Did Drug Possession Just Become Legal in Washington?


Today the State Supreme Court decided State v. Blake, a felony drug possession case from Spokane. Blake had been arrested, and methamphetamine found in her pocket when she was booked into the jail. Blake argued that she did not know the meth was there (she claimed to be wearing someone else’s borrowed pants), and put on the affirmative defense of “unwitting possession”. The jury apparently did not accept her argument that she didn’t know the drugs were in her pocket, and she was convicted and sentenced.

The Court’s decision today explains that Washington is the only state in the country that criminalizes possession of drugs as a strict liability crime. That is to say, the government does not have to prove that the defendant was aware of the possession, or intended to break the law, only that they were in possession of a controlled substance. The Court expressed great dismay with all the possible innocent persons who could be convicted of the crime based on perfectly innocent intent and conduct, using as one example a letter carrier, who was delivering a package with unlawful drugs inside.

The “unwitting possession” defense, the Court explains, is not enough to save this statute. Because it is an affirmative defense, it places the burden of proof on the defendant to demonstrate that they didn’t have knowledge; the opposite of forcing the government to prove that the defendant did have knowledge.

Finally, the Court didn’t just strike down our possession law in cases where the state doesn’t have evidence of knowledge; it struck it down entirely as inconsistent with the notion of due process. “[T]he simple possession statute violates the due process clause because it criminalizes wholly innocent and passive nonconduct on a strict liability basis.” As a result, as of today, “[T]he portion of the simple drug possession statute creating this crime—violates the due process clauses of the state and federal constitutions and is void.”

Simple possession of drugs (not trafficking, delivering, etc.) is now not illegal in Washington. Which is to say, yes; drug possession just became legal in Washington.

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