AN ACT Relating to controlled substances; amending RCW 9.94A.080, 9.94A.150, 9.94A.370, 9.94A.450, and 69.50.401; reenacting and amending RCW 9.94A.120; adding new sections to chapter 9.94A RCW; prescribing penalties; and providing for submission of this act to a vote of the people.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. A new section is added to chapter 9.94A RCW to read as follows:

As used in this chapter, "dangerous drug" means the following:

(1) Any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of these isomers, esters, ethers, and salts is possible within the specific chemical designation:

(a) Acetylmethadol;

(b) Alfentanil;

(d) Alphacetylmethadol;

(e) Alphameprodine;

(f) Alphamethadol;

(g) Alpha-methyl!shfent!shanyl (N-[1-alpha-methyl-beta-phenyl) ethyl-4-pi!shperi!shdyl] pro!shpion!shanl!shlide; 1-(1-methyl-2-phenyl!shethyl)-4-(N-pro!shpani!shlido) pi!shperi!shdine);

(h) Benzethidine;

(i) Betacetylmethadol;

(j) Betameprodine;

(k) Betamethadol;

(l) Betaprodine;

(m) Clonitazene;

(n) Dextromoramide;

(o) Diampromide;

(p) Diethylthiambutene;

(q) Difenoxin;

(r) Dimenoxadol;

(s) Dimepheptanol;

(t) Dimethylthiambutene;

(u) Dioxaphetyl butyrate;

(v) Dipipanone;

(w) Ethylmethylthiambutene;

(x) Etonitazene;

(y) Etoxeridine;

(z) Furethidine;

(aa) Hydroxypethidine;

(bb) Ketobemidone;

(cc) Levomoramide;

(dd) Levophenacylmorphan;

(ee) Morpheridine;

(ff) Noracymethadol;

(gg) Norlevorphanol;

(hh) Normethadone;

(ii) Norpipanone;

(jj) Phenadoxone;

(kk) Phenampromide;

(ll) Phenomorphan;

(mm) Phenoperidine;

(nn) Piritramide;

(oo) Propheptazine;

(pp) Properidine;

(qq) Propiram;

(rr) Racemoramide;

(ss) Tilidine;

(tt) Trimeperidine.

(2) Any of the following opium derivatives, their salts, isomers, and salts of isomers, whenever the existence of these salts, isomers, and salts of isomers is possible within the specific chemical designation:

(a) Acetorphine;

(b) Acetyldihydrocodeine;

(d) Codeine methylbromide;

(e) Codeine-N-Oxide;

(f) Cyprenorphine;

(g) Desomorphine;

(h) Dihydromorphine;

(i) Drotebanol;

(j) Etorphine (except hydrochloride salt);

(k) Heroin;

(l) Hydromorphinol;

(m) Methyldesorphine;

(n) Methyldihydromorphine;

(o) Morphine methylbromide;

(p) Morphine methylsulfonate;

(q) Morphine-N-Oxide;

(r) Myrophine;

(s) Nicocodeine;

(t) Nicomorphine;

(u) Normorphine;

(v) Pholcodine;

(w) Thebacon.

(3) Any material, compound, mixture, or preparation which contains any quantity of the following hallucinogenic substances, or which contains any of its salts, isomers, and salts of isomers, whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation including the optical, position, and geometric isomers:

(a) 3,4-methylenedioxy amphetamine;

(b) 5-methoxy-3,4-methylenedioxy amphetamine;

(d) 4-bromo-2,5-dimethoxy-amphetamine: Some trade or other names: 4-bromo-2,5-dimethyloxy-alpha-methylphenethylamine; 4-bromo-2,5-DMA;

(e) 2,5-dimethoxyamphetamine: Some trade or other names: 2,5-dimethoxy- alpha-methylphenethylamine; 2,5-DMA;

(f) 4-methoxyamphetamine: Some trade or other names: 4-methoxy-alpha- methylphenethylamine; par!sha!shmeth!shoxy!sham!shphe!shta!shmine; PMA;

(g) 4-methyl-2,5-dimethoxyamphetamine: Some trade or other names: 4- methyl-2,5-dimethoxy-alpha-methylphenethylamine; "DOM"; "STP";

