SB 5536, the so-called “Blake Fix,” passed the Washington State Legislature (Legislature) and was signed by Governor Jay Inslee. Its provisions involve the use and possession of drugs. Passage of the bill was welcome news for many Washington cities and counties that were rushing to pass their own ordinances.

The bill makes it a gross misdemeanor to:

1. Knowingly possess counterfeit substances and controlled substances (hereafter “prohibited substances”); or
2. Knowingly use prohibited substances in a public place.

This bill covers possession and use of counterfeit or controlled substances, or “hard” drugs such as fentanyl and other opioids, methamphetamine, heroin, and cocaine. Also prohibited is the knowing possession of non-prescribed legend drugs, as well as their knowing use in a public place, both classified as misdemeanors. The bill also creates a pre-trial diversion program and almost completely preempts local regulation of drug paraphernalia.

BACKGROUND

In February 2021, the Washington State Supreme Court in State v. Blake. The Blake case was immediately mired in controversy.  It declared unconstitutional Washington’s strict liability drug possession law, which criminalized the unintentional, unknowing possession of a controlled substance.

In July 2021 – and in response to the fallout from Blake– the Legislature adopted temporary  legislation making it a misdemeanor to knowingly possess prohibited substances. This temporary legislation required that law enforcement refer the individual to assessment and treatment for their first two arrests for simple possession. Upon the third arrest, the individual could be prosecuted. However, this proved nearly impossible for law enforcement to implement, given that there was no state-wide tracking system for referrals.

Fast forward to the 2022-2023 regular legislative session, which ended without passage of a new drug possession and use law. This challenge placed cities and counties in the unfortunate situation of adopting their own patchwork of possession and use laws. However, in a special session on May 16, 2023, the Legislature adopted permanent drug-related legislation in SB 5536.

DRUG POSSESSION & USE ARE GROSS MISDEMEANORS

Both knowing possession of prohibited substances and knowing use of a prohibited substance in a public place are gross misdemeanors. Gross misdemeanors typically have a maximum imprisonment time of not more than 364 days, plus a fine of not more than $5,000.

Knowing possession and knowing use of a legend drug without a prescription remains a misdemeanor. Misdemeanors have a maximum imprisonment time of not more than 90 days, plus a fine of not more than $1,000. An individual cannot be charged with both possession and use relating to the same course of conduct.

Notably, referral or diversion is no longer required. Nevertheless, law enforcement and prosecutors are encouraged to refer or divert such cases for assessment, treatment, or related services. Rather, both possession and use of controlled and counterfeit substances are punishable by imprisonment of up to 180 days or by a fine of not more than $1,000, or both. If the defendant has two or more prior convictions of possession or use, then imprisonment can be increased to up to 364 days (or the $1,000 fine, or both).

REGULATING DRUG PARAPHERNALIA

The bill regulates drug paraphernalia as follows:

• Selling or permitting drug paraphernalia to be sold is a class 1 civil infraction.
• Giving or permitting drug paraphernalia to be given — previously a class 1 civil infraction — is no longer prohibited.
• Using drug paraphernalia continues to be a misdemeanor. See RCW 69.50.412(1).
• Littering or dumping drug paraphernalia continues to be either a civil infraction, a misdemeanor, or a gross misdemeanor, depending on the quantity. See RCW 70A.200.060.

Notably, the definition of drug paraphernalia does not include cannabis-related paraphernalia or drug testing and analyzing equipment. Also, prohibitions on drug paraphernalia do not apply to distribution or use of public health supplies through pharmacies, public health programs, or other authorized community programs.

LOCAL GOVERNMENT ORDINANCES

Many Washington cities and counties have passed ordinances regulating drug possession and use in the absence of permanent state legislation. Those ordinances no longer have any real effect because the state fully occupies and preempts the entire field of setting penalties for violations of the controlled substances act, and local ordinances must be consistent with chapter 69.50 RCW — see RCW 69.50.608. As described in the previous blog section, the state also preempts the field of drug paraphernalia regulation.

