Visit our guide to the latest on drug policy in Washington state: Washington at the Crossroads: Toward Ending the War on Drugs
On February 25, 2021, the Washington Supreme Court struck down Washington’s law criminalizing drug possession in a case called State v. Blake. The ruling meant there was no state law making simple possession of drugs a crime and every previous conviction under that law was invalid. However, the case left open the possibility that the legislature could recriminalize drug possession, which it has since done. First, the legislature passed ESB 5476, a stop-gap measure that was effect until July 1, 2023. That law made drug possession crimes misdemeanors but required diversion for at least the first two arrests. The legislature then passed SB 5536, making drug possession a gross misdemeanor. Under SB 5536, knowingly possessing a controlled substance is punishable by up to six months in jail and a $1,000 fine for the first two offenses and up to 364 days and a $1,000 fine thereafter. The new law also establishes a pre-trial diversion program but does not mandate referrals into that program. Instead, law enforcement and prosecutors are “encouraged” to offer referrals to chemical dependency programs and pre-trial diversion programs in lieu of criminal prosecution. Today, drug possession is a crime throughout Washington State.
Q. What is the Blake decision?
On Feb. 25, 2021, the Washington Supreme Court issued a decision declaring Washington’s drug possession statute – RCW 69.50.4013(1) – unconstitutional and “void.” The ruling occurred in a case known as State v. Blake. In 2016, Shannon Blake was arrested in Spokane and convicted of simple drug possession. Blake argued that she did not know there was a baggie of methamphetamine in the jeans she had received from a friend. The Washington Supreme Court ruled that the then-existing drug possession statute was unconstitutional because it criminalized unknowing drug possession.
Q. Why was the statute unconstitutional?
The court ruled that the statute violated the due process clause of the constitution. Without any mental state requirement, the law criminalized “unknowing” drug possession and people could be arrested and convicted even if they did not realize they had drugs in their possession. The majority concluded, “The legislature’s police power goes far, but not that far.”
Q. Who does it impact?
The decision directly impacts anyone previously charged and convicted under the drug possession statute – RCW 69.50.4013(1) – as it existed before the Blake ruling. However, Blake did not invalidate convictions other than possession of controlled substances under RCW 60.50.4013, including possession with intent to deliver a controlled substance, delivery of a controlled substance, and manufacturing a controlled substance.
Q. What happened right away as a result of the Blake decision?
People with pending charges were released from jails and their charges dismissed throughout the state. Others being sentenced with drug convictions on their records had their sentencing scores recalculated.
Q. What about in the long term? Will the decision be retroactively applied? How can I get my sentence vacated and record expunged?
As a result of the Blake decision, convictions for drug possession prior to February 25, 2021 can be vacated. Anyone may be eligible to have their drug conviction vacated, regardless of where a person lives now or their criminal history. To have a conviction vacated, a person must petition the court in the county where the conviction occurred. Each county has a different process. The Washington State Office of Public Defense keeps list of each county’s process, including how a person can seek legal representation to help with their petition.
Convictions for possession with intent to deliver a controlled substance, delivery of a controlled substance, and manufacturing a controlled substance are not invalided as a result of the Blake decision.
Q. Will my court-ordered fines be reimbursed? What about any other related legal fees?
Any legal financial obligations paid because of a Blake conviction qualify for financial reimbursement. Before applying for financial reimbursement, the drug possession conviction must be vacated. The Washington State Blake Refund Bureau provides a process to apply for reimbursement of court-ordered fines and costs.
Q. Could the Blake decision be overturned?
On March 17, 2021 a motion for reconsideration was filed by the Spokane County Prosecutor, asking the court to change its decision. The court reviewed the motion and denied the motion, meaning Blake will not be overturned. However, with the passage of SB 5536, the legislature has effectively changed the law that was at issue in Blake. Drug possession is once again a crime in Washington.
Q. Does this mean all drugs are legal now?
No. Now that SB 5536 has passed, drug possession is recriminalized in Washington. Simple possession is a gross misdemeanor, although a person may be offered diversion if they are arrested for simple possession.
In addition, federal law criminalizes possession of controlled substances.
Q. How does Washington’s law compare to other states’ laws?
Now that SB 5536 has recriminalized possession as a misdemeanor, Washington rejoins most other states in criminalization of drugs. Other states or cities have decriminalized or legalized narrow classes of drugs.
