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Whatcom County Courthouse (July 29, 2016). Whatcom News file photo

Washington Supreme Court strikes down State’s felony drug possession law

In delivering a 5 to 4 ruling today, February 25th, on a case being appealed out of Spokane County, justices on the Washington Supreme Court today essentially removed the ability for local, county and state law enforcement to charge someone with possession of a controlled substance, at least for the time being.

The Court was considering the appeal of a woman who was found to be in possession of methamphetamine during jail booking regarding an unrelated charge and was subsequently charged with possession of a controlled substance. She testified at her trial that a friend had bought the jeans secondhand and had given them to her 2 days before being arrested. She said she had never used methamphetamine and did not know the jeans had drugs in the pocket.

The Washington State 6-decades old Uniformed Controlled Substance Act provides no allowance for lack of knowledge or intent of being in possession, so she was found guilty since, a fact she did not deny, she was in possession of the methamphetamine.

The justices, in their decision today, said there is an “unreasonable disconnect between the statute’s intended goals and its actual effects.”


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At least 15 state courts have interpreted their own versions of the uniform drug possession statute to require proof of knowledge or intent. Some state courts have gone so far as to interpret the possession of a controlled substance to require knowledge of both the presence of the substance and the general character of the substance.

Reading Washington’s possession statute to require proof of knowledge or intent upholds RCW 69.50.603’s requirement for uniformity of interpretation and corrects an error that has made Washington an outlier among our sister states.

Washington State Supreme Court Decision on State v. Blake, No. 96873-0 (February 25, 2021)

Not all justices agreed with the majority decision. The dissenting justices said it was not for the court to take away the legislature’s power to enact strict liability crimes, those that do not require proving intent or knowledge of the crime.

The Whatcom County Sheriff’s Office said no one in custody at the Whatcom County Jail can expect to be cut loose due to today’s court decision since anyone in custody charged with possession of a controlled substance are facing other charges as well.

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Whatcom County Sheriff Bill Elfo published the following statement today.

This morning the Washington State Supreme Court overturned long-standing precedent and held that the criminal statute prohibiting the possession of controlled substances (narcotics) is now unconstitutional. Deputies will no longer be able to take enforcement action when encountering persons engaged in narcotics use or in simple possession.

While many argue that narcotics possession might be better treated as a public health rather than a criminal justice issue, drug offenses at all levels often lead to crime of violence, property crime and public/neighborhood disorder. The enforcement of laws prohibiting the possession of narcotics also lead to the identification of dealers, the disruption of organized criminal enterprises and treatment referrals for users and those possessing small quantities through the law enforcement assisted diversion program, drug court and other options. This decision will eliminate incentives for the addicted to cooperate, seek treatment and stop the work of getting people who will not accept voluntary placement in a stabilization center, into a safe environment where they can receive detox and life-saving medical treatment.

Some may argue that this decision will reduce the jail population. Today there are 217 people held in jail by order of the courts and “zero” are there solely for simple possession of narcotics.

Deputies can still charge people with delivery of drugs but with today’s decision, investigative strategies, the ability to implement street diversion and get people into treatment have been severely limited

Whatcom County Sheriff Bill Elfo (February 25, 2021)

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