PRESTON — A final effort has been made in Fillmore County District Court to dismiss a criminal case against a Lanesboro hemp farmer.
A motion to dismiss the charges of fifth-degree drug sales, felony possession of a controlled substance and gross misdemeanor fifth-degree drug possession was filed on Jan. 3 by St. Paul defense attorney Susan Johnson, who's representing Luis "Lulu Magoo" Hummel.
In the memorandum in support of motion to dismiss, Johnson writes that the "state has failed to establish probable cause that the products Luis Hummel and 5th Sun Gardens (his business) possessed or sold were controlled substances."
Cited in the filing is a portion of the testimony from Emily Hoffman, chemist at Legend Technical Services, Inc. who conducted the cannabinoid profile analysis . The test showed that products from Hummel's company tested above the acceptable 0.3 percent threshold for THC content.
Johnson said that according to Hoffman's testimony, lab protocol states that only plant material can be tested on a dry-weight basis, which is the only form of testing designated by the MDA. Dry-weight basis means that plant materials are dried before testing in order to remove excessive moisture that could alter the results.
"Liquids, solids and waxes cannot be tested on a dry-weight basis," writes Johnson.
The distinction is relevant because Hummel's products that tested above the THC threshold were vape tips (liquid) and hemp dabs (wax).
The filing states that the Industrial Hemp Development Act in effect when the products were seized "did not address hemp-based products such as vape tips, dabs and tinctures".
In the filing, Johnson points out the confusion between the Minnesota Department of Agriculture and Fillmore County law enforcement over which hemp-based products are considered to be a controlled substance.
"An employee of the MDA told a narcotics investigator that her agency has no authority or control over hemp-based products," said Johnson of Margaret Wiatrowski, coordinator of MDA's industrial hemp program. "Yet declared such products to be controlled substances."
Johnson claims that Fillmore County investigators then relied on that "incorrect legal advice" to charge Hummel.
Near the end of the motion, Johnson lays out the case that Hummel "did not knowingly possess controlled substances," because he legally grew industrial hemp in 2018. Months later, products from that harvested crop were classified by law enforcement and the MDA as controlled substances.
"People who knowingly possess controlled substances don't have assurances in writing from regulatory authorities that their products do not need any further testing to enter the stream of commerce," Johnson said in the motion.
She also stated that Hummel "was nowhere in the vicinity" of the car where the products were found, therefore "the state failed to establish probable cause that Hummel had actual or constructive possession of controlled substances."
Fillmore County District Attorney Brett Corson has until next week to file his argument for the case to proceed.