The Uniform Controlled Substances Act and Related Provisions.
The Uniform Controlled Substances Act (UCSA) regulates the manufacture, distribution, and dispensation of controlled substances, including by prohibiting and penalizing certain conduct related to controlled substances, counterfeit substances, and drug paraphernalia. Related provisions of state law also regulate legend drugs. For example, the following actions constitute either a criminal offense or civil infraction and carry specified penalties depending on the nature of the offense or infraction, subject to certain exceptions:
The first two times a person would otherwise be subject to arrest for certain drug possession offenses, law enforcement is required to offer the person a referral to assessment and services in lieu of legal system involvement. If law enforcement agency records reflect that the person has been referred to assessment and services twice or more, officers may, but are not required to, make additional diversion efforts.
A "controlled substance" is a drug or substance included in Schedules I through V of the UCSA, with some exceptions. Drugs and substances are placed on schedules based on their potential for abuse, medical use, and safety. Substances in Schedule I are the most tightly controlled, while those in Schedule V are the least tightly controlled. A "counterfeit substance" is a controlled substance which has been altered to look like a substance produced or distributed by a manufacturer, distributor, or dispenser. "Drug paraphernalia" includes all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing a controlled substance into the human body. A "legend drug" is a drug which is required to be dispensed on prescription or is restricted to use by practitioners.
State v. Blake.
Prior to 2021, the offense of Possession of a Controlled Substance under the UCSA was classified as a class C felony and was a strict liability offense, meaning that no mens rea (state of mind) element had to be proven to convict a person of the offense. In 2021 the Washington Supreme Court held in State v. Blake (Blake) that the strict liability nature of the offense exceeded the state's police power and violated the due process clauses of the state and federal constitutions. Consequently, the Washington Supreme Court's decision in Blake invalidated the portion of the UCSA that created the offense of Possession of a Controlled Substance.
Following the Blake decision, legislation was adopted in 2021 (Engrossed Senate Bill 5476, enacted as chapter 311, Laws of 2021) which, in part, amended statutory provisions related to the offenses of Possession of a Controlled Substance, Possession of a Counterfeit Substance, Possession of a Legend Drug, and Possession of 40 Grams or Less of Cannabis in the following ways:
The Growth Management Act and Essential Public Facilities.
The Growth Management Act (GMA) provides a comprehensive land-use-planning framework for county and city governments in Washington. Under the GMA, comprehensive land-use plans must include a process for identifying and siting essential public facilities, which are facilities that are typically difficult to site, such as airports, state education facilities, state or regional transportation facilities, regional transit authority facilities, state and local correctional facilities, solid waste handling facilities, and inpatient facilities including substance abuse facilities, mental health facilities, group homes, community facilities, and secure community transition facilities.
Recovery Residences.
State law requires the Health Care Authority (HCA) to maintain a registry of approved recovery residences or contract with a nationally recognized recovery residence certification organization based in Washington to maintain the registry. A "recovery residence" is a home-like environment that promotes healthy recovery from substance use disorders (SUD) and supports persons recovering from SUDs through the use of peer recovery support. A recovery residence may choose to be included in the registry if it has been certified as meeting certain criteria.
Law Enforcement Assisted Diversion.
Law Enforcement Assisted Diversion (LEAD) is a community-based diversion approach with the stated goals of improving public safety and public order and reducing unnecessary justice system involvement for participants. In 2019 the state established a LEAD pilot project and directed the HCA to partner with the LEAD National Support Bureau to award a contract for two or more geographic areas to implement LEAD programs in Washington.
Recovery Navigator Program.
The Recovery Navigator Program is a statewide program involving a partnership between the HCA and behavioral health administrative service organizations to provide community-based outreach, intake, assessment, and connection to services for individuals with SUDs, including individuals with co-occurring SUDs and mental health conditions.
Drug Possession.
Description of Offenses and Penalties.
