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Marysville first city in Washington to re-criminalize drug possession

By Mario Lotmore  |  Lynnwood Times Staff

Marysville, Wash., – March 13, 2021 – On February 25, the Washington State Supreme Court ruled in the case of State v. Blake, No. 96873-0, that RCW 69.50.4013(1) – the statute that criminalized the possession of a controlled substance without a prescription – exceeds the state’s police power and violates the due process clauses of the state and federal constitutions.

The 5-4 decision by the Justices concluded that for decades Washington state legislators were aware that the statute did not include “an intent requirement” and hence also violated the requirement for uniform interpretation of the Uniform Controlled Substances Act among the states.

Therefore, the entire statute was ruled to be unconstitutional. When a statute is declared by the courts to be unconstitutional, it is void. Consequently, police cannot arrest for possession of a controlled substance without a prescription and such possession cannot be prosecuted.

Every case that involved drug possession – direct and indirect convictions related to simple possession – must be reexamined. Washington was the only state in the Union in which prosecutors did not need to prove intent for drug possession.

Because there is no state statute currently prohibiting the possession of a controlled substance within Washington, the City of Marysville chose to re-criminalize the act. Article XI, section 11 of the state constitution authorizes a city to “make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.”

On Monday, March 8, the Marysville City Council unanimously adopted a new ordinance amending city’s municipal code to include intent, making it a gross misdemeanor to possess controlled substances without a prescription.  

Mayor Jon Nehring praised the Council’s action approving the ordinance.

“I commend the City Council for its swift action to address this vacuum and provide the necessary tools for our officers,” said Mayor Nehring. “In Marysville we lead with compassion when it comes to cases involving substance abuse. It is critical to also have consequences available for our police officers and court to hold people accountable for their criminal actions against a community member or business.”

Including the word “knowingly” to the section of the municipal code re-criminalizes drug possession within the city limits of Marysville. The new section – 6.27.030 – now reads:

“(1) It is unlawful for any person to knowingly possess a controlled substance or to possess a controlled substance with intent to use it, 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 or her professional practice, or except as otherwise authorized by chapter 69.50 RCW.”

If convicted, a person would face up to 364 days in jail and a $5,000 fine.

Marysville Police Chief Erik Scairpon applauded the swift action by the Council, stating that it is a means to convince substance abusers seek treatment.

“I appreciate as the Police Chief that our elected officials and the community of Marysville are committed to ensuring our police officers have the tools to address substance abuse and help guide people towards treatment and rehabilitation.”

Since its inception, the city’s embedded social worker program has assisted over 100 people in becoming sober and helped provide housing for over 211 people.

Because the court found the entire statute unconstitutional, replacing it would mean passing an entirely new law that could not be applied retroactively.

Senate Bill 5468, which would make it unlawful for any person to “knowingly” possess a controlled substance has stalled in the Law & Justice committee chaired by Senator Jamie Pedersen (Seattle-D). The legislative session is schedule to end in April.

The bipartisan bill is sponsored by Senators Mullet, Hobbs, Braun, Brown, Hawkins, Holy, King, Muzzall, Padden, Rivers, Salomon, Schoesler, Short, Wagoner, Warnick, and Wilson, L.

Lewis County may be the next municipality to re-criminalize drug possession as county commissioners are currently drafting an ordinance. Unlike a city ordinance, a county ordinance would make possession a felony. A public hearing is scheduled for March 30.

In a press release by the Washington Association of Sheriffs & Police Chiefs, it calls on the Legislature to act and make improvements to those who need help.

“It is now up to the Legislature to decide what efforts will be made to respond to the decision and to combat substance use disorder, including simple possession, use, and the victimization and criminal behavior that can be associated with supporting addiction.”

If SB 5468 dies in the Legislature this session and possession remains legal statewide, it could result in a patchwork of varied drug laws throughout the state.

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