(h) Bufotenine: Some trade or other names: 3-(beta-Dimethylaminoethyl)- 5-hydroxindole; 3-(2-di!shmeth!shy!shlam!shin!sho!she!shthyl)-5-indolol; N, N-di!shmeth!shyl!shse!shro!shto!shnin; 5-hydroxy-N,N-dimethyltryptamine; map!shpine;

(i) Diethyltryptamine: Some trade or other names: N,N-Diethyltryptamine; DET;

(j) Dimethyltryptamine: Some trade or other names: DMT;

(k) Ibogaine: Some trade or other names: 7-Ethyl-6,6 beta,7,8,9,10,12,13,- octahydro-2-methoxy-6,9!shmeth!sha!shno-5H-pyndo (1',2'1,2) azepino (5,4-b) indole; Ta!shber!shnan!shthe iboga;

(l) Lysergic acid diethylamide;

(m) Marihuana;

(n) Mescaline;

(o) Parahexyl-7374; some trade or other names: 3-Hexyl-1-hydroxy-7, 8, 9, 10-tetrahydro-6, 6, 9-trimethyl-6H-dibenzo[b,d]pyran; synhexyl;

(p) Peyote, meaning all parts of the plant presently classified botanically as Lophophora Williamsii Lemaire, whether growing or not, the seeds thereof, any extract from any part of such plant, and every compound, manufacture, salts, derivative, mixture, or preparation of such plant, its seeds, or extracts (interprets 21 U.S.C. Sec. 812(c), Schedule I(c)(12));

(q) N-ethyl-3-piperidyl benzilate;

(r) N-methyl-3-piperidyl benzilate;

(s) Psilocybin;

(t) Psilocyn;

(u) Tetrahydrocannabinols, synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, specifically, and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as the following:

(i) Delta 1 - cis - or trans

!ixtetrahydrocannabinol, and their optical isomers;

(ii) Delta 6 - cis - or trans

!ixtetrahydrocannabinol, and their optical isomers;

(iii) Delta 3.4 - cis - or trans

!ixtetrahydrocannabinol, and its optical isomers;

!ix(Since nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical designation of atomic positions covered, are all included.)

(v) Ethylamine analog of phencyclidine: Some trade or other names: N-ethyl-1phenylcyclohexalymine, (1-phe!shnyl!shcy!shclo!shhexl) ethylamine; N-(1-phe!shnyl!shcy!shclo!shhex!shyl)ethylamine; cyclohexamine; PCE;

(w) Pyrrolidine analog of phencyclidine: Some trade or other names: 1-(1-phencyclohexyl)pyrrolidine; PCPy; PHP;

(x) Thiophene analog of phencyclidine: Some trade or other names: 1-(1-[2-thenyl]-cyclohexly)-pipendine; 2-thienylanalog of phencyclidine; TPCP; TCP.

(4) Any material compound, mixture, or preparation which contains any quantity of mecloqualone having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

(a) Mecloqualone;

(b) Methaqualone.

(5) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, and salts of isomers:

(a) Fenethyline;

(b) N-ethylamphetamine;

(c) 3-methylfentanyl (N-(3-methyl-1-(2-phenylethyl)-4-piperidyl)-N-phenylpropanamide), its optical and geometric isomers, salts and salts of isomers;

(d) 3,4-methylenedioxymethamphetamine (MDMA), its optical, positional and geometric isomers, salts and salts of isomers;

(e) 1-methyl-4-phenyl-4-propionoxy-piperidine (MPPP), its optical isomers, salts, and salts of isomers;

(f) 1-(2-phenylethyl)-4-phenyl-4-acetyloxypiperidine (PEPAP), its optical isomers, salts and salts of isomers. (6) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate, excluding apomorphine, dextrorphan, nalbuphine, naloxone, and naltrexone, and their respective salts, but including the following:

(a) Raw opium;

(b) Opium extracts;

(d) Powdered opium;

(e) Granulated opium;

(f) Tincture of opium;

(g) Codeine;

(h) Ethylmorphine;

(i) Etorphine hydrochloride;

(j) Hydrocodone;

(k) Hydromorphone;

(l) Metopon;

(m) Morphine;

(n) Oxycodone;

(o) Oxymorphone; and

(p) Thebaine.

