State v. Smith, s. 45296

CourtUnited States State Supreme Court of Washington
Citation93 Wn.2d 329,610 P.2d 869
Docket NumberNos. 45296,44890 and 44597,s. 45296
PartiesThe STATE of Washington, Respondent and Cross-Appellant, v. James H. SMITH, Appellant. The STATE of Washington, Respondent, v. David L. ANDERSON, Petitioner. The STATE of Washington, Respondent, v. David J. REDWINE and Loralyn Redwine, Appellants.
Decision Date24 April 1980

Page 329

93 Wn.2d 329
610 P.2d 869
The STATE of Washington, Respondent and Cross-Appellant,
James H. SMITH, Appellant.
The STATE of Washington, Respondent,
David L. ANDERSON, Petitioner.
The STATE of Washington, Respondent,
David J. REDWINE and Loralyn Redwine, Appellants.
Nos. 45296, 44890 and 44597.
Supreme Court of Washington, En Banc.
April 24, 1980.

Page 331

[610 P.2d 872] Roethler & McCulloch, Don L. McCulloch, Clifford R. Kuhn, Longview, Ries & Kenison, Gerald J. Moberg, Moses Lake, Smith, Kaplan, Withey, Theiler & Sowa, Daniel Hoyt Smith, Timothy K. Ford, Seattle, for petitioner and appellants.

Henry R. Dunn, Pros. Atty., Randolph L. Furman, Chief Crim. Deputy Pros. Atty., Kelso, Paul Klasen, Pros. Atty.,

Page 332

James A. Whitaker, Deputy Pros. Atty., Ephrata, Russ Juckett, Pros. Atty., Carl K. Chen, Deputy Pros. Atty., Everett, for the State.


This is a consolidated appeal of four individual criminal convictions. Each of the defendants was convicted of a violation of the Uniform Controlled Substances Act, RCW 69.50. We consolidated the appeals to facilitate the resolution of issues which raise constitutional challenges to the statutory prohibitions. We affirm the convictions.

Petitioner Anderson was convicted in Cowlitz County Superior Court of violation of RCW 69.50.401(a), the proof showing that he gave a small amount of marijuana to a police agent. In addition, he was convicted of a misdemeanor, possession of marijuana in a quantity less than 40 grams. Division Two of the Court of Appeals affirmed the convictions in a published opinion. State v. Anderson, 16 Wash.App. 553, 558 P.2d 307 (1976). This court granted a petition for review.

The appellants Redwine and Smith were respectively convicted in Grant and Snohomish County Superior Courts for violations of RCW 69.50.401(c), punishing the felonious possession of over 40 grams of marijuana. The activity upon which their convictions are factually based was confined to areas in and around their private residences. None of these parties disputes the sufficiency of the evidence to establish possession or delivery of marijuana. Rather, they argue that in light of the locus of the crimes and current information regarding marijuana, their convictions are constitutionally infirm.

These parties, referred to herein as the defendants, join in two constitutional challenges. They argue that the statutory scheme prohibiting marijuana delivery or possession

Page 333

bears no fair and substantial relation to legitimate governmental objectives and thus violates equal protection guaranties; and that their constitutional right to privacy protects marijuana possession[610 P.2d 873] and use within the home, because the State has shown no substantial reason for the regulation. The defendant Smith adds a contention that the punishment prescribed for possession is cruel and unusual. These constitutional challenges are framed against the trial record of defendant Smith. We will precede our discussion of the constitutional issues by reviewing this record which defendants assert establishes the unconstitutionality of the challenged statutory scheme.

The record upon which defendants rely contains the testimony of several expert witnesses. In addition, it contains the testimony of a former drug addict, as well as the testimony of a police officer. The record establishes that marijuana, like alcohol, when ingested into the human body, produces physiological and psychological effects. The chief active ingredient in marijuana, and the one largely responsible for its effects, is called tetrahydrocannabiniol (THC). The level of THC in samples of marijuana varies, and this variation accounts in part for the differences in human reactions to the drug. There is no way of predicting how much THC will be found in a given quantity of marijuana, since it is a plant a collection of substances easily subject to change.

There is little question, under the evidence, that once a threshold dose of THC, as in marijuana, is ingested by a person, it will produce a euphoric state of intoxication. In addition to this state, there is accompanying distortion of the person's sensory perceptions. The record reflects that use of marijuana impairs an individual's motor coordination, learning ability, and motivation.

Expert witnesses also informed the trial judge that there are other frequently recognized and often debated effects of marijuana. These included effects on: (1) chromosomes, (2) the endocrine system, (3) testosterone (a hormone), and

Page 334

(4) the formation of deoxyribonucleic acid (DNA) (the substance of which genes are composed).

