WPIC 50.02 Possession of Controlled Substance—Elements

Use WPIC 10.02 (Knowledge—Knowingly—Definition), WPIC 50.03 (Possession—Definition), and WPIC 50.50 (Controlled Substance—Definition) with this instruction.

If it is asserted that the substance was possessed pursuant to a valid prescription or order of a practitioner issued in the course of his or her professional practice, use WPIC 52.02 (Controlled Substance Obtained Directly From a Practitioner or Pursuant to a Valid Prescription) with this instruction.

Use WPIC 50.04.01 (Possession of Marijuana—21 Years or Older—Elements) or WPIC 50.04.03 (Possession of Marijuana—Under 21 Years—Elements) if the charge is possession of marijuana.

For a discussion of the phrase “this act” in element (2), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

Do not use for an offense which is alleged to have been committed prior to May 13, 2021.

This instruction was withdrawn in the last edition. It has been reinstated, and the element of knowledge has been added. RCW 69.50.4013. The element of knowledge was added in response to the Washington Supreme Court decision in State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). Laws of 2021, Chapter 311, § 9 (effective May 13, 2021).

Offenses occurring prior to May 13, 2021, when the Washington Legislature amended the statute to include a knowledge element, cannot be charged because the statute is unconstitutional. Laws of 2021, Chapter 311, § 9 (effective May 13, 2021).

“Unlawfulness” is not an element. The statute provides an exception for conduct that is otherwise authorized by RCW Chapter 69.50. See RCW 69.50.4013. The State, however, is not required to prove the absence of authorization; rather, a defendant who raises the issue of authorization or lawfulness bears the burden of proving it by a preponderance of the evidence. State v. Knapp, 54 Wn.App. 314, 317, 773 P.2d 134 (1989) (unlawfulness is not an element under former RCW 69.50.401(d)).

Minimum Amount. Possession of a controlled substance does not require that a defendant possess a minimum amount of a controlled substance in order to sustain a conviction. Residue of a controlled substance is sufficient. State v. Walker, 157 Wn.2d 307, 323,138 P.3d 113 (2006) (Chambers, J., concurring); State v. Higgs, 177 Wn.App. 414, 436, 311 P.3d 1266 (2013); State v. Schmeling, 191 Wn.App. 795, 365 P.3d 202 (2015).

Lesser included offense. Possession of a controlled substance is generally a lesser included offense of the crime of possession with intent to deliver. See, e.g., State v. McClam, 69 Wn.App. 885, 850 P.2d 1377 (1993) (error to refuse to give simple possession instruction as lesser included offense when supported by affirmative evidence).