Uniform Controlled Substances Act. The Uniform Controlled Substances Act regulates the manufacture, distribution, and dispensation of controlled substances. It also criminalizes certain conduct related to controlled substances and counterfeit substances. The criminal penalties for violating the Uniform Controlled Substances Act depend upon the nature of the violation and the type of substance.
A "controlled substance" means, a drug or substance included in Schedules I through V, 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" means a controlled substance that has been altered to look like a substance produced or distributed by a manufacturer, distributor, or dispenser. Related provisions regulate legend drugs—prescription drugs.
Among others, crimes contained in the Uniform Controlled Substances Act and related provisions include:
State v. Blake. Washington's statute governing possession of a controlled substance is a strict liability offense. That is, a person can be found guilty of possession without proof that the defendant knew they possessed the substance. In February of this year, the Washington Supreme Court found this statute to be unconstitutional, holding that the Legislature's criminalization of passive conduct with no requirement to prove criminal intent is a violation of due process. This decision invalidated any Washington sentence for simple possession of a controlled substance.
It is unlawful for a person to knowingly possess a controlled substance or counterfeit substance unless the use is subject to a valid prescription.
A person who is guilty of possession of a controlled substance or counterfeit substance is guilty of a gross misdemeanor. Unlawful possession of a legend drug remains a misdemeanor. Where a case involving possession is legally sufficient, the prosecutor shall divert first and second time violations to treatment.
Using or manufacturing drug paraphernalia is not illegal to the extent the drug paraphernalia is for personal use.
The Health Care Authority (HCA) is required to establish a substance use recovery services advisory committee. The HCA must appoint members in consultation with the University of Washington department of psychiatry and behavioral sciences and an organization that represents the interests of people who have been impacted by substance use and the legal system. The committee must submit to the appropriate committees of the Legislature an interim report on the progress of the committee by December 1, 2021, and a final a summary report of the substance use recovery services plan, including recommended changes to law, by October 1, 2022.
Court commissioners may be appointed by presiding judges of superior courts to assist the court in adult criminal cases including resentencing hearings and to vacate convictions pursuant to State v. Blake
Persons confined in correctional facilities entitled to vacation of a conviction or recalculation of an offender score pursuant to State v. Blake may be released from confinement pursuant to a court order.The State v. Blake reimbursement account is created in the state treasury. Moneys in the account may be spent only after appropriation. Expenditures must be used for state and local government costs resulting from the Supreme Court's decision in State v. Blake.
PRO: The war on drugs has harmed families of color for decades and having a minimum statewide standard for treatment of possession cases will be beneficial. The current drug court system is punitive and can create financial hardships. Having a treatment-based system in place will be a better path forward. Prisons and jails do not do anything to support substance use treatment. Going to jail to detox for a few days and then getting turned back out on the streets does nothing to help people. Substance use disorder is a medical and mental health issue and should be addressed as such in a therapeutic manner versus punitive. Drugs will always be around and investments in community-based treatment options should be considered. Generally support the decriminalization of personal use amounts in the bill but it does not fully solve the issue. It is important to not rush and really dig into what is needed for all communities across Washington.
CON: This bill is not a fix. It essentially is the legalization of the distribution of legend drugs and victimizes users. This bill does not stop distribution and there are major concerns about the personal use amount specifically for Fentanyl. The criminalization of drugs does not work. The current laws are designed to hurt people of color. The legal system is not an approach to treating people with substance use disorders. The issue of substance use disorder should be treated as a public health issue and not a criminal issue. The use of Forensic Navigators does not seem appropriate since they are tied to the courts systems and the bill does not establish criteria for the role of the navigators. Creating a gross misdemeanor for individuals under the age of 21 creates a local financial burden.
OTHER: Support maintaining the class C felony for possession and support the juvenile charges but perhaps requiring a mandatory diversion may be better than establishing a personal use amount. Recriminalization to felony level may be better than what is currently proposed in the bill because felonies can be good leverage to get people into treatment. Most possession charges are currently diverted to drug courts, and this bill does not address that, perhaps personal use amounts could just be a misdemeanor. The bill should address a centralized state portal for refunding of LFOs and other expenditure related to the Blake decision. Some areas lack treatment options and it is unclear what the role of the state is in regard to funding. A stable identified funding source is needed for success as well as capital budget investments in community treatment centers. The creation of the account in the bill does not make clear what the Legislature's intent is in regard to supporting concerns about the Blake decision, and LFOs may not be the best way to fund an account since it can be an unreliable revenue source.