South Dakota: Home of the Most Draconian Weed Laws in the US

South Dakota. (@huffpo)
The “internal possession” of marijuana in South Dakota can result in one year imprisonment. (@procon_org)

In South Dakota, it’s not just illegal to ingest or possess marijuana, it’s also illegal to have ingested it elsewhere — legally — even if weeks earlier.

Welcome to the land of “Weird Laws that Make No Sense,” where South Dakota lawmakers are apparently running a masters course in absurdity.

According to the state’s Codified Laws Chapter 22-42-15, it is a Class 1 misdemeanor to ingest a “substance, except alcoholic beverages, for the purpose of becoming intoxicated,” regardless of the “venue for violation.”

The law stipulates that the “venue for a violation of this section exists in either the jurisdiction in which the substance was ingested, inhaled, or otherwise taken into the body or the jurisdiction in which the substance was detected in the body of the accused.”

It’s called “internal possession,” and what all that legal jargon boils down to is: if police find marijuana in your system in the state of South Dakota, you’re going to jail.

“No problem,” one might say. “Just don’t drive into South Dakota while high as a kite.”

Well, it’s not that simple.

Marijuana stays in your system for a long time: anywhere between a few days and a few weeks, even in urine, which is what police in South Dakota test. Currently, every other state legislature in the country appears to have the sense to realize that you can’t punish someone for doing something that was perfectly legal in another state.

The South Dakota “internal possession” law does make it a point to note that this only applies to substances ingested “for purposes of becoming intoxicated,” exempting use if “prescribed by a practitioner of the medical arts lawfully practicing within the scope of the practitioner’s practice.” So, it appears that medical-marijuana users are off the hook, but what about all the legal pot smokers in Alaska, Colorado, Oregon, Washington state, and Washington, DC?

Suppose you live in Seattle, or just visiting the city, and decide to cruise down to the posh new cannabis clubs, bars, and lounges. After filling your lungs with inspiration, you remember you’ve never seen Mount Rushmore in person, and head out to the Black Hills a few days later. You’d better pray you don’t have a run-in with the law, or an accident on the road, or you might just spend the next year of your life in a cage.

This is madness.

South Dakota’s “internal possession” law is an attack on individual freedom in the most profound sense. If you are a South Dakota resident, the state has assumed the authority to criminalize your legal activity anywhere else in the world, extort you for US$2,000, “and/or” deny you of your liberty for 365 days.

And this isn’t all just theoretical. Cops in South Dakota are on the hunt and are squeezing every bit of abuse they can from this ridiculous law.

As Phillip Smith writes for, police in the state are using internal possession to provide more leverage for prosecutors in their plea negotiations. Smith quotes Huron resident Dave Johnson, who faced charges based on this law in 2003:

“The cops took me downtown and said if I didn’t piss for them, they’d stick something in my dick and take it by force,” Johnson said. “They were going to take it forcefully — that’s what they told me. So I said okay.”

And that’s how they get you. You say “it’s okay,” under coercion, and now the police have “voluntary consent.” The results of your urine test can no longer be challenged in court.

The twisted logic behind this law is enough to make any sane man’s head spin. It just doesn’t many any sense… unless you start thinking like a statist authoritarian, eager to inflate the state’s coffers with petty fines, and fill up prisons with nonviolent “offenders” forced into cheap labor.

It’s situations like this that remind me that this isn’t really about marijuana or the “war on drugs.” This isn’t a “marijuana issue” at all, really; it’s a freedom issue.

The freedom to control what substances you decide to put into your own body; to move freely, unimpeded, across whatever arbitrary boundaries politicians have established; to be free of unreasonable searches and seizures; and without fear of excessive fines and cruel and unusual punishments.

In a free society, smoking a plant in one part of the country, traveling to another, and then landing in jail for having a few of those plant metabolites still in your system, ought to be considered the height of “cruel and unusual.”

As the late Bill Hicks so brilliantly articulated many years ago, “this isn’t a war on drugs. It’s a war on personal freedom. Keep that in mind at all times.”

Well, I remember now, Bill. It’s laws like this that make it crystal clear.

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