In most South Dakota counties, you’re probably going to be facing a felony controlled substance charge … the same charge as if you were busted for harder drugs such as methamphetamine, heroin, cocaine, MDMA, unauthorized oxycodone or psilocybin mushrooms. That trip to Colorado just got more expensive! You may or may not be able to reduce the charge to a misdemeanor, as if you had only flower marijuana.
South Dakota’s marijuana and hashish laws were written decades ago, long before marijuana and hash concentrates became popular. In the Cheech & Chong era, hashish was easily identifiable by law enforcement and clumpy, brownish bubble hash was the most potent form of tetrahydrocannabinol (THC). Now there is THC wax, butane hash oil (BHO), shatter, live resin, cannabutter, edibles, Rick Simpson oil (RSO) and other THC-infused products. Most of these contain a form of delta-9-tetrahydrocannibinol (Delta-9-THC), a psychoactive ingredient deriving from marijuana. But some products like salve do not get you stoned. So why are these substances considered a felony in South Dakota?
Unless a grass roots initiative passes, South Dakota will be one of the last states to legalize marijuana and THC products. Its law enforcement community and legislators will remain united against decriminalizing the substance as well. Some courts are harsher than others in handing out sentences for violators. But some courts are also divided on how to interpret whether your THC concentrate is a felony or a misdemeanor . That may change with a flick of the pen from the legislature or the South Dakota Supreme Court. But for now, it isn’t totally clear.
The legal definition of marijuana includes “every compound, manufacture, salt, derivative, mixture or preparation” or the cannabis plant. However, the extracted resin from the cannabis plant or cannabidiol is not “marijuana.” Possessing less than two ounces is a misdemeanor.
The legal definition of hashish involves “the resin extracted from any part of the [cannabis plant].” Possessing hashish is a Class 5 felony, punishable by up to five years in prison and/or a $10,000 fine. Most people don’t go to prison over small amounts of hash, but did you know the dispensary product from Colorado (or other marijuana-legal states) you tried to bring back home from your vacation could land you a felony conviction?
Legal challenges to THC-products are abound in South Dakota. When a THC product is seized by the police, it is often sent to the South Dakota State Health Lab for testing. However, many lab results are questionable as to whether some THC products are, beyond a reasonable doubt, felony substances. The percentage of THC content is NOT tested in South Dakota and is not a factor in terms of whether the substance is a felony drug or not. The consistency of the product, its package labeling and microscopic properties are stronger arguments for the State in prosecuting a person possessing a suspected hash substance than the actual chemical analysis. Even though your THC product may not actually come from the “extracted resin of the marijuana plant,” if your marijuana product appears to be in any physical form other than herb or flower to a trooper on the side of the highway, you’ll probably be arrested for a felony.
Drug interdiction remains a strong industry in South Dakota. Why labeled “an industry”? Travelling through South Dakota from “marijuana source states” (Colorado) or even places next to source states (Wyoming) have been considered a factor justifying suspicion of illegal activity by some judges. Cash and vehicle forfeitures can occur as well. The local answer to these controversial operations remains, “don’t bring it here.” However, most travelers are not aware they are considered to have committed a felony by bringing those remaining THC Oil vape pen cartridges with them while they stop on the way home to see Mt. Rushmore.
Hopefully those who venture to Colorado for marijuana tourism are reading this before they are busted in South Dakota and not after. If arrested, be sure to ask your criminal defense attorney to explain the possible defenses to felony charges so you can understand what is going on in the South Dakota court system. The difference may highly impact your future.