WPIC 50.50 Controlled Substance—Definition

Insert the statutory name of the appropriate controlled substance. See Comment. Use this instruction whenever the other instructions refer generally to “controlled substance” instead of identifying a particular controlled substance.

Schedules I, II, III, IV, and V contained in RCWs 69.50.204, 69.50.206, 69.50.208, 69.50.210, and 69.50.212 name the various substances that are defined as controlled substances under the law. Whether or not a substance is a controlled substance is a matter of law for the court to decide.

The Pharmacy Quality Assurance Commission is authorized to adopt regulations revising the controlled substances that are included within Schedules I, II, III, IV, and V. See RCW 69.50.201(a)(1). The pertinent regulations can be found in WAC Chapter 246-887.

There is no need to define the term narcotic because the statute defines which substances are controlled and which are or are not narcotic drugs. Whether or not the drug is a narcotic relates only to the determination of sentence and not to the determination of guilt or innocence.

Automatically adding drugs to the state list of controlled substances thirty days after they are designated under federal law in the Federal Register is an unconstitutional procedure. State v. Dougall, 89 Wn.2d 118, 570 P.2d 135 (1977).

RCW 69.50.201(a), which allowed the Board of Pharmacy to add controlled substances by means of emergency rule-making power, was an unconstitutional delegation of legislative power. Matter of Powell, 92 Wn.2d 882, 602 P.2d 711 (1979).

Designation of a controlled substance by the Board of Pharmacy and filing the WAC sections with the Code Reviser without further distribution is deficient notice. Requiring a defendant to contact the Code Reviser to determine that a drug is controlled is not adequate notice. In re McCrea, 28 Wn.App. 777, 626 P.2d 992 (1981).

The provision of RCW 69.50.210, which lists diazepam as a controlled substance, without reference to “Valium,” the trade name for diazepam, satisfies procedural due process notice requirements. State v. Brown, 33 Wn.App. 843, 658 P.2d 44 (1983).

The statutory name, rather than the street or common name, of the controlled substance should be used in this instruction to avoid the possibility of commenting on the evidence. In State v. Barringer, 32 Wn.App. 882, 650 P.2d 1129 (1982), it was held that the giving of an instruction that stated that “Valium, also known as diazepam, is a controlled substance” was a reversible comment on the evidence because there was no testimony in the case that Valium is also known as diazepam. However, the court declined to follow Barringer in State v. Harris, 44 Wn.App. 401, 722 P.2d 867 (1986). The Harris court held that an instruction that cocaine is a controlled substance was not a comment on the evidence even though RCW 69.50.206 does not specifically list cocaine as a controlled substance. (The statute only lists coca leaves and other derivatives.) The court noted that the trial court was permitted to take judicial notice of all information contained in Washington statutes and that determining what substances are listed as controlled substances is a matter of statutory interpretation. Therefore, the trial court did not err in instructing as a matter of law that cocaine is a controlled substance. Also see State v. Riggins, 11 Wn.App. 449, 523 P.2d 452 (1974) (an instruction stating that “pentobarbital and secobarbital are derivatives of barbituric acid, and are controlled substances” was not a comment on the evidence).