DULUTH, Minn. - A Carlton, Minn., native now living in Colorado, with a doctor’s endorsement for medical marijuana in that state, is facing felony charges after he was arrested with the drug in southern Minnesota.
Benjamin Russell Hallgren, 23, was traveling home last June to be with his father, who was dying of cancer, when the arrest was made.
Hallgren has since found himself caught in the middle of a legal battle, one with both constitutional and moral implications that thus far hasn’t reached a resolution.
On one side, the Jackson County attorney claims Hallgren was in violation of Minnesota law by having approximately 859 grams - or 1.9 pounds - of marijuana in his possession, although there is an argument over that figure because apparently the entire weight of some marijuana-tainted chocolate bars were included.
On the other side, Hallgren and criminal defense attorney Allen P. Eskens of Mankato argue that since Hallgren has a doctor’s prescription for medical marijuana in Colorado where it is legal, he was within his rights to have it in his possession at the time of his arrest.
Add to that the fact that on May 29 of this year, the state of Minnesota signed into law legislation allowing use of medical marijuana for patients suffering from specific conditions - effective in 2015 - and that muddies the moral and legal waters of Hallgren’s case still further.
“We’re lodging a constitutional challenge to state government interfering with the doctor-patient relationship,” explained Eskens.
“Prior to this year, the argument could be made (in the state of Minnesota) that marijuana was considered a recreational drug that should be controlled. But since the state of Minnesota has now recognized the medical merits of marijuana, the control of it should not interfere with that relationship,” Eskens added.
Hallgren was initially charged with one felony count of fifth-degree possession of a controlled substance, one misdemeanor count of failure to provide proof of insurance – which has since been dismissed – and one petty misdemeanor count of possession of drug paraphernalia.
Following Hallgren’s arrest, Eskens made a motion to have the charges against him dismissed. But in October, Judge David. W. Peterson issued a memorandum in Jackson County Court denying that request and moving the case ahead for prosecution.
The findings of fact submitted by Jackson County Attorney Robert O’Connor pointed out that Hallgren has a “physician certification” from his doctor in Colorado stating that he does, indeed, suffer from irritable bowel syndrome (IBS) and concluding that his condition may benefit from the medical use of marijuana. O’Connor interpreted that this was not the same as an actual prescription and Judge Peterson concurred with this in his memorandum.
Peterson further concluded that although Hallgren’s “physician certification” provides for one oral dose of medical marijuana per week, it did not indicate what constituted a “dose.” Peterson concluded that the amount Hallgren had in his possession at the time of the arrest exceeded what could be reasonably considered a “dose.” He also stated that the card Hallgren had in his possession from the State of Colorado Medical Marijuana Registry certifying him as eligible for the use of medical marijuana, which is used for purchasing medical marijuana at a dispensary in Colorado, states it is valid only in Colorado.
In his conclusions, Peterson acknowledged Hallgren’s right to privacy, but added that Minnesota’s statutes concerning controlled substances, and specifically marijuana, set constitutional limits on that right to privacy.
“Minnesota’s purpose in regulating potentially harmful substances, especially those with potential for abuse, justifies the effect of limiting access, including prohibiting access, to those substances in Minnesota unless the proper procedures are followed,” wrote Peterson.
He added that because Hallgren is not a Minnesota resident and the record does not indicate he has a qualifying medical condition under Minnesota law, he is unable to meet the requirements of Minnesota law for marijuana use and possession. As such, he wrote, Hallgren cannot use the drug within the borders of Minnesota.
If found guilty of the felony charge, Hallgren, who has no previous criminal record, could face jail time, and the charge would remain on his record.
Hallgren, who said he has suffered from symptoms of IBS since childhood and was given a medical certification to control it via medical marijuana in November 2013, said he sees this case as “an injustice toward medical patients.”
Eskens further argues his client has a right to health and that his doctor agrees that marijuana has improved Hallgren’s health.
“What is the government’s right to regulate that?” Eskens said. “It’s my position that it’s unconstitutional for the government to get in the way of that.”
Hallgren had been working as a ski technician in Breckenridge, Colo., when he found out last June that his father was in serious condition back in Minnesota. He decided to drive to Minnesota to spend the final days with his dad, who later died in August, accompanied by his dog, and camping along the way.
According to the criminal complaint filed in the case, Hallgren was traveling north on Highway 60 in Jackson County on June 4 at approximately 12:14 a.m. when he was stopped by a Jackson County sheriff’s deputy for a faulty headlight. At the time, Hallgren told the officer that he was on his way to Duluth from his residence in Colorado to be with his parents, since his dad was dying from cancer.
While speaking with Hallgren, the officer noted what appeared to be a “bong,” commonly used for smoking marijuana, sitting in a bag on the floor of the passenger side of the vehicle. The deputy noted he could see the bong sticking halfway out of the bag. When asked to hand it over to the officer, Hallgren did so, explaining he used it for his medically prescribed marijuana. When asked if there was any other related items in the car, Hallgren handed over the black bag which contained some marijuana and associated paraphernalia and a small white plastic container with additional marijuana. He told the officer he had additional marijuana in the trunk of the vehicle which he explained was home-grown, allowable by law in Colorado. A duffle bag he produced also contained additional containers of marijuana as well as multiple edible chocolate bars.
The deputy described Hallgren as “very cooperative” throughout the entire procedure, giving a complete statement regarding his medical condition, his doctor’s prescription and his method of making concentrated marijuana to address his medical needs.
The use of medical marijuana has been legal in the state of Colorado since November 2000, when Colorado voters approved an amendment allowing the use of cannabis for approved patients with written medical consent. The law allows patients to possess up to two ounces of medicinal cannabis and grow up to six plants, though doctors can recommend a patient’s right to possess additional cannabis because of the patient’s specific medical needs.
IBS is on Colorado’s list of conditions recognized as appropriate for use of medical cannabis.
According to WebMD, several early studies have shown that smoking marijuana can help people with digestive disorders such as IBS, with patients reporting a reduction in bowel inflammation and reduced acid reflux. Some reports also state that patients were able to retain more nutrients in their bodies, even causing the disease to go into remission.
Recreational marijuana has been legal in the state of Colorado since November 2012, when a further amendment to the state’s constitution was passed permitting the growing and use of marijuana by adults aged 21 or older, whether they are a resident of the state or not.
With Minnesota only coming on board with medical marijuana earlier this year, and implementation set to go into effect in 2015, Hallgren’s case falls into a narrow corridor of interpretation that still falls within the realm of the courts.
Eskens said he plans to take Hallgren’s case to the Minnesota Court of Appeals, but forward progress has been temporarily stalled by the fact the Jackson County prosecuting attorney and the judge who presided over the earlier stages of the case have both since retired. Eskens said he is working with the newly elected officials to get the case moving again.
In the meantime, Hallgren is slated for arraignment in Jackson County on Jan. 5.
In his frustration over the situation, Hallgren has even written a letter to Minnesota Gov. Mark Dayton discussing the dilemma of how he is currently the resident of a state where he is not considered a criminal for using marijuana but rather a patient.
“How is it I can travel across borders in the same country and become an accused felon?” he posed.
Jon Tevlin of the Minneapolis Star Tribune contributed to this story.