(7) Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in subsection (6) of this section, but not including the isoquinoline alkaloids of opium.

(8) Opium poppy and poppy straw.

(9) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgonine.

(10) Methylbenzoylecgonine (cocaine -- its salts, optical isomers, and salts of optical isomers).

(11) Concentrate of poppy straw (The crude extract of poppy straw in either liquid, solid, or powder form which contains the phenanthrine alkaloids of the opium poppy.)

(12) Any of the following opiates, including its isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of such isomers, esters, ethers, and salts is possible within the specific chemical designation, dextrorphan and levopropoxyphene excepted:

(a) Alphaprodine;

(b) Anileridine;

(d) Bulk dextropropoxyphene (nondosage forms);

(e) Dihydrocodeine;

(f) Diphenoxylate;

(g) Fentanyl;

(h) Isomethadone;

(i) Levomethorphan;

(j) Levorphanol;

(k) Metazocine;

(l) Methadone;

(m) Methadone‑-Intermediate, 4-cyano-2-dimethylamino-4, 4-diphenyl butane;

(n) Moramide‑-Intermediate, 2-methyl-3-morpholino-1, 1-diphenylpropane-carboxylic acid;

(o) Pethidine (meperidene);

(p) Pethidine‑-Intermediate‑-A, 4-cyano-1-methyl-4-phenylpiperidine;

(q) Pethidine‑-Intermediate‑-B, ethyl-4-phenylpiperidine-4-carboxylate;

(r) Pethidine‑-Intermediate‑-C, 1-methyl-4-phenylpiperidine-4-carboxylic acid;

(s) Phenazocine;

(t) Piminodine;

(u) Racemethorphan;

(v) Racemorphan;

(w) Sufentanil.

(13) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:

(a) Amphetamine, its salts, optical isomers, and salts of its optical isomers;

(b) Methamphetamine, its salts, isomers, and salts of its isomers;

(d) Methylphenidate.

(14) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

(a) Amobarbital;

(b) Pentobarbital;

(d) Secobarbital.

(15) Any material, compound, mixture, or preparation which contains any quantity of the following substances:

(a) Immediate precursor to amphetamine and methamphetamine;

(b) Phenylacetone: Some trade or other names phenyl-2-propanone, P2P, benzyl methyl ketone, methyl benzyl ketone;

(i) 1-phenylcyclohexylamine;

(ii) 1-piperidinocyclohexanecarbonitrile (PCC).

Sec. 2. Section 12, chapter 137, Laws of 1981 as last amended by section 20, chapter 257, Laws of 1986 and by section 3, chapter 301, Laws of 1986 and by section 4, chapter 301, Laws of 1986 and RCW 9.94A.120 are each reenacted and amended to read as follows:

When a person is convicted of a felony, the court shall impose punishment as provided in this section.

(1) Except as authorized in subsections (2), (5), and (7) of this section, the court shall impose a sentence within the sentence range for the offense.

(2) The court may impose a sentence outside the standard sentence range for that offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.

(3) Whenever a sentence outside the standard range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law. A sentence outside the standard range shall be a determinate sentence.

(4) (a) An offender convicted of the crime of murder in the first degree shall be sentenced to a term of total confinement of not less than twenty years. An offender convicted of the crime of assault in the first degree where the offender used force or means likely to result in death or intended to kill the victim shall be sentenced to a term of total confinement of not less than five years. An offender convicted of the crime of rape in the first degree shall be sentenced to a term of total confinement of not less than three years, and shall not be eligible for furlough, work release or other authorized leave of absence from the correctional facility during such minimum three year term except for the purpose of commitment to an inpatient treatment facility. The foregoing minimum terms of total confinement are mandatory and shall not be varied or modified as provided in subsection (2) of this section.

