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DRUG POSSESSION IS CURRENTLY NOT A CRIME IN WASHINGTON

April 26, 2021 • by Wiener & Lambka

DRUG POSSESSION IS CURRENTLY NOT A CRIME IN WASHINGTON-

This headline might seem like “fake news” but it is actually correct.   Recently, the State Supreme Court overturned the Washington statute governing criminal drug possession.  The result is that there is not currently on the books a state-wide statute making drug possession illegal

The case, State v. Blake took up a question that had been avoided in prior appeals, namely whether or not there is a need to include an intentional element to the crime of drug possession.   The Court, apparently frustrated with the legislature’s failures to amend this law, decided that it was time to face the fact, that without requiring an intentional element to the crime, it was an unconstitutional statute.  In the past, the Court had interpreted the law to implicitly require an intentional element, but this changed in State v. Blake

The Court determined that the statute violates Constitutional due process because the harshness of the penalties involved with a drug possession felony conviction can not be permitted unless the conduct can be shown to have been active and knowing instead of innocent and passive.  In other words, the law would need to have an element requiring the State to show that the drug possession was intentional.   

For example, if a teenage son or daughter hides a drug in the back seat of their parent’s car and this drug is found later during a traffic stop, the parent would not be considered to have violated the law because they did not know that they possessed the illegal drug.  Under the old law, they would still be subject to prosecution simply because the drug was within their possession, even though they did not know it was there.  

Expect the legislature to fix this problem with the law in short order.

 

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