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Proposed state Senate bill would make drug possession a felony

SB 5035 would reclassify possession of a counterfeit substance as a Class C Felony.

OLYMPIA, Wash — Possession of a drug such as fentanyl would be reclassified as a felony offense under a proposed state Senate bill that had a public hearing Monday.

SB 5035 would classify possession of a counterfeit substance as a Class C Felony. Under current Washington state law, it takes three drug possession arrests to get charged with a crime, and it is classified as a misdemeanor.

The requirement to divert an individual's first two drug possession arrests to substance abuse disorder services would be repealed. However, the bill also would encourage prosecutors to divert an individual's first charge to a substance abuse program.

A Class C Felony is punishable by up to five years in prison, a $10,000 fine or both.

State Sen. Mike Padden, R-Spokane, is the bill's sponsor.

"We need the proper leverage to get these folks into treatment and frankly the misdemeanors, gross misdemeanors, from a lot of the prosecutors I've talked with is not going to work that well," Padden said.

The current laws go back to the 2021 decision at the Washington State Supreme Court in State v. Blake

That ruling found the previous law that could find a person guilty of criminal possession of a drug whether or not they had knowledge of that possession violated due process and was deemed unconstitutional.

In response, ESB 5476 in 2021 classified these crimes as misdemeanors and required individuals be referred to a diversion program after their first two arrests for possession.

SB 5035 is one of four bills being publicly heard Monday related to drug possession and the State v. Blake decision.

SB 5536 would make possession a gross misdemeanor and carry a potential maximum sentence of 364 days in jail, a $5,000 fine or both.

SB 5467 would make possession a misdemeanor and order completion of treatment to overturn the conviction and dismiss charges. If the person willfully abandons or rejects treatment, then a 45-day jail sentence would be imposed.

SB 5624 would decriminalize adult possession of a personal amount of a counterfeit substance and make it a misdemeanor for anyone under the age of 21.

State Sen. Manka Dhingra, D-Redmond, is backing the legalization bill. She said drug-related crimes should be prosecuted instead of just charging people for possessing or using drugs.

"Substance abuse disorder is a public health issue," Dhingra said. "Criminal activities associated with substance use disorder is criminal activity. We have to be able to separate the two."

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