What is an Affirmative Defense in Drug Cases?

What is an Affirmative Defense in Illegal Drug | Controlled Substance Cases in Washington State | A Washington Criminal Defense Attorney’s view on Affirmative Defenses and what Factors are Considered in Proving Them

From a defense attorney | lawyer’s perspective involving drug cases, affirmative defenses are statutory provisions that help our clients go free even though they have been caught violating the law.  They are the proverbial get out of jail free | dismissal of a criminal drug charge card.  If you and your lawyer can establish the applicable affirmative defense by a preponderance of the evidence and, subsequently, the prosecutor cannot establish the case beyond a reasonable doubt to a judge or jury, you will have your case dismissed.  A preponderance of the evidence means that one must be persuaded, considering all the evidence in the case, that it is more probably true than not true.  Lawyers often state it is like proving your case by 51%.  If the facts are there for the argument to be made that an affirmative defense should apply, our experienced lawyers will expose them and litigate them.   

Because affirmative defenses do not negate an element of the crime, but only excuses the conduct, the defendant must prove the defense by a preponderance of the evidence before the burden shifts to the prosecuting attorney. See State v. Riker, 123 Wn.2d 351, 366–69, 869 P.2d 43 (1994) where the court ruled: “…when an affirmative defense pardons conduct that violates the literal language of the law, the defendant’s standard of proof is a preponderance of the evidence, not raising a reasonable doubt” and in  State v. Hundley, 126 Wn.2d 418, 419 n.1, 895 P.2d 403 (1995) the court was suggesting Riker applies to the affirmative defense of unwitting possession.

The primary issue with claiming an affirmative defense is that you are admitting to the underlying criminal charge but claiming that you were justified or excused by the law in doing so and you have the burden of proving that this is true. This is what makes them a dangerous card to play and you need to make sure the facts are there to support it.  Over the years, we have been very successful in asserting these types of defenses and gaining acquittals | dismissals for our clients when the circumstances are appropriate, or, at minimum using them as a basis for negotiating a better resolution to an illegal drug or controlled substance criminal case.  Typically, if you are in a jury trial and the judge authorizes the instruction allowing the defense, then it shows the judge believes it applies and this is a positive step towards believing a jury will as well.

An affirmative defense can be argued for in a number of circumstances.  Knowing how to navigate the legal system and criminal justice process is the most important skill your trial team can possess.  Whether our role is as legal counsel, negotiator, or litigator, we have years of experience fighting and resolving cases with our clients’ best interests in mind.  Choosing the right counsel for your case is essential.  

The 4 Major Affirmative Defenses Available for Certain Drug Offenses in Washington

There are only 4 affirmative defenses available to defendants/offenders who have been charged with an illegal drug offense in Washington. Each one is discussed below to give you a basic idea as to what they are and which charge(s) they can be turned into an asset.

  1.  Unwitting Possession

A person is not guilty of possession of a controlled substance if the possession is unwitting. Possession of a controlled substance is unwitting if a person did not know that the substance was in his or her possession, or did not know the nature of the substance.  Once again this motion must be initiated/brought by the defense lawyer | attorney on behalf of the person being charged.  The motion must be proven by the defendant/offender by a preponderance of the evidence and then the prosecutor has the burden of establishing beyond a reasonable doubt that it does not apply.  Ultimately, it is up to the jury or the judge, if you are doing a bench trial, to make the decision as to who has established their case.  After that decision is made, you will know whether or not you will be able to utilize the affirmative defense.  It is applicable to most possession-based illegal drug offenses.  

  1. Delivery/Manufacture/Sale of a Controlled Substance “Authorized by Law”

    A person is not guilty of the crime of delivery or manufacture or sale of a controlled substance if the substance was delivered or manufactured or sold in a manner authorized by law.  The defendant and their criminal defense lawyers have the burden of proving by a preponderance of the evidence that the substance was delivered or manufactured or sold in a manner authorized by law. A 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.  If this is done, then the prosecutor has the burden of establishing beyond a reasonable doubt that the defense should not be applicable.   

  1. Violations committed in a “Private Residence” in or on certain Public Places, Schools or Facilities

If the defendant/offender has been charged under RCW 69.50.435 which states: “Any person who violates RCW 69.50.401 by manufacturing, selling, delivering, or possessing with the intent to manufacture, sell, or deliver a controlled substance listed under RCW 69.50.401 or who violates RCW 69.50.410 by selling for profit any controlled substance or counterfeit substance classified in schedule I, RCW 69.50.204, except leaves and flowering tops of marihuana to a person” has an available affirmative defense.

It is an available affirmative defense to a prosecution for this specific RCW section if:

(1)  the prohibited conduct took place entirely within a private residence;

(2)  that no person under eighteen years of age or younger was present in such private residence at any time during the commission of the offense;

(3)  and that the prohibited conduct did not involve delivering, manufacturing, selling, or possessing with the intent to manufacture, sell or deliver any controlled substance in RCW 69.50.401 for profit. The affirmative defense established in this section shall be proved by the defendant by a preponderance of the evidence. This affirmative defense is charge specific meaning that it can only be asserted in a case where this specific statute is alleged to have been the one violated.  The statute cannot be construed to establish an affirmative defense with respect to a prosecution for an offense defined in any other section of this chapter. 

RCW 69.50.435 (4)

(4)  Controlled Substance Obtained Directly From a Practitioner or Pursuant to a Valid Prescription

The RCW provides that 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.  Once again, the defendant and their criminal defense lawyers have 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.  A 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.  If you win the motion, on legend drug based offenses, you have saved yourself a substantial amount of time in prison depending on your offender score

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 100% 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 proceeding under this chapter. The burden of proof of any exemption or exception is upon the person claiming it.

If you are arrested or even contacted by law enforcement about a drug offense, request a criminal defense attorney immediately and do not talk to law enforcement.  Keep telling them you want an attorney or simply remain silent until one is provided after your initial request. If you are charged, this becomes even more important. Let your lawyer talk to law enforcement: not you or your family members.  A better use of time is as soon as possible, sit down and write everything you remember about the incident from what you were doing, wearing, walking et cetera just before the cops arrived up to the point where you were arrested and booked into jail.  If the cops said anything or promised you anything, be sure to include that in the statement.  This is important.  We have used such data as leverage in negotiations with prosecutors.

An experienced defense attorney will help you navigate through the criminal system to get you the best possible result.  You need someone who knows the nuances of the system and the laws and methods of getting the best offers, and someone who has experience in arguing motions on search and seizure and winning those motions.  Winning those motions will result in evidence being suppressed or excluded … which can result in a dismissal.  You need an attorney who knows what experts may be useful in establishing your defense.  If the State wants to go to trial, you need an attorney who will make them earn their conviction and argue to win.  You never know what a jury will focus on.   Juries keep the system “honest” and you want a lawyer and firm who understand this and represent a credible trial threat.

The criminal defense lawyers | attorneys in our office have handled an enormous number of complicated cases in the drug offense criminal arena over the course of our lengthy criminal law careers. We are and have a unique blend of courtroom experience, knowledge, skills and temperament. Our lawyers know that criminal cases are rarely as simple as the police reports claim.  Our clients hire us because they want staunch and effective counsel who take the time to make sure their rights are protected.  Being charged with any criminal drug offense is a serious charge and carries a heavy penalty not only for the individual charged but for the family as well. Knowing how to navigate the legal system and criminal justice process is the most important skill/asset you can possess when defending yourself against a drug offense.  Whether our role is as legal counsel, negotiator, or litigator, we have years of experience fighting and resolving cases with our clients’ best interests in mind.  Choosing the right counsel for your case is essential.   Consultations are free but a poor choice in counsel is not.  Call us at 206-708-7852 to set up an appointment to discuss your situation.

With a successful background in law, courtrooms, wrestling, rugby and jujitsu, Robert Rhodes’s nature is well-suited for argument and litigation. Mr. Rhodes knows how to talk clearly and directly to his clients, adversaries and to the Court. His common sense, straight talk and experience put his clients immediately at ease. Mr. Rhodes does not do anything half way and you will sense this when you meet him. Read more >>

Robert Rhodes

With a successful background in law, courtrooms, wrestling, rugby and jujitsu, Robert Rhodes’s nature is well-suited for argument and litigation. Mr. Rhodes knows how to talk clearly and directly to his clients, adversaries and to the Court. His common sense, straight talk and experience put his clients immediately at ease. Mr. Rhodes does not do anything half way and you will sense this when you meet him. Read more >>

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