FINAL BILL REPORT
2SHB 1793
PARTIAL VETO
C 271 L 89
BYHouse Committee on Appropriations (originally sponsored by Representatives Ebersole, Appelwick, Patrick, Wolfe, Haugen, Tate, Crane, Ballard, Brekke, Bowman, Sayan, Brumsickle, Walk, Wood, Dorn, Horn, Valle, Youngsman, Wang, McLean, Cantwell, Basich, Day, Brough, R. Meyers, Rayburn, Moyer, Peery, Winsley, Rasmussen, May, R. Fisher, Holland, Sprenkle, Miller, Rector, S. Wilson, Baugher, Chandler, Cooper, Schmidt, Raiter, Betrozoff, Pruitt, Walker, H. Myers, Nealey, Heavey, Brooks, Ferguson, Padden, Doty, Fuhrman, Van Luven, Silver, D. Sommers, Beck, Spanel, Dellwo, Scott, Inslee, Todd, Morris, K. Wilson, Gallagher, Prince, P. King, O'Brien, Jones, Smith, Hine and G. Fisher)
Creating the Omnibus Alcohol and Controlled Substance Act of 1989.
House Committe on Judiciary
Rereferred House Committee on Appropriations
Senate Committee on Ways & Means
SYNOPSIS AS ENACTED
BACKGROUND:
Drug and alcohol abuse have become an increasingly heavy burden on many of society's institutions. The problem impacts educational, social and law enforcement agencies. A variety of criminal and other laws address the problem in some manner.
In recent years, drug-related crimes of violence by members of youth gangs engaged in illegal drug sales have become more common. Particularly disturbing is the kind of random violence involved in recent shootings from speeding automobiles.
Most drug crimes are covered in the Uniform Controlled Substances Act, and sentencing for felony violations of that act is part of the Sentencing Reform Act. The Uniform Controlled Substances Act contains "schedules" of drugs, with schedule I and II drugs generally being the most addictive or dangerous. Cocaine and opium related drugs, such as heroin, are schedule I and II drugs that are also classified as "narcotic" drugs. The maximum penalties for violations of the Uniform Controlled Substances Act are set in that act. However, the Sentencing Reform Act determines the sentence that is likely to be given in a particular case.
The Sentencing Reform Act provides for presumptive sentences for various ranked felonies, including violations of the Uniform Controlled Substances Act. A presumptive sentence is a narrow range of incarceration time within which a judge is to sentence an offender. The presumptive sentence is based on the "seriousness level" of the crime committed and the criminal history score of the offender. The higher the felony of conviction is ranked, and the higher the offender's criminal history score, the longer the presumptive sentence will be. Presumptive sentences may be departed from by a sentencing judge in exceptional circumstances. If there are sufficient aggravating circumstances, a sentence may be given that exceeds the presumptive range. However, no sentence may exceed the statutory maximum sentence prescribed by the law that creates the offense of which the offender has been convicted.
The Uniform Controlled Substances Act prescribes various maximum penalties for violations. In some instances the otherwise applicable maximum is doubled. If an adult distributes certain drugs to a minor, the maximums are doubled. A second or subsequent conviction for most drug offenses also results in doubling of the maximums. Under the act, it is a misdemeanor to transfer drug paraphernalia, including hypodermic needles, to a person, knowing that the person is likely to use the paraphernalia to take an illegal drug.
The state's Privacy Act generally prohibits the interception, transmission or recording of any private conversation or communication without the consent of all parties concerned. The act, however, provides a number of exceptions to this general prohibition. Four major categories of these exceptions apply mainly to criminal activity. First, certain telephone calls may be recorded. A telephone call may be recorded if it is of an emergency, threatening or harassing nature, or if it involves a hostage holding situation, so long as one party to the call consents to the recording. This exception applies to private citizens as well as government officials and requires no prior authorization of any kind. Second, statements made during arrests and incoming calls to police, fire and emergency personnel may be recorded without prior judicial authorization. Third, a police officer or undercover agent may record a conversation without the consent of all parties if the officer has acquired prior judicial authorization. That authorization may be obtained from any judge or magistrate in person or by telephone and must be based on probable cause to believe that the conversation will involve a felony. Fourth, an exception exists for certain conversations in which no party has consented to the interception. An example of such an interception is wiretapping a phone call between two parties neither of which knows of the wiretap. This exception requires the state attorney general or a county prosecuting attorney to get prior authorization (an "ex parte" order) from a superior court judge. This exception is limited to situations involving national security, threat to human life, arson or riot.
