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Martine Law PLLC | Updated October 23, 2026
Fifth degree drug possession in Minnesota is unlawful possession of any amount of a Schedule I, II, III or IV controlled substance, other than cannabis and hemp products. It is a felony with up to 5 years in prison, a $10,000 fine, or both, unless a person with no prior drug conviction possessed a very small amount, which makes it a gross misdemeanor. Source: Minnesota Statutes 152.025 A qualifying person can receive a stay of adjudication that ends in dismissal if probation is completed. Source: Minnesota Statutes 152.18 Phones are answered 24/7. Call 612-294-0650 for a free consultation.
What counts as fifth degree drug possession in Minnesota?
Fifth degree covers unlawful possession of any mixture containing a Schedule I to IV drug, with no minimum weight. The statute excludes cannabis flower, cannabis products, lower-potency hemp edibles, hemp-derived consumer products and a residual amount of a drug inside drug paraphernalia. Source: Minnesota Statutes 152.025, subd. 2
The charge can involve small amounts of methamphetamine, cocaine, heroin or fentanyl, or prescription pills held without a valid prescription. See whether prescription pills can count as a felony.
The same section covers fraud. It is fifth degree to procure, attempt to procure, possess or control a controlled substance by fraud, deceit, misrepresentation or subterfuge, by using a false name, or by falsely posing as a pharmacist, physician or other authorized person. A forged prescription is one example. Unlawfully selling a Schedule IV drug is also fifth degree. Source: Minnesota Statutes 152.025 Selling a Schedule IV or V drug to a person under 18, or using one to sell, is fourth degree. Source: Minnesota Statutes 152.024
Fluid in a water pipe, and any drug dissolved in that fluid, is not counted as part of the mixture. Source: Minnesota Statutes 152.025, subd. 2 Synthetic cannabinoids are charged under a separate section, where possession of any amount is a misdemeanor. Source: Minnesota Statutes 152.027, subd. 6
Is 5th degree possession a felony or a gross misdemeanor?
It is a felony unless you fit the first-offense, small-amount exception. Under subdivision 4, a possession conviction is a gross misdemeanor only if both conditions are met:
- No prior drug conviction. You have never been convicted under chapter 152 or of a similar offense in another jurisdiction.
- A very small amount. For any drug other than heroin, less than 0.25 grams, or one dosage unit or less if the drug was in dosage units. For heroin, less than 0.05 grams.
Source: Minnesota Statutes 152.025, subd. 4
The exception does not apply to fraud or Schedule IV sale charges, which are always felonies. A gross misdemeanor carries up to 364 days in jail, a $3,000 fine, or both. Source: Minnesota Statutes 609.03
Three details matter. The test uses the weight of the mixture, regardless of purity. Source: Minnesota Statutes 152.01 The statute joins the 0.25 gram test and the one dosage unit test with “or”, so possessing more than one dosage unit does not by itself rule out a gross misdemeanor. And the gross misdemeanor rule came from a 2016 law that also modified the higher thresholds and applied to crimes committed on or after August 1, 2016. Source: Laws 2016, chapter 160, section 7
An officer may also refer a person suspected of fifth degree possession to local substance use services, and must provide a referral on request when practicable. Source: Minnesota Statutes 152.025, subd. 4
What is a stay of adjudication under 152.18?
A stay of adjudication lets the court, with your consent, defer the case without entering a judgment of guilt and place you on probation. If you satisfy the probation conditions, the court discharges you and dismisses the case, and the dismissal is not a conviction. If you violate a condition, the court may enter an adjudication of guilt and sentence you. Source: Minnesota Statutes 152.18, subd. 1
For fifth degree possession, the court must grant the stay if you:
- Have never participated in or completed a pretrial diversion program under section 401.065.
- Have never received a 152.18 discharge before.
- Have no felony chapter 152 conviction, or similar out-of-state or federal felony, unless ten years have passed since discharge from that sentence.
- Have no prior felony conviction of any kind.
- Have no prior gross misdemeanor conviction under section 152.025.
Source: Minnesota Statutes 152.18, subd. 1
The stay is available after a guilty plea or a trial. When only the first three conditions are met, the court may grant it for third, fourth or fifth degree possession but is not required to. So a non-drug felony, or a drug felony more than ten years past discharge, rules out the mandatory stay but not the discretionary one. The Bureau of Criminal Apprehension keeps a not public record of the discharge for use in any later case. Source: Minnesota Statutes 152.18
How is this different from diversion and treatment court?
