Washington State Laws on Heroin, Fentanyl, and Other Opioids

Washington state's drug laws have evolved in response to the opioid epidemic, which has led to significant overdose deaths. Recent legislation, such as Senate Bill 5536, redefined drug possession penalties, making possession a gross misdemeanor with increased jail time and emphasizing treatment programs.

Washington State, like many regions all over the country, faces significant challenges related to illicit drug use, possession, and sale. However, recent case law altered the way the state looks at drug crimes.

This article looks at the current state laws in Washington related to heroin, fentanyl, and other opioids. There's also a discussion about the opioid epidemic in the state, the classification of controlled substances, and penalties for possession and sale.

Opioid Epidemic in Washington

Washington state, similar to other parts of the country, has been grappling with the opioid epidemic. According to recent data, the Washington State Department of Health recorded 17,502 residents who died from drug overdose between 2007 and 2021. Out of this number, 68% were related to opioids. In 2019, the yearly number of drug overdose deaths was nearly doubled, going from 827 deaths to 1,619 in 2021.

This surge in opioid-related incidents prompted lawmakers and public health officials to reconsider the drug policies in the state. It also reinforced the need for the state to balance access to treatment with harm reduction.

Understanding Washington’s Drug Schedule

Washington classifies controlled substances into a drug scheduling system. There are five drug schedules, and the state and federal laws divide them depending on the substance’s potential for drug abuse and its accepted medical use.

For instance, Schedule I drugs are controlled substances that have a high tendency for abuse, no accepted medical use, and the potential to create severe physical and psychological dependence. In contrast, Schedule V drugs are those with the least risk for drug abuse and presently have accepted medical use. As the drug schedule progresses, so does the risk of drug abuse and accepted medical use. The Controlled Substances Act also suggests the drugs that fall under each drug schedule.

The following are examples of controlled substances under these drug schedules:

Schedule I

• Lysergic acid diethylamide (LSD)
• Heroin
• Marijuana (cannabis)
• Methaqualone
• Peyote
• Ecstasy

Schedule II

• Methamphetamine
• Fentanyl
• Adderall
• Oxycodone
• Cocaine
• Methadone

Schedule III

• Anabolic steroids
• Ketamine
• Drugs with small amounts of codeine

Schedule IV

• Xanax
• Valium
• Ativan
• Tramadol

Schedule V

• Cough preparations with less than 200 milligrams of codeine
• Motofen
• Parepectolin

The U.S. Drug Enforcement Administration (DEA) also provides a list of drug schedules and a list of controlled substances in alphabetical order.

Penalties for Possession of Heroin, Fentanyl, and Other Opioids in Washington

In May 2023, the Washington legislature passed a new law. According to the Revised Code of Washington, possession of a controlled substance is a gross misdemeanor. The following conduct falls under this misdemeanor charge:

• Knowingly possessing counterfeit substances and controlled substances
• Knowingly using controlled substances in a public place

The penalty for the first two arrests is up to 180 days of jail time. This prison sentence increases to 364 days for the third and subsequent arrests.

For those charged with drug possession, the law also provides a pretrial diversion program if the local prosecutor agrees.

These penalties are in effect as of May 2023, when Governor Jay Inslee signed Senate Bill 5536 into law during a special session. The bill placed a particular emphasis on treatment programs and public health approaches for substance use disorder.

Penalties for the Sale of Heroin, Fentanyl, and Other Opioids in Washington

The Revised Code of Washington contains the penalties for the sale of heroin, fentanyl, and other opioids. Under this state law, the penalty varies based on the amount of drug involved and other circumstances.

For the sale of Schedule I or II narcotic drugs such as heroin, fentanyl, and other opioids, the crime of illegal sale results in a Class B felony. The maximum prison sentence for this crime is ten years, a fine, or both.

The fine varies depending on the amount of controlled substance involved.

• If the controlled substance is less than two kilograms, the fine is up to $25,000
• If the controlled substance is two kilograms or more, the fine is up to $100,000 for the first two kilograms, with an additional $50 for each gram over two kilograms

Recent Legislation in Washington Related to Controlled Substances

In 2021, the Washington Supreme Court ruled in State v. Blake that the state's drug possession laws were unconstitutional because of a due process violation. According to the Court, the laws criminalized possession of controlled substances despite a lack of knowledge and intent. The court ruled this provision unconstitutional and asked the state legislature to revise the regulations.

Because of the Supreme Court decision in State v. Blake, anyone convicted of drug possession before February 25, 2021, can ask the court to vacate its previous decision. The person convicted of drug possession on or before the said date can also ask the court to clear their criminal record.

Blake Refund Bureau

In 2023, the Administrative Office of the Courts (AOC) developed the Blake Refund Bureau. This bureau aims to provide reimbursement for court-ordered fines paid for the now-unconstitutional drug possession convictions. The AOC developed the Blake Refund Bureau in collaboration with courts and counties statewide. Due to the Blake decision, those convicted of simple drug possession in Washington state between 1971 and 2021 are eligible to receive financial reimbursement.

Senate Bill 5536

After the Blake decision, Governor Jay Inslee signed the new drug possession provision into law during a special legislative session. This aims to prevent the potential decriminalization of drug possession statewide. The bill also addresses the constitutional issues previously raised by State v. Blake.

The new bill kept the criminal penalties for drug possession but increased them to a gross misdemeanor. It also increased the prison sentence for the first two drug possession convictions while increasing the penalties for subsequent convictions. Furthermore, SB 3566 further established the pretrial diversion program. This program allowed those convicted of drug possession to join a drug treatment program.

Disclaimer: State laws are subject to change through the passage of new legislation, court rulings (including federal decisions), ballot initiatives, and other means. FindLaw strives to provide the most current information. You should consult an attorney or conduct your own legal research to verify the state law(s) before making any legal decision.

Related Resources

• Washington Cocaine Laws
• Drug Possession Overview

Seek Legal Advice From a Criminal Defense Attorney

Given Washington state's complex and changing legal landscape, it's a good idea to seek legal advice from a criminal defense attorney. They can provide the guidance to help you understand your rights, learn about your potential legal defenses, and make sure law enforcement acted within the parameters of the law. Whether in Seattle or Olympia, criminal defense attorneys can assist you with your case.