Information obtained through an interception or recording of a private conversation in violation of the Privacy Act is generally inadmissible in court. Information obtained pursuant to an ex parte order, when no party to the conversation has consented to the interception or recording, is also generally inadmissible. There are two exceptions to this general rule of inadmissibility. First, the rule does not apply to prevent admission of the information at the request of a person whose rights have been violated under the Privacy Act. Second, the inadmissibility rule does not apply to prosecutions of crimes that jeopardize national security.
A violation of the Privacy Act is a gross misdemeanor. Persons injured by violations may also bring a civil suit to recover actual damages, attorney fees, costs and liquidated damages of up to $1,000.
Under the state's Uniform Controlled Substances Act, certain property that is used or intended for use in illegal drug activities may be seized by law enforcement or regulatory agencies. These provisions apply only to certain items of personal property such as illegal drugs, drug paraphernalia, drug money, manufacturing equipment, drug containers, and vehicles used to transport drugs. Real property is not covered.
Seizure and forfeiture are civil processes and are independent of the outcome of any criminal charges that might be brought against the owner of the property. The seizing agency must notify the owner of seized property of the right to a hearing. Notification may be by publication. In a forfeiture hearing, the burden of proof is on the owner of the property to show by a preponderance of the evidence that the property either was not used in illegal drug activity or was used without the consent or knowledge of the owner.
Decisions of the state supreme court have authorized public school officials to conduct a warrantless search of a student's locker when an official has reasonable grounds to believe that the locker contains drugs or other contraband.
The law allows for the involuntary treatment of persons suffering from mental disorders and of those suffering from alcohol addiction. While such persons may also be suffering from drug addiction, the involuntary treatment law does not specifically address the treatment needs of drug abusers, and does not allow their treatment at all unless their problems also stem from mental disorders or alcohol abuse.
SUMMARY:
CRIMES AND PENALTIES: Penalties for various drug-related crimes are increased, and the crime of first degree reckless endangerment is created as a class C felony.
The seriousness levels of various drug crimes are increased. Delivery of heroin, cocaine or methamphetamines is increased to a level VIII crime which carries a presumptive sentence of two years for a first time offender. Delivery of heroin or cocaine was previously a level VI crime with a first time offender sentence of 13 months. Delivery of methamphetamines was a level IV crime with a first time offender sentence of six months.
Misdemeanor drug offenses are given a mandatory minimum sentence of one day in jail and a $250 fine. The minimum fine rises to $500 on a second offense. A felony drug conviction carries a mandatory minimum fine of $1,000 for a first offense and $2,000 for a second offense.
Enhancements are also provided for sentences for other drug offenses. An increased maximum fine is authorized for offenses involving two or more kilograms of certain drugs. A fine of $100,000 may be imposed for two kilograms, and an additional fine of $50 per gram may be imposed for amounts above two kilograms. The otherwise applicable maximum penalties are doubled and the presumptive sentence is increased by 24 months for certain drug offenses committed within 1,000 feet of a school or school bus route stop.
The points assigned to an offender for criminal history are increased for prior drug offenses. If an offender is being charged with a drug offense and has prior drug offenses, those prior convictions count three points instead of two in determining the offender's criminal history score. This increase in counting will increase the presumptive sentence for repeat drug offenders.
An additional prohibition is placed in the Uniform Controlled Substances Act against giving hypodermic needles to known drug users. The Department of Social and Health Services is directed to study needle exchange programs in other states and countries.
The crime of first degree reckless endangerment is created. The crime is a class C felony, and involves the discharge of a firearm from a motor vehicle in a reckless manner which creates a substantial risk of death or serious injury to another person.
The Department of Social and Health Services is directed to develop a juvenile offender structured residential program. The department is to develop the program for selected offenders, and to provide enhancements to county detention facilities for inpatient drug treatment, based on the current DSHS "exodus" program. The department is to complete a study of the program by December 31, 1992. The program expires July 1, 1993.
ONE-PARTY CONSENT: A number of changes are made in the Privacy Act to give law enforcement agencies greater authority to intercept, transmit or record conversations that involve illegal drug activities.
