Vallum a controlled substance
The instant situation is not unlike that in Powers v. In oral argument the prosecuting attorney conceded very candidly that he could not assure this court whether common aspirin is currently designated as a controlled substance under the overly inclusive provisions of RCW 69.50.201(d) without an up-to-date search of the Federal Register. *122 It is difficult to see how an average citizen could be presumed to know that Valium is a controlled substance under RCW 69.50.201(d) when it was necessary for the Board to notify the prosecuting attorneys of this state of that fact some 10 months after publication in the Federal Register. The only way one can determine the current status of a drug as a possible controlled substance is by reference to the Federal Register, a publication not readily available even to many lawyers. Consequently, a substance that is newly designated or rescheduled as a controlled substance by publication in the Federal Register becomes the criminal law of this state without appearing in either a state statute or the state administrative code. Once a substance has become controlled, a legislatively prescribed criminal penalty is imposed for its misuse. Where, as here, the Board does not object to the federal act of designating or rescheduling a substance, it becomes controlled after 30 days by reason of the Board's inaction or acquiescence in the final publication in the Federal Register. Thus, the question is whether a person of common intelligence can, with reasonable certainty, determine what substances are designated or rescheduled as controlled substances under RCW 69.50.201(d). Although impossible standards of specificity are not required, the statutory language must convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. *121 Procedural due process requires that citizens be given fair notice of conduct forbidden by a penal statute. Petitioner challenges the constitutionality of RCW 69.50.201(d) which authorizes a substance to be designated or rescheduled as a controlled substance by the mere act of final publication in the Federal Register and acquiescence therein by the Board.įirst, petitioner contends RCW 69.50.201(d) violates the due process clause of the fourteenth amendment to the United States Constitution, and article 1, section 3 of the Washington Constitution, because it fails to give notice of the conduct that is proscribed. On June 20, 1976, petitioner was charged with possession of a controlled substance, Valium, pursuant to RCW 69.50.401(c). Thereafter, on April 26, 1976, the state Board notified all prosecuting attorneys that under the laws of this state Valium had been a controlled substance since July 2, 1975. In that case, the board shall proceed pursuant to the rule-making procedures of chapter 34.04 RCW. (d) If any substance is designated, rescheduled, or deleted as a controlled substance under federal law and notice thereof is given to the board, the substance shall be similarly controlled under this chapter after the expiration of thirty days from publication in the Federal Register of a final order designating a substance as a controlled substance or rescheduling or deleting a substance, unless within that thirty day period, the board objects to inclusion, rescheduling, or deletion. However, the Board designated Valium as a controlled substance pursuant to RCW 69.50.201(d) which reads: The Washington legislature did not designate or reschedule Valium as a controlled substance by amending the Uniform Controlled Substances Act, RCW 69.50, and the Washington State Board of Pharmacy (Board) did not designate or reschedule it as a controlled substance pursuant to the hearing and notice requirements of the Administrative Procedures Act. *120 On June 4, 1975, an order was published in the Federal Register designating diazepam (Valium) a controlled substance under federal law.
Vallum a controlled substance trial#
The trial court denied petitioner's motion to dismiss a criminal action against him for failure to state an offense. Stewart Bock on behalf of Seattle-King County Defender Association, amicus curiae. Dunn, Prosecuting Attorney, and Kenneth L. Walstead, Mertsching, Husemoen, Donaldson & Barlow and C.C. The Supreme Court of Washington, En Banc.