South Dakota became the first state to simultaneously vote in favor of creating a medical cannabis program and for the legalization of recreational cannabis in November 2020. Cannabis advocates were dealt a blow on February 8, 2021, when Circuit Court Judge Christina Klinger sided with a suit filed on behalf of Governor Kristi Noem's administration, and ruled that the adult-use amendment was unconstitutional because it violated Amendment Z of the South Dakota constitution, which prohibits proposed constitutional amendments from embracing more than one subject at a time. Since even modest amendments embrace more than one subject at a time, the decision by the Noem-appointed judge is expected to be overturned when the case is heard by a judge in the South Dakota Supreme Court. Barring an unprecedented act that overturns the will of voters, legalization is expected to take effect July 1, 2021, and will allow individuals over the age of 21 to possess up to 1 ounce of marijuana and to cultivate up to 3 cannabis plants. The state's Department of Revenue has been tasked with developing regulations to oversee the creation of licensing regulations by April 1, 2022. The Department of Health has been tasked with drafting regulations for the state's medicinal program by October 29, 2021, and must begin issuing patient registration cards by November 18, 2021.
Until these laws take effect, all cannabis use in South Dakota is illegal with the exception of cannabis-based medications that have received FDA approval and have been prescribed to patients. Even CBD products that would be legal under federal law as specified in the 2018 Farm Bill—i.e. hemp-derived and less than 0.3% THC—may be considered illicit substances under South Dakota law. At the time of this writing, the status of these products remains an open question.
Patients from other states should note that there are major penalties for possession of cannabis. Possession of 2 oz or less is a misdemeanor. Offenders could be incarcerated for up to 1 year and may be fined $2,000. Possession of more than 2 oz is a felony. If under 0.5 lb, the punishment can be incarceration of up to 1 year and a fine of up to $4,000. If between 0.5-1.0 lb, violators may be incarcerated up to 5 years and fined $10,000. If between 1-10 lbs, violators may be incarcerated up to 10 years and fined $20,000. If over 10 lbs, the term of imprisonment may be up to 15 years and the maximum fine could be $30,000. The punishment for cultivation is based on the total weight of the plants.
Possession of concentrated cannabis is a felony punishable by up to 10 years in prison and a fine of $20,000.