Drug Laws in Washington

There are many aspects of the drug laws in the State of Washington, when combined with legal doctrines with unfortunate interpretations and interactions, that render such laws unfair.

This is not to say that drugs like heroin and methamphetamine are not a problem and that true drug dealers should be let off with a slap on the wrist. However, the answer should not be to construct draconian laws and combine them with equally draconian legal doctrines to obtain convictions.

The first issue is that drug possession in Washington is a strict liability crime. What that means is that if you are in possession of an illegal drug, even unknowingly, you are guilty. So, if someone plants a baggie of methamphetamine on you and then calls the police to report you, they can arrest you and charge you with possession.

This should stand in stark contrast with the vast majority of crimes which require a mens rea in order to convict you. A mens rea is a latin term for an "evil intent." For instance, to commit an assault, you must engage in an intentional act. If you accidentally hit someone on your back swing while on the golf course, you did not commit an assault on that person. Even for similar possession crimes like unlawful possession of a firearm, the possession must be done knowingly.

Part of the reason that this is acceptable under the drug statutes is that there is an affirmative defense called "unwitting possession." This defense requires you to prove that you did not know that you possessed the drugs or that you did not know the substance was an illegal drug. This should be somewhat shocking, as typically an accused in not required to prove their innocence. However, in the unfortunate decision of State v. Bradshaw, 52 Wn.2d 528 (2004), the Washington Supreme Court decided that this was not burden shifting, the term used to describe the constitutionally forbidden practice of making criminal defendants prove their innocence, and instead was a valid exercise of legislative authority.

The problem continues. The second issue is that "possession" can even be constructive. This means that the drugs do not have to be on your person, but if you have dominion and control over the substance, the government can convict you. The problem is that dominion and control is poorly defined. You are also assumed to have dominion and control over certain areas like your living space, your car, and the like. So, if you were to let someone house sit and they left they had a drug habit and left some substance in your house, you can again be charged with possession of a controlled substance. If you offered someone a ride in your car and they left a baggie in your car, you can be charged with possession of a controlled substance.

You may think well, with this unwitting possession defense, can't I just tell the jury the drugs weren't mine? Well, sure. But keep in mind that in many cases lawyers, clients, or both do not want the client testifying. This is for various reasons, whether it be nervousness (which can be construed as nerves because one is lying), exposing the client to cross-examination by a skilled prosecutor who wants to put the client in jail, testimony that has facets of it that are embarrassing or my seem unbelievable (they were my friends, I swear!), it can be a bad idea to get up on the witness stand. One major reason is that with many juries it is a lose-lose proposition for the accused. Juries in some jurisdictions tend to believe the police and the prosecutor and think people charge with drug crimes are liars. So not matter what you say, the jury will think you are lying, and the police and prosecution will fully embrace that fact and play off of it.

Further, the unjustness increases when combined with this next issue. Under a certain line of cases, including State v. Williams, 62 Wn. App. 748 (1991), there is no minimum amount of narcotic drug which must be possessed in order to sustain a conviction. That means that you could be convicted for having trace amounts of controlled substance. If that friend of yours left a seemingly empty sandwich bag that once contained methamphetamine at your house, you can be charged with possession of a controlled substance if it has any residence in it at all. If your money has trace amounts of controlled substance on it, you can be charged with possession of a controlled substance.

This next problem is harder to sympathize with, but hopefully the problem is evident. For certain charges, like delivery or a controlled substance, or possession with intent to deliver, the charges can be enhanced in certain areas or in certain circumstances. One of these circumstances occurs within 1000 feet of a school bus stop or bus route. In many areas, this encompasses 90% of the terrain which automatically drastically increases the potential sentence for the offense. In many areas, there is nothing visible to show what is or is not a school bus route, so many sentences are enhanced where the alleged deliverer had no idea they were in a "protected zone."

So, if you keep in mind that delivery of a substance can be any amount and does not have to be for money, you can have some real issues. While in an ideal world, heroin and methamphetamine use and addiction would not be an issue, the reality is that it is. These addicts are usually not civic-minded CEOs of prestigious companies, but are usually impoverished and congregate together out of necessity. Thus, if they are sharing drugs, like passing a needle around, they are now not just in possession, but also delivering a controlled substance to one another. Delivery alone vastly increases the amount of jail for these offenses, so these school bus route and school bus stop enhancements really go above and beyond these already harsher sentences.

You can also factor in the fact that marijuana is also still a controlled substance. Thus, if you were to be passing a joint around, you could be guilty of delivery of a controlled substance, even though possession of marijuana is legal in the State.

Another such enhancement is the so-called "deadly weapon" enhancement. A deadly weapon enhancement makes sense at a surface level, but if you start to look at what actually qualifies as a deadly weapon and what sort of possession you have to have of the "weapon," it starts to make less and less sense. A deadly weapon can really be anything, but several things that qualify outright are brass knuckles, sling shots, billies, sand clubs, and sand bags. You did not misread any of these. You also do not need to even be holding the weapon while committing the crime, it just needs to be in a place where you could get to it if you wanted. Again, the issue is that there is a dramatic sentence enhancement for committing a crime with a deadly weapon. It will also render the offense a strike offense in the "three strikes and you are out" sense.

Many of these issues were created during the largely ineffectual "war on drugs." The political will to come down on drugs and drug offenders was great. They did not garner much sympathy in the courts, and the government obtained many rulings which heavily favored the carrying out of this so-called war, which also may have arisen out of the sentiment that going after these drugs with convictions was the right thing to do. However, even now with a softer stance on certain substances, like marijuana, and even less harshness in laws surrounding other offenses which many would consider to be more heinous, like crimes against children and sex crimes, the drug laws remain unchanged.

The reasons are somewhat obvious. It would very unfavorable politically to come out as soft on drugs or soft on crime by creating sensible drug laws and closing some of these seeming loop-holes which favor the government in the prosecution of these crimes. Fortunately, there is finally some traction gaining in the area of criminal justice reform and we can only hope that the drug laws are re-examined and made to be more sensible.