Officer Safety. Certain police officers may authorize interceptions and transmissions of private conversations solely for the purpose of protecting the safety of an officer or undercover agent. A police commander or officer above the rank of first line supervisor may authorize such an interception if: (1) at least one party has consented to the interception; (2) the authorizing officer has a reasonable suspicion that the consenting party will be in danger; (3) the conversation will involve illegal drug activity; and (4) the authorization is made in writing. These authorizations do not apply to telephone conversations.
Law enforcement agencies are to make monthly reports to the Office of the Administrator for the Courts indicating the number of authorizations issued and the number of conversations intercepted under these officer safety provisions.
Information obtained through these officer safety interceptions is inadmissible except with the permission of a nonconsenting party or in a trial involving death or injury to an officer. However, officers may testify as to information gained independently of the interception. An agency must destroy records or information obtained through any interception where an officer has not been injured or killed.
Interceptions with Judicial Authorization. Existing provisions for obtaining judicial authorization to intercept a conversation in which one party to the conversation has consented to the interception are altered. The presiding superior court judge in each class AA and A county is to establish a procedure for insuring that a judge or magistrate is on call at all times for purposes of issuing authorizations. The period for which such an authorization is good is extended to 14 days in the case of conversations involving illegal drug transactions. Authorizations in other cases remain good for only seven days. The requirements for specifying the parties to, and circumstances of, the conversation to be intercepted are lessened in drug cases.
Interceptions without Judicial Authorization. Police agencies conducting drug crime investigations are allowed, without prior judicial authorization, to intercept conversations consented to by one of the parties to the conversation. The chief officer of an agency may authorize an interception if there is probable cause to believe the conversation will involve an illegal drug transaction. The authorization must be in writing and must indicate whether an attempt was made to get judicial authorization, and if so, what the outcome of the attempt was.
Police authorizations are good for only 24 hours. An authorization may be extended twice for additional consecutive 24 hours periods on the same probable cause. Any recordings made must be protected from alteration. Within 15 days after an authorization, a court must review the authorization to see if probable cause existed for the agency to authorize the interception, and to see if all procedural requirements for an authorization have been met. If the court finds there was no probable cause or was a procedural defect, any record of information obtained by the interception is to be destroyed. Destruction of a recording will be stayed during an appeal of such a finding. Six months following a determination that an authorization was invalid, the court is to notify nonconsenting parties to the conversation that an unauthorized interception was made. Agencies may seek extensions of this six month period in cases of ongoing criminal investigations.
Intentionally violating these provisions relating to agency authorized interceptions is a class C felony. Civil damages of $25,000 are also available to parties whose privacy rights are violated if the agency has been found not to have had probable cause and also not even to have had a "reasonable suspicion" that the conversation in question would involve illegal drug transactions.
The state attorney general is given authority to prosecute violations of the Privacy Act.
PROPERTY FORFEITURE: Real property is added to the types of property that may be seized and forfeited under the Uniform Controlled Substances Act. Special standards and procedural rules are made applicable to the forfeiture of real property.
In a hearing on forfeiture of real property, the seizing agency must prove that there was a "substantial nexus" between the seized property and the illegal drug activity.
Notice of the right to a hearing must be given to the owner of seized real property in the same manner as notice is given in ordinary civil actions.
Certain limitations apply to the forfeiture of real property in some cases. Giving drugs as bona fide gifts, or possessing small amounts of marijuana, or selling small amounts of marijuana or legend drugs cannot lead to forfeiture. Forfeitures are subject to bona fide security interests. The community property interest of an owner who did not participate in the illegal drug activities cannot be forfeited.
Until July 1, 1995, 25 percent of the proceeds from real property forfeitures will go to the seizing agency, and 75 percent will go to the state. After that date, the percentages will be reversed.
OFF LIMITS ORDERS: A court may enjoin a known drug trafficker from entering an off limits area. A known drug trafficker is someone who has any prior felony drug conviction and has been arrested for a felony drug offense.
An off limits order may be sought in conjunction with any civil action, nuisance abatement action, an action to evict tenants for drug activity, pretrial release of a known drug trafficker, or post conviction sentencing.
A prosecutor, city attorney, or any resident or owner of property in an area affected by drug trafficking may petition a court for a temporary or permanent injunction against a known drug trafficker. Private petitioners must file a bond of at least $1,000. For employment or health reasons, a court may allow exceptions to an off limits order. Permanent orders are for a one year period with extensions possible.
DRUG SITE CLEANUP: Law enforcement agencies are authorized to contract with private firms to clean up illegal drug manufacturing sites. The Department of Ecology is to attempt to recover the cost of cleanup from the responsible parties.
