Minnesota Court Waters Down Definition of Illegal Drugs – Bong Water

The Minnesota Supreme Court, in a 4-3 decision, has now ruled that Bong Water was a “mixture” of “25 grams or more.” And this supported a criminal conviction for first degree Controlled Substance crime.

The crime is the most serious felony drug crime in Minnesota. Its maximum penalty is 30 years in prison for a first offense.  The case is Minnesota v  Peck, A08-579, Minnesota Supreme Court, October 22, 2009.

Water Bong
Water Bong

The majority opinion takes an absurd literal view. It argues in essence that any amount of a substance dissolved in water makes that water a “mixture” containing that substance. 

Perhaps.  But, Minnesota’s criminal prohibition laws make greater quantities of drug possession a more serious crime than smaller quantities. So that simplistic view defeats the purpose of the quantity-based severity levels.

If a person possessed one-tenth gram of methamphetamine; they could face charges for a Controlled Substance Fifth Degree crime, with a five-year maximum.

But – dissolve the one-tenth gram in 26 grams of water, and under this bong water decision; that can result in a Controlled Substance First Degree – and 30-years prison. 

Just add water for five times the sentence

In the case of marijuana, the government could charge a felony for a non-criminal amount smoked in a bong; not for the marijuana, but for the bong water. This defeats the legislative purpose of treating larger quantities of drugs more harshly.  Worse – it makes no sense.  It is irrational.  It leads to an absurd result.

What is a bong?  It is a water pipe.

You can use a water pipe to smoke tobacco, marijuana, methamphetamine (as in the Peck case). So anything you can smoke, you can smoke in a water pipe..  The water in the water-pipe, or bong, has one purpose – to cool the smoke.  After, you discard it.

Smokers view the water which filtered and cooled the smoke as something disgusting. Used bong water is like a used cigarette filter; like a disposable diaper.

The used water has no other purpose.  Apparently a naive or misguided police officer testified otherwise in the Peck bong water case. And – amazingly – the four in the majority of the court appear to have given that testimony credit.

Courts have generally tried to prevent police and prosecutors from manipulating facts or evidence to create criminal liability, or increase the penalty.  Here is a horrific instance to the contrary.

If the government wants to charge a more serious drug crime – what to do?  Just add water! 

Water is heavy – heavier than drugs.  Drug crimes are based on weight.  The law does not currently define water to be an illegal drug.

Most tap water contains illegal drugs

Frequent news reports remind us about the drugs in the rivers and most of our municipal water supplies. (Not concentrated enough to hurt us, they reassure us.)

Type “in water supply” into your internet search engine. And you can read thousands of reports of scientific studies documenting this.

As a result, if you have water from a river, like in Minneapolis, then you can now be charged with a Minnesota Controlled Substance First Degree Crime. (Because toilet tanks hold way more than 25 grams of water with illegal drugs dissolved).  And so if you smoke with a water pipe, the bong water contains drugs, even before the pipe’s first use.

This can be a troubling variation of the trace-drug criminal case; with only a trace amount of possible illegal drugs.  There may be too little of the material for chemical identity testing. 

The widespread scientific reports of cocaine contamination (in trace amounts) on most United States currency, would be another example of “trace evidence of illegal drugs possession.”  Under the Peck bong water case, we can have a situation of a trace amount of illegal substance “mixed” with water, which is heavy.  Or – we could have a relatively small amount (by weight) of illegal contraband mixed with a large amount of (heavy) water.

Even if you believe some drugs possession should be a crime; should we treat one gram in water the same as one kilogram (1,000 grams) in powder form?

What can we do to fix this?

  1. Ask the legislature to repeal the criminal prohibition laws.
  2. Remember this case at election time.  Vote!  You can vote for or against Minnesota Supreme Court candidates, including incumbents.
  3.  Jury Nullification, or the rule of jury lenity.  Jurors have legal rights to acquit, despite the facts, despite the judges instructions on the law.  Just do it!
  4. Remove all water sourced from rivers from your home and office, including toilets, in the meantime.

At least the dissenting opinion, by Justice Paul H. Anderson, joined by Justice Alan C. Page, and Justice Helen M. Meyer, exhibits common sense.  Here is what Justice Paul Anderson wrote in dissent of the majority opinion:

“The majority’s decision to permit bong water to be used to support a first-degree felony controlled-substance charge runs counter to the legislative structure of our drug laws, does not make common sense, and borders on the absurd…the result is a decision that has the potential to undermine public confidence in our criminal justice system.”

Gallagher Criminal Defense logo sm

It’s a good read.  It is shocking that four in the majority could have disagreed with the dissenters.  Hopefully, this marks the beginning of the end of the 100 year Prohibition experiment. Using criminal punishment as a strategy to solve this public health problem simply does not work.

It’s time to change the laws.  This absurdity makes it all too clear. Written by Thomas C Gallagher, Minneapolis Drug Lawyer.

For an update, see: Legislative Update: The Minnesota Bong Water Crime Case.

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