Although the legislative session is scheduled to end soon, the Legislature is still grappling with the impacts of the recent Blake decision.

The first legislative option to receive a hearing and floor vote was SB 5476. As drafted, the bill would have allowed possession of personal use amounts of controlled substances for individuals over the age of 21. You can read more about the original approach here. After a vigorous floor debate, the bill was significantly amended.

As amended in the Senate, SB 5476 now:

• Adds “knowingly” to statutes criminalizing possession of a controlled substance, legend drug, or counterfeit substance.
• Indicates that possession of a controlled or counterfeit substance is punishable as a gross misdemeanor.
• Indicates that possession of a legend drug is punishable as a misdemeanor.
• Requires that when an individual is charged with a possession crime, the first two legally sufficient cases must divert the individual to treatment. However, any subsequent charge for possession may be diverted or prosecuted at the discretion of the prosecuting attorney.
• Creates the Substance Use Recovery Services Advisory Committee to make recommendations for how to implement a substance use recovery plan for the state. The committee will look at all aspects of the current system and make recommendations to include reforms to state laws to align with the goal of treating substance use disorders. The committee must complete its work by October 1, 2022 and send a report of its recommendations to the Legislature.

AWC is concerned about the costs associated with shifting the prosecution of drug offenses away from superior courts with their established drug court model and into municipal courts, which have never handled this kind of offense and are not currently set up to do so. Requiring cities to develop the infrastructure and expertise to manage drug possession cases, and to create a diversion program in each municipality, will be extremely costly and time-consuming. While some larger cities may be able to accomplish this, many smaller jurisdictions will struggle. Cities are also concerned by the prospect of the state mandate to divert a case to treatment for an individual’s first two possession offenses when there are currently limited or no treatment options in many Washington cities.

SB 5476 received a public hearing on Monday, April 19 in the House Appropriations Committee. We expect the legislation to change several more times in the days ahead, so stay tuned.