is not illegal to secure a phone in a headscarf, hijab, or wrap; however, to do so, the phone must be secure enough to neither obstruct the driver’s view nor require the driver to hold the phone.

The new law also views smart watches as electronic communications devices and may only be used as a conventional watch or in the same manner as a cell phone provided any function accessed is by voice activation or one-touch.

Finally, the new law exempts two-way, amateur, and citizens band (CB) radios as they are not classified as electronic messages. Nevertheless, users are still required to use them safely and prudently.

Penalties

A first ticket for violating the new hands-free law is $50 plus court fees. Second and subsequent citations increase the fine by $225, for a total of $275 plus court fees.

Tips for complying with the law

Granted, the best way to comply with this law is to turn off your phone and place it out of sight while driving or turn on its do-not-disturb mode. If you need to have your phone available, then a properly utilized phone mount is a good idea.

Other tips include:

• If you have a newer vehicle with Bluetooth technology, you can sync your phone with your vehicle and use one-touch to answer a call and continue, hands-free, via the car’s audio system.
• Purchase Bluetooth earpieces or earphones to connect to your phone; however, remember that it is still illegal to drive with earphones in both ears at the same time.
• With older vehicles, you can purchase an auxiliary cable that connects your phone’s earphone jack to your car’s aux jack and listen via your car’s speakers. There are also adapters for vehicles that still have cassette players.

Effective July 1, 2019, Minnesota’s new DWI vehicle forfeiture law (Sec. 4, Subd. 13) went into effect and now favors vehicle owners. This law is a game changer in the current forfeiture climate in that drivers will be able to get their vehicles back if they agree to install an ignition interlock device (IID) on their vehicle before the forfeiture procedure is finalized.

Prior to this law, anyone whose vehicle was forfeited under the DWI law would be required to negotiate the vehicle’s return either with the prosecutor or challenge the forfeiture in court which has been known to take significant time and money.

Earlier this year, we reported on a case wherein an innocent vehicle owner lost her vehicle for 18 months while her daughter’s criminal case was concluded. This new law seeks to continue the push toward more legislative leeway in certain DWI vehicle forfeiture cases to limit the hardship on certain vehicle owners, typically first-time offenders and innocent owners.

What has changed?

The previous forfeiture law was quite harsh, giving law enforcement considerable latitude in seizing vehicles, even those of innocent owners who may not have known that their vehicles were used to commit DWI.

With this new law, a DWI vehicle owner facing forfeiture has 60 days from the date of the incident to challenge the forfeiture in court. Then, if s/he does, in fact, challenge the forfeiture, the entire process would be stayed until the court case is finalized, thus giving the owner additional time to enroll in the IID program to get his/her vehicle back in a timelier manner.

Of primary importance is that the DWI defendant must be accepted into the IID program and be an active participant in said program before the forfeiture is finalized. If the driver violates the program, then the forfeiture action would proceed. Once the driver successfully completes the program, then the forfeiture action is dismissed in court.

Additional considerations

Granted, getting one’s vehicle back is not a walk in the park. In some cases, prosecutors may require the driver to post a bond of security for the retail value of the vehicle before s/he can begin using it with the IID. In other cases, the prosecution may require the driver remit towing, seizure, and storage costs before the vehicle is released.

Of course, in some cases, the individual may not have the ability to pay a security or bond or they may decide to let an older vehicle go; however, in most cases, by simply installing an IID in their vehicles, they have the option to get their vehicle—and even their driver’s licenses—back.

The bottom line

Because the vehicle owner has only 60 days from the date of forfeiture notice to challenge the forfeiture in court and get accepted into an IID program, it is imperative to seek legal advice as soon as possible to ensure the best possible outcome.

Drug-free zone laws are among the longest running sentencing policies in the US. These laws were enacted during the early 1980s as part of the “War on Drugs” during the height of the crack cocaine epidemic and were designed to increase penalties on those offenders who committed drug crimes in areas near children-heavy areas.

Much like mandatory minimum sentences for other offenses, the theoretical foundations are the same—to reduce crime—laws like these serve to provide harsh penalties which disproportionately affect racial minorities and lower-income areas, thus resulting in mass incarceration and disproportionately long sentences.

As a result, many states have reformed their drug-free zone and other related laws. For example, Delaware, Kentucky, Indiana, and Utah have reduced their drug-free zones to combat prison overcrowding and to release nonviolent drug offenders; however, other states, such as Arkansas, Hawaii, and Texas have expanded their drug-free zones in response to the current opioid crisis.

What is a drug-free zone?

Drug-free zones generally encompass schools—including colleges and universities—as well as school bus stops, public parks, YMCA’s, community centers, skating rinks and parks, treatment centers, public housing, daycare centers, and churches. Pursuant to Minnesota law, the boundaries of drug-free zones extend 300 feet—or one city block, whichever is greater—beyond the physical boundaries of the property. The expansiveness of these zones oftentimes makes it difficult for one to know if s/he is in a zone. For example, an individual could receive an enhanced punishment for standing 299 feet from a school, as opposed to 301 feet from one.

