Legislative Update: The Minnesota Bong Water Crime Case

Remember the recent Minnesota Supreme Court case that took a literal interpretation of a statute – to an absurd result – ruling that water could enhance the severity of a drug crime?  It was a bare majority decision, 4-3, with a concurring opinion and strongly worded dissents.  After the majority, concurring and dissenting opinions are all tallied, five out of seven wrote that the legislature should amend the statute to cure the injustice.  The case ruled that Bong Water (water 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 (30 years of prison maximum), though it contained only trace amounts of illegal drugs.

Tap Water Contains Drugs

The case is Minnesota v  Peck, Minnesota Supreme Court, October 22, 2009.  The blog article here, written the day the opinion was published is: Minnesota Court Waters Down Legal Definition of Illegal Drugs: Toilet Water Now Criminal to Possess.

The case gained worldwide infamy.  If trace amounts of criminalized drugs in bong water could be a crime based upon the weight of the water “mixture,” then would not trace amonts of illegal drugs in our drinking water also be a crime to possess?  And if that is the case, which of course it must be, then is not every citizen of Minnesota a drug criminal – by virtue of possessing river sourced tap water?  (Those with well water presumably can rest easy, without fear of a drug-police home invasion.)

A Bill in now being considered by the Minnesota Legislature, for the Safe Drug Disposal Act is an attempt to ameliorate the problem of pharmaceutical drugs in our drinking water supply, and rivers.  It is a crime in Minnesota to possess prescription drugs without a prescription for those drugs.

Will Minnesota lawmakers heed the call of the Minnesota Supreme Court and public outrage and undo the “Minnesota Bong Water Case?”

A Bill has been introduced in the Minnesota House, H.F. No. 2757, to amend Minnesota Statutes section 152.01, subdivision 9a, to read:

Subd. 9a.  Mixture.  “Mixture” means a preparation, compound, mixture, or substance containing a controlled substance, regardless of where purity is relevant only when weighing the residue of a controlled substance.

If adopted into law, this would bring back proportionality of the severity of a drug crime to quantity.

Advocates of drug legalization (regulation and taxation) may have mixed feelings about this reform.  Yes – it would cure an outlandish, gross injustice to people facing exaggerated convictions and prison terms based upon possession of water or other non-drug media.  On the other hand, the Prohibitionists really shot themselves in the foot on this one.  The Minnesota Bong Water case has helped undermine what public confidence there was in criminal drug laws and their enforcement.  As stated in the dissent in the Peck case:

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.

To the extent the public confidence in our criminal justice system is undermined by Peck, the Minnesota Bong Water Case, and its literal interpretation of the statutory definition of a drug; this hastens the day when common sense will finally prevail with the Repeal of all drug Prohibition laws in Minnesota.

Written by Thomas C Gallagher, Minneapolis Criminal Defense Attorney.

10 responses to “Legislative Update: The Minnesota Bong Water Crime Case

  1. This is a disgusting decision indeed. I support H.F. No. 2757.

  2. Why not “super” trace amount of “Coke” on all $ 20.00, bills.
    Several years ago one of the TV stations obtained 10 $20.00, from the Gov., Chief of the Supreme Court and 8 other high level guys. All the bill had “trace” Coke on them.
    So, why not “examine” all bills of all suspects for Coke and charge them with possession.

  3. Jackie Carpenter

    Uh…remind me not to drink water or “possess” it in Minnesota!

    At some point, the law has to pass a common sense/reasonableness standard and this just does not do it!

  4. It’s important that we keep talking about this issue. The decision was poorly considered and the results are even worse. As you point out the national attention has not been positive.

  5. Do they measure the amount of cutting agent in Minnesota cocaine?

    I mean if the law just bans cocaine hydrochloride but not a cutting agent, like say, mannitol, they might have to consider that as well.

    • Not under the current interpretation of the Minnesota statute, which punishes pure coke the same as 10% coke and 90% cut. And now, thanks to four out seven on the Minnesota Supreme Court, river-sourced tap water is criminal to possess (due to trace amounts of illegal drugs dissolved). Bong water has only an unusable trace of illegal drugs. It looks like the Minnesota legislature may fix it in the next few months. We’ll see.

  6. Thank you for educating about the ridiculous drug laws in this county. Very Interesting stuff.

  7. Remember the scene in Annie Hall, where Woody Allen sneezes and blows a few grams of cocaine all over the place.

    Does that mean the weight of all the carpet in the living room can now be used to enhance the sentence for possession?

    • I would not be surprised to see a Minnesota prosecutor exercising their now even more considerable prosecutorial discretion to charge such case based upon the weight of the carpet and the trace amount of cocaine, under Minnesota’s “mixture” statute. One can imagine many other ridiculous scenarios, similar to the ridiculous bong water scenario – where a trace amount of contraband mixed with a large amount of something else is treated as a crime based upon the weight of the “something else” provided there is a trace of illegal drugs.

      Most homes in Minnesota use tap water sourced from a river. Since river water now contains trace amounts of prescription and other illegal drugs, most of us here are now unprosecuted felons. And we have “Governor Bong Water Pawlenty” to thank for this latest Alice in Wonderland adventure in the law.

  8. Yes, Pawlenty decided that all but two of the legislators could indeed be wrong. And, to the surprise of no one, the Rice County Attorney’s Office has charged out another bongwater case — we had a hearing on it earlier this week.

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