Case Law Update (State v Rose)

Division III Court of Appeals

State v. Rose: The Court found that I502, decriminalizing the possession by persons age 21 and older of small amounts of marijuana and marijuana related drug paraphernalia applied to pending prosecutions for possession, notwithstanding Washington’s general criminal prosecution saving statute. The Court found that the statute fairly conveys a legislative intent – in this case the voters’ intent – that the decriminalization be retroactively applied to cases pending when the initiative was approved. The Court therefore reversed Mr. Rose’s post-December 6, 2012 judgment and sentence. The Court reasoned that this was one of the rare cases where the plain language of the statute includes additional language that fairly conveys disapproval or concern about continued prosecution, and thus it was required by 10.01.040 to respect that expression of a contrary intention.


Dissenting, Judge Korsmo argued that I502 did not fully legalize marijuana, but acted to eliminate the crime of possession of marijuana in most cases. Further, the dissent argued, there was no clear intent to apply the statute to cases in progress. The dissent claimed that the cases relied upon by the majority had within the statutes clear expressions of exemption from the savings clause, an express contention that was lacking in this case.   Instead, the dissent argued, the savings clause should apply in this case, as the clause creates a “presumption” that can only be overcome by a “strong expression of intention.” The dissent concluded that the language of the statute as a whole suggests that the initiative is not retroactive, particularly considering that the statute did not fully legalize marijuana but only legalized possession of small amounts by adults.

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