South Dakota Marijuana Laws: Penalties, Medical Cards, and Driving

South Dakota’s marijuana laws allow medical cannabis for registered patients with qualifying conditions and criminalize almost everything else. Recreational use is illegal, possession is prosecuted by weight, and the state can charge you criminally just for having THC metabolites in your system. Medical cardholders get real but limited protections at work, in housing, and when traveling in from another state.

Recreational Use Remains a Crime

Voters approved Constitutional Amendment A in November 2020 to legalize recreational marijuana, but the South Dakota Supreme Court struck it down in Thom v. Barnett, holding that the amendment violated the single-subject rule for constitutional amendments.¹ Every prior criminal statute stayed on the books. Later legislative efforts to legalize adult use have not passed, so possessing any amount of marijuana without a medical card is still a crime.

Possession Penalties by Weight

Criminal exposure scales with how much marijuana you have.²

Two ounces or less: Class 1 misdemeanor, up to one year in jail and a $2,000 fine.
More than two ounces but less than half a pound: Class 6 felony, up to two years in prison and a $4,000 fine.
Half a pound to one pound: Class 5 felony, up to five years in prison and a $10,000 fine.
One to ten pounds: Class 4 felony, up to ten years in prison and a $20,000 fine.
More than ten pounds: Class 3 felony, up to fifteen years in prison and a $30,000 fine.

A court can add a civil penalty of up to $10,000 on top of the criminal sentence for any possession conviction.²

The Ingestion Statute

South Dakota is one of the few states that criminalizes simply having a controlled substance in your body. If a drug test shows THC metabolites in your system, you can be charged even though no marijuana was ever found on you.³ That matters if you used legally in another state and then drove into South Dakota, or if you consent to a drug test after a stop for something else.

A first or second ingestion offense is a Class 1 misdemeanor carrying up to one year in jail, and the court must order a drug and alcohol evaluation and supervised probation. A third offense within ten years becomes a Class 6 felony with up to two years in prison.³ Registered medical cannabis patients are protected from this charge; anyone else with THC in their system is exposed.

Paraphernalia

Possessing drug paraphernalia, including pipes, rolling papers, or growing equipment, is a Class 2 misdemeanor punishable by up to 30 days in jail and a $500 fine.⁴ The state has to prove you knew the item was drug-related and meant to use it with a controlled substance.

Distribution and Sale

Charges for selling or distributing marijuana rise sharply with weight, and any actual sale is a felony no matter how small.⁵

Less than half an ounce given away for free: Class 1 misdemeanor, up to one year in jail and a $2,000 fine.
One ounce or less (any sale): Class 6 felony, up to two years in prison and a $4,000 fine.
More than one ounce but less than half a pound: Class 5 felony, up to five years in prison and a $10,000 fine.
Half a pound to one pound: Class 4 felony, up to ten years in prison and a $20,000 fine.
One pound or more: Class 3 felony, up to fifteen years in prison and a $30,000 fine.⁶

Sales involving minors or occurring near schools and parks carry enhanced penalties. Distribution of Schedule I and II substances (which includes marijuana) can also be charged under a separate statute with a Class 4 felony baseline, escalating to a Class 3 felony when aggravating factors are present, such as a firearm, large amounts of cash, or packaging materials.⁷

Who Qualifies for Medical Cannabis

The medical program launched after voters approved Initiated Measure 26 in November 2020.⁸ The Department of Health runs it, and a patient must have a debilitating medical condition. Approved conditions include cancer, epilepsy, multiple sclerosis, severe chronic pain, cachexia, severe nausea, and seizure disorders, among others.⁹ A practitioner may also certify a patient for a condition not on the list if they determine cannabis would provide a therapeutic benefit.

How to Apply for a Card

You start with written certification from a licensed physician, physician assistant, or advanced practice registered nurse practicing in South Dakota. The practitioner confirms your qualifying condition and that cannabis could help manage your symptoms. You then submit an online application to the Department of Health with a $75 fee.¹⁰ Applicants whose gross monthly household income falls below 130% of the federal poverty level can request a reduced fee with income documentation.

Approved applicants get a registry identification card valid for one year, with the same renewal fee due annually. The application requires a government-issued photo ID and a passport-quality photograph.

Caregivers and Home Growing

A patient who can’t obtain or use cannabis on their own can designate a caregiver. The caregiver must be at least 21, pass a Division of Criminal Investigation background check, and register with the Department of Health. Each caregiver may serve up to five patients, with an exception for those employed at licensed health care facilities, treatment centers, or mental health centers who care for patients on site.¹¹

Home cultivation requires a separate approval noted on your registry card. If approved, you may grow up to two flowering plants and two non-flowering plants at home.¹² Growing without that authorization is treated as any other illegal grow.

Visiting With an Out-of-State Card

Nonresidents holding a valid medical cannabis card at home can register in South Dakota. You submit practitioner certification from your home state confirming a condition South Dakota recognizes, along with a $75 nonrefundable fee.¹³ The Department of Health verifies that the home state card actually authorizes cannabis use before issuing a South Dakota registration number.