Effective July 1, 2023, the conduct that constitutes certain drug possession offenses and the related penalties are modified as follows:
Diversions by Law Enforcement.
Effective July 23, 2023, the provision requiring law enforcement to offer a person who would otherwise be subject to arrest for Possession of a Controlled Substance, Possession of a Counterfeit Substance, Possession of a Legend Drug, or Possession of 40 Grams or Less of Cannabis at least two referrals to assessment and services in lieu of legal system involvement is repealed. Instead, law enforcement is encouraged to offer such referrals in lieu of legal system involvement.
Pretrial Diversion Program and Dismissing Charges.
Effective July 1, 2023, a pretrial diversion program is created for defendants charged with Possession of a Controlled Substance, Possession of a Counterfeit Substance, Possession of a Legend Drug, or Possession of 40 Grams or Less of Cannabis, including when the person was knowingly possessing or using a controlled substance, counterfeit substance, or legend drug in a public place (collectively, "qualifying offense"). The court must determine whether the defendant has been advised by counsel about the pretrial diversion opportunity.
A defendant charged with a qualifying offense may make a motion to participate in pretrial diversion and agree to waive the right to a speedy trial if the motion is granted. The court may not grant the motion unless the prosecuting attorney consents to the diversion. The prosecuting attorney is strongly encouraged to agree to the diversion if the defendant is only charged with a qualifying offense or if the only other additional charge is for other nonfelony offenses.
If the defendant is only charged with a qualifying offense and has not been convicted of any other offenses on or after July 1, 2023, the court must grant the motion, continue the hearing, and refer the defendant for an evaluation by a designated substance use disorder (SUD) treatment program. In all other cases, granting the motion is discretionary. Prior to granting the motion, the court must provide a full description of the procedures for diversion and certain explanations and clear statements about subjects related to participating in diversion.
The following requirements apply to a defendant obtaining an SUD evaluation and treatment as a part of diversion:
The court may contract with a third party to provide evaluations and services, which may be collocated at the court or be provided at alternative locations, and the state must reimburse the court for costs associated with evaluations and related travel.
After receiving the assessment, if the report indicates the defendant has an SUD, the court must inform the defendant that the defendant is prohibited under federal law from possessing any firearm or ammunition, sign an order of ineligibility to possess firearms, and require the defendant to surrender all firearms.
The prosecutor may make a motion to terminate diversion if it appears that the defendant is not meaningfully engaging in the recommended treatment services.
If the defendant successfully completes diversion, including substantial engagement with assessment, recommended treatment, or services, the court must dismiss the charge or charges.
Sentencing Requirements and Vacating Convictions.
Effective July 1, 2023, a court of limited jurisdiction must impose a term of confinement of up to 90 days, all of which must be suspended for a period not to exceed one year, if the defendant is convicted of a qualifying offense and agrees as a condition of probation to obtain an SUD assessment and participate in any recommended treatment or services.
The following requirements apply to a defendant obtaining an SUD evaluation and treatment pursuant to an agreed condition of probation for an applicable conviction:
The court may contract with a third party to provide evaluations and services, which may be collocated at the court or be provided at alternative locations, and the state must reimburse the court for costs associated with evaluations.
If the SUD treatment program's report indicates the defendant has an SUD, the court must inform the defendant that the defendant is prohibited under federal law from possessing any firearm or ammunition, and sign an order of ineligibility to possess firearms.
The prosecutor may make a motion for a hearing to consider sanctions if it appears that the defendant is not meaningfully engaging in the recommended treatment or services. The court may not sanction the defendant for failing to comply with the recommended treatment or services if the court finds the defendant has made reasonable efforts but cannot comply due to a lack of available treatment or services or, if the defendant is indigent, due to a lack of funding for treatment or services. At the hearing, if the court finds by a preponderance of the evidence that the defendant has willfully abandoned or demonstrated a consistent failure to meaningfully participate in the recommended treatment or services, the court must use its discretion in determining an appropriate sanction.
