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.