Tag Archives: drug quantity

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 amounts 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 may hasten 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.