If the defendant successfully completes treatment or services, the defendant must file proof of completion with the court. Upon verification that the defendant successfully completed the recommended treatment or services, the court must terminate probation and enter an order vacating the defendant's conviction or convictions.
Analysis of Evidence.
Effective January 1, 2025, subject to available funds, the Washington State Patrol (WSP) must aim to complete the necessary analysis for evidence submitted for a suspected qualifying offense within 45 days of receiving the request for analysis.
Data Collection and Reporting Requirements.
Beginning August 1, 2024, the Administrative Office of the Courts (AOC) must report to the Legislature annually on data and information it must collect as provided below.
The AOC must collect specified data related to the utilization and outcomes of pretrial diversions, convictions, and postconviction relief for qualifying offenses, including but not limited to: (1) the recidivism rate for persons participating in such processes; (2) the number of pretrial diversions offered and the outcomes; (3) demographic data for pretrial diversions identifying trends or disparities; (4) statistical data comparing utilization and outcomes of pretrial diversions in different regions of Washington; (5) the number of qualifying offense convictions; (6) the number of people sentenced for a conviction of a qualifying offense who agreed as a condition of probation to obtain an SUD assessment and participate in treatment or services; (7) demographic data for people convicted for a qualifying offense identifying trends or disparities in sentencing and vacating of such convictions; and (8) statistical data comparing sentencing for qualifying offenses in specific courts and different regions of Washington.
The AOC must also, in cooperation with the WSP and Washington Association of Sheriffs and Police Chiefs, collect data and information concerning reported violations of certain drug possession offenses responded to by law enforcement, including: (1) whether violations were deferred to treatment in lieu of further legal system involvement or referred for prosecution; (2) the number of violations involving repeat offenders; and (3) the number of violations involving people who previously participated in pretrial diversion or were sentenced under the provisions of this act.
Giving and Selling Drug Paraphernalia.
Effective July 1, 2023, the class I civil infraction for giving, selling, or permitting the giving or selling of drug paraphernalia is modified as follows:
The State of Washington fully occupies and preempts the entire field of drug paraphernalia regulation within its boundaries, including regulation of the use, selling, giving, delivery, and possession of drug paraphernalia. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to drug paraphernalia that are specifically authorized by, and consistent with, state law. Such local ordinances must have the same penalty as provided by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law may not be enacted and are preempted and repealed, regardless of the nature of the code, charger, or home rule status of the city, town, county or municipality.
Programs and Services Related to Substance Use Disorder Treatment and Recovery.
Opioid Treatment Programs and Other Essential Public Facilities.
The list of facilities that are considered essential public facilities for the purpose of local land-use regulations is expanded to include opioid treatment programs (OTPs), recovery residences, SUD treatment facilities, and harm reduction programs, excluding safe injection sites. Counties and cities may only impose reasonable conditional use requirements on OTPs that are similarly applied to other essential public facilities and health care settings. The requirement for the DOH to hold a public hearing before making a decision on an application for licensing or certifying an opioid treatment program is removed. Counties and cities are prohibited from imposing a maximum capacity on an OTP. A mobile or fixed-site medication unit may be established as part of a licensed OTP.
Program to Fund Substance Use Disorder Treatment Programs.
Subject to appropriation, a program is established in the Department of Commerce to fund the construction costs necessary to start up SUD treatment and services programs in underserved regions of the state that lack access to such programs.
Recovery Residences.
Subject to availability of funding, the Health Care Authority (HCA) must:
Real and personal property used by a nonprofit organization in maintaining an approved recovery residence is exempt from taxes levied for collection in calendar years 2024 through 2033 if the property is owned by the nonprofit organization and the charge for the housing does not exceed the actual cost of operating and maintaining the housing, or if the property is rented or leased by the nonprofit organization and the benefit of the exemption inures to the nonprofit organization. A tax preference performance statement is included.
