Marijuana is legal in South Dakota for medicinal use but is currently prohibited for recreational use. South Dakota Initiated Measure 26, appeared on the November 3, 2020, state general election ballot and passed with 70% approval. Per Initiated Measure 26, South Dakotans aged 18 years and older, and suffering from debilitating medical conditions including multiple sclerosis, Crohn's disease, epilepsy, AIDS, glaucoma, PTSD, ALS, and severe pains can possess and use up to 3 ounces of cannabis.
South Dakota nearly made history by becoming the first state to legalize the medicinal and adult use of the marijuana at the same time. However, Constitutional Amendment A, which made the same ballot as Measure 26, and would have legalized adult-use marijuana, was challenged in court. On February 8, 2021. Circuit Court Judge Christina Klinger declared Amendment A illegal, claiming that it violated the state's single-subject requirement for ballot proposals. The case has been appealed to the South Dakota Supreme Court.
Yes, from July 1, 2021, South Dakota residents who suffer from debilitating medical conditions can legally use cannabis. Before then, cannabis was fully illegal, with South Dakota having banned the ingestion of controlled substances. Cannabis is a dried preparation of the flowering tops or other parts of the cannabis plant, or a resinous extract of the plant, smoked or consumed as a psychoactive drug.
Despite the medicinal benefits of cannabis, many Americans' views about the plant changed around the beginning of the twentieth century. This was mainly driven by Mexican immigration to the United States in the early 1900s, during the 1910 Mexican Revolutions. Cannabis smoking through pipes and cigarettes was virtually unknown in the United States until Mexican immigrants brought it during that era. The introduction sparked a backlash among American people, who claimed that cannabis users were inclined to commit murder and other violent actions.
Although no proof could be shown that marijuana led to violent crimes, between 1916 and 1931, 29 states banned cannabis. Eventually, despite protests from the American Medicinal Association about medical use, the Marihuana Tax Act of 1937 prohibited the substance and its manufacturers nationally. Numerous states have now legalized cannabis for medicinal and recreational purposes in recent years.
South Dakota Constitutional Amendment A, the Marijuana Legalization Initiative, was approved by 54% of South Dakota voters on November 3, 2020. The amendment was introduced as part of an effort by South Dakotans for Better Marijuana Laws (SDBML) to legalize marijuana for adults over the age of 21. Additionally, SDBML aided in the passage of Measure 26, a ballot proposal that established a medicinal marijuana program in South Dakota and was supported by 70% of voters. Both provisions were set to take effect on July 1, 2021.
However, on February 25, 2020, the South Dakota House of Representatives passed HB 1100, which amended the language in Measure 26 to move the effective date of South Dakota's medical marijuana program from July 1, 2021, to January 1, 2022, in light of the Department of Health's ongoing efforts to combat COVID-19 and the complexities of federal marijuana law.
The Senate modified House Bill 1100 in March to enable South Dakota residents to possess up to one ounce of marijuana. The House, however, did not approve the amendments, and the bill failed on March 11, 2021.
In an opposing move, Colonel Rick Miller, the State Highway Patrol Superintendent challenged the constitutionality of Amendment A, claiming the amendment infringed the single-subject rule, which requires that constitutional amendments only address one subject. The Superintendent also claimed that Amendment A elevated the State Department of Revenue to a fourth branch of government by requiring the agency to regulate the use of marijuana.
In February 2021, a South Dakota court rule sided with Colonel Rick Miller and ruled that the measure was indeed unconstitutional. The court determined that Amendment A was only a revision to the South Dakota Constitution and not an amendment. Also, the ruling stated that any revision to the state constitution requires a constitutional convention called by three-fourths of all members in each house of the state legislature.
The matter was appealed to the South Dakota Supreme Court, which will determine if the amendment breaches the state's requirement that constitutional amendments must cover only one subject and whether the measure proposes an amendment or change to the state constitution.
Initiated Measure 26 which legalizes the medical use of marijuana:
To purchase medical cannabis in South Dakota, patients must be above the age of 18, suffer from one or more of the debilitating medical conditions listed under Measure 26, and hold a medical marijuana card. Minors are allowed to assign caregivers over the age of 21 who have not been convicted of any disqualifying felony offense. Qualified patients can possess no more than 3 ounces of natural and unaltered marijuana. MMJ cardholders are also permitted to grow up to 3 cannabis plants at home.
By October 29, 2021, the South Dakota Department of Health will publish the procedure for obtaining medical cards and will also enact administrative rules for medical cannabis in the state. It is unlawful to sell or buy cannabis outside of licensed medical cannabis businesses.
Pursuant to SDCL 34-20G-1, authorized physicians must provide written certifications indicating that patients are likely to benefit from the medicinal use of cannabis to treat or relieve their debilitating illnesses or symptoms connected with the debilitating conditions. The documents must state that they were made within legitimate practitioner-patient interactions and must also describe the qualified patients' severe medical conditions.
Per South Dakota Law, highway patrol officers will not arrest a South Dakota resident who is unable to produce an unexpired medicinal cannabis card at the scene of a stop or interaction if the following conditions are met:
Highway Patrol officers will not arrest nonresident MMJ cardholders for marijuana possession, nor will they confiscate the marijuana or any related paraphernalia, if the following conditions apply:
South Dakota impaired driving laws apply for individuals operating motor vehicles under the influence of medical cannabis. Motorists in the state are prohibited from smoking or consuming cannabis concentrates. Passengers are also not allowed to smoke cannabis or cannabis concentrate.
