Bong water can count as a controlled substance, the Minnesota Supreme Court ruled Thursday in a decision that raises the threat of longer sentences for drug smokers who fail to dump the water out of their pipes.
In a 4-3 decision Thursday, the state's highest court said a person can be prosecuted for a first-degree drug crime for 25 grams or more of bong water that tests positive for a controlled substance.
The decision, which reverses two lower court rulings, came in the case of Sara Peck. Items seized during a search of her Rice County home in 2007 included a glass bong — a type of water pipe often used to smoke drugs — that contained 37 grams — about 2 1/2 tablespoons — of a liquid that tested positive for the presence of methamphetamine.
The Supreme Court said that unambiguously counts as a drug "mixture" under the wording of state law and sent the case back to Rice County District Court for further proceedings. The decision, authored by Justice G. Barry Anderson, noted that the liquid wasn't plain clear water, but had a pink color and fruity odor, and that a narcotics officer had testified that drug users sometimes keep bong water to drink or inject later.
The statute defines a drug "mixture" as "a preparation, compound, mixture, or substance containing a controlled substance, regardless of purity." When the language of a statute is unambiguous, the high court said, precedents prohibit courts from disregarding the letter of the law under the pretext of pursuing the letter of the law.
In a sharply worded dissent, Justice Paul Anderson said the majority's decision "does not make sense, and borders on the absurd." He said it isn't consistent with what the Legislature intended when it wrote the state's drug laws. And he blasted Rice County authorities for charging Peck with such a serious crime.
If bong water is considered a drug mixture, and it weighs enough to raise the crime to a first-degree drug offense, the presumed sentence for a first-time offender is seven years and two months in prison, and a felony drug offense goes on his or her record, Paul Anderson wrote.
But if the bong water is treated as part of the drug paraphernalia, as the lower courts held, he wrote, the same defendant would face no more than a $300 fine and the petty misdemeanor conviction would not go on his or her record.
Justices Alan Page and Helen Meyer joined in Paul Anderson's dissent.
Attorney Bradford Delapena, who represents Peck, said he had not yet had a chance to discuss the ruling with her, but he said the dissent correctly pointed out the problems the ruling raises.
"They're treating Ms. Peck, who had two tablespoons of bong water, as if she were a major drug wholesaler," he said.
Delapena said Peck's case now goes back to the trial court, where he said prosecutors could use the ruling to try to extract a guilty plea to a more serious offense with a stiffer sentence than a $300 fine on a petty misdemeanor. He laughed at the suggestion that it means dope smokers should empty their bongs promptly.
"I wouldn't presume to draw that lesson," he said. "I would just stick with the legal lessons."