There is evidence that marijuana may cause deleterious effects not caused by alcohol. Thymidine is a chemical which is the building block of DNA. The testimony indicates that marijuana may affect the incorporation of thymidine into DNA, whereas alcohol does not. Further, THC is not degraded in the body in the same way that alcohol is. A dose of THC may remain in the body up to 8 days.

Scientific findings respecting marijuana effects are not settled. One expert said that chromosome studies are "at variance with each other". Another expert, remarking on the difficulty off experimentation and documentation in the area of marijuana effects stated candidly: "It is not something you get a quick answer to."

This is amply demonstrated by the divergent results of studies. For example, in one experimental study commented upon by an expert witness evidence of brain atrophy was found in marijuana users. Yet, in another study which utilized a different measurement technique, no evidence of atrophy was found. This divergence led an expert to state that with regard to marijuana's effects: "There is generally legitimate debate amongst people I have a great deal of respect for."

The defendant's record does not seem to resolve this debate. Rather, from it, we, like the trial judge, learn that the long term effects of marijuana are not fully known. This is partially because studies have been limited. For example, the Food and Drug Administration prohibits the use of women subjects. Thus, it will be at least a generation before fetal effects may be fully explored. There has been little study of the effects on children.

The trial judge ruled that in light of present uncertainty with respect to the effects of marijuana, the legislature could classify marijuana as a drug with potential for abuse. He concluded that the defendant had not sustained his

Page 335

burden of proving the act unconstitutional. We are convinced the trial judge carefully, correctly held that the burden of proof was not met.

While defendants do not contend that they have a constitutional right to possess [610 P.2d 874] marijuana, they urge that we independently review the record and their arguments. See State v. Sweet, 90 Wash.2d 282, 581 P.2d 579 (1978); and State v. Byers, 85 Wash.2d 783, 539 P.2d 833 (1975). We have reviewed that record, but we are not permitted to ignore or question the credibility of the testimony of the State's witnesses or disregard the unresolved debate regarding marijuana's effects, as the defendants would have us do. With this in mind, we now turn to the constitutional challenges.


Defendants challenge the constitutionality of RCW 69.50.401(a) and (c) on equal protection grounds. 1 They assert that prohibition of marijuana bears no fair and substantial relation to a legitimate state interest.

At the outset of any equal protection analysis it is necessary to define the standard of review against which to test the challenged legislation. In this case, the designation of the appropriate test is important since defendants' argument is that marijuana prohibition must bear a fair and substantial relation to a legitimate state objective.

Two tests are used to judicially measure classifications alleged to violate equal protection: the strict scrutiny test and the rational relation test. Nielsen v. Washington

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State Bar Ass'n, 90 Wash.2d 818, 585 P.2d 1191 (1978). The former is applied whenever a legislative classification involves a fundamental right or creates a suspect classification. Nielsen v. Washington State Bar Ass'n, supra; Graham v. Richardson, 403 U.S. 365, 371-72, 91 S.Ct. 1848, 1851-52, 29 L.Ed.2d 534 (1971).

The latter, the rational relation test, despite contrary dicta appearing from time to time in our cases, is used whenever legislation does not infringe upon fundamental rights or create a suspect classification. 2 Brewer v. Copeland, 86 Wash.2d 58, 69 n.8, 542 P.2d 445 (1975); see State v. Laitinen, 77 Wash.2d 130, 459 P.2d 789 (1969), and State v. Ruzicka, 89 Wash.2d 217, 570 P.2d 1208 (1977).

The statutory prohibition in this case neither creates a suspect classification nor, as defendants readily admit, does it involve a fundamental right. Thus, in considering this equal protection challenge, we will sustain the challenged classification if it is rationally related to a legitimate governmental objective. And, in looking for a rational relation, we may assume the existence of any necessary state of facts which [610 P.2d 875] we can reasonably conceive. State v. Ruzicka, supra; Brewer v. Copeland, supra; Aetna Life Ins. Co. v. Washington Life & Disability Ins. Guar. Ass'n, 83 Wash.2d 523,

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520 P.2d 162 (1974). In order to defeat the legislation, the defendant must show, beyond a reasonable doubt, that no state of facts exists or can be conceived sufficient to justify the challenged classification, or that the facts have so far changed as to render the classification arbitrary and obsolete. Brewer v. Copeland, supra; State v. Ruzicka, supra.

In an effort to meet this burden, the defendant Smith compiled a substantial record. If the defendants' view of the facts is correct, marijuana is not as harmful as the legislature believes, and therefore the legislation was perhaps ill-advised. But a...

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