Drug possession law in Washington has been rewritten twice in the past five years, and most people stopped paying attention somewhere in the middle. If a deputy or an Aberdeen Police officer just handed you a citation for fentanyl, methamphetamine, or another controlled substance, the charge you are looking at is probably not what you think it is. The Rossback Firm sees these cases regularly in Grays Harbor County District Court and the Superior Court in Montesano, and the rules that apply now are the result of a state Supreme Court decision and two legislative responses to it.
What Blake Actually Changed
In February 2021 the Washington Supreme Court decided State v. Blake. The court struck down the state’s simple possession statute, RCW 69.50.4013, on due process grounds. The flaw was that the statute did not require the prosecution to prove the defendant knew about the drugs. Under the old law, somebody could be convicted for unknowingly carrying a substance in a borrowed coat or a borrowed car. The court held that this violated due process.
The immediate effect was sweeping. Pre-Blake possession convictions, going back through decades of records, were vacated. The Washington State Blake Refund Bureau was created to reimburse legal financial obligations paid on those invalidated cases. People with vacated possession priors saw sentencing scores recalculated for unrelated cases.
The Legislature’s Response: SB 5536
After a temporary patch (ESB 5476) and a year of public fighting in Olympia, the Legislature passed SB 5536 in a one-day special session in May 2023. It took effect on July 1, 2023, and it is still the controlling law. Three things changed permanently:
- Knowing possession of a controlled substance is a gross misdemeanor, not a felony.
- Knowing use of a controlled substance in a public place is also a gross misdemeanor.
- Knowing possession or use of a legend drug (a non-prescription pharmaceutical) is a misdemeanor.
The penalty structure caps the first two convictions at up to 180 days in jail and a $1,000 fine. A third or subsequent conviction can carry up to 364 days. Possession and public use cannot be charged together for the same conduct.
Marijuana is not a controlled substance under state law for adults 21 and over within the legal possession amounts. Possession beyond the limit, or possession by anyone underage, is treated separately.
Why “Knowing” Possession Matters
The single most important word in the new statute is “knowingly.” The prosecution has to prove you actually knew the substance was there and that it was a controlled substance. On paper that sounds like a small thing. In practice it is anything but small.
Constructive possession cases (drugs in a vehicle you were driving but did not own, in a shared apartment, in a coat handed to you by someone else) live or die on what the state can prove about your knowledge. Aberdeen Police and Grays Harbor County deputies are trained to ask questions at the scene that lock in admissions. Statements like “I forgot it was in there” or “that’s not mine, it must be my roommate’s” sound exculpatory but can be used to establish possession.
How These Cases Are Charged in Grays Harbor County
Simple possession under SB 5536 is a gross misdemeanor and is filed in the courts of limited jurisdiction. For most Aberdeen residents, that means Grays Harbor County District Court at the Pearsall Building on Sumner Avenue, or Aberdeen Municipal Court if the conduct occurred within city limits and the city files under its own ordinance.
The picture changes fast at higher quantities. Possession with intent to deliver, delivery, and manufacture of a controlled substance under RCW 69.50.401 were not affected by Blake. Those remain felonies and are filed in Grays Harbor County Superior Court in Montesano. Officers infer intent from things like packaging (small bindles or baggies), scales, ledgers, large amounts of cash, and text messages. The line between simple possession and possession with intent often comes down to facts a defense attorney can challenge or contextualize.
Fentanyl cases are a moving target locally. Pill counts, the presence of pressed counterfeit pills, and any indication of distribution are pushing more files into Superior Court rather than District Court.
Pretrial Diversion and Drug Court
SB 5536 created a pretrial diversion program for simple possession charges. If the prosecutor consents, a defendant can engage in a treatment program in exchange for dismissal of the charge. The judge is required to advise defendants about the program at arraignment, but the prosecutor can decline consent in some cases. That gatekeeping is one reason early defense work matters.
Grays Harbor County also runs a Therapeutic Drug Court, which handles certain felony drug cases through a structured treatment model rather than a standard plea-and-sentence path. Eligibility is screened and the program is demanding, but graduates often see felony charges dismissed at the end.
Talk to the Rossback Firm Before You Talk to the Prosecutor
Possession cases turn on details that get harder to recover with time. Body camera footage, the precise sequence of statements at the scene, lab analysis of the substance, and the chain of custody are all subject to deadlines and retention windows. The prosecutor’s office files based on what is in the police report, and the police report is generally written without input from the person it is about.
The Rossback Firm at 110 West Market Street in Aberdeen works simple possession and felony drug files across Grays Harbor County and can sit down with you to look at how the knowing possession requirement, diversion eligibility, and local court practices apply to the specific facts of your case. Calling early, before charging decisions are finalized, gives the defense the most room to work.
