Q: Who should read this?

Anyone who is curious if the legal decision in State v. Blake applies to you or your loved one(s).

Q: What is the State v. Blake decision?

The Washington Supreme Court on February 25, 2021, held that the simple felony possession of controlled substance statute was unconstitutional and void. For text of the law click here, RCW 69.50.4013.

Specifically, the Court found that the law as written did not require the State to prove a person intended to possess a prohibited controlled substances .  That without that intent or mens rea element, the law criminalizes innocent behavior, which is not  allowed under the constitution.

Q: Is possession of a certain prohibited controlled substances still illegal?

The Blake decision had the impact of striking down the law.  The Washington State Legislature always has the power to criminalize behavior and took action in April 2021 to pass a new law making it illegal again to possess certain prohibited controlled substances.  The new law had to meet the correct requirements that the Court discussed in the Blake decision.  The effective date of the new law is: July 21, 2021.

Q: What does the State v. Blake decision do?

The convictions under the old law (RCW 69.50.4013) are void. That generally means the convictions no longer have any legal effect.

Q: Does Blake apply to me?

If you have a possession of controlled substance conviction under RCW 69.50.4013, you are entitled to a resentencing hearing in court. At this resentencing hearing, the judge may remove or lower your sentence, remove your legal financial obligation, remove the term of community custody, and remove or change other conditions of the sentence.   Depending on your situation you may, after consulting with a qualified defense attorney, decide to remove the conviction itself.  Not everyone will decide to remove the conviction. You also have the legal right to clear your criminal conviction history through a motion to vacate too.

The Blake decision also applies if you are serving a sentence for an Unlawful Possession of a Firearm Second Degree conviction AND your only other prior conviction was possession of a controlled substance.

Q: What convictions ARE NOT covered by Blake?

Any other convictions that are not possession of controlled substances under RCW 60.50.4013 are not affected by the Blake decision. This means that all other state drug laws are still in effect; the state laws still criminalize possessing a controlled substance with intent to deliver, delivery of a controlled substance, and manufacturing a controlled substance, among other crimes. These behaviors remain illegal.

Q: Can I get a lawyer/public defender for my resentencing because of Blake?

Yes, you can get a lawyer at public expense by filling out motion for counsel paperwork.

Copies of the paperwork should be filed or mailed to the Clerk of the Superior Court where you were convicted. A copy should also be sent to the Office of the Prosecuting Attorney in the county where you were convicted. You should also contact the local public defender’s office to let them know you have filed a motion. If you are indigent or unable to pay for a lawyer, the Court may appoint you a public defender at public expense.

Q: Do I need a lawyer/public defender?

Depending upon the details of your case, including whether you had a trial by judge or jury or whether you pleaded guilty, you or your loved one may be at risk of new and different criminal convictions or may be prosecuted for other old criminal charges if you proceed without legal advice and without considering all your legal options before making a request in court.  While people do have the right to proceed pro se in criminal cases, they also have the right to be represented by competent and qualified counsel and to get legal advice prior to making serious decisions that have long-lasting consequences.

In a very select few counties there may be criminal legal advice available. (For example, King County for all cases, or for those convicted of possession of controlled substances in juvenile court.   A public defender can help explain to you how Blake impacts your sentence and confidentiality advise if there are potential downside to vacating your conviction. This is important especially in cases that were negotiated or plea bargained to possession of a controlled substance because the State could possibly file other charges against you. A public defender can help you clear your record as well including how to get any legal financial obligations refunded. Having a lawyer often extremely helpful to your case. The court, clerk of the court, and the prosecutor cannot represent you or your legal interests and neither will provide legal advice to you or your loved one.

Q: How do I get resentenced?

Through your Public Defender filing a motion, or you can file a CrR 7.8 motion on your own (pro se). There are risks of trying to handle your case by yourself (see do I need a lawyer/public defender) and it is strongly advised you get a lawyer/public defender first. A CrR 7.8 motion will have to be filed in every case you had a possession for controlled substance to be resentenced.

Q: Is there a time bar for filing a motion to get relief under the Blake decision?

No.  Because the conviction is void, the one-year time bar does not apply to filing the CrR 7.8 motion.

Q: How soon will I be resentenced?

It depends. The reason timing is uncertain is because of factors outside the control of the person who needs to be resentenced. These factors include limited court access during the COVID-19 pandemic, the availability of the court calendars, scheduling remote hearings with Department of Corrections, etc.

Q: What happens to the legal financial obligations that have already were paid on cases affected by the Blake decision?

Because the convictions affected by the Blake decision are void that means the sentences for those convictions are also are no longer valid. That means any legal financial obligations (like fines, assessments, and fees) may be refunded by the Court.

