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 or 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. Another measure, seeking to legalize recreational cannabis in South Dakota, took place on the ballot on November 8, 2022. However, more than 52% of South Dakota voters rejected the proposed law.
The final push to make medical marijuana legal in South Dakota began in 2020 when voters approved both Constitutional Amendment A and Initiated Measure 26. The two ballot measures, backed by the South Dakotans for Better Marijuana Laws (SDBML), aimed to create a legal framework for recreational and medical marijuana. Up to 70% of South Dakota voters approved Initiated Measure 26, which established the state’s medical marijuana program. On the other hand, Constitutional Amendment A, designed to allow residents aged 21 or older buy weed without prescription, received approval from 54% of voters. Sadly, in 2021, the state’s apex court declared that Constitutional Amendment A was actually unconstitutional. Despite the setback, residents, together with support groups, keep pushing other laws to legalize recreational marijuana into the ballot. The following is a summary of South Dakota marijuana laws in 2021 and 2022.
Approved Measure 26 for Medical Marijuana
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.
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.
The South Dakota Department of Health is tasked with providing the procedure for obtaining medical cards and 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.
Failed Amendment A in 2021
Like the Initiated Measure 26 proposal, South Dakotans voted yes to Amendment A in 2020. However, 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.
2022 Initiated Measure 27
After the unsuccessful court appeal, the South Dakotans for Better Marijuana Laws started another campaign for a new ballot initiative known as Initiated Measure 27. The measure was approved for circulation on October 12, 2021. Generally, the requirements for getting a measure certified for the 2022 ballot in South Dakota is 16,961 valid signatures. Having verified more than 25,000 valid signatures on May 25, 2022, the Secretary of State announced that Measure 27 will appear on the ballot.
Initiated Measure 27 aims to make it legal for South Dakotans who are at least 21 years old to consume and possess recreational marijuana with a limit of one ounce. Residents living in communities without a legal marijuana retail outlet would be permitted to possess up to three marijuana plants in public (up to six marijuana plants on a private property). The proposal also mandates that all cannabis plants be stored in a closed space out of public view. People who violate this initiative's rules would be subject to civil fines.
While major sections of Amendment A were maintained in the new measure, some differences between the former proposal and Measure 27 are listed below
Updated election results in November 2022 showed that 53% of voters rejected Initiated Measure 27. As such, recreational marijuana remains illegal in South Dakota.
US lawmakers have passed different bills in 2022 to legalize marijuana, which is already legal in several states. Although adult-use marijuana is now legal in South Dakota and 18 US states, it is still prohibited at the federal level. In 2018, the US Farm Bill legalized use and cultivation of low-THC cannabis, also known as hemp. A year later, the US House of Representatives presented the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act in a bid to legalize recreational and medical marijuana. The 2019 MORE Act was passed by the House in 2020 but failed to gain approval from the Senate. In 2022, the House moved forward with another MORE Act, which seeks to:
Meanwhile, the US Senate is also working on its own marijuana legislation bill known as the Cannabis Administration and Opportunity Act (CAOA). Like the MORE Act, this bill will delist cannabis from the DEA’s Schedule 1 drugs and allow states to legalize marijuana without federal interference. The CAO Act will also resolve a number of issues that are currently plaguing legislated state cannabis markets. Examples of those issues include:
If enacted into law, the bill will promote inclusion and diversity among licensed business owners in supervised cannabis markets and designates cash to be reinvested in regions that have been unduly disadvantaged by the War on Drugs.
The US President has also helped increase the prospect of federal legalization by issuing a marijuana reform executive order in October 2022. The executive action will pardon persons convicted of simple marijuana possession and other states to carry out similar state pardons. President Biden also asked the Secretary of Health and Human Services and the Attorney General to review how cannabis is scheduled under the Controlled Substances Act.
Yes, South Dakota residents who suffer from debilitating medical conditions can legally use cannabis. According to the state’s Medical Cannabis Law, eligible persons that can purchase and use cannabis must have a SD Medical Marijuana Card issued by the South Dakota Medical Cannabis Patient Registry. Furthermore, eligible persons with qualifying medical conditions can only buy three ounces of cannabis flower every 14 days from licensed dispensaries. If the patient is below 18 years, they can only purchase medical marijuana through a registered caregiver in South Dakota.
Before now, 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.
