On May 25, 2012, the Minnesota River Valley Drug Task Force searched the bedroom of Ryan M. Drown and seized several items including two water bongs. A field test of the water indicated the presence of methamphetamine in both bongs. Mr. Drown was subsequently charged by an amended complaint with second-and third-degree possession of a controlled substance.
The seized materials were sent to the Bureau of Criminal Apprehension (BCA) for testing. The BCA test results revealed that one bong did not contain any controlled substance, but that the contents of the other bong weighed 11.1 grams with 11 mL (0 .372 oz.) of water and had trace amounts of methamphetamine. At trial, a BCA forensic scientist testified to the trace of methamphetamine in the second bong and the weight and quantity of water. The confirming BCA test report was entered into evidence at trial.
The state argued that the 11 mL of bong water constituted 11.1 grams of methamphetamine mixture and urged the jury to find Mr. Drown guilty of both offenses. The jury was instructed on both charges consistent with the state’s arguments regarding the quantities necessary for a conviction. The Defendant’s attorney did not object to the instructions. After deliberating, the jury returned guilty verdicts for both second-and third-degree possession. The district court entered judgment of convictions on both counts and imposed a guideline sentence of 78 months for second-degree possession of methamphetamine.
The problem with the Defendant’s conviction is that bong water cannot be used to calculate weight of the drug mixture unless the amount of water is four or more ounces. But no one at trial – not the judge, not the prosecutor and not the so-called “defense attorney” bothered to read the statute’s limitation and as a result, an innocent man was sent to prison.
Fortunately, the Minnesota Court of Appeals reversed the conviction, stating:
“A defendant is guilty of second-degree possession of a controlled substance if that person “unlawfully possesses one or more mixtures of a total weight of six grams or more containing … methamphetamine.” .Minn.Stat. § 152.022, subd 2(a)(1). A defendant is guilty of third-degree possession of a controlled substance if “on one or more occasions within a 90–day period … [a] person unlawfully possesses one or more mixtures of a total weight of three grams or more containing … methamphetamine.” Minn.Stat. § 152.023, subd. 2(a)(1). A “mixture” is defined as “a preparation, compound, mixture, or substance containing a controlled substance, regardless of purity.” Minn.Stat. § 152.01, subd. 9a (2012).
In 2009, the supreme court determined that bong water is included in calculating the amount of a methamphetamine mixture. State v. Peck, 773 N.W.2d 768, 773 (Minn.2009). In 2011, the legislature amended the definition of mixture in the controlled substance statutes to exclude the weight of the fluid in a water pipe1 in computing the weight of a mixture unless “the mixture contains four or more fluid ounces of fluid.” Act of May 24, 2011, ch. 53, §§ 6–8, 2011 Minn. Laws 202, 206–07 (codified at Minn.Stat. §§ 152.021, subd. 2(b), 152.022, subd. 2(b), 152.023, subd. 2(b)). The legislature also added a cross-reference to these new subdivisions in the definition of “mixture” as set out in section 152.01, subdivision 9a. Act of May 24, 2011, ch. 53, § 1, 2011 Minn. Laws 202, 203 (codified at Minn.Stat. § 152.01, subd. 9a). These new subdivisions became effective May 25, 2011. By limiting the inclusion of water as part of the controlled-substance mixture to cases involving more than four fluid ounces, this legislation partially overruled Peck.
Here, it is clear that the evidence presented by the state to support the charges rested solely on the weight (11.1 grams) and the volume (11 mL) (0.372 oz.) of fluid in appellant’s water pipe that tested positive for methamphetamine. Under the statute in effect at the time of the offense, 0.372 oz. of water does not meet the threshold four-ounce requirement for inclusion in determining the weight of a mixture, and the bong-water rule from Peck does not apply. Because the evidence presented by the state was insufficient to convict appellant of either second-or third-degree possession of a controlled substance, we reverse both convictions and remand to vacate the convictions.”
When contacted by the Minnesota Star Tribune, Mr. Drown stated he had mixed feelings about the Court’s decision to release him, “knowing I wasn’t truly guilty in the first place”. Now in the clear, Drown said, “he’ll soon be taking a job in the printing industry in Green Bay, Wisconsin, but he intends to hold someone accountable for the time he lost under lock and key.”
I hope his defense attorney’s malpractice insurance is up-to-date as the defense in this case was shockingly incompetent.
If you or a loved one has been charged with a drug offense, please contact Minnesota Criminal Defense Attorney, F. T. Sessoms today at (612) 344-1505 for a through review of your case. I know what I am doing.