Brad recently handled Minnesota’s notorious “bongwater” case, in which a bare majority of the Minnesota Supreme Court held that the weight of water found in a drug-user’s bong could be used by prosecutors as the basis for a weight-based drug charge.  The district court had dismissed a first-degree drug charge, which the prosecutor had based on the weight of water found in the defendant’s bong.  When the State appealed, Brad represented the defendant in the appellate courts.   The Minnesota Court of Appeals issued an opinion affirming the district court’s dismissal order.  When the State again appealed, however, the Minnesota Supreme Court reversed.

Rejecting the the lower courts’ conclusion that water found in the defendant’s bong was mere paraphernalia, a majority of four justices held that Minnesota’s drug laws allowed prosecutors to use the weight of bongwater when charging weight-based drug offenses.  In a forceful and detailed dissent joined by two other members of the Court, Justice Paul Anderson persuasively argued that Minnesota’s drug statutes were never intended to punish the possession of bongwater as though it were itself a drug, and that allowing prosecutors to use bongwater in charging weight-based drug offenses produces unjust results.

In response to the Supreme Court’s majority decision, the Legislature immediately passed a bill (almost unanimously) to prohibit drug charging based on the weight of bongwater.  Then-Governor Pawlenty, however, vetoed the measure.  The bill was re-introduced during the following session, again passed in the Legislature with broad support, and was signed into law by Governor Dayton.

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