Legislators are gearing up for a busy session and top of mind this year is a fix to the Blake decision.

In 2021, the Supreme Court determined that the statute that penalized possession of a controlled substance was unconstitutional because it lacked the requirement that a person “knowingly” possessed the substance. The statute had been in effect since 1971. During the 2021 session, the Legislature passed SB 5476 to provide a temporary solution to the ruling. As a part of the bill, the Legislature must enact a permanent fix by July 1, 2023.

At this time, AWC has reviewed a draft proposal, but we expect a bill with these concepts to be introduced soon. The draft proposal would:

• Amend the ‘simple possession’ statutes to require ‘knowing’ possession of a usable amount of controlled substances and classify this as a gross misdemeanor offense.
• Prior to charging, law enforcement and prosecutors would be encouraged to first offer individuals a referral to assessment and services, repealing the requirement of two referrals. Courts would also be required to inform individuals of pretrial diversion programs:
  • If the individual successfully completes the program, the law would require a dismissal of the charge(s).
  • If the individual refuses assessment and services, or if the court determines that the individual will not successfully complete a pretrial diversion program, the court could terminate the program and proceed with a gross misdemeanor offense.
• Also included is:
  • Funding for treatment and services for indigent defendants.
  • Removing barriers to siting opioid treatment facilities by declaring them to be essential public facilities.

AWC’s 2023 legislative agenda includes supporting clarification around the crime of possessing a controlled substance so that individuals, law enforcement, and treatment providers can respond appropriately. For more information on AWC’s legislative position on Blake, please read our fact sheet.