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United States: Minnesota Supreme Court Holds That Bong Water Can Be a Controlled Substance

(Nov. 13, 2009) The Supreme Court of Minnesota has held that bong water can be a controlled substance under state criminal law.

A defendant was arrested on multiple drug charges, including the commission of a first-degree controlled-substance crime. Under Minnesota law, a person possessing “one or more 'mixtures' that contain a controlled substance and that weigh 25 grams or more” can be charged with a controlled substance crime. A controlled-substance felony charge is the most serious drug offense under Minnesota law and carries an 86-month prison sentence. The defendant's controlled substance charge arose from a “bong”—a “water pipe that can be used to inhale various substances, including tobacco, marijuana, and methamphetamine”—found during a police search of her residence. The 37.17 grams (two and one-half tablespoons) of water in the bong tested positive for methamphetamine.

The defendant moved to dismiss the controlled substance charge, arguing that the bong water did not constitute a controlled substance. The trial court agreed, holding that bong water better fell under the definition of “drug paraphernalia.” The intermediate court of appeals also held that the bong water could not be considered a mixture under the definition of a controlled substance crime (cited above).

The Minnesota Supreme Court disagreed, in a 4-3 decision. Quoting the Minnesota criminal law's definition of mixture as “a preparation, compound, mixture, or substance containing a controlled substance, regardless of purity,” it found that bong water was a substance and a mixture “because it is a `substance containing a controlled substance'—methamphetamine.”

The dissenting judges wrote that the majority opinion is contrary to the legislative intent behind the law, stating, “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.” (Minnesota v. Peck, 2009 MN A08-579 (Oct. 22, 2009), available at