New bill would clarify that used bong water is not actually a drug
DFL lawmakers in the House and Senate (SF1905/HF1657) ) have introduced legislation that would remove an unusual loophole in state law allowing prosecutors to treat the water in a bong as a controlled substance, no different than the uncut version of whatever illicit drug the bong was used to smoke.
Under current law, prosecutors can treat bong water quantities of greater than four ounces as a 'drug mixture' and add it to the weight of any actual drugs found on a suspect, which can turn a misdemeanor possession offense into a first-degree felony with the potential for decades in prison.
The issue received widespread attention last year when the Reformer reported on the case of Jessica Beske, a Fargo woman facing up to 30 years in prison over 8 ounces of water allegedly found in a bong in her car during a traffic stop in Polk County.
The proposed legislation removes the language allowing authorities to consider certain quantities of bong water a 'drug mixture,' and explicitly states that the legal definition of mixture 'does not include the fluid used in a water pipe,' nor does it include any quantity of drugs that may be dissolved in a pipe's fluid.
'Counting dirty bong water as pure drugs is like counting a beer bottle full of backwash and cigarette butts as 80-proof whiskey,' said Bruce Ringstrom Jr., one of Beske's attorneys. 'Sending helpless addicts to prison for having dirty bong water takes up prison space that should be used for actually dangerous offenders.'
Polk County Attorney Greg Widseth, who charged Beske with the bong water offense, is well known among defense lawyers and drug law reform advocates for seeking severe penalties for nonviolent drug offenders.
Kurtis Hanna, a drug reform lobbyist with Blunt Strategies, said that the main problem with the current law 'is that it ends up treating end users of drugs as if they are drug wholesale dealers, which goes against the original legislative intent' of the state's drug laws.
Hanna pointed out the law's absurd implications: 'If someone dropped $20 worth of cocaine into a swimming pool, should law enforcement be able to weigh all the water in the pool and prosecutors charge the person with possessing that many pounds of cocaine?'
Bong water has an unusually rich history in Minnesota. A 2009 state Supreme Court decision explicitly gave prosecutors the ability to treat bong water as a controlled substance. After the decision drew national headlines and widespread ridicule, the Legislature passed a bill to exempt bong water quantities of less than four ounces, but then-governor Tim Pawlenty vetoed the bill and went on 'The Daily Show' to defend his decision.
Lawmakers passed the four-ounce exception again the following year, and newly sworn-in DFL governor Mark Dayton signed it. In 2023 the Legislature passed a bill decriminalizing drug paraphernalia, even items containing trace amounts of drug residue. But the bong water provision was overlooked.
The new bill awaits consideration by the public safety committees in the House and Senate.
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