"Bong Water:" The Court Mixes it up.

State v. Peck, 2008 WL 4472867, Minn.App., October 07, 2008.

Police searched Sara Peck’s house, finding a glass bong and a small bag containing methamphetamine. The liquid inside the bong, which weighed a bit over 37 grams, tested positive for methamphetamine. The weight of the bong liquid got the prosecutor’s eyes watering – the bag was basically nothing – and so he charged Sara with first degree possession, which requires 25 grams or more “of a mixture containing methamphetamine.” M.S. § 152.021, S. 2(1). This was too much for the court to swallow; the trial court dismissed the charge and the state appealed.

So, what’s a “mixture”? Easy. It’s a “preparation, compound, mixture, or substance containing a controlled substance, regardless of purity.” Minn.Stat. § 152.01, S. 9a. Does water that has a bit of meth dregs in it amount to a “mixture”? No.

Bong water, it turns out, is like Chai latte; it’s an “infusion.” A “mixture” must have been prepared for the purpose of drug use, sale, or manufacturing. It is not, as the state argued – and here’s where they really went under – like a swimming pool. The state suggested that if Sara had accidently spilled .01 trams of meth into her swimming pool (do you think the AG really thought that Sara had a swimming pool?) she could be prosecuted for possession over 25 grams of a controlled substance so long as the BCA got there in time to assay the water. (In fairness to the state, it’s not entirely clear just who came up with the swimming pool crime.)