South Dakota’s Marijuana Laws — What You Need to Know

Learn about South Dakota’s recently passed laws that cover recreational and medical uses of marijuana.

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Employer conduct, home cultivation, prohibitions — find out all about the Coyote State’s new marijuana laws

South Dakota voters approved 2 initiatives on November 3, one that would legalize recreational use of marijuana in small amounts for those over 21 and the second allowing the medical use of marijuana.

Constitutional Amendment A amends the state’s constitution to allow the purchase and possession of up to 1 ounce of cannabis for those 21 years old and older. No more than 8 grams can be in a concentrated form.

Measure 26 also passed. It requires the formation of a medical marijuana program.

Recreational marijuana use became legal in the Coyote State by a vote of 53% to 47%. The medical use of marijuana became legal with a 69% to 31% vote. The legalization measure is expected to become effective July 1, 2021, according to the Argus Leader.

Marijuana sales will have a tax of 15%. After the Revenue Department uses tax revenue to cover costs with implementing the amendment, half of the remaining revenue will go towards funding public schools and the other half will go towards the state’s general fund.

Employer conduct

Employers retain their rights to maintain a drug and alcohol-free place of employment and can have workplace policies restricting the use of marijuana by employees or prospective employees.
Similar to the Arizona and Montana initiatives, the South Dakota state amendment legalizing recreational use of marijuana does not:

  • Require that an employer permit or accommodate conduct allowed by the measure, or
  • Affect an employer’s ability to restrict the use of marijuana by employees

So, employers retain their rights to maintain a drug and alcohol-free place of employment and can have workplace policies restricting the use of marijuana by employees or prospective employees.

Home cultivation

Individuals who live in a local government jurisdiction with no licensed retail stores may grow up to 3 marijuana plants. The plants need to be in a private residence in a locked space that is not visible to the public. A maximum of 6 marijuana plants can be kept in one residence at a time, regardless of how many individuals at the property are growing marijuana plants.

The person who owns or controls the private property can forbid marijuana cultivation on the property.

Medical marijuana

The state legislature has a requirement to draft and pass new laws to establish a state medical marijuana program no later than April 1, 2022.

Measure 26 provides medical marijuana patients “all the same rights under state and local law, as the person would be afforded if the person were solely prescribed a pharmaceutical medication.” Employers would not be required to allow cannabis ingestion in the workplace, nor would they be required to allow employees to work under the influence of cannabis. A “registered qualifying patient may not be considered to be under the influence of cannabis solely because of the presence of metabolites or components of cannabis that appear in insufficient concentration to cause impairment,” according to the measure.

Civil penalties

A $250 penalty will apply if:

  • A person grows marijuana plants that are visible from a public place
  • Cultivated marijuana plants are not kept in a locked space
  • Aa person grows marijuana in a local government jurisdiction that has marijuana retail stores, unless the jurisdiction allows home cultivation for individuals

There’s also a $100 penalty for smoking marijuana in a public place unless the place has a license for such activity.

Local governments

Local governments can ban marijuana cultivators, testing facilities, wholesalers, or retail stores from operating in their limits.

Prohibitions

The new law does not limit or affect laws that prohibit or otherwise regulate:

  • Operating or being in physical control of any motor vehicle, train, aircraft, motorboat, or other motorized form of transport while under the influence of marijuana
  • Consumption, including smoking, of marijuana while operating or being in physical control of a motor vehicle, train, aircraft, motorboat, or other form of transport with a motor, while it is under operation
  • Possession or consumption of marijuana or possession of marijuana accessories on the grounds of a public or private preschool, elementary school, or high school, in a school bus, or on the grounds of any correctional facility
  • Smoking marijuana in a location where there’s a ban for smoking tobacco
  • Consumption of marijuana in a public place, other than in an area licensed by the department for consumption
  • Conduct that endangers others
  • Undertaking any task under the influence of marijuana, if doing so would constitute negligence or professional malpractice

As of 2020, 33 states and Washington, D.C., have passed laws legalizing or decriminalizing medical marijuana, according to Ballotpedia. In addition, Ballotpedia has noted that as of 2020, 11 states and the District of Columbia have legalized marijuana for recreational purposes, along with:

  • 9 states through statewide citizen initiatives
  • 2 states through bills approved by state legislatures and signed by governors

The possession, purchase, and sale of marijuana is illegal under federal law although a Democratic Congressman has said that he plans to introduce in December a bill that will decriminalize cannabis and allow for the expungement of convictions for non-violent cannabis offenses.

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