In February of this year, the Washington Supreme Court ruled that the state’s simple drug possession law was unconstitutional because it didn’t require prosecutors to prove someone knowingly had drugs. State v. Blake __Wn.2d ___ (No. 96873-0) (Feb. 25, 2021) Justice Sheryl Gordon McCloud wrote, “the possession statute at issue here does far more than regulate drugs. It is unique in the nation in criminalizing entirely innocent, unknowing possession.

In that case, the State prosecuted Ms. Blake for unlawful possession of methamphetamine following her arrest and jail booking on another matter. At booking, a jail officer found a small bag of methamphetamine in the coin pocket of Ms. Blake’s jeans. At her bench trial, Ms. Blake asserted the defense of unwitting possession. She testified that a friend bought the jeans second hand and gave them to Ms. Blake two days before her arrest. Ms. Blake also testified she had never used methamphetamine and did not know there were drugs in the pocket. Ms. Blake’s boyfriend also testified that Ms. Blake did not use drugs and that she received the pants from a friend. The court convicted. Held, the strict liability drug possession statute exceeds the state’s police power by imposing harsh felony consequences on innocent non-conduct with no mens rea. Passive and innocent nonconduct falls outside the State’s power to criminalize.

This ruling impacted defendants in two ways: (1) it changed the way felony offenders’ history was scored for sentencing purposes, which will result in hundreds of resentencing hearings, and (2) it will result in offenders being able to have their drug possession convictions vacated. Prosecutors and defense attorneys in the state are now tasked with identifying who is eligible for resentencing or having their conviction vacated.

The Washington state legislature has since adopted Senate Bill 5476 in response to the Blake. Senate Bill 5476 re-criminalizes the possession of controlled substances, making it a misdemeanor rather than a felony until July 1, 2023. For such violations, law enforcement officers can confiscate the controlled substances but must offer a referral to available assessment and services in lieu of jail booking and referral to the prosecutor. If law enforcement records indicate that a person has previously been diverted to referral for assessment and services at least twice, the officer may then arrest. Prosecutors are not precluded from exercising discretion to divert or decline to file charges when referred drug possession cases, and are encouraged to divert such cases for assessment, treatment, or other services. Unlike previous drafts, there are no provisions that contain legalized personal use amounts, nor a reduction from a misdemeanor to a civil infraction at a later date.

If you have a drug possession conviction on your record, or if you were sentenced to a another felony and your score was based off of a drug possession conviction, you may be affected by this change in law. Contact Horwath Law for a free consultation to determine if this new law applies to you.

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