(b) An offender convicted of the unlawful possession of five ounces or more of a dangerous drug or of unlawfully giving, delivering, or selling a dangerous drug shall be sentenced to a term of total confinement of not less than five years. This minimum term of total confinement is mandatory and shall not be suspended or deferred nor be varied or modified as provided in subsection (2), (5), or (7) of this section. In addition, the offender shall not be eligible:

(i) For time credit reductions which reduce the period of total confinement below this five-year minimum;

(ii) To participate in any work release program prior to the expiration of this five-year period; or

(iii) For parole or community supervision prior to the expiration of this five-year period.

(5) In sentencing a first-time offender the court may waive the imposition of a sentence within the sentence range and impose a sentence which may include up to ninety days of confinement in a facility operated or utilized under contract by the county and a requirement that the offender refrain from committing new offenses. The sentence may also include up to two years of community supervision, which, in addition to crime-related prohibitions, may include requirements that the offender perform any one or more of the following:

(a) Devote time to a specific employment or occupation;

(b) Undergo available outpatient treatment for up to two years, or inpatient treatment not to exceed the standard range of confinement for that offense;

(d) Remain within prescribed geographical boundaries and notify the court or the community corrections officer of any change in the offender's address or employment;

(e) Report as directed to the court and a community corrections officer; or

(f) Pay a fine and/or accomplish some community service work.

(6) If a sentence range has not been established for the defendant's crime, the court shall impose a determinate sentence which may include not more than one year of confinement, community service work, a term of community supervision not to exceed one year, and/or a fine. The court may impose a sentence which provides more than one year of confinement if the court finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.

(7) (a) When an offender is convicted of a sex offense other than a violation of RCW 9A.44.040 or RCW 9A.44.050 and has no prior convictions for a sex offense or any other felony sexual offenses in this or any other state, the sentencing court, on its own motion or the motion of the state or the defendant, may order an examination to determine whether the defendant is amenable to treatment.

After receipt of the reports, the court shall then determine whether the offender and the community will benefit from use of this special sexual offender sentencing alternative. If the court determines that both the offender and the community will benefit from use of this provision, the court shall then impose a sentence within the sentence range and, if this sentence is less than six years of confinement, the court may suspend the execution of the sentence and place the offender on community supervision for up to two years. As a condition of the suspended sentence, the court may impose other sentence conditions including up to six months of confinement, not to exceed the sentence range of confinement for that offense, crime-related prohibitions, and requirements that the offender perform any one or more of the following:

(i) Devote time to a specific employment or occupation;

(ii) Undergo available outpatient sex offender treatment for up to two years, or inpatient sex offender treatment not to exceed the standard range of confinement for that offense. A community mental health center may not be used for such treatment unless it has an appropriate program designed for sex offender treatment;

(iii) Remain within prescribed geographical boundaries and notify the court or the community corrections officer of any change in the offender's address or employment;

(iv) Report as directed to the court and a community corrections officer;

(v) Pay a fine, accomplish some community service work, or any combination thereof; or

(vi) Make recoupment to the victim for the cost of any counseling required as a result of the offender's crime.

If the offender violates these sentence conditions the court may revoke the suspension and order execution of the sentence. All confinement time served during the period of community supervision shall be credited to the offender if the suspended sentence is revoked.

(b) When an offender is convicted of any felony sexual offense and is sentenced on or after July 1, 1987, to a term of confinement of more than one year but less than six years, the sentencing court may, on its own motion or on the motion of the offender or the state, request the department of corrections to evaluate whether the offender is amenable to treatment and the department may place the offender in a treatment program within a correctional facility operated by the department.

If the offender completes the treatment program before the expiration of his term of confinement, the department of corrections may request the court to convert the balance of confinement to community supervision and to place conditions on the offender including crime-related prohibitions and requirements that the offender perform any one or more of the following:

(i) Devote time to a specific employment or occupation;

(ii) Remain within prescribed geographical boundaries and notify the court or the community corrections officer of any change in the offender's address or employment;

(iii) Report as directed to the court and a community corrections officer;

(iv) Undergo available outpatient treatment.

If the offender violates any of the terms of his community supervision, the court may order the offender to serve out the balance of his community supervision term in confinement in the custody of the department of corrections.