There is also a current lawsuit about returning legal financial obligations that may be relevant or of interest for you or your loved one and more information can be found here https://www.lforestitution.com/

You may be eligible for resentencing if you answer YES to one of these questions:

1. Were you convicted of Possession of a Controlled Substance (drugs)? (You may need to review your court order (judgment and sentence) or ask an attorney. This includes most street drugs such as methamphetamine, cocaine, and heroin)
2. Were you convicted of Possession of a Controlled Substance (drugs) and another charge?
3. Were you sent to prison because your Drug Offender Sentencing Alternative was revoked? This is limited to having a current or prior conviction of Possession of Controlled Substance as part of the current.
4. Are you on community custody (supervised by the Department of Corrections) or expect to be on community custody because you were convicted of possession of drugs?

If you answered YES to any of these questions you may want to contact the public defender or the superior court where the conviction occurred. For example, if you were convicted in Everett, you would contact the Snohomish County Office of Public Defense.

Do you know your attorney’s name? If you remember your attorney’s name, you can look them up on the WSBA’s website here

The Statewide Office of Public Defense has links to each court’s Blake information here.

Below is a list of all counties in Washington State and contact information for the public defender. Please note not all counties have an office of public defense and you may contact the court to find how to get a public defender.

• How do I check my criminal history?
  • Criminal history is public information except in limited circumstances. Below are options for finding criminal history in Washington State:
    • For a general name or cause number search: https://dw.courts.wa.gov/?fa=home.namesearchTerms
    • If you or your loved one was convicted in any of the following counties: Adams, Asotin, Benton, Chelan, Clallam, Clark, Columbia, Cowlitz, Douglas, Ferry, Franklin, Garfield, Grant, Grays Harbor, Island, Jefferson, Kitsap, Kittitas, Klickitat, Lewis, Lincoln, Mason, Okanogan, Pacific, Pend Oreille, San Juan, Skagit, Skamania, Snohomish, Spokane, Stevens, Thurston, Wahkiakum, Walla Walla, Whatcom, Whitman, and Yakima Superior Courts. Please use this link https://odysseyportal.courts.wa.gov/odyportal
    • King County Superior Court use this link https://kingcounty.gov/courts/clerk/access-records/records-portal.aspx
    • To find arrest and all Washington State criminal history, for $12.00 Washington State Patrol WATCH Report can be accessed here: https://watch.wsp.wa.gov/Home/
• How do I find my loved one who is held by the Department of Correction?
  • https://www.doc.wa.gov/information/inmate-search/disclaimer.htm

• How do I find resources for re-entry after prison?
  • The Seattle Clemency Project has put together a list of resources that can be found here https://www.seattleclemencyproject.org/preparing-a-release-reentry-plan
  • For resources for incarcerated mothers, information about RISE through Northwest Justice Project can be found here https://nwjustice.org/rise

The Governor’s Office of Washington State has offered commutations (pardon) to certain cases in Blake. This process is be assisted by the Office of Public Defense. To find out if you qualify, please click here https://www.opd.wa.gov/index.php/program/trial-defense/12-pd/268

Each superior court (where felony cases are heard) operates independently and many have created their own process Blake cases. To find out what your local court is doing for Blake, go to the statewide Office of Public’s Blake page and click on the county.

Public defenders and civil legal aid attorneys are helping to vacate the convictions of people who are not currently serving sentences, but resources are limited. If you were convicted of drug possession and no other offenses and your conviction was not recent, you may want to consider preparing and filing your own motion to vacate with the court.

Click here for more information:  How to clear(vacate)your drug possession conviction after State v. Blake | WashingtonLawHelp.org | Helpful information about the law in Washington.

For King County cases: https://kingcounty.gov/depts/prosecutor/criminal-overview/blake.aspx

Blake LFO Refunds and Public Benefit Impact

Disclaimer: We always recommend that you talk to a lawyer if you are not a citizen of the United States before going to court on your own. WDA cannot provide you with any legal advice. If you need legal advice, please contact your attorney or the public defender office (if available) in your county. This exchange of information neither creates an attorney-client relationship nor does it constitute legal advice.

State v. Blake: Stories from Those Impacted

Memo Re WSP Contacts

Pause Proclamation – DOC Notification – DOC halting inmate transport due to COVID-19 for 2 weeks. There will be no person will be transported to DOC from county jails from October 25, 2021 through November 8, 2021

Civil Survival’s Blake Vacate Kitsap Day for National Expungement Week

Washington State Drug Court Survey from October 2021

Court’s drug possession ruling upends WA’s criminal justice system

Supreme Court Ruling That Voids Statute Has Potential Implications for Sentences Imposed by Courts

Washington Association of Sheriffs and Police Chiefs Statement on Blake