Drug Possession in Washington: How a Court Decision & Lawmakers Radically Changed Drug Possession Laws. Sheriff Knezovich & Prosecutor Haskell Provide Insight
In February 2021, the Washington State Supreme Court ruled in State v. Blake that the state’s felony drug possession statute was unconstitutional.
This meant law enforcement could not arrest for mere possession of drugs. Sales/distribution, yes, possession, no.
The Washington State Legislature “fixed” this problem by implementing a new law that, more or less, states after two documented cases of possession where we can seize the drug and provide information about treatment/assistance without charging, we can do the exact same thing the third time and then add a misdemeanor criminal charge. This is for ANY illegal drug, heroin, meth, fentanyl, anything.
Washington Association of Sheriff’s & Police Chiefs (https://www.waspc.org/)
Memo addressing STATE v. BLAKE – summary of what it is, what it did, and how we are managing the new laws. (https://www.waspc.org/assets/docs/WASPC%20Blake%20memo.11.16.21.pdf)
1. What was the Court’s ruling?
2. What did the legislature do in response?
3. How has the legislation impacted LEO’s, Prosecutors, and Courts (State and Municipal)?
4. How has the court ruling impacted strict liability crimes such as DUI, Vehicular Homicide?
5. How have Cities and Counties responded to Blake and SHB 5476?
Full Washington State Supreme Court Decision: https://www.courts.wa.gov/opinions/pdf/968730.pdf
Washington RCW 10.31.115
Drug possession—Referral to assessment and services.
(1) For all individuals who otherwise would be subject to arrest for possession of a counterfeit substance under RCW 69.50.4011, possession of a controlled substance under RCW 69.50.4013, possession of 40 grams or less of marijuana under RCW 69.50.4014, or possession of a legend drug under RCW 69.41.030(2)(b), in lieu of jail booking and referral to the prosecutor, law enforcement shall offer a referral to assessment and services available pursuant to RCW 10.31.110 or other program or entity responsible for receiving referrals in lieu of legal system involvement, which may include the recovery navigator program established under RCW 71.24.115.
(2) If law enforcement agency records reflect that an individual has been diverted to referral for assessment and services twice or more previously, officers may, but are not required to, make additional diversion efforts.
(3) Nothing in this section precludes prosecutors from diverting or declining to file any charges for possession offenses that are referred under RCW 69.50.4011, 69.50.4013, 69.50.4014, or 69.41.030(2)(b) in the exercise of their discretion.
Possession of controlled substance—Penalty—Possession of useable marijuana, marijuana concentrates, or marijuana-infused products—Delivery. (Effective until July 1, 2023.)
*** CHANGE IN 2022 *** (SEE 1210-S2.SL) ***
(1) It is unlawful for any person to knowingly possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter.
(2) Except as provided in RCW 69.50.4014, any person who violates this section is guilty of a misdemeanor.
(3) The prosecutor is encouraged to divert cases under this section for assessment, treatment, or other services.
(4)(a) The possession, by a person twenty-one years of age or older, of useable marijuana, marijuana concentrates, or marijuana-infused products in amounts that do not exceed those set forth in RCW 69.50.360(3) is not a violation of this section, this chapter, or any other provision of Washington state law.
(b) The possession of marijuana, useable marijuana, marijuana concentrates, and marijuana-infused products being physically transported or delivered within the state, in amounts not exceeding those that may be established under RCW 69.50.385(3), by a licensed employee of a common carrier when performing the duties authorized in accordance with RCW 69.50.382 and 69.50.385, is not a violation of this section, this chapter, or any other provision of Washington state law.
(5)(a) The delivery by a person twenty-one years of age or older to one or more persons twenty-one years of age or older, during a single twenty-four hour period, for noncommercial purposes and not conditioned upon or done in connection with the provision or receipt of financial consideration, of any of the following marijuana products, is not a violation of this section, this chapter, or any other provisions of Washington state law:
(i) One-half ounce of useable marijuana;
(ii) Eight ounces of marijuana-infused product in solid form;
(iii) Thirty-six ounces of marijuana-infused product in liquid form; or
(iv) Three and one-half grams of marijuana concentrates.
(b) The act of delivering marijuana or a marijuana product as authorized under this subsection (5) must meet one of the following requirements:
(i) The delivery must be done in a location outside of the view of general public and in a nonpublic place; or
(ii) The marijuana or marijuana product must be in the original packaging as purchased from the marijuana retailer.
(6) No person under twenty-one years of age may possess, manufacture, sell, or distribute marijuana, marijuana-infused products, or marijuana concentrates, regardless of THC concentration. This does not include qualifying patients with a valid authorization.
(7) The possession by a qualifying patient or designated provider of marijuana concentrates, useable marijuana, marijuana-infused products, or plants in accordance with chapter 69.51A RCW is not a violation of this section, this chapter, or any other provision of Washington state law.
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