MN Supreme Court: Bong Water is Class 1 Drug Offense

A head-scratcher of an opinion (text here, pdf) from the MN Supreme Court today: Bong Water is an illegal drug.

Sarah Ruth Peck had 2.5 tablespoons of bong water in her bong. The water contained traces of Meth. The state charged her with a Class 1 drug offense, carrying a presumptive penalty of 86 months in prison, because the water weighed 37 grams, over the 25 gram threshold.

The trial court threw it out. The Court of Appeals affirmed the trial court. In a split decision today, the MN Supreme Court reversed and concluded the bong water is a mixture containing a controlled substance and reinstated the charge.

From the dissenting judge's opinion (which was joined by two other judges): [More...]

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 Judge says the majority's decision "has the potential to undermine public confidence in our criminal justice system.

Further, he finds the majority's result to run counter to the legislative structure of the state's drug laws, which must be read together, in a way to give effect to all its provisions.

Second, I dissent because the decision of Rice County to charge Sara Ruth Peck with a first-degree felony offense—an offense that has a presumptive sentence of 86 months in prison—for possession of two and one-half tablespoons of bong water is not only contrary to the law, it is counterproductive to the purposes of our criminal justice system.

...Rice County‟s decision to charge Peck in a manner far more serious than what was intended by the legislature represents the kind of counterproductive activity that leads unnecessarily to increasing incarceration rates and wasted taxpayer money.1 I conclude that Rice County‟s actions are not permitted by law, were not intended by the legislature, and do not benefit the citizens of the State of Minnesota.

The majority credited the testimony of Douglas Rauenhorst, a narcotics cop not involved in Peck's case, who said he had no experience with smoking meth, and acknowledged that users do not ordinarily inhale or ingest bong water when smoking a bong pipe.

He adds, however, that in his experience drug users drink bong water, or shoot it up. (He also testified in his experience some drug users drink urine.)

The lower courts ruled in Peck's favor:

Based on the function water serves in bong usage and the fact that the bong water forming the basis of Peck‟s charge was found while still in the bong, Judge Neuville found it “apparent that the water which was seized by the State was intended to be a part of the bong, or drug paraphernalia.”

The Minnesota Court of Appeals affirmed the district court, concluding that the weight of the bong water could not be used to sustain a first-degree controlled-substance charge against Peck because the post-use byproduct of a methamphetamine bong is not a mixture.4

The Judge chides the majority for relying only on dictionary definitions of the words mixture, substance, etc. He notes how the majority's conclusion runs counter to the intent of the drug laws:

But if we treat the bong water as paraphernalia, the same defendant would receive a fine of no more than $300 dollars and a petty misdemeanor conviction that would not go on his or her criminal record. The disparity in the severity of the sentence between these two possible charges is enormous. This enormous disparity in sentencing severity creates ambiguity as to how the legislature intended the drug statutes to apply to the facts of this case.

Finding ambiguity in whether the legislature intended to apply the term “mixture” to bong water, he turns to the rules of statutory construction to resolve it.

First, it appears the legislature wanted to impose more significant penalties on serious drug offenders without also imposing those same penalties on minor offenders.

....Treating bong water as a mixture capable of sustaining a first-degree felony controlled-substance charge does not meet the purposes, aims, or objectives of the legislature when it established the weight-based system. Bong water is not marketed or sold by dealers, large or small, nor is it purchased by consumers. It is not even ordinarily consumed. Bong water is usually discarded when the smoker is finished with consumption of the smoke filtered through the bong water. A person is not more dangerous, or likely to wreak more havoc, based on the amount of bong water that person possesses. The bong water is no more dangerous than the bong itself, because both are used to facilitate consumption without being consumed.

Thus, there is no reason to believe the legislature intended to treat the bong water differently from the bong, and there is even less reason to believe that the legislature intended to treat bong water so seriously as to presumptively mandate a more than 7-year prison sentence for possessing two and one-half tablespoons of bong water.

As stated earlier, I believe this result to be absurd and a threat to public confidence in our criminal justice system.

He adds:

I conclude that it is also unreasonable to interpret our legislature‟s laws as punishing Peck‟s possession of two and one-half tablespoons of bong water as a more serious crime than the possession of 24 grams of cocaine, heroin, or methamphetamine. Bong water is normally not consumed, and Peck would likely have disposed of it had the police not seized it.

Bottom line: The majority's position is indeed silly to the point of absurdity and not only undermines confidence in the state's drug laws and justice system, it makes a mockery of it.

The bong water was at best, paraphernalia. There was no evidence presented that this defendant intended to ingest it or shoot it. The narcotics cop had not participated in the search and had no experience with smoking meth. Yet, the majority credited his opinion, which was based on his anecdotal experience.

It would be laughable, except it's possible a woman may do 86 months -- 7 years -- for possession 2.5 tablespoons of bong water.

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  • I suppose it would have been... (5.00 / 2) (#3)
    by Pacific John on Thu Oct 22, 2009 at 08:34:52 PM EST
    ...considered 16 lbs of meth if the bong fell into the dish water.

    I'm not a libertarian where meth is concerned, but this is just silly.

    Note to self: (none / 0) (#1)
    by dead dancer on Thu Oct 22, 2009 at 08:01:28 PM EST
    Must keep bong clean, and dry.

