Category Archives: Drug Offenses

Blake Case & Bail Jumping

HOW PROSECUTORS USE BAIL JUMPING CHARGES TO COERCE GUILTY PLEAS

Ever since the WA Supreme Court decided State v. Blake – which held Unlawful Possession  of Controlled Substance charges and convictions unconstitutional – I’m inundated with questions from defendants on what that means. Can other charges filed alongside the drug charge get dismissed? Are Bail Jumping charges dismissible, too?

Fortunately,  the WA Court of Appeals decided the issue and answered these questions. In State v. Stacy, the Court of APpeals found that the invalidation of the defendant’s  conviction for a Drug Possession charge does not affect the validity of his Bail Jumping convictions.

BACKGROUND FACTS

Here, Mr. Stacy seeks relief from personal restraint imposed following his 2019 plea of guilty to one count of Unlawful Possession of Controlled Substances (UPCS) and two counts of Bail Jumping, committed while charged with UPCS. He argues that under State v. Blake, which held UPCS charges and convictions unconstitutional, he is entitled to have all convictions vacated.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals’ decision is captured in two sentences below:

“The State concedes that under Blake, Stacy is entitled to have his conviction for unlawful possession of controlled substances vacated. But the invalidation of his conviction for unlawful possession of controlled substances does not affect the validity of the bail jumping convictions. State v. Downing, 122 Wn. App. 185, 193, 93 P.2d 900 (2004).” ~WA Court of Appeals

In other words, Mr. Stacy’s Bail Jumping conviction was upheld despite the fact his UPCS – were later found unconstitutional. The Court’s usage of State v. Downing was notable.

In Downing, the WA Court of Appeals upheld the defendant’s Bail Jumping charges even though his underlying Unlawful Issuance of Bank Check charges were dismissed. It reasoned that although no Washington cases addressed whether the charge underlying an allegation of Bail Jumping must be valid, the State is not required to prove that a defendant was detained under a constitutionally valid conviction.

With that, the Court of Appeals in Mr. Stacy’s case dismissed his UPCS convictions and upheld his Bail Jump convictions.

Please read my guide on Making Bail and contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Offender Score Post-Blake


Comment | Where is the Literature of Dissent?

In State v. Markovich, the WA Court of Appeals held that an out-of-state conviction for drug possession may not be included in the calculation of an offender score. There is no longer a comparable Washington offense after State v. Blake declared Washington’s strict liability simple possession statute to be unconstitutional.

FACTUAL BACKGROUND

In the early morning hours of July 13, 2017, police officers broke down the door of an apartment in Everett while executing a search warrant. The defendant Mr. Markovich was sitting on a couch in the front room of the apartment. Officers noticed digital scales, loaded and unloaded syringes, baggies, burnt aluminum foil, and a small stack of cash near the couch. Markovich was handcuffed and led outside the apartment. He had a small “baggie” containing a white substance in his pocket. The substance was later determined to be less than a gram of methamphetamine.

In the bedroom, officers also discovered a black fabric bag containing a larger quality of methamphetamine, heroin, and related drug paraphernalia. Markovich was charged with Possession of Methamphetamine and Heroin With Intent to Deliver or Manufacture.

At trial, Markovich was convicted as charged. The court imposed a high-end standard range sentence of 108 months in prison followed by 12 months of community custody. Markovich appealed on numerous grounds.

While this appeal was pending, the Washington Supreme Court decided State v. Blake, holding that Washington’s drug possession statute, RCW 69.50.4013(1), violated the due process clauses of the state and federal constitutions and was void. 197 Wn.2d at 186. Markovich filed a motion for resentencing in superior court, arguing that he was entitled to resentencing in light of Blake because his two prior out-of-state convictions for drug possession were included in the calculation of his offender score.

COURT’S ANALYSIS & CONCLUSIONS

On this issue, the Court of Appeals reasoned that a prior conviction based on a constitutionally invalid statute may not be considered when calculating an offender score.

