Minnesota Court Waters Down Legal Definition of Illegal Drugs: Toilet Water Now Criminal to Possess

Water Bong

Water Bong

The Minnesota Supreme Court, in a 4-3 decision, has now ruled that Bong Water (water which had been used in a water pipe) was a “mixture” of “25 grams or more” supporting a criminal conviction for Controlled Substance crime in the first degree.  The crime is the most serious felony drug crime in Minnesota, with a maximum penalty of 30 years in prison for a first offense.  The case is Minnesota v  Peck, A08-579, Minnesota Supreme Court, October 22, 2009.

The majority opinion takes a literal view, arguing in essence that any amount of a substance dissolved in water makes that water a “mixture” containing that substance.  Perhaps.  But, since Minnesota’s criminal prohibition laws are organized to make greater quantities of drug possession a more serious crime than smaller quantities, such a simple-minded view defeats the purpose of the quantity-based severity levels. If a person possessed one-tenth of a gram of methamphetamine, they could be charged with a Controlled Substance Fifth Degree crime, with a five-year maximum.  But - dissolve the one-tenth of a gram in 26 grams of water, on purpose or by accident, and now under this new decision from the Minnesota Supreme Court, that can be prosecuted as Controlled Substance First Degree – with a 30-year prison term.  Just add water for five times the sentence!  In the case of marijuana, a non-criminal amount under 42.5 grams smoked through a bong could give the police and government lawyers the legal right to charge a felony drug crime with possible prison time – 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.  A water pipe, such as a bong, can be used to smoke tobacco, marijuana, methamphetamine (as in the Peck case), or anything that can be smoked.  Smokers view the water which has been used to filter and cool the smoke as something disgusting, not unlike a used cigarette filter, to be discarded – sooner or later.  The used water is not commonly used for any other purpose.  Apparently a naive or misguided police officer testified otherwise in the Peck case, and – amazingly -the four in the majority of the court appears to have given that testimony credit.

In general courts have made efforts to prevent police and government lawyers from having the ability to manipulate the facts or evidence in such a way as to either create criminal liability for targeted people, or, to increase the penalty the target might suffer.  Here is an 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.  Water is not currently defined by law as an illegal drug.) Frequent news reports remind us about the drugs in the rivers and most of our municipal water supplies (not concentrated enough to hurt us, we are reassured).  Type “in water supply” into your favorite internet search engine and you can read thousands of reports of scientific studies documenting this.  As a result, if you have water sourced from a river, like we do in Minneapolis, then you could now be charged with a Minnesota Controlled Substance First Degree Crime (toilets tanks hold way more than 25 grams of water with illegal drugs dissolved).  This can be a particularly troubling variation of the trace-drug criminal case, where only a trace of suspected illegal drugs is found.  Trace cases can be problematic, in part because there may not be enough of the suspected material to be tested twice for its chemical identity. 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 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 one gram mixed in water be treated the same as one kilogram (1,000 grams) in powder form?

What can be done about this particular absurd injustice?

  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.

It’s a good read (link at the beginning of this article).  It is shocking that four in the majority could have possibly disagreed with the dissenters.  Hopefully, this is the beginning of the end of the 100 year experiment in using criminal blame as a strategy to solve a public health problem.

It’s time to change the laws.  This absurdity makes it all too clear. Written by Thomas C Gallagher, Minneapolis Drug LawyerFFI:  Marijuana Laws in Minnesota

8 responses to “Minnesota Court Waters Down Legal Definition of Illegal Drugs: Toilet Water Now Criminal to Possess

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  2. In a nutshell, this new, grossly misinterpreted reading of existing, and previously unambiguous drug law, should be challenged all the way to Federal Supreme Court if necessary. When the product is clearly a byproduct, and understood by the user to be the residual waste material, such as a residue baggie, a dirty pipe, or a pile of seeds and stems, then let the medium for determining a suitable charges to file be as ambiguous and non-sensical as idiot prosecutors and clueless judges want to make it…. So long as, in any given conflict with the law in the event that weight of the contraband determines that level of charge and the weight of the punishment not be completely corrupted and manipulated by the addition of water or some other liquid. So long as liquid can be introduced as a levening agent to turn small possession crimes into major dealer-distribution charges, we will not have a fair series of charges come out of any situation where a police officer is angry or has a vendetta with the suspect in question, because a mundane nothing paraphernalia charge + a gallon of water now = 5 pounds of drugs, even though a few seeds and stems are all that was present at the beginning…… Taking liquid into valid consideration as a valid vessel by which anyone can purposely and maliciously create substantial drug weight from nearly nothing will literally ruin the nation with overzealous cops seeing this as the equalizer they;ve been waiting for. The tool to turn every bust into a major prison sentence…….

    Here is the argument for this being asinine….

    1) … If you drop a quarter gram of methamphetamine into my underground pool, does this mean I have 500 tons of illicit drugs>

    2) By the same logic as the bong water argument, the walls and ceilings of any house where the resident has smoked any drugs, and therefore gotten drug residue onto the ceiling and everything in the house, can have all their stuff taken, weighed, and them charged with possession of all the weight of their stuff, only tallied as drugs, due to the residue on them from smoking.

    3) A cop would simply need to hold a person long enough to force them to urinate. Grab the water from their toilet, and test it. If that person had illegal drugs in their system, they can now be charged with conspiracy to distribute 10+ pounds of that drug, because of the urine and toilet water weight.

    4) Caught with a quarter gram of cocaine?If the cop throws your little baggie into your coke Big Gulp while you are being frisked, you now have a pound of Cocaine, filling 64 Fl. Oz Volume and being very weak potency, but nevertheless, the weight at which you can receive life in prison with little argument to fight these ludicrous circumstances with, since moisture is now just another way to smuggle dope.

    Fisherman can’t sell fish based on the weight of the water in their live well, so how does this same bad logic suddenly prevail over circumstances where otherwise well adjusted citizens in the wrong place at the wrong time are now the head of La Familia? It trivializes the real drug lords and what they do, as there is no distinguishing drug weight versus moisture weight, and it sets terrible precedent for making HUGE ordeals where there was only a paraphernalia or minor possession charge, before….. The Mexican Cartels should be insulted, and the innocent victims should be suing the Supreme Court for infringing on the right to fair trial. no trial is fair from the outset if the water is suddenly counted as the drug.

    This is ludicrous, and even non drug using citizens should be able to see the HUGE Big Brother effect this law could have… When suddenly your urine after attending a rolling stones concert is a 1st degree controlled substance felony…..

    Wake up. Fight this.

  3. Great stuff Thomas!

  4. Pingback: Great moments in drug enforcement law

  5. True story – People in the methadone program sometimes vomit after ingesting their daily dose and then other addicts, who can’t get into the program, will drink up the puke.

    So, in Minnesota, that puke would probably qualify as contraband.

  6. I especially liked the part about injecting bong water. I’ve partaken for 40 years this year. Never , not once in all that time did I hear of or see anybody injecting bong water. Maybe accidentally drink a little…

    Methinks Minnesota is a state that I’ll not be visiting soon!

  7. Pingback: Legislative Update: The Minnesota Bong Water Crime Case « Minneapolis Criminal Law News

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