    Of course, loaded is a good option also.

    intent of the law (none / 0) (#2)
    by diogenes on Thu Oct 22, 2009 at 08:15:52 PM EST
    This bong was used for meth, not the so-called innocuous pot.  It obviously contained much more actual drug before the bong was used.
    What is the defendent's history; does she have priors or a known dealing history if the prosecution is trying such a novel theory to convict her?  

    This was a defense challenge (none / 0) (#4)
    by oculus on Thu Oct 22, 2009 at 09:31:07 PM EST
    contending lack of probable cause.  Pretty low standard of proof.  

    Factual statement in the opinion includes information a scale and a baggie containing meth. residue were found in the residence.  


    The majority opioion applies the common (none / 0) (#5)
    by oculus on Thu Oct 22, 2009 at 09:33:43 PM EST
    rules of statutory construction. It is interesting the term "mixture" lists, among other things, "mixture" in the definition.  But IMO the majority opinion is correct.  Given the words of the statute and their plain meaning, there was probable cause, with the benefit of the doubt going to the state as the standard of review on this motion. Be interesting to find out what happens to this case.  

    disagree (5.00 / 1) (#7)
    by Jeralyn on Thu Oct 22, 2009 at 10:02:36 PM EST
    the dissent spent 12 pages on statutory construction. The majority view is untenable. And lacks common sense. Must you play prosecutor on every post?

    I didn't say the majority opinion (none / 0) (#8)
    by oculus on Thu Oct 22, 2009 at 10:06:44 PM EST
    comported with common sense.  We're talking statutory construction here.  The dissent goes waaay beyond that--a no no.  

    I can't really fathom (none / 0) (#21)
    by Steve M on Fri Oct 23, 2009 at 10:45:37 AM EST
    how trace amounts of meth + lots of water gets you a stiffer sentence than trace amounts of meth, period.

    I posted about this earlier (none / 0) (#9)
    by eric on Thu Oct 22, 2009 at 11:32:02 PM EST
    it is about the meth.  This decision would not be the same if it was pot.  

    Probably true. Never heard of anyone (none / 0) (#10)
    by oculus on Thu Oct 22, 2009 at 11:33:36 PM EST
    cooking pot, except in brownies.

    When I saw the headline (none / 0) (#11)
    by BobTinKY on Fri Oct 23, 2009 at 06:53:34 AM EST
    I thought it was about pot.  Meth is a horse of a different feather.  86 months is way too long and the narcotics officer's testimony is laughable, but a much different result would have ocurred had this been about pot.

    I think they should have gone (none / 0) (#12)
    by Fabian on Fri Oct 23, 2009 at 08:00:19 AM EST
    for illegal handling of toxic waste.

    Skip the intent, skip the drugs, just go straight for environmental regulations.  

    The weight-based system.. (none / 0) (#13)
    by kdog on Fri Oct 23, 2009 at 08:01:21 AM EST
    is mucho unjust...long sentences are handed down for the weight of blotter paper, sugar cubes, now water...umm, these things aren't illegal.  

    But all people have to hear is "meth" and the man can't hand down a long enough sentence...we never fail to underestimate the violent nature of the crime of chaining and caging human beings...in this case over the weight of good old fashioned H20.

    hmmmm (none / 0) (#17)
    by Capt Howdy on Fri Oct 23, 2009 at 09:43:31 AM EST
    if I am reading this correctly my blood could be considered a controlled substance.

    Damn... (none / 0) (#18)
    by kdog on Fri Oct 23, 2009 at 09:45:29 AM EST
    very perceptive Capt...I guess we're holding even when we ain't holding...now we really gotta keep an eye on the needle-sticking powers the state grants itself.

    But you knew that already. (none / 0) (#19)
    by oculus on Fri Oct 23, 2009 at 09:50:37 AM EST
    When will the silliness and stupidity (none / 0) (#20)
    by SeeEmDee on Fri Oct 23, 2009 at 09:52:56 AM EST
    about (formerly-legal) drugs finally reach the point where people say "Enough's enough!"?

    To answer my own question: Probably not until after we suffer a catastrophic financial meltdown even worse than what we're experiencing right now. Because there always seems to be money for such idiocy as drug wars and none for things like unemployment, national health care, etc.

    Perhaps it should be mentioned by 'progressives' that we have better uses for the 40 billion a year we blow on trying to keep drugs out of the country (when we can't even keep them out of prisons).

    For the day is coming when it truly will be 'guns or butter', and all the unemployed out there are getting desperate. They need that money being p!ssed away, and they need it right effin' now.

    |newspaper: Lynnwood Kid Drinks Meth Bong Water, L (none / 0) (#22)
    by polizeros on Fri Oct 23, 2009 at 12:42:00 PM EST

    Looks like the cop was correct, people do drink meth bong water

    Overly broad law shows need for legalization (none / 0) (#23)
    by tcglaw on Sun Oct 25, 2009 at 12:03:04 PM EST
    Since drugs are now in river water (search: "drugs in water supply") and cities get their water from rivers, city water is a "mixture" of illegal drugs (no matter how diluted), according to the absurd logic of this majority of four Minnesota Supreme Court judges.

    So - now that all of us living in Minnesota are criminals possessing "drug mixture" water in our homes and toilets - shall we wake up, end the abuse of government power, and repeal all laws criminalizing drugs possession?

    For more discussion of this Minnesota case, and it's excellent dissent, see my blog post:

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