Washington lost the distinction of having one of the strictest drug laws in the nation on Thursday, when the state Supreme Court ruled it unconstitutional.

In a 5-4 decision, the state’s high court said the state’s strict liability law for felony drug possession went beyond the state’s policing power.

The ruling, State V. Blake, was in a case out of Spokane County. A defendant arrested for a non-drug crime was searched at the county jail, and a corrections officer found a small baggie of methamphetamine in a coin pocket of her jeans. At trial, she used a “those weren’t my pants” defense. Her attorney said it was a case of unwitting possession. The defendant testified a friend had given her the jeans two days prior to her arrest, and had bought them at a secondhand store.

Prosecutors did not prove that the defendant had known the drugs were in her pocket.

Under state law, possession of a controlled substance is a felony punishable by up to five years in prison. A person found guilty can also be ordered to pay a substantial fine and, as a convicted felon, lose rights and opportunities, the court noted.

“This case presents an issue of first impression for the court,” wrote Justice Sheryl Gordon McCloud in the majority opinion. “Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature’s police power? The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes – this exceeds the State’s police power.”

She was joined by Chief Justice Steven Gonzalez and Justices Mary Yu, Helen Whitener and Raquel Montoya-Lewis.

“We begin with the rule that state legislatures have the police power to criminalize and punish much conduct,” Gordon McCloud wrote. “But the due process clauses of the state and federal constitutions limit that power. The key limit at issue here is that those due process clause protections generally bar state legislatures from taking innocent and passive conduct with no criminal intent at all and punishing it as a serious crime.”

“Unfortunately, that is exactly what RCW 69.50.4013, the strict liability felony drug possession statute, does. And it is the only statute in the nation to do so. We therefore conclude that it violates the state and federal constitutions.”

The state’s possession law was the only one in the nation to make it a crime to unknowingly possess drugs. Under the law, the court said, the following examples could be considered a felony: “a letter carrier who delivers a package containing unprescribed Adderall; a roommate who is unaware that the person who shares his apartment has hidden illegal drugs in the common areas of the home; a mother who carries a prescription pill bottle in her purse, unaware that the pills have been substituted for illegally obtained drugs by her teenage daughter, who placed them in the bottle to avoid detection.”

“A person might pick up the wrong bag at the airport, the wrong jacket at the concert, or even the wrong briefcase at the courthouse. Or a child might carry an adult’s backpack, not knowing that it contains the adult’s illegal drugs.”

“These examples illustrate the unreasonable disconnect between the statute’s intended goals and its actual effects,” Gordon McCloud wrote. “The possession statute also imposes harsh felony consequences on this passive nonconduct. Violation of this simple possession statute constitutes a class C felony. It is punishable by a maximum of five years’ imprisonment and a $10,000 fine.”

On Thursday, a Clark County senior deputy prosecutor who handles juvenile cases emailed local defense attorneys to let them know that in light of the Supreme Court ruling, juveniles currently charged with only possession of a controlled substance will have those charges dismissed.

At Barrar Law, we are currently reviewing pending possession cases and will be asking for those charges to be dismissed.