Offenders convicted of drug-related offenses in these areas are subject to enhanced penalties including extended prison sentences, high fines, and removal of parole options.

Minnesota penalties

As mentioned, Minnesota sanctions for drug offenses in drug-free zones are incredibly harsh—even for simple possession of marijuana and other narcotics. Granted, while one would expect more stringent sanctions for sale of controlled substances and other drugs, that simple possession carries with it harsher penalties has resulted in the current outcry.

In Minnesota, first-time offenders convicted of selling marijuana in a drug-free zone are subject to a 15-year prison sentence and up to $100,000 in fines. First-time offenders convicted of selling narcotics—excepting marijuana—in a drug-free zone are subject to a mandatory 25-year sentence with subsequent convictions resulting in up to 40-year sentences and up to $500,000 in fines. Further, simply carrying drugs on one’s person in a drug-free zone can be subject to 20 years in prison and a $250,000 fine.  Additionally, juveniles age 14 and higher who commit said crimes can be tried and sentenced as adults.

How drug-free zones are unfair

Because keeping drugs and associated violence away from children is a priority and the driving force behind drug-free zones, in some areas—such as low-income urban areas—these zones encompass a much larger area, thus becoming counterproductive. Resulting problems include the fact that some of these laws are so broad to as not involve children or other vulnerable populations even during hours where children would not be present in the first place. Consequently, defendants are subject to unreasonably harsh enhanced penalties for mere possession in areas designated as drug-free.

The bottom line is that drug-free zones fail to deter drug use among children while simultaneously punishing nonviolent offenders in disproportionately minority-heavy areas and are, generally ineffective thus resulting in mass incarceration and an ongoing high recidivism rate.

Drug laws encompass many illicit activities: possession, manufacture, sale, trafficking, distribution, and transportation and are based on the type and quantity of drug. Despite prescription drugs being generally legal, there is a fine line as to when these drugs are handled illicitly.

According to the National Institute on Drug Abuse (NIDA), misuse of prescription drugs involves taking dosages in a manner other than prescribed, using another person’s prescription, or taking a prescription medication in order to reach a “high.” With a steady increase in drug prescriptions—especially for opioids—the potential for misuse and abuse is even greater.

There are three classes of prescription medications that are most commonly misused: opioids, depressants, and stimulants. Opioids include pain relievers such as oxycodone and hydrocodone. Depressants include such drugs as tranquilizers, hypnotics, and sedatives. Stimulants include ADD/ADHD treatments and prescription diet pills.

Statistics

Over the past 15 years, prescription drug misuse and abuse have increased as evidenced by more emergency room visits, treatment admissions for addiction, and overdose deaths, the latter of which have increased nationwide five-fold since 1999. Further, prescription opioid abuse alone carries with it a high price tag—more than $78 billion in lost work, healthcare, crime, and productivity.

In Minnesota alone, opioids are a serious problem, thus resulting in more than 400 opioid-related deaths in 2018 alone.

Nationwide, in 2016, opioids were responsible for two thirds of the nearly 64,000 overdose deaths and opioid abuse has been blamed as the primary responsibility for lowering life expectancy in the US over the past few years.

Many experts assert the opioid crisis isn’t just opioids. Both illicit and legal prescription drugs have contributed to the problem; however, prescription opioid use has increased exponentially over the past few years and has received the lion’s share of attention in legislative and medical efforts to combat the problem.

Minnesota prescription drug crimes and penalties

Pursuant to Minnesota law, penalties are harsh for drug offenses including prescription drugs. Among these—specifically Schedule II controlled substances which include prescription medications that carry a high potential for abuse—criminal sanctions can include excessively long prison sentences and high fines.

Possession for personal use is a fifth-degree felony that is punishable by up to five years in prison and up to $10,000 in fines. Possession with the intent to sell is a fourth-degree felony punishable by up to 15 years in prison and up to $100,000 in fines.

Sanctions increase for prescription drug offenses committed in drug-free zones such as schools, churches, treatment facilities, public housing, or parks. Sentence enhancements include up to 20 years in prison and up to $250,000 in fines for possession and up to 25 years in prison and as much as $500,000 in fines for sale and/or trafficking in a drug-free zone.

Minnesota efforts

In Minnesota, prescription drug abuse and the high consumer cost for such drugs, thus resulting in a robust black market, is such a problem that back in May, the 2019 state legislature passed a bill—the Pharmacy Benefit Managers bill (Senate File 278)—to address the issue. The bill overwhelmingly passed the Senate 67-0 and the House 130-2 and is currently waiting for Governor Tim Walz’s signature.

Pharmacy Benefit Managers (PBMs) are private companies originally created to assist insurance companies with the complexities of prescription drug coverage. The rapidly increasing cost of prescription medications and resulting monopoly and influence that require drug manufacturers to pay rebates to get onto formularies without any real oversight or transparency have served to exacerbate the problem.

The bill would require Minnesota-based PBMs to be licensed and pay an $8,500 annual fee to cover state regulation costs. It also permits pharmacies to dispense equivalent medications that may not be on a specific insurance policy’s formulary and prohibits pharmacists from urging patients to pay cash for the drugs.