Drug cases are among the most defensible charges in the criminal system, because they usually depend on physical evidence that was found during a stop or a search. If that stop or search was unlawful, the evidence can be suppressed — and without the evidence, the case frequently ends.
Washington law in this area has also shifted more than most people realize in the past few years, both in what is charged and in how the system is supposed to respond. Advice based on the old felony possession regime is simply out of date.
Is drug possession still a crime in Washington?
In 2021 the Washington Supreme Court held in State v. Blake that the state's simple possession statute was unconstitutional, because it criminalized unknowing possession. Convictions under that statute are void, and many people are entitled to have them vacated and to receive refunds of fines and fees paid — relief that a surprising number of people still have not claimed.
The Legislature responded with a new law effective July 1, 2023. Knowing possession of a controlled substance, and knowing use of one in a public place, are now gross misdemeanors punishable by up to 180 days in jail or a $1,000 fine, increasing to up to 364 days where the person has two or more prior convictions for possession or use. The law also created a pretrial diversion program and encourages — but does not require — law enforcement and prosecutors to refer people to assessment and treatment instead of prosecution.
Cannabis is treated separately: possession by adults 21 and over within the legal limits is lawful, while possession outside those limits remains a criminal offense.
Which drug charges are still felonies?
| Offense | Classification | Penalty exposure |
|---|---|---|
| Knowing possession of a controlled substance | Gross misdemeanor | Up to 180 days and $1,000 — rising to 364 days with two or more prior convictions |
| Knowing use of a controlled substance in public | Gross misdemeanor | Same as possession |
| Possession with intent to deliver | Felony | Sentenced under the Sentencing Reform Act |
| Delivery or sale | Felony | Sentenced under the Sentencing Reform Act |
| Manufacturing | Felony | Sentenced under the Sentencing Reform Act |
| Cannabis, adults 21+ within legal limits | Not an offense | Lawful |
Possession and public use became gross misdemeanors under the law effective 1 July 2023, replacing the felony statute struck down in State v. Blake. The law also created a pretrial diversion program and encourages — but does not require — referral to assessment and treatment instead of prosecution.
The line between simple possession and possession with intent is frequently the most consequential dispute in a drug case, and it is often built on inference — packaging, scales, cash, or messages — rather than direct proof. Inference is contestable.
Can drug evidence be suppressed?
Washington's constitution provides broader protection against warrantless searches than the federal constitution does, which makes these challenges more viable here than in many states. We examine:
- Whether there was a lawful basis for the traffic stop or the initial contact
- Whether the detention was extended beyond its lawful purpose
- Whether any warrant was valid and properly executed
- Whether consent was actually given, and whether it was voluntary
- Whether a search of a vehicle, container, or person exceeded what the law allows
- Whether the chain of custody and lab testing hold up
What does the State have to prove for possession?
Being near drugs is not the same as possessing them. Where substances are found in a shared vehicle, a shared residence, or a bag that several people had access to, the State must prove you knowingly had dominion and control. Constructive possession cases are frequently weaker than the police report makes them sound.
What are the consequences of a drug conviction?
Even at the gross misdemeanor level, a drug conviction can affect employment, professional and commercial driving licenses, housing, and student aid — and for non-citizens, controlled substance offenses carry some of the harshest immigration consequences in the entire criminal code, including for offenses that look minor. If you are not a U.S. citizen, tell your attorney immediately, because it changes what outcomes are acceptable.
Can an old drug possession conviction be cleared?
If you were convicted of simple drug possession in Washington before Blake, that conviction is likely void and can be vacated, with a refund of legal financial obligations you paid. Clearing it can also lower your offender score in any current case. It is worth checking, and many people are eligible without knowing it.
Frequently asked questions
Is drug possession still a crime in Washington?
Yes. Knowing possession of a controlled substance, and public use, are gross misdemeanors punishable by up to 180 days in jail, increasing to up to 364 days with two or more prior convictions. Diversion to treatment is encouraged but not mandatory.
Can drug evidence be thrown out?
It happens regularly. If the stop, detention, or search violated your rights, the evidence may be suppressed — and drug cases often cannot survive without it. Washington's constitution provides broader search protections than federal law.
What is "possession with intent to deliver"?
A felony charge alleging you intended to distribute rather than merely possess. The State usually builds it from circumstantial evidence such as packaging, quantity, scales, cash, or messages — which means it is frequently contestable.
Can I get an old drug possession conviction cleared?
Very likely, if it was a simple possession conviction predating the Blake decision. Those convictions are void, and you may be entitled to vacatur and a refund of fines and fees you paid.
Ready to talk through your situation?
Reach a Schwab Law attorney in Spokane today.