I recently defended a client who was charged with operating a marijuana grow house. Drug Task Force agents executed a narcotics search warrant at his home and discovered marijuana plants growing on all three levels. On the upper level of the home agents found 251 suspected marijuana starter plants in a walk-in closet. The plants ranged between 1.5 and 5.5 inches tall. On the main level agents discovered 70 suspected marijuana plants that were approximately 9 inches tall. In the basement agents found 67 near mature marijuana plants. The grow operation was dismantled by police who seized the equipment and suspected marijuana plants as evidence of a crime. The plants were submitted to the BCA for laboratory testing. The BCA issued a Report on the Examination of Physical Evidence and concluded that the 67 plants found in the basement contained marijuana and weighed approximately one kilogram. No testing was ever conducted by the BCA on the 70 suspected marijuana plants found on the main level of the home or on the 251 one plants seized from the upstairs closet.
I knew that in order for the state to prove up a case of Attempted Third Degree Controlled Substance Crime it would need to prove that the marijuana grow operation was capable of producing 5 kilograms of marijuana within a 90 day period. The only evidence tested by the BCA were the plants found in the basement which weighed in at only one kilo! We waited until the day of trial to file our motion to preclude the prosecution from introducing any evidence at trial regarding the weight or identity of the untested plants. The motion was based on case law that held that where the state had possession of the entire amount of controlled substance but failed to use adequate scientific testing, any non-scientific evidence regarding the identity or weight of the suspected marijuana was not sufficient to sustain a conviction. On the date of trial it was too late for any more testing by the BCA. The prosecution agreed to dismiss the Attempted Third Degree Controlled Substance charge which saved my client from a two year prison commit.
If you have been charged with a controlled substance crime in Minnesota or Wisconsin, please give me a call for a free phone consultation at (612) 339-1024.