Expert Advice > Drugs
Criminal | DUI/DWI | Drugs | White Collar Crimes | Personal Injury | General Law
- Can a person be prosecuted in both federal and state court for possessing drugs on one single occasion?
Yes. Possession of illegal drugs usually constitutes separate and distinct offenses of both state and federal law and thus a person can be charged in either jurisdiction, or both. A person would have a separate trial in state court and a separate trial in federal court, and even if a person was found not guilty in state court, he could be found guilty in federal court on the same facts, and vice versa.
- Is it a crime to possess marijuana if it is used solely for valid medicinal purposes?
Yes. "Medical necessity" is not a recognized defense to possession of marijuana in South Dakota. The South Dakota Supreme Court recently decided a case on this very issue. The Court stated that the "medical necessity" defense has not been authorized by the legislature and therefore cannot be created by the courts. The Court pointed out that on at least two prior occasions proposals to create a "medical necessity" defense for marijuana possession were defeated in the legislature.
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- Does possession of "mushrooms" carry the same penalty as possession of marijuana?
No. Psilocybin mushrooms are a Schedule I hallucinogenic controlled substance. Possession of them is a Class 4 felony, which carries a maximum punishment of 10 years in state penitentiary and/or a $10,000.00 fine. Possession of marijuana (two ounces or less) is a Class 1 misdemeanor, which carries a maximum punishment of 1 year in the county jail and/or a $1,000.00 fine.
- Can a person be convicted of drug possession based solely on a positive urine test?
Yes. In 2001, the legislature amended the crime of "possession of a controlled substance" to include possession of any drug or substance which has been absorbed into the human body. Recognizing this change by the legislature, the South Dakota Supreme Court recently ruled that a defendant can be convicted of drug possession based solely on a urine sample which tests positive for an illegal drug.
- Can a person be prosecuted in both federal and state court for possessing drugs on one single occasion?
Yes. Possession of illegal drugs usually constitutes separate and distinct offenses of both state and federal law and thus a person can be charged in either jurisdiction, or both. A person would have a separate trial in state court and a separate trial in federal court, and even if a person was found not guilty in state court, he could be found guilty in federal court on the same facts, and vice versa.
- Is it a crime to possess marijuana if it is used solely for valid medicinal purposes?
Yes. "Medical necessity" is not a recognized defense to possession of marijuana in South Dakota. The South Dakota Supreme Court recently decided a case on this very issue. The Court stated that the "medical necessity" defense has not been authorized by the legislature and therefore cannot be created by the courts. The Court pointed out that on at least two prior occasions proposals to create a "medical necessity" defense for marijuana possession were defeated in the legislature.
REMEMBER YOUR RIGHT TO REMAIN SILENT!
REMEMBER YOUR RIGHT TO REMAIN SILENT!
- Does possession of "mushrooms" carry the same penalty as possession of marijuana?
No. Psilocybin mushrooms are a Schedule I hallucinogenic controlled substance. Possession of them is a Class 4 felony, which carries a maximum punishment of 10 years in state penitentiary and/or a $10,000.00 fine. Possession of marijuana (two ounces or less) is a Class 1 misdemeanor, which carries a maximum punishment of 1 year in the county jail and/or a $1,000.00 fine.
- Can a person be convicted of drug possession based solely on a positive urine test?
Yes. In 2001, the legislature amended the crime of "possession of a controlled substance" to include possession of any drug or substance which has been absorbed into the human body. Recognizing this change by the legislature, the South Dakota Supreme Court recently ruled that a defendant can be convicted of drug possession based solely on a urine sample which tests positive for an illegal drug.
