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WPIC 55.02 Possession of Legend Drug—Elements

11 WAPRAC WPIC 55.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 55.02 (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 55. Legend Drugs

WPIC 55.02 Possession of Legend Drug—Elements

To convict the defendant of the crime of possession of a legend drug, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about (date), the defendant unlawfully possessed a legend drug;

(1) That the possession was knowing; and

(2) That this act occurred in the State of Washington.

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

NOTE ON USE

Use this instruction when the charge is possession of a legend drug without an allegation of intent to sell or deliver. Use WPIC 50.03 (Possession—Definition), WPIC 10.02 (Knowledge—Knowingly—Definition), and WPIC 55.05 (Legend Drug—Definition) with this instruction.

Use WPIC 55.06 (Possession, Sale, or Delivery of a Legend Drug Upon Order or Prescription) with this instruction if it is asserted that the legend drug was possessed upon the order or prescription of a practitioner listed in RCW 69.41.030. If possession is alleged to be authorized on other grounds, then instructions specifically addressing those issues will need to be drafted. See the Note on Use to WPIC 55.06 (Possession, Sale, or Delivery of a Legend Drug Upon Order or Prescription).

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).

COMMENT

This instruction has been modified to comport with the Laws of 2021, Chapter 311, §§ 11–12. RCW 69.41.030; Laws of 2021, Chapter 311, §§ 11–12 (effective May 13, 2021).

For offenses committed prior to May 13, 2021, practitioners should be cautious. The holding in State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021), does not directly address RCW 69.41.030.

Possession without intent to sell or deliver is a misdemeanor. RCW 69.41.030(2)(b). Possession with intent to sell or deliver is a felony. RCW 69.41.030(2)(a).

For a discussion of the lawfulness of legend drug possession, see the Note on Use to WPIC 55.06 (Possession, Sale, or Delivery of a Legend Drug Upon Order or Prescription).

The statute is expressly not applicable to designated persons handling the drugs in the usual course of business. If that is an issue in the case, a specific instruction will have to be drafted.

[Current as of September 2021.]

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