Controlled Substance Statutes in Washington
Mark B. Tackitt,
attorney at law
The below information concerns the status of controlled substance statutes in Washington with some emphasis on practice in King County. Covered are the common drug offenses, controlled substances, and sentences. As the sentencing area is the extremely complex, it is broken down into subparts concerning anticipatory crimes, standard sentencing range, scores, calculation of points, Work Ethic Camp (WEC), Drug Offender Sentencing Alternative (DOSA), and School Bus Route Stop enhancement.
1. THE VARIOUS DRUG OFFENSES
The four primary drug related offenses concern: (1) Manufacture, (2) Delivery, (3) Possession with Intent to Manufacture/Deliver, and (4) Possession.(1) Possession with Intent is commonly called a PWI or "Pee Wee." Delivery and PWI are sister crimes treated similarly.(2)
The secondary offenses are: (1) attempt, (2) solicitation, and (3) conspiracy to commit any of the four, primary (or completed) drug related crimes.(3) Common examples of the secondary offenses are attempt to possess a controlled substance, solicitation to deliver a controlled substance, and conspiracy to deliver a controlled substance.
A related crime is a "Burn" or "Bunk" where a person delivers what is purported to be a controlled substance but may be something which only looks like a controlled substance.(4) Although a fraud crime, it is treated as a drug offense, but not as severely as delivery of the purported substance.
2. THE MOST COMMON CONTROLLED SUBSTANCES
There are many controlled substances or drugs available for misuse. All controlled substances are listed in Chapter 69.50 RCW under schedules I through IV. The four primary drugs (Methamphetamine, Heroin, Cocaine, and Marijuana) are all controlled substances and are treated differently depending on the type of offense. Under the Sentencing Reform Act (SRA), felony crimes are ranked by their seriousness. Level I offenses are the lowest level crimes while a level XVI is the most serious.(5)
Manufacture of Methamphetamine carries the most severe penalty as this crime is a level X, while mere Possession is a level I. Delivery or PWI to Deliver Methamphetamine or PWI to Manufacture/Deliver some of the substances used to create Methamphetamine are level VIII offenses.
Heroin and Cocaine are sister crimes as they are treated similarly. Delivery or PWI to Deliver/Manufacture either substance is a level VIII. Possession of either substance is a level II.
Marijuana is treated the least severe of the controlled substances. Delivery or PWI to Deliver/Manufacture Marijuana is a level III. Possession of greater than forty grams is a level I. Possession of less than forty grams is a misdemeanor.(6) Grow Operations are considered PWI's.
3. CONTROLLED SUBSTANCE SENTENCES
Although the sentencing options in the SRA are fairly clear to regular practitioners, novices will find sentencing to be a nightmare of confusing options and possibilities.
A. Anticipatory Offenses
When sentenced to an anticipatory offense, the general rule is that the class of crime (A, B, C, or Gross Misdemeanor) drops down one notch. For example, Delivery of Cocaine is a Class B felony with a ten year maximum. Solicitation to Deliver Cocaine is a Class C felony with a five year maximum. See, RCW 9A.28.030 and RCW 9A.28.020(3). The exceptions to the rule are found in RCW 69.50.407.
Under RCW 69.50.407,(7) an attempt or conspiracy to commit a drug related offense retains the same class as the completed offense. If the completed crime is a Class B, then the anticipatory crime is also a Class B. If the completed crime is a "drug offense," then the anticipatory crime remains a "drug offense."
For attempts and solicitations, the sentence is reduced to seventy five percent of the time of the completed crime. RCW 9.94A.410. For example, a defendant with zero points on a delivery of cocaine faces a sentencing range of 21 to 27 months. A similar defendant with zero points on a solicitation to delivery cocaine faces a sentence of 15.75 to 20.25 months.
Generally, a defendant convicted of conspiracy should also receive a seventy five percent sentence reduction for this crime. However, the drug conspiracy statute, RCW 69.50.407, trumps the general rule for conspiracy contained in RCW 9A.28.040. In theory, a defendant convicted for drug conspiracy under RCW 69.50.407 could receive the same time as for the completed crime. This was argued by the State in State v. Hebert, 67 Wn. App. 836, 841 P.2d 54 (1992). The court reversed a conspiracy sentence within the standard range (meaning that the defendant received as much time as if she had been found guilty of the completed offense) finding that drug conspiracy is an unranked offense. The case was remanded for a determinate sentence under RCW 9.94A.120(7).
Under this statute, when the standard range for a crime has not been established or cannot be determined, a trial court must sentence the defendant to a "a determinate sentence which may include not more than one year of confinement...." This means that a defendant with zero points facing a 21 to 27 month range or nine points facing a 108 to 144 range for delivery faces a sentence of 0 to 12 months confinement for Conspiracy to Deliver.
B. Points and Score
Score is determined by counting the number of points a defendant possesses. The rules for determining points are found in RCW 9.94A.360. A defendant's points vary depending upon the nature of the current offense and the nature of prior offenses. The two most commonly used rules for drug crimes are RCW 9.94A.360(7) and (12).
"If the present conviction is for a drug offense count three points for each adult prior felony drug offense conviction and two points for each juvenile drug offense.(9) All other adult and juvenile felonies are scored ... as in subsection (7) of this section if the current drug offense is nonviolent." RCW 9.94A.360(12). An example of this section is as follows:
Defendant One was convicted of PWI/Cocaine. He has one prior conviction for Possession/Cocaine, one for Delivery/Cocaine, and one for Conspiracy/Deliver/Cocaine. Under the rule, the possession counts as one point, the delivery as three, and the conspiracy as three because PWI is a "drug offense." Defendant One has a total of seven points.
If the present conviction is for possession, "count one point for each adult prior felony conviction and one point for each juvenile prior violent felony conviction and 1/2 point for each juvenile prior nonviolent felony conviction." RCW 9.94A.360(7). An example of this section is as follows:
Defendant Two was convicted of Possession of Cocaine. He has two priors for Possession, two for Delivery/Cocaine, and one for Conspiracy/Deliver/Cocaine. The possessions count as two points, the deliveries as two, and the conspiracy as one. Defendant Two has five points.
C. Standard Sentencing Range
Once the defendant's points have been determined, the standard sentencing range for the offense is next. Locate the seriousness level of the crime on the chart in RCW 9.94A.320. Once numbers for the points and range are determined, it is as simple as plugging in the numbers on the grid contained in RCW 9.94A.310. The seriousness level of crimes are placed in a column on the left going from bottom to top. The most serious offenses are located at the top left of the grid. Points are located at the top of the grid going from left to right. Points start at zero on the left and end with nine or nine plus on the right.
A defendant's score may exceed nine points, but nine is the highest score on the sentencing table. A score greater than nine can be a basis for exceeding the standard range. A sentence above or below the standard range is called an exceptional sentence. The statutory criteria for exceptional sentences are contained in RCW 9.94A.390.
Score is determined by rules contained in RCW 9.94A.360. The drug related crime is either a "drug offense" or it is not. By definition, possession is exempted from the classification of "drug offenses."(8) Therefore, the crimes of Delivery, PWI, Manufacture, and "Burn" are all drug offenses because all are delineated as crimes in Chapter 69.50 RCW. When a defendant receives a second conviction for a "drug offense," then the statutory maximum doubles. RCW 69.50.408.
Here is an example of doubling. Defendant One has nine points and is being sentenced for delivery of cocaine. Delivery of Cocaine is a Level VIII offense. With a score of nine, his range is 108 to 144 months (9 to 12 years). However, Delivery of Cocaine is a Class B felony. The maximum sentence is ten years for a Class B. If the defendant has no prior "drug offenses," then his range for this "drug offense" is actually 108 to 120 months (9 to 10 years). If the defendant has a prior conviction for a "drug offense," then the judge may impose any sentence between 108 to 144 months (9 to 12 years) because the defendant's maximum doubled from ten to twenty years.
Here is an example where doubling does not apply. Defendant Two has two priors for Delivery of Cocaine and three priors for Possession of Heroin. He is being sentenced for Possession of Cocaine which is considered a non-drug crime. Even though the two priors for Delivery are "drug offenses," there is no doubling because the underlying crime is not a doubling offense.
A final example where doubling does not apply is where Defendant Three has two priors for Possession of Heroin, one for Possession of Cocaine, and six for Possession of Methamphetamine. He has nine total points and is being sentenced for Delivery of Cocaine. His range is 108 to 120 months (9 to 10 years) because none of the prior offenses were "drug offenses." Only the present offense is a "drug offense."
D. Work Ethic Camp (WEC)
Until July, 1999, this was the sentencing option of choice for drug defendants with ranges between 16 and 36 months. A defendant would undergo a four month, in-custody treatment program with the Department of Corrections, then be released. Defendants had to wait anywhere from one to six months before a bed became available in the WEC. A defendant with any prior "violent offenses" was ineligible to enter the program. "Violent offenses" are defined in RCW 9.94A.030(41).
In July, 1999, the Legislature changed eligibility to prevent defendants who are "currently subject to a sentence for, or being prosecuted for, a violation of the uniform controlled substances act or a criminal solicitation to commit such a violation," from entering the program. RCW 9.94A.137(1)(a)(iii). Therefore, drug defendants no longer can receive WEC sentences.
E. Drug Offender Sentencing Alternative (DOSA)
Since July, 1999, DOSA as created in RCW 9.94A.120(6) has been the drug sentencing alternative of choice.(10) A drug defendant receives an in-custody sentence which equals one half of the middle of the standard range. The remaining half is served in community custody. The standard range must be greater than one year, and the defendant must have no prior "violent offenses."
Towards the end of a defendant's in-custody time, the defendant will be transferred into a minimum security, DOSA facility for in-patient drug treatment. After release, the defendant is supervised for the remaining half on the sentence. An example of a DOSA sentence is as follows:
Defendant One has five points on a PWI/Cocaine. His range would be 46 to 61 months with the middle being 54 months. Defendant One would serve 27 months in custody and 27 months in community custody.
Upsides to DOSA over the old WEC is that it allows persons with more than 36 months to receive a special sentencing alternative. They have the opportunity to serve less time in custody which frees bed space for people more deserving of prison bed space. The defendants receive drug treatment before being returned to society and are monitored for continued drug abstinence while out of custody.
A downside to DOSA concerns post sentence monitoring. Under standard sentences, should a defendant fail to follow the terms and conditions of sentence, the defendant appears before a judge and possesses a right to counsel. A violation of sentence can result in a sanction of up to sixty days for each violation. RCW 9.94A.200(3)(c). Under DOSA, the defendant receives an administrative hearing with no right to counsel. The defendant "may be reclassified to serve the remaining balance of the original sentence." RCW 9.94A.120(6)(c)(i).
F. Sentence Enhancement: School Bus Route Stop
A common sentence enhancement is that the drug offense occurred within one thousand feet of a school bus route stop. RCW 69.50.435(a)(3). An additional twenty-four months is added to the presumptive sentence for any ranked offense. RCW 9.94A.310(6).
At first blush, a sentence enhancement sounds fair as the purpose is to protect our children from persons committing drug transactions in protected places. However, the application of the statute paints with a broader stroke than intended by the Legislature. Other than parts of Boeing Field, Lake Washington and Lake Union, few if any locations in Seattle are outside one thousand feet of a school bus route stop. There is no notice of the stops. The law applies during non-school hours and days. Despite the possible Due Process violations of such a stealthy enhancement, this enhancement was upheld in State v. Coria, 120 Wn.2d 156, 839 P.2d 890 (1992).
This enhancement is added to all cases in King County which are not settled before trial. The exception occurs during the summer months when school is not in session. A twenty four month sentencing enhancement added to a drug sentence causes many defendants to enter into pleas before trial even where the defense case is strong.
With the exception of some editorializing, this is a fair statement of the drug laws as they exist and as they are most frequently enforced.
1. RCW 69.50.401(d)
(d) It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter. Any person who violates this subsection is guilty of a crime, and upon conviction may be imprisoned for not more than five years, fined not more than ten thousand dollars, or both, except as provided for in subsection (e) of this section.
2. RCW 69.50.401(a)
(a) Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.
(1) Any person who violates this subsection with respect to:
(i) a controlled substance classified in Schedule I or II which is a narcotic drug or flunitrazepam classified in Schedule IV, is guilty of a crime and upon conviction may be imprisoned for not more than ten years, or (A) fined not more than twenty-five thousand dollars if the crime involved less than two kilograms of the drug, or both such imprisonment and fine; or (B) if the crime involved two or more kilograms of the drug, then fined not more than one hundred thousand dollars for the first two kilograms and not more than fifty dollars for each gram in excess of two kilograms, or both such imprisonment and fine.
3. See, RCW 9A.28.030 for solicitation and RCW 69.50.407 for conspiracy. Attempt can be under either RCW 9A.28.020 or RCW 69.50.407. See below at sentencing implications.
4. RCW 69.50.401(c)
(c) It is unlawful, except as authorized in this chapter and Chapter 69.41 RCW, for any person to offer, arrange, or negotiate for the sale, gift, delivery, dispensing, distribution, or administration of a controlled substance to any person and then sell, give, deliver, dispense, distribute, or administer to that person any other liquid, substance, or material in lieu of such controlled substance. Any person who violates this subsection is guilty of a crime and upon conviction may be imprisoned for not more than five years, fined not more than ten thousand dollars, or both.
5. See, RCW 9.94A.320.
6. RCW 69.50.401(e)
(e) Except as provided for in subsection (a)(1)(iii) of this section any person found guilty of possession of forty grams or less of marihuana shall be guilty of a misdemeanor.
7. RCW 69.50.407 Conspiracy.
Any person who attempts or conspires to commit any offense defined in this chapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
8. RCW 9.94A.030(19(a) "Drug offense" means:
Any felony violation of Chapter 69.50 RCW except possession of a controlled substance (RCW 69.50.401(d)) or forged prescription for a controlled substance (RCW 69.50.403).
