Kansas Court Defines what a marijuana plant is and is not

On April 8, 2016, The Kansas Court of Appeals decided State v. Holsted  , a marijuana distribution/cultivation case in which the court was asked to decide what, exactly, constitutes a plant for purposes of K.S.A. 21-5705. Seems like it would be an easy question: what is a plant? But nevertheless, the intrepid Appellate Defender's office argued that if a plant is cut and doesn't have roots, then it is just a "clipping" and no longer qualifies under the cultivation part of the statute. 

The Court agreed, holding that cuttings from a mother marijuana plant do not count as new individual plants until roots have begun to form. "There is a difference between what might be and what is" opined Judge Hill. 

The court did not go along with Wyandotte ADA Tomasic's argument that the cultivator' intent is what matters, because this dealer was alleged to be trying t grow new plants from the cuttings. 

It seems highly likely that this will be appealed to the next level, but until then, prosecutors will need to be careful to show the added element of "roots forming" when they prove the elements of a marijuana cultivation case, relying on the 5 or more plants provision. 

Scott James

If you have a drug charge and need to contest it in the Dodge City, Garden Area contact the James Law Firm PLLC at (620) 450-6438