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. The first licensed dispensary began selling medical cannabis to eligible patients in July 2022. Currently, there are 81 licensed marijuana dispensaries in South Dakota. The Department of Health 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, individuals must obtain a medical dispensary license using the Medical Cannabis Establishment Application Form. Interested persons registering for medical dispensary licenses in South Dakota:
The 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.
Residents with debilitating medical conditions approved by the South Dakota Medical Cannabis Program can purchase legal amounts of weed from licensed dispensaries. As of October 2022, more than 4000 patients have been approved by the state’s cannabis program. According to Chapter 44:90:02 of SD Administrative Rules, eligible patients can only register for SD marijuana cards through certified medical practitioners. This means that the patient must first schedule an appointment with a medical practitioner to determine if they need medical marijuana. Once the need is established, the patient’s practitioner is required to complete the Healthcare Practitioner Registration. After approval from the Department of Health, the practitioner can certify a patient by including the patient’s personal details, email, and medical condition.The patient will receive an automatic email after the practitioner’s certification and can start registration by meeting the following requirements:
Certified patients below 18 years can designate caregivers while registering for their medical marijuana cards. The designated caregivers will receive automatic emails to complete their registration on the SD Medical Cannabis Program. Approved caregivers and qualified patients can buy up to three ounces of cannabis every 14 days and also 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.
Although medicinal marijuana has been legalized in South Dakota, there are penalties for exceeding the limits stipulated under state laws. Note that 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:
Growing cannabis in South Dakota is only legal for residents with a valid medical marijuana card. In other words, only eligible patients can cultivate up to four cannabis plants. Individuals who violate this law may face penalties according to the aggregate weight of cannabis plants found on them. Similar to marijuana possession penalties, offenders caught with less than two ounces of cannabis plant risk being charged with misdemeanor offenses. If convicted, such offenders will serve a 12-months jail term and pay up to $2000 fine.
Yes. Gifting marijuana to another South Dakota resident remains a crime since recreational marijuana is still illegal. Penalties for gifting marijuana to other adults include up to 12 months imprisonment and hefty fines depending on the quantity given out to others. Gifting marijuana to minors below 21 years may result in severe punishments.
Driving while intoxicated with marijuana is a serious offense in South Dakota; defendants may be imprisoned or lose their driving privileges after subsequent violations. While SD Codified Laws §32-23-1 clearly defines the alcohol DUI limit in the state, law enforcers can arrest persons showing signs of being intoxicated with marijuana without any test. The maximum sentence for South Dakota marijuana DWI is usually 12 months in a county jail together with a $2,000-fine, or both. Also, the defendant’s driver's license may be revoked for up to one year if convicted. Multiple violations of South Dakota marijuana limitations can result in felony charges and time in the state prison, as listed below.
Although these are standard penalties for marijuana DWI offenses, the prosecutor may recommend further penalties according to other factors involved in the crime. Other factors that may lead to severe punishments include the defendant's attitude towards the arresting officer, presence of minors in the car, and accident or reckless driving.
Note that marijuana consumption in South Dakota should only be carried out in private properties. Consumption on the premises open to the public may lead to misdemeanor charges while smoking weed close to a school or playground will attract more severe sentences.
Patients who registered for the medical marijuana program in South Dakota can move around with cannabis within the state. Other residents without a prescription, caught with weed around the state, will face possession charges according to the marijuana quantity found on them. Transporting cannabis out of the state is a federal offense which may attract jail sentences and fine payment. It is also illegal to use medical marijuana in federal regions in South Dakota.
According to SDCL §34-20B-70, law enforcement agencies can seize assets used for violating South Dakota marijuana trafficking laws or possession limitations. Vehicles used for transporting or concealing more than eight ounces of marijuana are subject to forfeiture in South Dakota. Other assets like cash, houses, and equipment which are found to be proceeds of marijuana violation will be confiscated by the law enforcement agency. Generally, law enforcers may use or sell these assets to fund the state’s drug control fund or drug enforcement programs.
When facing marijuana charges in South Dakota, accused persons can seek the help of drug defense lawyers to lessen the penalties or get their charges dropped. Such lawyers can devise different defense strategies such as:
Other possible remedies for defendants of violating South Dakota marijuana laws involve seeking approved diversion programs in South Dakota. These alternative sentencing programs run for 12 months and are typically for young offenders and first-time offenders. If completed successfully, the presiding court will drop the charges and expunge the defendant’s criminal record.
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.
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: