A Marijuana Diversion Can No Longer Lead To A Conviction

At the end of 2012 Washington voters approved Initiative 502 which legalized possession of marijuana by persons over 21. In the Washington Laws, there is a statute that “saves” sentences and or convictions that exist when the law changes (to the benefit of the defendant) after the fact. For example – if there was a hypothetical law against selling beans, and you were convicted of selling beans, and then the law changed to make the sale of beans legal, your bean selling conviction would still stand as a valid conviction. The issue with I-502 was that people were being sentenced for marijuana possession long after marijuana was legal. This was happening when individuals were on diversion style agreements that they entered when marijuana was illegal, and then they somehow failed on the diversion and were kicked off and sentenced – when marijuana was legal.

Effect of State v. Rose

The Washington Court of Appeals in State v. Rose corrected this issue. The basic facts were that in 2012, Rose was smoking marijuana while fishing on the Yakima River. A Fish & Wildlife officer busted him for the marijuana possession. In October of that year, Rose entered into a deferral. Two months later, in December of 2012, I-502 went into effect. In January 2013, the district court revoked Rose’s deferral and found him guilty. At sentencing Rose moved to dismiss based on I-502’s decriminalization. The district court denied his dismissal, citing RCW 10.01.040 – the “saving” clause previously mentioned.

This revocation issue made its way to the Washington Court of Appeals. December 17, 2015, the Court ruled on the Rose case, overturning the District and Superior Court’s convictions. It was held that the “savings” clause would no longer allow the conviction for possession of marijuana when someone is bumped off of an old possession of marijuana deferred prosecution. What that means is if a person entered into some type of diversion agreement while marijuana was illegal, if the diversion agreement is revoked it will not lead to a conviction.

Ryan and Jen Witt of Witt Law Group, Kitsap County defense and personal injury lawyers

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