Law Enforcement Assisted Diversion Grant Program.
The Law Enforcement Assisted Diversion (LEAD) pilot project is converted to a grant program administered by the HCA. The LEAD grant program is expanded to provide that cities, counties, and tribes; subdivisions thereof; public development authorities; and community-based organizations demonstrating support from necessary public partners, may apply for funding. Funds may be used to scale existing projects and to invite additional jurisdictions to launch diversion programs. Sufficient funds must be allocated from grant program funds to secure technical assistance for the HCA and implementing jurisdictions. Certain governmental entities and employees thereof, nonprofit community-based organizations; tribal government entities; tribal organizations; and urban Indian organizations are granted immunity from civil liability based on the administration of LEAD programs or activities, except upon proof of bad faith or gross negligence.
Recovery Navigator Program.
By June 30, 2024, the HCA must develop and implement a data integration platform to serve as a common database available for diversion efforts across Washington, to serve as a data collection and management tool for practitioners, and to assist in standardizing definitions and practices. If possible, the HCA must leverage and interact with existing platforms already in use. The HCA must establish a quality assurance process for Behavioral Health Administrative Services Organizations and employ data validation for fields in the data collection workbook. The HCA must engage and consult with the LEAD National Support Bureau on data integration approaches, platforms, qualify assurance protocols, and validation practices.
The HCA must contract with the Washington State Institute for Public Policy (WSIPP) to conduct a study of the long-term effectiveness of the recovery navigator program, with reports due on June 30 of 2028, 2033, and 2038. The WSIPP must collaborate with the HCA, the LEAD National Support Bureau, and the Substance Use Recovery Services Advisory Committee to determine the parameters of the reports. The LEAD National Support Bureau may supplement the report with additional recommendations. By August 1, 2023, the HCA must establish an expedited preapproval process to facilitate certain data requests made by the WSIPP.
Health Engagement Hubs.
By January 1, 2025, the HCA must develop payment structures for health engagement hubs that:
The HCA must direct Medicaid managed care organizations to adopt a value-based bundled payment methodology in contracts with health engagement hubs and other OTPs. The HCA must make sufficient funding available to ensure that a health engagement hub is available within a two-hour drive for all communities and that there is at least one health engagement hub available per 200,000 residents in Washington.
Statewide Treatment and Services Mapping Tool.
Subject to the availability of funding, the HCA must collaborate with the DOH and the Department of Social and Health Services to expand the Washington Recovery Help Line and the recovery readiness asset tool to provide a dynamically updated statewide behavioral health treatment and recovery support services mapping tool that includes specific functions and interface capabilities.
Work Group on Treatment Intake, Screening, and Assessments.
The HCA must convene a work group to recommend changes to systems, policies, and processes related to intake, screening, and assessment for SUD services. The work group must include care providers, payors, people who use drugs, and other individuals recommended by the HCA. The work group must present its recommendations to the Governor and the Legislature by December 1, 2024.
Education and Employment Pathways.
Subject to the availability of funding, the HCA must establish a grant program for providers of employment, education, training, certification, and other supportive programs designed to provide persons recovering from SUDs with employment opportunities. The grant program must employ a low-barrier application and give priority to programs that engage with specific historically underserved communities.
Training and Resources for Parents and Caseworkers.
By June 30, 2024, the HCA must, in consultation with the Department of Children, Youth, and Families (DCYF), develop training for parents of children and transition age youth with SUDs. The training must address specific subjects, be made publicly available, and be promoted to licensed foster parents and caregivers, including any tribally licensed foster parents and tribal caregivers. The DCYF must make appropriate training and opioid overdose reversal medication available for use by caseworkers or employees that may come in contact with individuals experiencing overdose.
Appropriations.
Subject to the availability of funds appropriated for this specific purpose, the HCA shall:
The act contains a severability clause.
The amended bill:
Please refer to the March 20, 2023, recording of the public hearing on the bill.