“A sentence that is based upon an incorrect offender score is a fundamental defect that inherently results in a miscarriage of justice,” said the Court, quoting In re Pers. Restraint of Goodwin. The Court emphasized that the remedy for such a defect is resentencing under the correct offender score:

“In Blake, the Supreme Court declared Washington’s strict liability drug possession statute unconstitutional and void. Because penalties imposed under the invalid statute are void, defendants who were sentenced based on an offender score that included prior convictions under this unconstitutional statute are entitled to resentencing.” ~WA Court of Appeals.

Consequently, although the Court agreed with Markovich on this issue and re-sentenced his accordingly, it nevertheless denied his remaining claims on appeal.

My opinion? Good decision, overall. Our Court’s are dutifully re-calculating offender scores in the wake of the Blake decision. However, this opinion dealt only with convictions from other states.  A specific statute, RCW 9.94A.525(3) treats federal convictions for crimes for which there is no clearly comparable offense under Washington law as a class C felony equivalent in the offender score.  Federal simple drug possession felonies should, therefore, continue to be included in the offender score.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

COVID Increases Overdoses

Coronavirus US: DEA seizes $1M worth of heroin, Fentanyl labeled ' coronavirus' bio-hazard, 'Black Mamba' in Bronx drug bust - ABC11 Raleigh-Durham

Great article by Brian Mann from NPR says that researchers have seen a significant rise in overdose deaths from street drugs laced with deadly synthetic opioids including Fentanyl.

“We’ve seen a very significant rise in mortality,” said Dr. Nora Volkow, head of the National Institute of Drug Abuse, who spoke Thursday as part of an on-line gathering of the American Society of Addiction Medicine. The trend contributed to a stark rise in overdoses that left more than 90,000 Americans dead during the 12-month period ending in September 2020, according to the latest data.

According to preliminary figures released earlier this month by the Centers for Disease Control and Prevention, synthetic opioid fatalities rose by an unprecedented 55% during the twelve months ending in September 2020. Deaths from methamphetamines and other stimulants also surged by roughly 46%, an increase Volkow said is linked to fentanyl contamination. In all more than 90,000 Americans died from overdoses in the latest 12-month period for which preliminary data is available. That compares to roughly 70,000 drug deaths during the same period a year earlier.

As the CDC has updated its fatal overdose estimates during the pandemic, the upward trend has shown no sign of slowing. As recently as October, data suggested the country was on track for at least 75,000 overdose deaths in 2o2o. That would have been a grim new record, but the latest figures make it clear the toll will be far higher. Preliminary data for the full year won’t be available until mid-summer.

Studies have also shown a significant increase in the number of Americans using alcohol or drugs to cope with the pressures of the pandemic. One team of CDC researchers found roughly 13% of people surveyed either began using drugs during the pandemic or increased their use of illicit substances.

“COVID-19 has made us aware how negative the stigmatization of substance use disorders has been over time,” Volkow said.

Please contact my office if you, a friend or family member face Drug Offenses or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Senate Passes Bill to Recriminalize Drug Possession

Washington State Supreme Court Rules Drug Possession Law Unconstitutional In 5-4 Decision

Great article by Sara Gentzler of the News Tribune reports that the Washington State Senate approved a bill Thursday that would make drug possession a gross misdemeanor and require diversion to treatment for a person’s first two offenses.

The measure comes in response to the WA State Supreme Court’s so-called Blake decision in February that made the state’s simple drug possession law unconstitutional.

While the proposal captured enough votes to move over to the House of Representatives for more consideration, it did not amass broad support and laid bare disagreements among lawmakers.

A majority of justices on the state Supreme Court found the state’s law was unconstitutional because it didn’t require prosecutors to prove an accused person knowingly or intentionally had drugs. The decision, known as State v. Blake, was released in the middle of the legislative session to immediate, widespread impact.

The 28-20 Senate vote on Thursday reflected the lack of consensus among legislators in how best to proceed

The original, struck-down law made possession of controlled substances a class C felony. The amended bill that passed out of the Senate would take that down to a gross misdemeanor.

