One of the main priorities on the Legislative docket this session, and on the Governor's as well, was to come up with a permanent fix for the 2021 Washington State Supreme Court's Blake vs State of Washington verdict, otherwise known as the Blake decision.

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In effect, Blake ruled that the prevailing State Law at the time regarding felony drug possession was unconstitutional because it did not treat unknowing possession differently than knowing possession of drugs.  Therefore, it violated due process at the State and Federal levels because the law prohibited unknowing possession.

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That meant there was nothing on the books at the State level regarding illegal drug possession.  In the 2021 session, the State House and Senate passed Senate Bill 5476 (SB 5476) to try and "fix" the Blake decision.  Initially the bill would have been a permanent fix.  As the bill worked it's way through the process it became a temporary one with the law sun setting in July 1, 2023.  It meant another fix this session was absolutely necessary

What Drug Possession Laws are in Place?

SB 5476 made knowing possession of illegal drugs a misdemeanor.  The law encouraged prosecutors to push for diversion instead of jail time.  It also required the State Health Care Authority to establish a substance use recovery services advisory committee.  It also provided that if a person arrested for drug possession went through diversion twice, further attempts were not required.  These laws expire July 1st of this year.

Canva/Washington Courts Facebook
Canva/Washington Courts Facebook
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What Happens July 1st?

Things revert to the way it was right after the Blake decision... meaning there will not be a State law regarding drug possession on the books.  On the floor of the State House this past weekend Speaker Laurie Jinkins D-27th District brought the bill up for a vote.  15 Democrats and 40 Republicans voted against Senate Bill 5536 (SB 5536).  Bills that get brought to the floor almost always pass as it is believed the votes are there.  Not this time.

Why Did Republicans vote against the fix?

The original version of SB 5536 would have made knowing possession a gross misdemeanor, an increase in weight from a regular misdemeanor.  It also provided a path for treatment and diversion and the ability to vacate the charge if the diversion program was completed.

Rep. Jim Walsh, R-19
Rep. Jim Walsh, R-19
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Rep. Jim Walsh R-19th District said in a release after the failed passage:

"If SB 5536 had reinstated a 'clean' gross misdemeanor status to the knowing possession and use of drugs like heroin, methamphetamine, and fentanyl, it might have been effective. Instead, it muddied public policy. It required statewide legalization of drug paraphernalia and equipment. It would house people trying to get clean and sober next to people still actively using drugs. And it would have exposed children to environments in which drugs like fentanyl are being used."

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So Now What?

Because the sunset of the temporary Blake fix was known, combined with the unknown status of a permanent fix, has led governments at the city and county level to pass preemptive ordinances.  The Lakewood City Council passed an ordinance in March that made the open use of dangerous drugs a gross misdemeanor.  The City of Spokane is looking to do the same at their May1st meting, but began discussing it back in March.  The cities of Kennewick and Richland have also passed illegal public drug use ordinances with Pasco holding off until the Legislative Session ended.

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Without a firm State Law in place it gives municipalities the ability to pass drug possession laws to govern themselves.  In most cases people will that that is great...more control at the local level.  Except...there are 39 counties and 281 cities in Washington State, theoretically you could have 320 different nuances to illegal drug use ordinances.

You could go from Benton County where the ordinance reads this, to Yakima County where the law is slightly different.  The same applies to driving from Kennewick to Pasco, the law could be slightly different leading to the kind of confusion the Blake fix was supposed to prevent...there's always next year...maybe.

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