Washington Drug Laws After State v. Blake
In February 2021, the Washington Supreme Court decided State v. Blake and struck down the state’s felony drug possession statute because it did not require proof that a person knew they possessed drugs.
In 2023, the Legislature responded with Senate Bill 5536, effective July 1, 2023. Under current law, knowing possession of a controlled substance and use of a controlled substance in a public place are gross misdemeanors, and the law encourages pretrial diversion and treatment. Possession with intent to deliver, delivery and manufacturing remain felonies.
People with prior convictions under the old possession statute may be able to have those convictions vacated and seek a refund of fines paid.
Drug Charges Kimberly Exe Defends
- Possession With Intent to DeliverFelony charges based on quantity, packaging, cash or messages
- Delivery and DistributionIncluding charges arising from controlled buys and informants
- ManufacturingManufacturing or cultivating controlled substances
- Controlled Substances HomicideDelivery charges where a death is linked to the drugs supplied
- Drug ConspiracyConspiracy and solicitation to deliver controlled substances
- Prescription FraudObtaining controlled substances by fraud or forged prescriptions
- Counterfeit SubstancesPossession or delivery of counterfeit controlled substances
- Sentencing EnhancementsSchool zone, firearm and repeat-offense enhancements
Penalties for Drug Offenses in Washington
Felony drug offenses are sentenced on a separate drug sentencing grid (RCW 9.94A.517) with three seriousness levels. Delivery or possession with intent to deliver drugs such as heroin, fentanyl, cocaine and methamphetamine is a class B felony with a maximum of ten years. Delivery of marijuana outside the licensed market is generally a class C felony.
Penalties can increase significantly with:
- Protected zone enhancements for offenses near schools, school bus stops and other protected locations (RCW 69.50.435)
- Firearm enhancements when a weapon is present, which add mandatory consecutive time
- Second or subsequent offenses, which can double the maximum penalty (RCW 69.50.408)
Felony drug convictions also follow the general felony sentencing rules for offender scores and criminal history.
Drug Court, Diversion and Treatment Alternatives
Treatment-based resolutions are often available in felony drug cases, and they can lead to dismissal or a significantly reduced sentence:
Drug Court
King County’s Adult Drug Diversion Court and Snohomish County’s Adult Drug Treatment Court are therapeutic felony courts for eligible defendants whose charges are related to substance use. Participants who complete treatment and court requirements can have their charges dismissed. Kimberly has experience practicing in Drug Court.
Reduced charges
Depending on the evidence, a delivery or intent-to-deliver charge may be negotiated down to simple possession, a gross misdemeanor that encourages diversion to treatment.
Drug Offender Sentencing Alternative (DOSA)
For eligible felony cases, DOSA replaces part of a prison sentence with treatment and community custody.
Defenses to Drug Charges
Many drug cases are won or lost on how the evidence was obtained. Article I, Section 7 of the Washington Constitution provides stronger privacy protection than the Fourth Amendment, and Washington courts have rejected some exceptions to the warrant requirement that federal courts allow. Common defenses include:
- Suppressing evidence from unlawful stops, vehicle searches, home searches and warrants lacking probable cause
- Challenging constructive possession when drugs were found in a shared car, room or home
- Testing lab analysis, chain of custody and drug identification
- Examining informant reliability and the conduct of controlled buys
- Contesting “intent to deliver” claims based only on quantity, packaging or cash
Drug Charge FAQs
Is drug possession a felony in Washington?
No. Since July 1, 2023, knowing possession of a controlled substance is a gross misdemeanor. Possession with intent to deliver, delivery and manufacturing are still felonies.
Can I vacate an old drug possession conviction?
Possibly. Because State v. Blake held the former possession statute unconstitutional, convictions under that statute can be vacated, and you may be entitled to a refund of fines and fees paid.
What is the difference between possession and possession with intent?
Possession requires proof that you knowingly possessed a controlled substance. Possession with intent to deliver also requires proof that you intended to sell or distribute it, which prosecutors often try to show through quantity, packaging, scales, cash or messages.
Can a drug charge affect my immigration status?
Yes. Nearly any controlled substance offense can have serious immigration consequences for non-citizens. See immigration consequences of criminal charges.
This page provides general information about Washington law. It is not legal advice, and laws change. Contact the office to discuss the specific facts of your case.