The first two times someone is arrested for possession, the bill would require them to be diverted to a treatment program. If they’re arrested for possession again, treatment would be encouraged but not required.

The bill also would allow court commissioners to help resentence people convicted under the law that was deemed unconstitutional. The bill now moves to the House, where Democrats this week introduced their own proposal to address the Supreme Court decision.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Pot Sales Boomed in Washington During COVID-19 Pandemic

Here comes 'Big Marijuana' and the Republican hypocrites | Higher Ground | Detroit | Detroit Metro Times

A new Leafly report shows that national sales boomed during the COVID-19 Pandemic in 2020, including in Washington, leading to growth in revenue and jobs.

Also, Leafly’s more recent Jobs Report shows that nationally, cannabis sales saw a 71% surge between 2019 and 2020. And Americans bought $18.3 billion worth of pot products in 2020, according to the report.

“Despite a year marked by a global pandemic, spiking unemployment, and economic recession, the legal cannabis industry added 77,300 full-time jobs in the United States,” Leafly’s 2021 jobs report says. “That represents 32% year-over-year job growth, an astonishing figure in the worst year for US economic growth since World War II.”

Legalization of marijuana in some form or another is rapidly catching on in most U.S. states. While some states that recently legalized recreational or medicinal use of marijuana added more jobs than Washington in 2020, its industry has continued to grow steadily since 2012, the report says.

Washington’s cannabis sales increased by 17% in 2020, with customers spending $1.42 billion on marijuana products, leading to a boom in employment, the report says. The state has 19,873 cannabis industry jobs, which is 524 more than 2019.

As one of the pioneering states in the sale of recreational marijuana, Washington has the fifth-most cannabis jobs and some of the highest sales number in the U.S., according to the report.

WHY THE SURGE?

When the Covid-19 pandemic hit the United States in March, many in the cannabis industry worried about a massive industry-wide shutdown. Instead, governors in most states declared cannabis an essential product. Dispensaries and retail stores responded by offering online ordering, curbside pickup, and delivery as Covid-safe options for their customers.

Customers, in turn, responded by stocking up for those weeks of stay-at-home advisories. After a brief dip in late-March revenue, most stores saw a significant bump in April—and then the bump became a plateau.

My opinion? Whether it or not it ends up being a coping mechanism for COVID-19 pandemic, it looks like cannabis has become how many people are making it through.

Please contact my office if you, a friend or family member face Drug Charges or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Women Are Reportedly Drinking More During COVID Pandemic

Doctors are seeing a rise in alcoholic liver disease in the last year, especially among people under 40 and especially women.

Excellent article by reporter Yuki Noguchi of NPR describes how cases of alcoholic liver disease — which includes milder fatty liver and the permanent scarring of cirrhosis, as well as alcoholic hepatitis — are up 30% over the last year at the University of Michigan’s health system, says Dr. Jessica Mellinger, a liver specialist there.

More startling, the increase disproportionally impacts young women.

Alcoholic liver disease often takes years to manifest. But it can become a threat for women more quickly because their bodies process alcohol somewhat differently than men’s.

So why the increased drinking? The reasons are clear.

Noguchi reports that women have borne the brunt of many new pressures of pandemic life, from virtual school and increased responsibilities at home, even as ads and pop culture have continued to validate the idea of drinking to cope: Mommy Juice, Rosé All Day, Wine Down Wednesdays. On top of that, eating disorders and underlying trauma from physical or sexual violence often add fuel to the fire, fanned by social isolation.

Just the sheer amount of trauma is really, really tragic,” said psychiatrist Dr. Scott Winder, a clinical associate professor at the University of Michigan who treats patients with alcoholic liver disease.

As stay-at-home orders began in some US states as a mitigation strategy for COVID-19 transmission, Nielsen IQ reported a 54% increase in national sales of alcohol for the week ending March 21, 2020, compared with 1 year before; online sales increased 262% from 2019.1 Three weeks later, the World Health Organization warned that alcohol use during the pandemic may potentially exacerbate health concerns and risk-taking behaviors.

