South Dakota Marijuana Laws

By Kit Yona, M.A. | Legally reviewed by John Mascolo, Esq. | Last reviewed January 02, 2025

South Dakota voters let their voices be heard about the legalization of marijuana (also known as cannabis) at the polls in 2020. But only half of what they demanded came to be. Voters approved ballot measures legalizing medical marijuana and recreational cannabis use. These referenda gave the South Dakota legislature permission to act and finalize rules for the regulation of cannabis.

Lawmakers in the State House and Senate didn't get a chance to move forward on recreational marijuana. After the election, a circuit judge overturned Constitutional Amendment A (the recreational marijuana law) on a legal technicality. The South Dakota Supreme Court upheld that ruling, negating the legalization of adult-use recreational marijuana.

The non-profit organization behind these initiated measures is South Dakotans for Better Marijuana Laws. As a result of their efforts, recreational marijuana was on the ballot again in 2024 as Initiative 29. This was legalize adult-use cannabis for those 21 and older, but it failed.

South Dakota marijuana laws can be difficult to keep straight. In this article, we'll examine the medical marijuana program and how to become a member. You'll learn about the strict punishments for cannabis offenses and what the recreational limits might be if enough people vote yes on Initiative 29. Read on for an improved understanding of the marijuana laws in South Dakota.

How South Dakota Cannabis Laws Work

Medical marijuana is legal in South Dakota due to Ballot Measure 26, but it's illegal for anyone but SDMCP patients and caregivers to possess cannabis. Illegal possession of marijuana of up to 2 ounces is a misdemeanor with the potential of up to a year in jail and a fine of up to $2,000. Any illegal possession over 2 ounces is a felony.

Smoking cannabis in public places is prohibited. Patients should be aware that marijuana is still considered a Schedule 1 drug, as per the Controlled Substances Act (CSA). Even medical marijuana cardholders can face federal charges for marijuana possession in national parks, American military bases, and federal courthouses.

While SDMCP patients and caregivers can grow a small number of cannabis plants for personal use, cultivation by anyone else without a license from the state is illegal. Penalties are based on weight and can be charged as intent to distribute.

In the same vein, all sales and distribution must take place in state-licensed dispensaries. Any sale over 0.5 ounces and up to an ounce of marijuana is a felony. Penalties increase with higher amounts. Sales or distribution involving minors or near schools carry enhanced punishment.

Possession of marijuana paraphernalia is a class 2 misdemeanor with up to 30 days in jail and a fine of up to $500. Selling cannabis paraphernalia is a felony.

South Dakota Medical Marijuana Laws

Patients and caregivers in the South Dakota Medical Cannabis Program (SDMCP) are the only South Dakota residents with the legal right to use cannabis and cannabis products for medical purposes. Patients can possess up to 3 ounces of cannabis, the equivalent in THC (tetrahydrocannabinol)-infused products such as edibles and concentrates, or any combination that is below the limit.

They also can cultivate and process up to two mature cannabis plants and two immature cannabis plants at their homes. All growing must be done in a locked enclosure.

Despite the number of patients more than doubling since the South Dakota Medical Cannabis Program (SDMCP) began in 2022, some groups in the state still oppose these programs. One tried unsuccessfully to place a ballot measure to repeal the program.

There are several steps involved in becoming a member of the SDMCP. The patient must first meet with a licensed South Dakota practitioner who is registered with the SDMCP. The physician can verify that the patient suffers from one or more of the qualifying conditions:

Cachexia or wasting syndrome
Severe, debilitating pain
Severe nausea unless associated with pregnancy
Seizures
Severe and persistent muscle spasms
AIDS/HIV
Amyotrophic lateral sclerosis (ALS)
Multiple sclerosis (MS)
Cancer or its treatment
Crohn's disease
Epilepsy and seizures
Post-traumatic stress disorder (PTSD)

If you don't see your medical condition or aren't sure, speak with your doctor or contact the SDMCP.

The practitioner's recommendation should arrive in an email with a link to the SDMCP online portal. During the application process, you'll provide identification, a photo for your medical marijuana card, and other information. You'll be asked if you plan to have any of the following:

Caregiver(s)
Home cultivation (must provide a diagram and a photo of the enclosed and locked area you plan to grow in)
Designated dispensary (optional)

After you make your personal certifications, it's time to pay. The standard fee for becoming a member of the SDMCP is $75, with a 3.49% convenience fee for PayPal and a $0.49 transaction fee. There's an additional charge of $20 if you're cultivating and $20 for each caregiver after the first. Those who qualify for a low-income account pay $20 instead of $75.

