- 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. The four Justices who voted for the bad, majority decision were: Justice G. Barry Anderson, Chief Justice Eric J. Magnuson, Justice Lorie Skjerven Gildea, and Justice Christopher J. Dietzen (four out of seven on the court).
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!
3. 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 Lawyer
In Minnesota, a person arrested on a police officer’s suspicion of DWI has the legal right to consult a lawyer prior to responding to a request by police to consent to chemical testing. A problem often arises due to the fact that most of these situations happen in the late night or early morning hours when most people – and most lawyers – are asleep. Most people who find themselves in this unwelcome circumstance never believed they would be, and may not know a criminal lawyer or DWI defense lawyer to call.
Most people are aware that if a person is driving a motor vehicle in Minnesota, a police officer can in certain circumstances invoke legal authority under a 
Most everyone realizes their sacred Constitutional right to silence in the face of police questioning, and their right to have a lawyer present from television and movies. Unfortunately, many of those entertainments show the fictional suspect waiving their rights, to quickly commit legal suicide – but it does help move the story along, doesn’t it?
Thomas Gallagher