Nothing in (b) of this subsection shall confer eligibility for such programs for offenders convicted and sentenced prior to July 1, 1987.

After June 30, 1993, (b) of this subsection shall cease to have effect.

(c) Whenever a court sentences a person convicted of a sex offense committed after July 1, 1986, to a term of confinement of more than one year, including a sentence under (b) of this subsection, the court may also order, in addition to the other terms of the sentence, that the offender, upon release from confinement, serve up to two years of community supervision. The conditions of supervision shall be limited to:

(i) Crime-related provisions;

(ii) A requirement that the offender report to a community corrections officer at regular intervals; and

(iii) A requirement to remain within or without stated geographical boundaries.

The length and conditions of supervision shall be set by the court at the time of sentencing. However, within thirty days prior to release from confinement and throughout the period of supervision, the length and conditions of supervision may be modified by the sentencing court, upon motion of the department of corrections, the offender, or the prosecuting attorney. The period of supervision shall be tolled during any time the offender is in confinement for any reason. In no case may the period of supervision, in combination with the other terms of the offender's sentence, exceed the statutory maximum term for the offender's crime, as set forth in RCW 9A.20.021.

If the offender violates any condition of supervision, the sentencing court, after a hearing conducted in the same manner as provided for in RCW 9.94A.200, may order the offender to be confined for up to sixty days in the county jail at state expense from funds provided for this purpose to the department of corrections. Reimbursement rates for such purposes shall be established based on a formula determined by the office of financial management and reestablished each even-numbered year. An offender may be held in jail at state expense pending the hearing, and any time served while awaiting the hearing shall be credited against confinement imposed for a violation. Even after the period of supervision has expired, an offender may be confined for a violation occurring during the period of supervision. The court shall retain jurisdiction for the purpose of holding the violation hearing and imposing a sanction.

(8) If the court imposes a sentence requiring confinement of thirty days or less, the court may, in its discretion, specify that the sentence be served on consecutive or intermittent days. A sentence requiring more than thirty days of confinement shall be served on consecutive days. Local jail administrators may schedule court-ordered intermittent sentences as space permits.

(9) If a sentence imposed includes a fine or restitution, the sentence shall specify a reasonable manner and time in which the fine or restitution shall be paid. In any sentence under this chapter the court may also require the offender to make such monetary payments, on such terms as it deems appropriate under the circumstances, as are necessary (a) to pay court costs, including reimbursement of the state for costs of extradition if return to this state by extradition was required, (b) to make recoupment of the cost of defense attorney's fees if counsel is provided at public expense, (c) to contribute to a county or interlocal drug fund, and (d) to make such other payments as provided by law. All monetary payments shall be ordered paid by no later than ten years after the date of the judgment of conviction.

(10) Except as provided under RCW 9.94A.140(1), a court may not impose a sentence providing for a term of confinement or community supervision which exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW.

(11) All offenders sentenced to terms involving community supervision, community service, restitution, or fines shall be under the supervision of the secretary of ((~~the department~~)) corrections or such person as the secretary may designate and shall follow implicitly the instructions of the secretary including reporting as directed to a community corrections officer, remaining within prescribed geographical boundaries, and notifying the community corrections officer of any change in the offender's address or employment.

(12) The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.

(13) A departure from the standards in RCW 9.94A.400(1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in subsections (2) and (3) of this section, and may be appealed by the defendant or the state as set forth in RCW 9.94A.210(2) through (6).

(14) The court shall order restitution whenever the offender is convicted of a felony that results in injury to any person or damage to or loss of property, whether the offender is sentenced to confinement or placed under community supervision, unless extraordinary circumstances exist that make restitution inappropriate in the court's judgment. The court shall set forth the extraordinary circumstances in the record if it does not order restitution.

(15) The court shall order an offender convicted of the unlawful possession of five ounces or more of a dangerous drug or of unlawfully giving, delivering, or selling a dangerous drug to pay the total costs of confinement of the offender for the mandatory five-year minimum term of total confinement. These costs shall be a debt of the offender and subject to collection as provided by law for the collection of civil judgments.