Your purchase limit is the same as your possession limit, so you can buy up to 3 ounces of cannabis, the equivalent in THC-infused products such as edibles and concentrates, or any combination that is below the limit every 14 days. You do not have to purchase the limit all at once, but you can't buy more than 3 ounces in a rolling 14-day period.

South Dakota Marijuana Law Penalties

Operating a motor vehicle under the influence of cannabis carries the same penalties as an alcohol-fueled DUI. The difference is that law enforcement doesn't have to prove the driver was driving while impaired. The charge can be based on physical evidence of the cannabis still being in the driver's body.

The table below recaps what you've learned above and adds a detailed summary of the penalties faced by those violating South Dakota cannabis laws.

Relevant South Dakota marijuana laws	South Dakota Codified Laws Title 22 — Crimes Section 22-42-1 (definitions) Section 22-42-2 (unlawful manufacture, distribution or possession of a Schedule I or II controlled substance) Section 22-42-5.1 (unauthorized ingestion of controlled drug or substance as felony) Section 22-42-6 (possession of marijuana prohibited--degrees according to amount) Section 22-42-7 (Distribution or possession with intent to distribute specified amounts of marijuana) Section 22-42-18 (definitions) Section 22-42-19 (drug free zones) Section 22-42-24 (driver- use of marijuana - motor vehicle) Section 22-42-25(passenger - use of marijuana - motor vehicle) Section 22-42A-3 (use or possession of drug paraphernalia) Section 22-42A-4 (delivery of drug paraphernalia) Title 34 — Public Health and Safety Section 34-20B-14 (hallucinogenic substances included in schedule I) Section 34-20B-70 (property subject to forfeiture) Sections 34-20G -1 to 34-20G-96 (medical cannabis) South Dakota Administrative Rules Article 44-90 (medical cannabis)
Is marijuana legal in South Dakota?	Legal for medical use only at this time.
South Dakota marijuana possession limits and penalties	Legal use: South Dakota Medical Cannabis Program patients can possess up to 3 ounces of cannabis or the equivalent in cannabis products. Possession by those who are not SDMCP patients or caregivers is illegal. Illegal Marijuana Possession Penalties: Up to 2 ounces (class 1 misdemeanor): Up to one year in jail and a fine of up to $2,000 More than 2 ounces and less than 8 ounces (class 6 felony): Up to two years in prison and a fine of up to $4,000 8 ounces or more but less than 1 pound (class 5 felony): Up to five years in prison and a fine of up to $10,000 1 pound or more and up to 10 pounds (class 4 felony): Up to 10 years in prison and a fine of up to $25,000 Over 10 pounds (class 3 felony): Up to 15 years in prison and a fine of up to $30,000 Civil penalties of up to $10,000 could also be imposed upon conviction.
South Dakota sales/distribution penalties	Legal sales: All legal sales of marijuana must take place in a state-licensed dispensary. At present, the only legal sales relate to medical marijuana. Illegal Marijuana Sales/Distribution Penalties: Less than 0.5 ounces without consideration (class 1 misdemeanor): Between 15 days and one year in jail and a fine of up to $2,000 1 ounce or less (class 6 felony): Between 30 days and two years in prison and a fine of up to $4,000 More than 1 ounce but less than 8 ounces (class 5 felony): Between 30 days and five years in prison and a fine of up to $10,000 8 ounces or more but less than 1 pound (class 4 felony): Between 30 days and 10 years in prison and a fine of up to $25,000 1 pound or more (class 3 felony): Between 30 days and 15 years in prison and a fine of up to $30,000 Civil penalties of up to $10,000 could also be imposed upon conviction. A first-time offense for felony distribution carries a mandatory minimum 30 days incarceration. A second or later offense for felony distribution carries a mandatory minimum of 1 year incarceration. Sentences are also enhanced for violations involving minors, or violations near schools.
South Dakota marijuana cultivation limits and penalties	Legal cultivation: SCMCP patients and caregivers are permitted to cultivate up to two mature cannabis plants and two immature cannabis plants at their homes. They must be secured and out of public view. Illegal marijuana cultivation penalties: Cultivation punishment is based on the weight of plants. It can be charged as simple possession or intent to distribute depending on the circumstances.

Note: State laws are subject to change through the passage of new legislation, rulings in the higher courts that include federal decisions, ballot initiatives, and other means. While we strive to provide the most current information available, please consult a South Dakota drug crime attorney or conduct independent legal research to verify the status of any South Dakota state laws you are reviewing.