Per SDCL 34-20G-24, employers in South Dakota are not required to allow the ingestion of cannabis in workplaces or to allow employees to work while under the influence of cannabis. Also, a registered qualified patient may not be deemed to be under the influence of cannabis simply due to the presence of cannabis metabolites or components in inadequate concentration to induce impairment.
South Dakota prohibits the transportation of marijuana or marijuana products across state lines. The state prescribes stiff penalties for persons caught doing so.
South Dakota does not currently have dispensaries. Dispensaries for medical marijuana will ultimately open in compliance with the Medical Marijuana Initiative, although no timetable has been established at this time. However, the Flandreau Santee Sioux Tribe opened the first medical marijuana dispensary in the state on July 1, 2021, the first day of medical marijuana legalization in South Dakota. The dispensary sold a variety of marijuana product types such as edibles, waxes, tinctures, and oils.
Per Measure 26, the process leading to medical marijuana sale in South Dakota will begin from licensed cultivators to manufacturers and end at medical marijuana dispensaries. The Measure already stipulates that cannabis in South Dakota can only be grown by individuals who have obtained cultivation licenses or qualified patients. However, qualified patients can only cultivate up to 3 plants. For large-scale cultivation, a cultivation license must be acquired. This license allows an entity registered with the state's medical marijuana program to acquire, possess, cultivate, deliver, transfer, transport, supply, or sell cannabis and related supplies to a medical cannabis establishment.
South Dakota also issues medical manufacturing licenses to registered entities that authorize them to acquire, possess, manufacture, deliver, transfer, transport, supply, or sell cannabis products to medical cannabis dispensaries.
To legally sell marijuana products to qualified patients in South Dakota, you must obtain a medical dispensary license for your cannabis establishment. This license permits your cannabis establishment to acquire, possess, store, deliver, transfer, transport, sell, supply, or dispense cannabis, cannabis products, paraphernalia, or related supplies and educational materials to medical marijuana cardholders.
Although medicinal marijuana has been legalized in South Dakota, there are penalties for exceeding the limits stipulated under state laws. Note that from July 1, 2021, possession of up to 1 ounce of marijuana does not attract any penalty. The following penalties are prescribed for other marijuana offenses in South Dakota:
Sale of Marijuana
Note that the sale of marijuana to a minor is considered a felony and carries additional incarceration time and fines.
Hash and Concentrates
South Dakota considers inhabiting a room where marijuana is being used or stored as a misdemeanor punishable by 1 year in jail and up to $2,000 in fines.
South Dakota outlawed cannabis in 1931 as part of a broader national movement in the United States. The state decriminalized cannabis in 1977, during a brief period of national legalization, but quickly repealed the legislation. In 2006, a proposition for the legalization of medicinal marijuana made it to the ballots in South Dakota for the first time. Tagged Measure 4, the proposition suggested that some eligible individuals have safe access to medicinal marijuana. South Dakota voters rejected the Initiative 52.3% to 47.7%.
In 2010, Measure 13 made it to the ballot with the intent of authorizing the possession, consumption, and production of marijuana by and for those with certain debilitating medical conditions registered with the Department of Health. South Dakota voters rejected the proposal by a margin of 63 percent to 36%.
In 2015, a group called South Dakotans Against Prohibition (SDAP) distributed petitions calling for the November ballot to include marijuana decriminalization. The organization proposed that possession of less than 28 grams of marijuana be classified as a civil violation, rather than a criminal offense or infraction. SDAP, on the other hand, fell short of the necessary 13,871 signatures to place an initiated item on the ballot. The organization then dropped its petition.
In another medicinal marijuana ballot proposal, campaigners in South Dakota collected more than 15,000 signatures before the deadline of November 6, 2017. However, on April 16, 2018, the South Dakota Secretary of State declared that not enough of the signatures presented were legitimate. As a result, the proposal was denied eligibility for the 2018 ballot. According to South Dakota law, at least 13,871 of those signatures must be legitimate in order for the proposal to qualify for the 2018 ballot.
The South Dakota secretary of state approved Initiated Measure 26 for the 2020 ballot in December 2019. South Dakota voters voted by a margin of 69% to 31%, to approve Initiated Measure 26, making marijuana legal for medicinal use in South Dakota. Voters also passed Constitutional Amendment A in 2020, by a margin of 54% to 46%, legalizing, taxing, and regulating recreational marijuana in the state. Additionally, Constitutional Amendment A sought to create a medicinal marijuana program and legal hemp sales by April 1, 2022.
Following a challenge in a South Dakota court, Amendment A was ruled unconstitutional by Circuit Court Judge Christina Klinger on February 8, 2021, citing that it breached South Dakota's single-subject requirement for ballot initiatives. South Dakota voters approved Amendment Z earlier this year, amending the state constitution to limit future proposed constitutional amendments to a single topic. Also, Amendment Z required that amendments be submitted and voted on separately.
The Circuit Judicial ruling delayed South Dakota's recreational marijuana legislation indefinitely pending a higher court decision. The matter was subsequently appealed to the South Dakota Supreme Court, which heard opening arguments in March 2021 from the defendants. The South Dakota Supreme Court heard oral arguments in the case on April 28, 2021.
Only medical marijuana is legal in South Dakota. The recreational use of marijuana, though approved for legalization by South Dakota voters, is being challenged in court. The following restrictions remain in place on the use of medical marijuana in South Dakota: