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Spokane Valley tiptoeing around preemption on elevating drug penalties

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(The Center Square) – Washington state’s preemption doctrine limits local governments’ ability to enact policies regarding controlled substances, but Spokane Valley is looking for a way around that.

The state’s “Blake fix” drug possession law that went into effect on July 1, 2023, makes illegal drug possession and public drug use gross misdemeanors, with the maximum jail time for the first and second offense up to 180 days per offense. A third arrest could mean up to 364 days in jail. The law limits any fines to a maximum of $1,000.

Spokane Valley City Attorney Kelly Konkright followed up on prior requests during a recent city council meeting regarding the legality of elevating illegal drug possession from a gross misdemeanor to a felony. To that end, city officials are keeping an eye on Marysville, a city 35 miles north of Seattle, and its tough drug possession laws that might just test the state’s preemption doctrine. The Marysville Municipal Code is an example of how localities can align with the Revised Code of Washington’s punishment for using a controlled substance in a public place. For instance, it stipulates up to 180 days in jail and a $1,000 fine for the first offense and up to 364 days in jail and a $1,000 fine for two or more prior convictions for the same crime. However, Konkright said the municipal code takes another step and imposes a mandatory 30-day jail sentence if a defendant has two or more public disorder convictions within five years. Public disorder crimes include third-degree theft, vehicle prowling, criminal trespass and using a controlled substance in public. Marysville is consistent with Washington law in that it does not increase maximum sentences, monetary fines or elevate the charge to a felony. However, Konkright said Marysville’s mandatory minimum sentencing is not consistent with the RCW.”It hasn’t been challenged,” Konkright said. “They don’t know how courts will rule on it.”

Konkright said he is not aware of any location in the state that has adopted ordinances altering possession from a gross misdemeanor to a felony, consistent with RCW 35A.11.022; however, also consistent with the RCW, localities can impose fines and jail time for violating ordinances that constitute a misdemeanor or gross misdemeanor.

“It does conflict with state law because the minimum penalty for a third conviction within the specified time frame is no longer zero days to 364 days; it is 30 days,” he said.

Konkright recommends that Spokane Valley complete a comprehensive analysis before going as far as Marysville.

Unlike Marysville, Spokane Valley contracts with Spokane County for law enforcement, prosecution, court and jail services, which means it would need those agencies’ support to implement something similar, Konkright said.