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By Aspen Shumpert
The Peninsula Gateway
GIG HARBOR, Wash. — The Gig Harbor Police Department turned to Facebook Sept. 1 to show the public a situation they encountered where two suspects appeared to be passed out in a car after smoking fentanyl.
“We really just want to let people know that this is not only occurring everywhere, but this is occurring in Gig Harbor,” Busey told The Gateway Tuesday.
The post, which included photos, said that after waking up the suspects and confiscating the drugs, the officers had no option but to offer them a card with voluntary drug referral information.
The post had 473 comments as of Friday with various reactions from the public. Some had safety concerns and some wanted further explanation about what happened.
In 2021, the Blake decision by the state Supreme Court struck down the state’s felony drug possession law as unconstitutional, decriminalizing personal drug possession. Instead of jail time or citations, police hand those suspected of drug possession a referral card with information about getting help. Police are now prohibited from arresting someone the first two times they come in contact with that person for drug possession.
“It used to be a felony to possess most controlled substances, like heroin, methamphetamine, MDMA, cocaine, and also drugs like hydrocodone without a prescription,” said Steve Graham, a Spokane defense attorney and former prosecutor for Ferry County who The Gateway asked about the Gig Harbor situation. “If the drug was found ‘in your possession’ (like in your car or in your jacket pocket), it was the defendant’s burden to prove that they didn’t know it was there.”
Prior to the Blake decision, GHPD would have arrested the men on suspicion of felony drug possession and forwarded the case to prosecutors for potential charges. Now, that only happens on the third known time police contact someone they suspect of drug possession and it’s a misdemeanor, not a felony.
Why weren’t the suspects arrested on suspicion of DUI?
Some comments on Facebook were from people who wanted to know why police didn’t arrest the men for DUI.
“If we could show impairment and show that they were driving, we would submit them to a series of field tests,” Busey said. “And if we still thought that they were impaired, we would either see if it’s alcohol or rule out alcohol, and then we could apply for a search warrant to obtain blood.”
In the scenario outlined in the Facebook post, officers found the men in a parked vehicle, off the road, and didn’t have reason to believe they were driving, Busey said.
Busey also said it’s harder to prove impairment for drugs.
“Alcohol stays in the system longer and is easier to prove impairment,” Busey said. “There is also a presumptive level of alcohol which the court recognizes as impaired (.08). There is no such standard for most drugs.”
Graham said police can still get a blood test in some cases.
“The half-life of fentanyl is 90 minutes,” Graham said. “There is enough time for police to obtain a telephone or email warrant to obtain a blood sample. Even without a blood test if you are slumped behind the wheel and can’t be awoken and there is controlled substance in your lap the charge is already proven. The law allows the police to take a blood sample if they have been trained to do so.”
In the specific scenario with GHPD where officers were able to awaken the suspects who were parked off the road, Graham believes there was no need for a blood test.
He also said it “will take a little time to change the police culture and allow the Criminal Justice Training Commission to implement the training for the police,” regarding the Blake decision.
Oftentimes, by the time officers wake someone up in fentanyl encounters, the impairment part of their high has already passed, Busey said.
Additionally, there is a “safely off the roadway” exception that Busey said police decide case by case.
“If somebody is clearly off the roadway, the courts want to reward people for doing the right thing by pulling over to sleep it off,” Busey said.
In scenarios where someone pulls over to sleep in their car while they sober up, the suspect most likely could not be arrested for physical control of a vehicle and it wouldn’t be a good faith arrest, Busey said.
Graham agrees.
“Being under the influence (of any drug) and behind the wheel is illegal if you are in the roadway,” Graham said. “If you are off the road or in a parking lot, it isn’t illegal. If you are in the roadway, the offense is physical control RCW 46.61.504. This is not handled any differently under Blake. Blake did nothing to protect impaired drivers or those in ‘physical control’ of motor vehicles while high.”
If someone was driving on the road, and an officer pulled them over assuming that they were under the influence of drugs, then it would be a DUI arrest, Busey said.
Can police administer Narcan?
Graham believes the statement by the police that they had no other option is misleading.
“The police can, and should, call an ambulance, administer Narcan in emergency situations, and try to connect the men with services,” Graham told The Gateway.
Naloxone, the generic name for Narcan, can treat an overdose in an emergency situation.
Gig Harbor Police Department officers do not carry Narcan. It requires specific training and protocols for officers to carry and administer, Busey said.
“We don’t have the training. And we know that our fire department responds very quickly within our city limits,” he said.
If officers encountered a situation where they could not awaken the suspects or they were showing other signs of extreme overdose or impairment, then officers would call for an ambulance, Busey said. In the encounter outlined in the Facebook post, it was not that type of situation, Busey said.
Anyone in Washington state who is at risk of having or witnessing an overdose is able to carry and administer naloxone, and is protected from liability if they do use it, including law enforcement, Alison Newman, program operations specialist for the Addictions, Drug & Alcohol Institute at the University of Washington told The Gateway.
“There are no special laws for law enforcement around naloxone,” she said. “However, departments may have their own internal rules for training, and I can’t speak to those.”
Asked how many local law enforcement agencies have officers carry naloxone, Newman wasn’t sure.
“We used to have a running list on our webpage, but we reached a point where the majority of agencies in the state did start carrying it, so we felt like the list was no longer that important,” she said.
Publishing photo of the suspects
Some comments on social media were from those who disagreed with the department’s decision to publish a photo of the suspects. The photo was taken from the passenger window and doesn’t clearly show their faces.
Busey said it was an effort to show and educate the public about what these encounters look like and what the drug possession laws in the state are.
“We are very much in support of incentivized drug treatment and recognize that sending drug addicts to jail is not the place for them,” Busey said. “We would rather see people get help, get recovery, get clean, get sober, not pose an ongoing public safety issue. We’d also like to see some sort of court effective, properly administrated alternative to incarceration that includes intensive drug rehabilitation.”
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