<em>Blake</em> fix bill passes Legislature during one-day special session

On Tuesday, May 16, the Legislature convened for the first special session in six years. The purpose of the session was to reach agreement on the so-called “Blake fix” to permanently address the criminality of drug possession and use in Washington in the wake of the state Supreme Court’s 2021 State v. Blake decision. The bill, SB 5536, passed with bipartisan support: the Senate voted 43-6, and the vote was 83-13 (2 excused) in the House. The Governor signed the bill last week as well. Much of the new law will be effective on July 1, 2023.

As enacted, the bill does the following:

• Establishes a gross misdemeanor for (1) knowing possession; and (2) knowing use, for both a counterfeit substance and a controlled substance. This covers fentanyl and other opioids, methamphetamine, heroin, cocaine, and other “hard” drugs.
• “Use” is defined as introducing the substance into the human body by injection, inhalation, ingestion or any other means.
• Retains the current misdemeanor for legend drugs, which are prescription medications that are not a controlled substance.
• Limits the maximum penalty for an individual’s first two convictions to 180 days in jail and a $1,000 fine. Beginning with the third conviction, an individual may be sentenced up to 364 days in jail.
• Law enforcement and the prosecuting attorney are encouraged to offer a referral to treatment in lieu of prosecution.
• Establishes a pre-trial diversion program that must be agreed to by the prosecuting attorney in each case. The pre-trial diversion program created by the bill requires use of a recovery navigator, an arrest and jail alternative, or a law enforcement assisted diversion program. AWC and other stakeholders believe the pre-trial diversion program as created is not likely functional in most communities due to a lack of resources. As a result, communities will be largely relying on their current legal systems in place, including any diversion programs, therapeutic courts, community courts, and traditional criminal pathways. If the individual completes six months of substantial compliance with treatment, the court must vacate the conviction.
• If an individual refuses treatment and is convicted, the court may order substance abuse treatment as part of their post-conviction conditions.
• Preempts local governments from adopting or enforcing drug paraphernalia ordinances, except that local governments retain the ability to enact laws and ordinances related to the establishment and regulation of harm reduction services. Harm reduction services are commonly called “needle exchange” though they provide many more services.
• Opioid use disorder treatment facilities, including mobile and fixed-site locations, recovery residences, and harm reduction programs (except safe injection sites) are considered essential public facilities. Cities may only regulate siting of these facilities to the same extend that regulations are applied to other essential public health facilities and health care settings.
• Public notice to appropriate media outlets is required when siting an opioid use disorder treatment facility, rather than a Department of Health public hearing.
• The law enforcement assisted diversion pilot program is converted into an ongoing grant program.

Legislators from both sides of the aisle agree that this issue is not “done.” There is agreement by Republicans and Democrats alike that the state will need to do more in the future to expand and refine treatment opportunities to ensure treatment is accessible to every person suffering from substance use disorder, behavioral health disorder, and mental health disorder regardless of where they live and the barriers they face in recovery. AWC will continue to support and advocate for expanded state investments in treatment across the state.

Check out MRSC’s overview of the new legislation and local government ordinances and tune in to AWC’s upcoming webinar, details to come.