Pretrial diversion is the prosecutor’s decision, made before a plea, to refer you to a program, with charges dismissed or never filed if you complete it. It is limited to people charged with crimes other than crimes against the person who have no prior adult conviction for such a crime and no prior adult diversion in Minnesota, and meeting those terms does not guarantee an offer. Source: Minnesota Statutes 401.065 Diversion under section 401.065 also rules out a later 152.18 stay, so the two should be weighed together. Source: Minnesota Statutes 152.18
Treatment court is not a way to avoid a conviction. Hennepin County Drug Court is a voluntary, post-conviction program of at least 12 months for adult, non-violent, chemically dependent felony drug and property offenders. Source: Hennepin County District Court, Treatment Courts It uses regular appearances before a judge, intensive probation supervision and frequent random testing. Source: Minnesota Judicial Branch, Treatment Courts A referral starts screening by probation and a social worker. Source: Hennepin County Treatment Courts, Attorney Brochure A referral is not admission. See how Minnesota drug courts work.
When does possession become third or fourth degree?
Possession becomes third degree when the weight crosses a threshold or the location is protected. For most of these thresholds, amounts possessed within a 90-day period are added together. Third degree possession includes:
- 10 grams or more of a narcotic other than heroin or fentanyl, which includes cocaine and methamphetamine.
- 3 grams or more of heroin.
- 5 grams or more, or 25 dosage units or more, of fentanyl.
- 50 or more dosage units of a narcotic other than heroin or fentanyl.
- In a school zone, park zone, public housing zone or drug treatment facility, any amount of a Schedule I or II narcotic, meth or amphetamine, or 5 or more dosage units of LSD, MDA or MDMA.
Source: Minnesota Statutes 152.023, subd. 2
Third degree carries up to 20 years, a $250,000 fine, or both. Source: Minnesota Statutes 152.023, subd. 3 A park zone includes the area within 300 feet or one city block of the park boundary, whichever is greater. Source: Minnesota Statutes 152.01, subd. 12a Selling any amount of a narcotic, even giving a small amount to a friend, is also third degree, because sell includes giving away. Source: Minnesota Statutes 152.023, subd. 1 Source: Minnesota Statutes 152.01, subd. 15a
Fourth degree possession is 10 or more dosage units of PCP or a hallucinogen, or a Schedule I, II or III drug, other than marijuana or THC, possessed with intent to sell, with up to 15 years, a $100,000 fine, or both. Source: Minnesota Statutes 152.024 Scales, packaging and cash may support an intent-to-sell theory, but whether they prove it depends on the full evidence. Because sell includes possessing with intent to sell, a higher degree sale charge can also apply. Source: Minnesota Statutes 152.01, subd. 15a
What sentence does a 5th degree conviction actually carry?
The 5 year maximum is the ceiling, not the starting point. Felony fifth degree is severity level D2 on the Minnesota Sentencing Guidelines Drug Offender Grid. For offenses on or after August 1, 2026, it is a presumptive stayed sentence at criminal history scores 0 to 5, with durations from 12 to 19 months, and presumptive prison at a score of 6 or more, at 21 months. Source: Minnesota Sentencing Guidelines, Drug Offender Grid, effective August 1, 2026 Source: Minnesota Sentencing Guidelines 3.G
These durations are the prison term if executed, not the length of probation. A stayed sentence means probation, and the court can order local jail time as a condition. Felony probation can last up to five years, and gross misdemeanor probation up to two years. Source: Minnesota Statutes 609.135 If you were on probation or another custody status for a qualifying felony when the offense happened, the 2026 Guidelines add 2 months at D2 and 6 months at D6. Source: Minnesota Sentencing Guidelines 2.C.2 A departure, which requires substantial and compelling reasons, can change the presumptive result. Source: Minnesota Sentencing Guidelines 2.D
Third degree is severity level D6: presumptive stayed at scores 0 to 2, starting at 21 months at a score of 0, and presumptive prison at a score of 3 or more. Source: Minnesota Sentencing Guidelines, Drug Offender Grid, effective August 1, 2026 Our guide to how Minnesota’s drug sentencing grid works covers criminal history scoring.
Can a 5th degree charge be removed from your record?
Often, but eligibility is not the same as a grant. The rules depend on how the case ended:
- 152.18 dismissal. A dismissal and discharge for fourth or fifth degree possession is eligible for expungement without a petition, and you may also petition to seal the records. Source: Minnesota Statutes 609A.015, subd. 1 Source: Minnesota Statutes 609A.02, subd. 1
- Gross misdemeanor conviction. Eligible three years after discharge of the sentence if you have no new conviction and no pending charge.