Please contact my office if you a friend or family face alcohol related charges like DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Drug Cases Dismissed

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Informative article by Denver Pratt of the Bellingham Herald reports that more that 150 Whatcom County  cases are dismissed due to the WA Supreme Court’s ruling on drug possession cases in State v. Blake.

In my blog titled Unwitting Possession, I discussed how Blake held the state’s felony drug possession law was unconstitutional because — unlike the laws of every other state — it did not require prosecutors to prove someone knowingly or intentionally possessed drugs.

Ms. Pratt reports that under Blake, law enforcement agencies won’t be able to take enforcement action for people engaged in narcotics use or simple possession, according to Whatcom County Sheriff Bill Elfo. Apparently, the ruling also limits investigative and diversion and treatment strategies, Elfo said in an earlier story.

Pratt also reports that as of Friday, March 5, 160 cases have been dismissed in Whatcom County Superior Court, Whatcom County Prosecuting Attorney Eric Richey said. Because the decision from the state Supreme Court makes the law unconstitutional, Richey said his office was required to dismiss the cases and to take action quickly.

My opinion? Perhaps we’re realizing that some drug cases should be treated as medical problems and not criminal justice problems. Incarcerating, fining and convicting people of felony drug offenses has not worked. We’ve been fighting the War on Drugs since I was child. However, numerous studies show this “war” is a failure. Maybe it’s time for another approach.

Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Unwitting Possession

I am sorry I didn't know you did that! – TheWealthySon : Success Toolbox

In State v. Blake , the WA Supreme Court held that Washington’s Drug Possession Statute exceeds the state’s police power by imposing harsh felony consequences on innocent non-conduct.

FACTUAL BACKGROUND

In 2016, police executed a search warrant in Spokane, Washington, seeking evidence of stolen vehicles. They arrested three people on the property, including the Defendant Ms. Blake.  At the jail, a corrections officer discovered a small baggy containing methamphetamine in the coin pocket of Ms. Blake’s jeans.

The State charged Blake with Possession of a Controlled Substance.  At her bench trial, Blake relied on the judicially created affirmative defense of Unwitting Possession. She testified that a friend had bought the jeans secondhand and given them to Blake two days before Blake’s arrest.

Blake also said she had never used methamphetamine and did not know the jeans had
drugs in the pocket. She acknowledged that the drugs had been “on her” on the day of her arrest. Blake’s boyfriend also testified that Blake did not use drugs and that she had received the jeans from a friend. Despite her defense, the trial court found that Blake had possessed methamphetamine on the day in question and found Blake guilty.

On appeal, Blake argues that requiring her to prove unwitting possession to the charged offense violates due process.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court held that Washington’s  felony drug possession statute – which is a essentially a strict liability statute – exceeds the state’s police power by imposing harsh felony consequences on innocent non-conduct with no mental state to commit the crime.

“The basic drug possession statute at issue in this case states, ‘It is unlawful for any person to possess a controlled substance'”, wrote Justice McCloud. “The State need not prove any mens rea (mental state) element to secure a conviction for this crime.”

The Court reasoned that the Due Process Clause protections limit the Legislature’s police power to criminalize wholly innocent and passive non-conduct. Stated differently, a defendant’s passive and innocent non-conduct falls outside the State’s power to criminalize:

“Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature’s police power? The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the state’s police power.”  ~Justice Gordon McCloud, WA Supreme Court.

The Court further reasoned that the State’s police power is not infinite. “If it were, the result would be a police state, and the legislative branch of the government would be omnipotent,” said Justice McCloud. Finally, the Court reasoned that  the statute criminalizes innocent and passive possession, even by a defendant who does not know, and has no reason to know, that drugs lay hidden within something that they possess. “The legislature’s police power goes far, but not that far,” said the Court.

Accordingly, the Court held that RCW 69.50.4013(1)—the portion of the simple drug possession statute creating this crime—violates the due process clauses of the state and federal constitutions and is void.

