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WPIC 52.02 Controlled Substance Obtained Directly from a Practitioner or Pursuant to a Valid Pr...

11 WAPRAC WPIC 52.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 52.02 (5th Ed)

Washington Practice Series TM

Washington Pattern Jury Instructions--Criminal

January 2024 Update

Washington State Supreme Court Committee on Jury Instructions

Part VIII. Drugs and Controlled Substances

WPIC CHAPTER 52. Special Defenses—Uniform Controlled Substances Act

WPIC 52.02 Controlled Substance Obtained Directly from a Practitioner or Pursuant to a Valid Prescription

A person is not guilty of the crime of possession of a controlled substance if the substance was obtained [directly from] [or] [pursuant to a valid prescription or order of] a (practitioner).

The defendant has the burden of proving by a preponderance of the evidence that the substance was obtained [directly from] [or] [pursuant to a valid prescription or order of] a (practitioner). Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true.

NOTE ON USE

Do not use this instruction in marijuana cases. Use the medical marijuana defenses in this chapter.

Fill in the appropriate designation of the practitioner from RCW 69.50.101(mm). Use bracketed material as applicable.

COMMENT

RCW 69.50.4013.

This instruction should only be given if requested by the defendant. State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013) (a defendant's constitutional right to control his or her defense prohibits the giving of instructions concerning defenses over the defendant's objections).

“Otherwise authorized.” The statute states in part that “[i]t is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this chapter.” This instruction does not address possession that is otherwise authorized by RCW Chapter 69.50. Many specific provisions within that chapter set forth what is and what is not authorized by law. If any of these provisions apply to a particular case, practitioners will need to draft appropriate instructions.

Burden of proof. The burden of proving that the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner is on the defendant. RCW 69.50.506(a) states in part:

It is not necessary for the state to negate any exemption or exception in this chapter in … any trial, hearing, or other proceeding under this chapter. The burden of proof of any exemption or exception is upon the person claiming it.

Because this defense does not negate an element of the crime, but only excuses the conduct, the defendant must prove it by a preponderance of the evidence. State v. Deer, 175 Wn.2d 725, 287 P.3d 539 (2012) (discussion of unwitting possession; the defendant has the burden of proof for an affirmative defense, which is preponderance of the evidence); State v. Hundley, 126 Wn.2d 418, 419 n.1, 895 P.2d 403 (1995) (suggesting State v. Riker, 123 Wn.2d 351, 366–69, 869 P.2d 43 (1994) applies to defense of unwitting possession).

For a discussion about the burden of proof for defenses in general, see WPIC 14.00 (Defenses—Introduction).

[Current as of November 2019.]

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