- Felony fifth degree conviction. Eligible four years after discharge of the sentence on the same terms. A felony later deemed a gross misdemeanor or misdemeanor is excluded from the automatic route.
Source: Minnesota Statutes 609A.015, subd. 3 Source: Minnesota Statutes 609A.02, subd. 3
Expungement does not reach records held by the health and human services commissioners. Source: Minnesota Statutes 609A.015 The Bureau of Criminal Apprehension identifies and seals qualifying records, and a 2026 law requires it to unseal a record it later finds did not qualify. Source: Laws 2026, chapter 70, section 5 Felony third and fourth degree possession convictions are not on the automatic list and require a petition after four years. Source: Minnesota Statutes 609A.02, subd. 3 See our expungement page.
How do you fight a 5th degree possession charge?
Every element the State must prove is a place to push.
- The search. If the stop, frisk, vehicle search or warrant was unlawful, the court may exclude the evidence, which can lead to dismissal or weaken the case. Read our guide to illegal searches in Minnesota drug cases.
- Knowing possession. When drugs are in a shared car, apartment or borrowed jacket, the State must show you knowingly exercised dominion and control over them, not just that you were nearby. See constructive possession in Minnesota drug cases.
- Substance and weight. We review the lab work, the chain of custody, what was weighed and the reliability and limits of any field test. For a drug other than heroin and a person with no prior drug conviction, 0.24 grams versus 0.26 grams can be the line between a gross misdemeanor and a felony. Read more on field tests, lab reports, and chain of custody.
- Prescription. The charge requires unlawful possession, so a lawful prescription for the drug is a central issue.
- Residual amount. A residual amount inside paraphernalia is excluded from fifth degree by the statute itself.
Even when the evidence holds, a 152.18 stay or diversion may avoid a conviction. Our Minneapolis drug crime lawyer page explains how drug cases move through Hennepin County.
What should you do after a 5th degree possession arrest?
- Do not explain whose drugs they are. Ask for a lawyer and stop talking. See police interviews and your rights in Minnesota.
- Do not consent to a further search of your phone, car or home, and do not physically resist.
- Write down the encounter while it is fresh.
- If you called for help during an overdose, tell your lawyer. A good-faith caller who gives a name, stays and cooperates cannot be charged with fifth degree possession based on evidence from that call. Source: Minnesota Statutes 604A.05
- Talk to a lawyer before the first appearance, and before accepting diversion, because diversion under section 401.065 rules out a later 152.18 stay.
Questions people ask
Is 5th degree drug possession a felony in Minnesota?
Usually. It is a gross misdemeanor only when you have no prior chapter 152 or similar conviction and the amount is less than 0.25 grams, or one dosage unit or less, or less than 0.05 grams of heroin. Every other fifth degree case is a felony with up to 5 years. Source: Minnesota Statutes 152.025, subd. 4
Can a first-time 5th degree charge be dismissed?
It can. If you have no prior felony, no prior fifth degree gross misdemeanor, no prior diversion under section 401.065 and no prior 152.18 discharge, the court must offer a stay of adjudication with your consent. Satisfy probation and the case is dismissed without a conviction. Source: Minnesota Statutes 152.18
What is the heroin threshold for a gross misdemeanor?
Less than 0.05 grams. For other drugs the line is less than 0.25 grams, or one dosage unit or less, and either way the person must have no prior chapter 152 or similar conviction. Source: Minnesota Statutes 152.025, subd. 4
Does fifth degree apply to marijuana?
No. Cannabis flower, cannabis products and hemp-derived products are excluded from fifth degree. Cannabis possession above the legal limits is charged under section 152.0263, with its own tiers from petty misdemeanor to felony. Source: Minnesota Statutes 152.0263 Larger amounts, such as more than 10 kilograms of flower, are third degree or higher. Source: Minnesota Statutes 152.023
Will I go to prison for a 5th degree conviction?
Usually not. Felony fifth degree is presumptive stayed at criminal history scores 0 to 5 and presumptive prison only at 6 or more, though local jail can be a condition of probation and a departure can change the result. A gross misdemeanor carries up to 364 days in jail, not prison. Source: Minnesota Sentencing Guidelines, Drug Offender Grid, effective August 1, 2026
Talk with Martine Law about a fifth degree drug charge
Martine Law PLLC defends fifth, fourth and third degree drug possession charges across Minnesota. Tell us the substance, the amount in the complaint and any prior record, and we will explain whether a stay of adjudication may apply and which defenses fit. Contact Martine Law PLLC online. Phones are answered 24/7. Call 612-294-0650 to request a free consultation.
This content provides general information and should not be considered legal advice. Contact Martine Law for guidance specific to your situation.