However, despite this state preemption, cities must adopt or incorporate state statutes into their municipal code in order to prosecute misdemeanor or gross misdemeanor cases in city municipal court — See City of Auburn v. Gauntt, 174 Wn.2d 321, 274 P.3d 1033 (2012), which held that cities with a municipal court created under chapter 3.50 RCW must prosecute misdemeanors and gross misdemeanors based on city code provisions or RCWs that have been incorporated into the code by reference.

DIVERSION PROGRAMS

The bill creates a pretrial diversion program for individuals charged with simple possession, where the defendant agrees to meaningfully engage in a treatment program in exchange for the state dismissing the charge. The judge must advise the defendant of a program’s availability at arraignment and the prosecuting attorney must consent to the defendant’s participation. Section 9 of the bill outlines all the details, and the Association of Washington Cities (AWC) article, Blake fix bill passes Legislature during one-day special session, provides additional information about the practicality of pre-trial diversion programs.

TREATMENT FACILITIES

Opioid use disorder treatment facilities (with the exception of safe injection sites) are now considered essential public facilities (EPFs). As such, cities and counties can only regulate opioid use disorder treatment facilities in the same manner in which they regulate other EPFs and health care settings. Maximum capacity cannot be imposed on these facilities. See Section 12 of the bill.

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.

On Sunday, the House of Representatives rejected Senate Bill 5536. The legislation would have made the possession and use of hard drugs a gross misdemeanor. The bill failed in the final hours of the current session.

Senate Bill 5536 was introduced as a measure to significantly change drug possession laws. Many of the legislation’s original backers turned against it, citing concerns that the bill has been watered down and could cause more harm than good.

Governor Inslee responded to the results. He believed the bill was going to be the solution for a lot of drug problems in Washington. He also said he expects the legislature to draft another bill that will include pointing people to treatment services and not decriminalizing drugs.

If passed into law,Senate Bill 5536  would have superseded existing public drug use bans in cities like Kent and Bellingham. In addition, an officer would have had to simultaneously witness someone with drugs and using them to make an arrest. Democrats stood by the bill, while Republicans argued it would make things worse.

THE BLAKE DECISION.

Numerous mayors from across Washington state, including Auburn Mayor Nancy Backus, agreed that something needs to be done about the rise in public drug use. However, they signed a letter stating that SB 5536 is not the solution. They argued that instead of helping to crack down on the drug crisis, the bill would add more limitations.

“We’re harming people more than we’re helping,” said Backus. “There’s no teeth to it, and it is also preemptive of any local jurisdiction. Yet, despite this vote, lawmakers on both sides are hoping to find a solution that works for everyone.

“I think the important part you are hearing on both sides, which is all together, is that we care. We care,” said Rep. Maycumber.

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.

This legislative session, lawmakers are split over how to respond to the state Supreme Court’s Blake decision. That ruling struck down the state’s felony drug possession law. It essentially invalidating decades of criminal convictions and related penalties, like orders to pay restitution for such violations.

SB 5467 would make possession a misdemeanor and order completion of treatment to overturn the conviction and dismiss charges. If the person willfully abandons or rejects treatment, then a 45-day jail sentence would be imposed.

SB 5467, recently heard in committee, would provide an effective solution to the rampant problem of public drug use. This is an outside-the-box policy idea that is treatment-forward but with accountability for failure to undergo treatment. Many mayors, community members and police officers have personally expressed that the current system of essentially recommending to users that they go to treatment, without any charges filed or accountability applied, is not working. This bill provides a better path.

Under this bill, a person could be charged with a gross misdemeanor if they possess illegal drugs. If the person completes the substance use disorder treatment prior to their conviction being entered, the court would be required to dismiss the charge. If a conviction is entered, the court could not sentence to jail but would order the person to undergo treatment based on their treatment needs. If the person completes the treatment, the conviction would be overturned and dismissed.

If the person willfully abandons treatment or demonstrates a consistent failure to engage in treatment, however, the court would be required to impose at least 45 days of jail.

The requirement for treatment would be subject to the availability of treatment and the availability of funding for it. If treatment or funding were not available, the court would not be allowed to sanction the person with jail time for noncompliance.

This bipartisan bill has been co-sponsored by twelve Democratic and four Republican senators.

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.