Zuanich Law Newsletter
Episode #54: Cheech and Chong Episode
February 25, 2021

Once again, my supreme court triple secret observers came through in a big way this week. I now present actual transcribed messages from the Washington Supreme Court chambers:
Justice #1:  “Did you read the Gelinas opinion that Division One put out?”
Justice #2 (sneeringly): “Yeah, don’t what the big deal was.  CrRLJ 3.4.  Big deal.  Wow, showing up to court.  Let’s write a law review article about it:  #notreally.”
Justice #3:  “Totally agree.  And yet everyone in the legal community is swooning over this opinion, especially defense lawyers.  Suddenly Division One is like that cat meme.”  
Justice #4:  “Don’t get me started on that cat meme.  I mean, what was so funny about that?  Yes, we know you’re not a cat.  That was so obvious.”
Justice #5:  “I’m tired of Division One stealing our thunder.  We write so many more important opinions.” 
Justice #6:  “Hello, seriously.  We just wrote, like, a LOT of pages about the Fair Campaign Practices Act and it’s like … snooze fest.  Where’s big publicity?”  
Justice #7:  “It’s time to shake things up … it’s time for the public to get addicted to something WE write.”
Justice #1:  “Did you say ADDICTED … that gives me an idea….”
State v. Blake
Washington Supreme Court
February 25, 2021
Drug Possession
Facts:  Duh, defendant convicted of drug possession.  Come on, work with me people?
Holding:  RCW 69.50.4013 criminalizes drug possession.  No mens rea is required.  Not anymore.
In a War and Peace opinion, the Supremes laid waste to possessory drug prosecutions.  There’s so much to discuss.  Where to begin?
The State’s police powers are not omnipotent. The State cannot criminalize “entirely passive and innocent nonconduct with non mens rea or guilty mind.”  That violates federal and state due process. But that’s exactly what the strict liability drug statute does in Washington.
Washington’s strict liability drug possession statute is UN-CONSTITUTIONAL.  That’s right.  Un.  Con.  Sti.  Tu.  Tional.  
The fact that a defendant can assert an “unwitting” possession defense cannot save the statute, the Supremes asserted.  If it’s unconstitutional, you don’t need to assert any defense.  Because you’re defending against something that does NOT to be defended against.  
So are all strict liability crimes outlawed?  No, WSC was quick to point out.  Just strict liability crimes that punish “wholly innocent” conduct defense.  The “I didn’t know she / he was 12 or 13” defense to child rape clearly won’t fly.  
In this case, “the State did not prove that Blake did anything except wear jeans that had pockets.”  He was not engaged in “active trafficking,” which certainly is illegal. 
My Take:
WOW.  Big opinion.  So much to learn about.  We all can probably easily see the first, second, and third-level effects.  
About Us: Zuanich Law focuses on criminal and civil appeals, DOL appeals, and post-conviction relief.  Our civil practice focuses on personal injury, family law, breach of contract protection order hearings, property law, landlord-tenant law, and general civil litigation.  
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