A nonresident registration expires at one year or when your home-state card expires, whichever is earlier. You must also designate no more than two dispensaries at registration, and those are the only two where you can purchase.¹³ Visitors without this registration face the same criminal penalties as any other non-cardholder.

Workplace Protections for Cardholders

Senate Bill 12, signed into law in February 2024, updated the workplace rules.¹⁴ A registered patient must be treated the same as an employee taking a prescribed pharmaceutical when it comes to employer interactions, employer drug testing, and drug testing required by state or local agencies.¹⁵

The protection has a large carve-out. It does not apply to safety-sensitive jobs; an employer in that category can still take adverse action or refuse to hire you based solely on a positive THC test.¹⁵ The statute also preserves an employer’s right to maintain a drug-free workplace policy compliant with state and federal law, and creates no private cause of action for employment discrimination or wrongful termination tied to enforcement of such a policy.

Federal employers, transportation companies, healthcare facilities, and businesses holding federal contracts of $100,000 or more or federal grants of any size must follow the Drug-Free Workplace Act, which does not recognize state-level medical cannabis programs.¹⁶ Workers in those settings carry the most risk, because the employer’s federal obligations override state protections.

Housing Protections

A landlord cannot refuse to lease to you or penalize you solely because you hold a medical cannabis card, and no state-level penalty falls on a landlord who does lease to a cardholder. Two limits matter. A landlord may impose reasonable restrictions on how you use cannabis on the property, and a landlord does not have to allow home cultivation.¹¹

The protection also disappears where following it would violate federal law or cost the landlord a federal monetary or licensing benefit. Tenants in federally subsidized housing, such as Section 8 or public housing, likely cannot rely on the state rule, because federal housing programs still treat marijuana as an illegal drug.

Driving and Vehicles

Driving under the influence of marijuana is handled like an alcohol-related DUI. There is no legal THC concentration that automatically establishes impairment; police rely on officer observations, field sobriety tests, and chemical testing. A medical cannabis card does not create a DUI exemption.

A first-offense DUI is a Class 1 misdemeanor carrying up to one year in jail, a fine of up to $2,000, and a license suspension of 30 days to one year. A third DUI becomes a Class 6 felony with up to two years in prison, a $4,000 fine, and at least a one-year license revocation after release.⁶ Fourth and later offenses are also felonies and carry mandatory jail time.

South Dakota’s implied consent law means anyone driving in the state is treated as having consented to blood or breath testing when lawfully arrested for DUI. Refusing triggers automatic license revocation for one year, separate from any DUI penalty.¹¹ Courts have held that even asking to speak with an attorney before deciding on the test counts as a refusal.

Separate from DUI, smoking marijuana or marijuana concentrate in a moving vehicle on a public road is a Class 2 misdemeanor, and it applies to passengers, not just drivers.¹⁷ Cardholders transporting their medication are safest keeping it sealed in the trunk.

Federal Land and Crossing State Lines

A South Dakota card carries no weight on federal land. National parks, military installations, and other federal property inside the state are governed by federal law, which still classifies marijuana as a Schedule I controlled substance. Possession there can bring federal criminal charges regardless of your state cardholder status.

Moving marijuana across a state line is a federal offense even when both states allow it. South Dakota borders several states with different marijuana rules, but crossing any state border with cannabis products, including edibles and concentrates, violates federal law, whether by car, mail, or shipping.

1
Justia Law. Thom v Barnett
2
South Dakota Legislature. South Dakota Codified Law 22-42-6 – Possession of Marijuana Prohibited Degrees According to Amount
3
South Dakota Legislature. South Dakota Codified Law 22-42-5.1 – Unauthorized Ingestion of Controlled Drug or Substance Penalty
4
South Dakota Legislature. South Dakota Codified Law 22-42A – Drug Paraphernalia
5
South Dakota Legislature. South Dakota Code 22-42-7 – Distribution or Possession With Intent to Distribute Specified Amounts of Marijuana
6
South Dakota Legislature. South Dakota Codified Law 22-6-1 – Felony Classes and Penalties
7
South Dakota Legislature. South Dakota Code 22-42-2 – Unauthorized Manufacture Distribution Counterfeiting or Possession of Schedule I or II Substances Penalty Mandatory Sentences
8
Ballotpedia. South Dakota Initiated Measure 26 Medical Marijuana Initiative 2020
9
South Dakota Department of Health. South Dakota Medical Cannabis Program
10
Medical Cannabis in South Dakota. Frequently Asked Questions
11
South Dakota Legislature. South Dakota Codified Law Chapter 34-20G – Medical Cannabis
12
South Dakota Legislature. South Dakota Codified Law 34-20G-1 – Definitions
13
South Dakota Legislature. Administrative Rule 44:90 Medical Cannabis
14
South Dakota Legislature. 2024 Senate Bill 12
15
South Dakota Legislature. 2024 Senate Bill 12 – Text of Amendments
16
Substance Abuse and Mental Health Services Administration (SAMHSA). Federal Contractors and Grantees
17
South Dakota Legislature. South Dakota Code 22-42-25 – Passenger Use of Marijuana Motor Vehicle Misdemeanor