KEG REGISTRATION: A system for registering beer kegs and other large beer containers is established. Registration is required for containers of four gallons or more. The registration system requires retail sellers of beer containers to affix an identification on each container sold. The purpose of the registration is to facilitate tracing of the sellers and purchasers.
Sellers of kegs or other containers must require retail purchasers to supply certain information. A purchaser must provide adequate identification; must sign a receipt; agree in writing not to allow minors to drink the beer; indicate where the beer will be consumed; and post a sworn statement near the keg or container indicating that minors may not drink from it.
The Liquor Control Board is required to develop rules for the identification of beer containers. Selling of an unidentified container is a misdemeanor. A civil penalty of $500 may be imposed for failure to comply with the sales or identification provisions of the act. An intentional violation of those provisions is also a misdemeanor.
The state preempts the entire field of beer container registration. Local ordinances may contain only the same or lessor restrictions and penalties as are provided by the state law.
SPECIAL NARCOTICS UNIT: A special narcotics enforcement unit is established within the state patrol's drug control assistance unit. The new unit is to consist of attorneys, investigators, accountants and support staff.
The special narcotics enforcement unit is responsible for conducting criminal narcotic profiteering investigations and prosecutions; training local undercover narcotics agents; and coordinating interjurisdictional narcotic investigations.
PROSECUTION ASSISTANCE PROGRAM: An advisory committee is established to oversee the operation of a state-wide drug prosecution assistance program. The committee consists of the attorney general, the chief of the Washington State Patrol, both United States attorneys in the state, and three county prosecutors picked by the Washington Association of Prosecuting Attorneys. One of the three county prosecutors is to be selected by the committee to be the project director.
The project director may employ up to five attorneys to act as deputy prosecutors in counties that request help in prosecuting drug cases.
NEIGHBORHOOD BLIGHT: A local government may condemn and acquire individual land parcels if those parcels are "blighted." A property is blighted if it has been abandoned for at least a year and is associated with illegal drug activity. The local government must adopt a resolution declaring the property a blight in the neighborhood. The government can then acquire the property, sell it, or improve it in the public interest.
SCHOOL LOCKER SEARCHES: A school principal may search a student's person, property or locker if the principal has reasonable grounds to believe that the search will yield evidence of the student's violation of the law or school rules. The scope of the search is proper when the methods used are reasonably related to the search objectives and are not excessively intrusive considering the student's age and sex and the nature of the infraction. In addition, the Legislature declares that students do not have a reasonable expectation of privacy in school lockers and that a principal may search all school-issued student lockers at any time without prior notice. If during the search, the principal develops a reasonable suspicion that containers in the locker contain drugs, weapons, or contraband, the principal may search the containers.
INVOLUNTARY TREATMENT: The Uniform Alcoholism and Intoxication Treatment Act is amended to allow for limited involuntary commitment and treatment of drug abusers to the extent that resources allow. Drug addicted persons may be detained for 72 hours of detoxification.
Applicable privileged communications statutes affecting spouses, physicians and registered nurses are amended to allow for a conditional waiver of a privilege in cases of involuntary treatment of alcohol abusers.
Certain definitions are changed or added to allow treatment of a wider variety of alcohol and drug affected persons. The period of allowed involuntary treatment of alcoholics is extended from 30 days to 60 days.
EARLY INTERVENTION: Grants will be provided for the implementation of local school district drug abuse intervention programs in grades kindergarten through 12. The programs are to provide counselling, assessment and referral for treatment, aftercare, student mentor programs, and training for staff, parents, students and the community.
Programs are to be delivered by, or under the supervision of substance abuse intervention specialists. These specialists may be certificated counselors, psychologists, nurses or social workers, or they may be staff from a certified drug treatment center under contract with the district. However, diagnosis, assessment, counseling and aftercare for drug dependency may be performed only by a person with the qualifications required for a counsellor in a state approved treatment program.
The Superintendent of Public Instruction is to select districts to receive grants. Each grant is to be at least $20,000, and districts are to be selected on the basis of district characteristics such as family income levels, truancy rates, juvenile justice referrals, social service caseloads, and community group participation in drug prevention programs. Grants are on a district match basis and may provide no more than 80 percent of a program's cost.
Grant applications must include provisions for comprehensive planning and establishment of an advisory committee, and must contain a needs assessment. Districts receiving grants must send annual program evaluation reports to the Superintendent of Public Instruction.