Sec. 3. Section 8, chapter 137, Laws of 1981 and RCW 9.94A.080 are each amended to read as follows:

(1) The prosecutor and the attorney for the defendant, or the defendant when acting pro se, may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea to a charged offense or to a lesser or related offense, the prosecutor will do any of the following:

((~~(1)~~)) (a) Move for dismissal of other charges or counts;

((~~(2)~~)) (b) Recommend a particular sentence within the sentence range applicable to the offense or offenses to which the offender pled guilty;

((~~(3)~~)) (c) Recommend a particular sentence outside of the sentence range;

((~~(4)~~)) (d) Agree to file a particular charge or count;

((~~(5)~~)) (e) Agree not to file other charges or counts; or

((~~(6)~~)) (f) Make any other promise to the defendant, except that in no instance may the prosecutor agree not to allege prior convictions.

(2) Subsection (1) of this section notwithstanding, no agreement may be made under subsection (1) of this section when the offender was arrested for the unlawful possession of five ounces or more of a dangerous drug or of unlawfully giving, delivering, or selling a dangerous drug unless the offender has given information which has led to the arrest, conviction, and incarceration of another person for unlawfully possessing five ounces or more of a dangerous drug or of unlawfully giving, delivering, or selling a dangerous drug.

(3) The court shall not participate in any discussions under this section.

NEW SECTION. Sec. 4. A new section is added to chapter 9.94A RCW to read as follows:

If a person arrested for the unlawful possession of five ounces or more of a dangerous drug or of unlawfully giving, delivering, or selling a dangerous drug is charged with a different offense based on the same conduct or activity for which the person was arrested, the prosecutor shall file a statement with the court giving the reasons for the disparity.

Sec. 5. Section 15, chapter 137, Laws of 1981 as last amended by section 8, chapter 209, Laws of 1984 and RCW 9.94A.150 are each amended to read as follows:

No person serving a sentence imposed pursuant to this chapter shall leave the confines of the correctional facility or be released prior to the expiration of the sentence except as follows:

(1) Except as provided in RCW 9.94A.120(4)(b), the terms of the sentence may be reduced by earned early release time in accordance with procedures developed and promulgated by the department. The earned early release time shall be for good behavior and good performance, as determined by the department. In no case shall the aggregate earned early release time exceed one-third of the sentence;

(2) An offender may leave a correctional facility pursuant to an authorized furlough or leave of absence. In addition, offenders may leave a correctional facility when in the custody of a corrections officer or officers;

(3) The governor, upon recommendation from the clemency and pardons board, may grant an extraordinary release for reasons of serious health problems, senility, advanced age, extraordinary meritorious acts, or other extraordinary circumstances;

(4) If the sentence of confinement is in excess of twelve months but not in excess of three years, no more than the final three months of the sentence may be served in partial confinement designed to aid the offender in finding work and reestablishing him or herself in the community. If the sentence of confinement is in excess of three years, no more than the final six months of the sentence may be served in such partial confinement;

(5) The governor may pardon any offender;

(6) The department of corrections may release an offender from confinement any time within ten days before a release date calculated under this section; and

(7) An offender may leave a correctional facility prior to completion of his sentence if the sentence has been reduced as provided in RCW 9.94A.160.

Sec. 6. Section 8, chapter 115, Laws of 1983 as last amended by section 26, chapter 257, Laws of 1986 and RCW 9.94A.370 are each amended to read as follows:

(1) Subject to RCW 9.94A.120(4)(b), the intersection of the column defined by the offender score and the row defined by the offense seriousness score determines the presumptive sentencing range (see RCW 9.94A.310, (Table 1)). The additional time for deadly weapon findings shall be added to the entire presumptive sentence range. The court may impose any sentence within the range that it deems appropriate. All presumptive sentence ranges are expressed in terms of total confinement.

(2) In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing. Acknowledgement includes not objecting to information stated in the presentence reports. Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point. The facts shall be deemed proved at the hearing by a preponderance of the evidence. Facts that establish the elements of a more serious crime or additional crimes may not be used to go outside the presumptive sentence range except upon stipulation or when specifically provided for in RCW 9.94A.390(2) (c) and (d).