With that, the WA Supreme Court vacated Ms. Blake’s conviction.

My opinion? Excellent decision, Finally, the courts are giving teeth to the Unwitting Possession Defense. In this defense, a person is not guilty of possession of a controlled substance if the possession is unwitting. Possession of a controlled substance is unwitting if (1) a person did not know that the substance was in their possession or (2) did not know the nature of the substance.

The burden is on the defendant to prove by a preponderance of the evidence that the substance was possessed unwittingly. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true.

Up until now, Washington’s felony drug possession statute essentially circumvented the Unwitting Possession defense.  Thankfully, the WA Supreme Court put a stop to that.
Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Opioid Overdoses Spiked

Image result for drug overdose coronavirus

A new study indicates that the opioid crisis in the US is deepening.

In a large cross-sectional study published in JAMA Psychiatry on that analyzed nearly 190 million emergency department (ED) visits, researchers found significantly higher rates of visits to Emergency Departments for opioid overdoses during the months of March to October 2020 when compared against the same dates in 2019. The study found that, from mid-April onward, the weekly rates of ED visits for drug overdoses increased by up to 45% when compared against the same period in 2019.

The study is not an anomaly. In December, the Center For Disease Control said that the rate of overdose deaths was accelerating during the pandemic, driven by synthetic opioids, which rose 38.4% during the year leading up to June 2020.

This same JAMA Psychiatry study found that emergency department visits for mental health conditions, domestic violence, and child abuse and neglect increased during the same time period as did suicide attempts. The rates of family violence are rising fast, and women and children are disproportionately affected and vulnerable during this time.

My opinion? While many lives were saved with stay-at-home orders, these savings were not without cost. And while vaccines appear to have provided a light at the end of this COVID-19 tunnel, America will need to face its growing problem of anxiety, social isolation and mental illness. For some, stressors may be the fear of contracting COVID-19. For others, the stress of losing a job. And still others, the boredom of being trapped in your home with nothing to do.

Please contact my office if you, a friend or family member face Domestic Violence and/or Drug Charges. Hiring an effective and competent defense attorney is the first and best step toward justice.

Decriminalize Personal Use

Image result for decriminalize drugs

On Thursday, Washington lawmakers introduced House Bill 1499. This bill would work to decriminalize personal use of drug possession and expand treatment and support services. The bill is sponsored by State Rep. Lauren Davis, a 32nd District Democrat from Shoreline, who represents portions of Edmonds, Lynnwood and Mountlake Terrace.

According to the Washington State Department of Health, an average of two people die from an opioid overdose every day in the state.

HB 1499, called the Pathways to Recovery Act, was introduced by Davis and co-sponsor Rep. Kirsten Harris-Talley, D-Seattle, It’s supported by various medical advocacy and civil rights organizations like Treatment First Washington, Care First Washington and Washington Recovery Alliance.

“The opposite of addiction is not sobriety, it’s connection . . . In all my years of work in this field, I can say that what keeps people from seeking treatment boils down to two things: one, they don’t believe recovery is possible for them, and two, they don’t believe they’re worthy of recovery.” ~WA State Rep. Lauren Davis

In short, the bill itself decriminalizes personal-use amounts of drugs. The decriminalization part is based on the widening belief that jail time and legal consequences often present more problems than rehabilitative solutions for people suffering from addiction, creating a vicious cycle.

“The Legislature finds that substance use disorder is among the only health conditions for which a person can be arrested for displaying symptoms.” the bill reads. “People use drugs to escape the painful reality of their lives and circumstances, including trauma that’s never had a chance to heal.”

According to Davis, building this new continuum of care would be funded piecemeal from a federal substance abuse block grant, money obtained through opioid manufacturing lawsuits and state general funds saved from expected reductions in the Department of Corrections budget needs.

Please contact my office if you, a friend or family member face drug charges. Hiring an effective and competent defense attorney is the first and best step toward justice.