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The Impact – Which Bill Will Replace Washington’s Soon to Expire Drug Possession Law?

Mike McClanahan profile by Mike McClanahan

From tougher penalties to total paradigm shift, an overview of bills competing to replace Washington’s soon to expire drug possession law. Guests: Sen. June Robinson (D-Everett) and Rep. Dan Griffey (R-Allyn)

The clock is ticking on Washington’s 2021 replacement drug possession law passed after the landmark state supreme court ruling known as the Blake decision.

 Legislators made possession of drugs a simple misdemeanor back in 2021 after the Washington Supreme Court overturned the felony drug law as unconstitutional.

 That case centered on a person who argued she didn’t know there was methamphetamine in the coin pocket of the jeans she was wearing during booking.

The court held that the former drug possession law was unconstitutional because it didn’t require knowledge of the presence of drugs as a prerequisite to a drug possession conviction.

In response, legislators passed a bill making the knowing possession of personal amounts of controlled substances a simple misdemeanor, but stipulating that a person can’t be charged with a misdemeanor until their third contact with police for drug possession. The bill contained a sunset provision meaning it will expire on July 1, 2023.

 There are a number of competing bills proposed as replacements for the soon to expire statute.  

Senate Bill 5536, sponsored by Democratic Senator June Robinson of Everett would:

  • Classify knowing possession of a controlled substance or a counterfeit substance as a gross misdemeanor
  • Require courts to notify people charged with simple possession of a newly created pretrial diversion program
  • Preempt cities and counties from criminalizing possession of drug paraphernalia inconsistent with state law
  • Require charges to be dismissed if the person successfully completes the program 
  • Provide funding for treatment programs 

“I’ve heard loud and clear from the communities that I represent, that this is an issue that we need to address,” said Robinson.

Senate Bill 5467 sponsored by Democratic Senator Jesse Salomon of Shoreline would:

  • Classify possession of a controlled substance or counterfeit substance as a gross misdemeanor
  • Require courts to vacate the conviction of individuals convicted of possession of a controlled substance  if the individual successfully completes substance use disorder treatment as a condition of probation.
  • Require courts to sentence individuals found guilty of drug to a minimum of 45 days in jail if they don’t comply with probationary treatment 
  • Allow charges to be dismissed if a person completes a treatment program prior to a conviction.  
  • Require toxicology labs to complete drug evidence analysis within 30 days.  
  • Courts could not impose jail time if no treatment options are available 

“The state needs the ability to get people into treatment programs and it needs to set a standard where continued public drug use is not an option,” said Salomon. 

Senate Bill 5035 sponsored by Republican Senator Mike Padden of Spokane Valley would:

  • Retain simple misdemeanor penalties for possession of controlled substances currently in place under the 2021 law
  • Repeal the requirement that law enforcement officers offer drug treatment referrals for an individual’s first two drug possession arrests
  • Classify possession of a counterfeit substance such as fentanyl as a Class C Felony. 
  • Encourage prosecutors to divert a person’s first charge of possession of a counterfeit or controlled substance to substance abuse services.

 “The reason that I think it’s important that we continue with a felony is that we need the proper leverage to get these folks into treatment.   And frankly, the misdemeanor or gross misdemeanor from a lot of the prosecutors, I’ve talked with is not going to work all that well, certainly not, as well as a felony,” said Padden.  

Senate Bill 5624 sponsored by Democratic Senator Manka Dhingra of Redmond Is based on the recommendations of the Substance Abuse Services and Recovery Committee, also referred to as the “Blake Committee” after the 2021 Washington Supreme Court case.

It would:

  • Legalize personal amounts of drug possession
  • Make possession of more than personal amounts of drugs a misdemeanor
  • Prosecutors would be encouraged to divert such misdemeanor cases to treatment programs
  • Provide legal counsel for parents affected by substance use disorder in child custody cases
  • Direct the health care authority to provide funding for recovery residences in each region of the state
  • Legalize giving away drug paraphernalia for things other than cannabis.
  • Establish a safe supply workgroup to make recommendations about providing a regulated, tested supply of controlled substances to people at risk of overdose

“We had Univ. of Washington addiction specialists there. We had youth in recovery and   individuals in recovery and the whole point of putting that group together with diverse voices was to really take a look at what is evidenced based, what is best practices, what is data driven. And here’s the question: is substance use disorder a criminal justice issue or is it a public health issue?” said Dhingra.  

Republican Representative Dan Griffey of Allyn was a member on the “Blake Committee”, but disagreed with some of its recommendations.  

“I was adamant that that’s not the way to go. I believe it’s almost like the State of Washington endorsing drug use because at the time we were talking about legalization and setting purity standards. You can’t set a purity standard for a drug like fentanyl where the first time you use it, you could pass away,” said Griffey.

“I have colleagues who I know will not vote for anything but a felony. I also have colleagues who I know will not vote for anything but decriminalization,” said Robinson.

“Gross misdemeanor gives you a possible sentence, a potential sentence of one year in prison, the real prison,” said Griffey.

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