Sec. 7. Section 16, chapter 115, Laws of 1983 and RCW 9.94A.450 are each amended to read as follows:

STANDARD: (1) Except as provided in subsection (2) of this section, a defendant will normally be expected to plead guilty to the charge or charges which adequately describe the nature of his or her criminal conduct or go to trial.

(2) Except as provided in RCW 9.94A.080(2), in certain circumstances((,)) a plea agreement with a defendant in exchange for a plea of guilty to a charge or charges that may not fully describe the nature of his or her criminal conduct may be necessary and in the public interest. Such situations may include the following:

(a) Evidentiary problems which make conviction on the original charges doubtful;

(b) The defendant's willingness to cooperate in the investigation or prosecution of others whose criminal conduct is more serious or represents a greater public threat;

(d) The discovery of facts which mitigate the seriousness of the defendant's conduct;

(e) The correction of errors in the initial charging decision;

(f) The defendant's history with respect to criminal activity;

(g) The nature and seriousness of the offense or offenses charged;

(h) The probable effect on witnesses.

Sec. 8. Section 69.50.401, chapter 308, Laws of 1971 ex. sess. as last amended by section 1, chapter 67, Laws of 1979 and RCW 69.50.401 are each amended to read as follows:

(a) Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.

(1) Subject to RCW 9.94A.120(4)(b), any person who violates this subsection with respect to:

(i) a controlled substance classified in Schedule I or II which is a narcotic drug, is guilty of a crime and upon conviction may be imprisoned for not more than ten years, or fined not more than twenty-five thousand dollars, or both;

(ii) any other controlled substance classified in Schedule I, II, or III, is guilty of a crime and upon conviction may be imprisoned for not more than five years, fined not more than ten thousand dollars, or both;

(iii) a substance classified in Schedule IV, is guilty of a crime and upon conviction may be imprisoned for not more than five years, fined not more than ten thousand dollars, or both;

(iv) a substance classified in Schedule V, is guilty of a crime and upon conviction may be imprisoned for not more than five years, fined not more than ten thousand dollars, or both.

(b) Except as authorized by this chapter, it is unlawful for any person to create, deliver, or possess a counterfeit substance.

(1) Any person who violates this subsection with respect to:

(i) a counterfeit substance classified in Schedule I or II which is a narcotic drug, is guilty of a crime and upon conviction may be imprisoned for not more than ten years, fined not more than twenty-five thousand dollars, or both;

(ii) any other counterfeit substance classified in Schedule I, II, or III, is guilty of a crime and upon conviction may be imprisoned for not more than five years, fined not more than ten thousand dollars, or both;

(iii) a counterfeit substance classified in Schedule IV, is guilty of a crime and upon conviction may be imprisoned for not more than five years, fined not more than ten thousand dollars, or both;

(iv) a counterfeit substance classified in Schedule V, is guilty of a crime and upon conviction may be imprisoned for not more than five years, fined not more than ten thousand dollars, or both.

(c) It is unlawful, except as authorized in this chapter and chapter 69.41 RCW, for any person to offer, arrange, or negotiate for the sale, gift, delivery, dispensing, distribution, or administration of a controlled substance to any person and then sell, give, deliver, dispense, distribute, or administer to that person any other liquid, substance, or material in lieu of such controlled substance. Any person who violates this subsection is guilty of a crime and upon conviction may be imprisoned for not more than five years, fined not more than ten thousand dollars, or both.

(d) It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this chapter. Any person who violates this subsection is guilty of a crime, and upon conviction may be imprisoned for not more than five years, fined not more than ten thousand dollars, or both, except as provided for in subsection (e) of this section.

(e) Except as provided for in subsection (a)(1)(ii) of this section any person found guilty of possession of forty grams or less of marihuana shall be guilty of a misdemeanor.

This section shall not apply to offenses defined and punishable under the provisions of RCW 69.50.410.

NEW SECTION. Sec. 9. This act shall be submitted to the people for their adoption and ratification, or rejection, at the next succeeding general election to be held in this state, in accordance with Article II, section 1 of the state Constitution, as amended, and the laws adopted to facilitate the operation thereof.