COMMUNITY MOBILIZATION: A grant program is established in the Governor's office, to be administered by the Department of Community Development, for the purpose of community mobilization against substance abuse. At a minimum, grant applications must include: (1) a description of a community's geographical area; (2) the extent of substance abuse in the community; (3) evidence of active community participation; (4) identification of a community-wide strategy for the prevention, treatment, and enforcement activities; and (5) identification of activities requiring additional or new funding. Communities must provide at least a 25 percent match for any grant. Not more than 50 percent of the funds are to be awarded on a per capita basis, and not less than 50 percent through a competitive allocation process. The Governor is to report to the Legislature by January 1, 1991, regarding the operations of the grant program.
STATE PREEMPTION: The state preempts all local laws on controlled substances and invalidates any local ordinances that have penalties different from those in state law.
Appropriation: A dedicated "drug enforcement and education account" is created. The following appropriations are made from that account:
(1) For increased prison capacity, $8,800,000 for operating costs and $12,505,000 for capital costs, to the Department of Corrections;
(2) For a juvenile offender structured residential program, $1,835,000 to the Department of Social and Health Services;
(3) For interception of inmate phone calls, $175,000 to the Department of Corrections;
(4) For the special narcotics enforcement unit, $940,000 to the Washington State Patrol;
(5) For prosecution assistance, $560,000 to the Department of Community Development;
(6) For involuntary treatment, $4,900,000 to the Department of Social and Health Services;
(7) For early intervention in schools, $10,000,000 to the Superintendent of Public Instruction;
(8) For alcohol and drug abusing pregnant women, $5,500,000 to the Department of Social and Health Services;
(9) For community mobilization, $3,640,000 to the Department of Community Development;
(10) For security in public schools, $3,000,000 to the Superintendent of Public Instruction;
(11) For crime laboratory enhancement, $800,000 to the Washington State Patrol;
(12) For detection and treatment or drug use in juvenile facilities, $625,000 to the Department of Social and Health Services;
(13) For inpatient youth assessment and treatment, $12,000,000 to the Department of Social and Health Services;
(14) For adult correctional facility drug treatment programs, $565,000 to the Department of Corrections;
(15) For work release drug treatment, $110,000 to the Department of Corrections;
(16) For community corrections drug surveillance in King, Pierce and Yakima counties, $1,120,000 to the Department of Corrections;
(17) For "drug abuse resistance education", $230,000 to the Criminal Justice Training Commission;
(18) For methadone treatment, $400,000 to the Department of Social and Health Services;
(19) For "treatment alternatives to street crime," $1,800,000 to the Office of the Administrator for the Courts;
(20) For detection and treatment of drug abuse in adult correctional facilities, $875,000 to the Department of Corrections;
(21) For the "alcohol and drug abuse treatment and shelter act," $10,000,000 to the Department of Social and Health Services;
(22) For law enforcement training in community relations, $150,000 to the Criminal Justice Training Commission.
Revenue: Various taxes are imposed to fund the drug enforcement and education account. Additional taxes of $.01 per liter of wine, $.2344 per liter of wine containing 14 percent or more of alcohol, $2.00 per 31 gallon barrel of beer, $.07 per liter of hard spirits, and $.03 per pack of cigarettes are imposed. A new tax is imposed on non-alcoholic carbonated beverages at a rate which is the equivalent of $.01 per 12 ounce container. This new tax on non-alcoholic beverages is to be paid by the first entity in the state to possess the beverage or the syrup used to make the beverage.
All of these taxes will expire on July 1, 1995. The Legislative Budget Committee will conduct a review prior to the 1995 expiration date. Agencies receiving dedicated funds are directed to submit expenditure plans to the Legislative Budget Committee by December 1, 1989.
VOTES ON FINAL PASSAGE:
House 89 8
Senate 37 10 (Senate amended)
House (House refused to concur)
Free Conference Committee
Senate 38 10
House 80 17
EFFECTIVE:May 7, 1989
June 1, 1989 (Sections 502 and 504)
July 1, 1989 (Sections 229 - 233, 501, 503, and 505 - 509)
Partial Veto Summary: The partial veto removes the provision that declares it illegal to give a hypodermic needle to someone knowing he or she will use the needle to take drugs. The veto also removes a requirement that the Department of Social and Health Services study needle exchange programs in other countries and states. (See VETO MESSAGE)