'Mixture' definition gets committee OK

Dissimilar penalties for people using the same amount of drugs are now possible because the weight of an entire mixture can be used when charging decisions are made regarding illegal use of a controlled substance, even if the drug residue is only a small part of the mixture.

Sponsored by Rep. Phyllis Kahn (DFL-Mpls), HF479 would amend the definition of "mixture" in first- through third-degree controlled substance possession crimes. It would establish that "the weight of fluid used in a water pipe may not be considered in measuring the weight of a mixture, except in cases where the mixture contains four or more fluid ounces of fluid." Law enforcement could still charge sale offenses based on total weight of the mixture.

Approved by the House Public Safety and Crime Prevention Policy and Finance Committee, the bill next goes to the House Judiciary Policy and Finance Committee. It has no Senate companion.

The problem came to light in 2008 when a defendant was charged with a first-degree controlled substance offense because they possessed bong water that contained a residue of methamphetamine. Even though the bong water had just a small amount of residue, the mixture's total weight was used to charge the defendant with the more serious drug offense. The Minnesota Supreme Court ruled in 2009 that the charge was appropriate under the current definition of mixture.

This bill was overwhelmingly approved by the Legislature last year, but vetoed by former Gov. Tim Pawlenty, who said the bill "waters down current criminal justice practices and standards related to the weight of controlled substances found in water pipes."

Kahn rhetorically asked if two people should be charged differently when they use the same amount of marijuana, but one smokes it in its original form and the other bakes it into a large brownie.

John Kingrey, executive director of the Minnesota County Attorneys Association, spoke against the bill.

“While the state will maintain that methamphetamine and other controlled substances are illegal, that won’t apply to a device if it contains 4 ounces or less of fluid,” he said. “Our concern going forward is that drug traffickers could mix meth into water — methamphetamine is water soluble — transport it to a location, evaporate it and sell the remaining meth.”