9. The multiplier of three in drug cases is also applied to "serious violent offenses" such as murder in the first degree, homicide by abuse, murder in the second degree, manslaughter in the first degree, assault in the first degree, kidnapping in the first degree, or rape in the first degree, assault of a child in the first degree, or an attempt, criminal solicitation, or criminal conspiracy to commit one of these felonies. See, RCW's 9.94A.030(34)(a) and 9.94A.360(9). The multiplier of two is applied to "violent offenses" such as Assault 2 and Robbery 2. All of these are "strike" offenses. Drug offenses are not "strikes," but are treated like "strikes" when it comes to multipliers.
10. Under RCW 9.94A.120(6)
(a) An offender is eligible for the special drug offender sentencing alternative if:
(i) The offender is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.310(3) or (4);
(ii) The offender has no current or prior convictions for a sex offense or violent offense in this state, another state, or the United States;
(iii) For a violation of the uniform controlled substances act under Chapter 69.50 RCW or a criminal solicitation to commit such a violation under Chapter 9A.28 RCW, the offense involved only a small quantity of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance; and
(iv) The offender has not been found by the United States attorney general to be subject to a deportation detainer or order and does not become subject to a deportation order during the period of the sentence.
(b) If the standard range is greater than one year and the sentencing judge determines that the offender is eligible for this option and that the offender and the community will benefit from the use of the special drug offender sentencing alternative, the judge may waive imposition of a sentence within the standard range and impose a sentence that must include a period of total confinement in a state facility for one-half of the midpoint of the standard range. During incarceration in the state facility, offenders sentenced under this subsection shall undergo a comprehensive substance abuse assessment and receive, within available resources, treatment services appropriate for the offender. The treatment services shall be designed by the division of alcohol and substance abuse of the department of social and health services, in cooperation with the department of corrections.
The court shall also impose:
(i) The remainder of the midpoint of the standard range as a term of community custody which must include appropriate substance abuse treatment in a program that has been approved by the division of alcohol and substance abuse of the department of social and health services;
(ii) Crime-related prohibitions including a condition not to use illegal controlled substances;
(iii) A requirement to submit to urinalysis or other testing to monitor that status; and
(iv) A term of community custody pursuant to subsection (11) of this section to be imposed upon failure to complete or administrative termination from the special drug offender sentencing alternative program.
The court may prohibit the offender from using alcohol or controlled substances and may require that the monitoring for controlled substances be conducted by the department or by a treatment alternatives to street crime program or a comparable court or agency-referred program. The offender may be required to pay thirty dollars per month while on community custody to offset the cost of monitoring. In addition, the court shall impose three or more of the following conditions:
(A) Devote time to a specific employment or training;
(B) Remain within prescribed geographical boundaries and notify the court or the community corrections officer before any change in the offender's address or employment;
(C) Report as directed to a community corrections officer;
(D) Pay all court-ordered legal financial obligations;
(E) Perform community service work;
(F) Stay out of areas designated by the sentencing judge;
(G) Such other conditions as the court may require such as affirmative conditions.
(c) If the offender violates any of the sentence conditions in (b) of this subsection or is found by the United States attorney general to be subject to a deportation order, a violation hearing shall be held by the department unless waived by the offender.
(i) If the department finds that conditions have been willfully violated, the offender may be reclassified to serve the remaining balance of the original sentence.
(ii) If the department finds that the offender is subject to a valid deportation order, the department may administratively terminate the offender from the program and reclassify the offender to serve the remaining balance of the original sentence.
(d) The department shall determine the rules for calculating the value of a day fine based on the offender's income and reasonable obligations which the offender has for the support of the offender and any dependents. These rules shall be developed in consultation with the administrator for the courts, the office of financial management, and the commission.
(e) An offender who fails to complete the special drug offender sentencing alternative program or who is administratively terminated from the program shall be reclassified to serve the unexpired term of his or her sentence as ordered by the sentencing judge and shall be subject to all rules relating to community custody and earned early release time. An offender who violates any conditions of supervision as defined by the department shall be sanctioned. Sanctions may include, but are not limited to, reclassifying the offender to serve the unexpired term of his or her sentence as ordered by the sentencing judge. If an offender is reclassified to serve the unexpired term of his or her sentence, the offender shall be subject to all rules relating to earned early release time.
Mark B. Tackitt is a Seattle attorney who has been representing felony, indigent, drug defendants since 1991 and who has been on the judge pro tem list in Seattle Municipal Court since 1997.
He is graduate of the University of California and Southwestern University School of Law.
His email address is Mark@Tackitt.com. His message phone is 206/682-7566, and cell phone is 206/841-7566.
This page last edited on 9 January 2001.