South Dakota Senators Vote to Strip Affirmative Defense from Medical Cannabis Law

The South Dakota Senate has voted 25 to 10 to strip an affirmative defense provision from the state’s medical cannabis law, the Mitchell Republic reports. The provision — which was included in the state’s medical cannabis initiative, approved in 2020 by more than 70% of state voters — would have allowed patients caught by police in possession of cannabis products to get out of the charges by demonstrating a medical need for cannabis, even if they don’t have their medical card yet.

Senate Pro Tempore Lee Schoenbeck (R) had been skeptical of the affirmative defense language and compared the voter-approved initiative to a “magician” pulling rabbits from a hat, with each rabbit as a new reduction to the state’s cannabis penalties.

“It’s like 27 of them,” he said referencing subsections of the law. “The major purpose was not to decriminalize medical marijuana.”

Other Republicans had similar reservations — “Why even have a law?” asked Sen. Timothy Johns.

But Sen. David Wheeler (R) spoke against the legislation. “If you have a bonafide medical need, we’re not going to care anymore,” he said referring to the program. “We’re not going to … [treat you as] a criminal anymore.”

The removal of the affirmative defense had been recommended by an interim study conducted by lawmakers over the summer. The measure now heads to the South Dakota House for consideration.

South Dakota was part of a flurry of states that passed medical cannabis in 2020. At the same time, voters passed an adult-use initiative but that was eventually struck down after a lawsuit by law enforcement ended with the Supreme Court throwing out the measure entirely. The high court said that the ballot initiative had illegally covered more than one issue. Although the state’s medical cannabis program was not included in that lawsuit, regulators and the Legislature have struggled to develop a working medical cannabis system.