SB 5536, continues to be the vehicle for a long-term solution to the issue of drug possession law following the State v. Blake case in 2021. The bill makes knowing possession of a controlled or counterfeit substance a gross misdemeanor and continues to promote a pretrial diversion program option to divert those willing and able to engage in drug treatment and services. The bill passed out of the fiscal committee last week and is now making its way to the Senate Floor.

The bill has been amended throughout the legislative process and was recently amended in the Senate Ways & Means Committee. Amendatory provisions of note include:

• Removing the statewide preemption of drug paraphernalia regulation.
• Clarifying that public defense attorneys may seek to resolve drug possession charges through a therapeutic court instead of pretrial diversion.
• Requiring a substance use disorder evaluation within seven days and for the evaluation to be provided at no cost and in an accessible location to indigent defendants, the costs of which would be reimbursable to the court by the state.
• Providing WASPC $3.6M to administer community grants to provide behavioral health interventions and services and an additional $2.5M for ongoing Law Enforcement Assisted Diversion grants, subject to appropriation in the state budget.
• Requiring the Washington State Patrol forensic laboratory to complete tests of drugs in possession cases within 45 days.
• Requiring the court to sentence individuals with a simple possession charge who don't comply with treatment to no less than 21 days in jail.

AWC supports SB 5536 because it balances accountability with treatment for people suffering from substance use disorders and unmet behavioral health needs.

According to the Pew Research Center, more than 1 in 9 adults with co-occurring mental illness and substance use disorders are arrested annually. The current system is clearly not working. In order to work, and for the bill to be implementable by local governments and service providers, there needs to be substantial investments from the state.

Meanwhile, HB 1492 aims to address the continued fallout from the Blake case and affected criminal convictions. If enacted, the bill’s impact on cities is as follows:

• Municipal court clerks would be required to work with AOC to establish prioritized list of convictions needing to be vacated.
• Prosecutors must file a motion to vacate the conviction.
• The clerk would be required to conduct a search as to all legal financial obligations (LFO’s) collected by the jurisdiction and a collection agency.
• In some circumstances, indigent defense counsel would need to be provided, with costs paid for by the state.

AWC testified in opposition to the bill due to the prescriptive nature of the requirements and the burden it would place on municipal courts. While we sincerely appreciate the legislature’s funding of $21.5 million dollars in the 2022 budget to offset the costs of repaying LFO’s and vacating criminal convictions, unfortunately HB 1492 adds additional burdens on cities that lack dedicated, ongoing resources to do this work on our own. We continue to support continued state funding for the important work that is already occurring at the local level and ask the legislature not to add these new burdens.

The bill now awaits action on the House floor.