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AGO 1989 No. 13 - July 18, 1989
AGO Opinion Header Image
Ken Eikenberry | 1981-1992 | Attorney General of Washington

NEEDLE EXCHANGE PROGRAMS ‑- AIDS LEGISLATION ‑- CRIMES ‑- DRUG PARAPHERNALIA 

1.         In light of RCW 69.50.412, which makes it a criminal violation to deliver drug paraphernalia, a regional AIDS service network established pursuant to RCW 70.24.400 may not lawfully authorize the distribution of hypodermic needles to intravenous drug users.

2.         To the extent a regional AIDS service network authorizes the distribution of hypodermic needles under the purported authority of chapter 70.24 RCW, the persons actually distributing the needles are not generally exempt from criminal prosecution; however, certain persons might be exempt in specific cases.

                                                              - - - - - - - - - - - - - 

                                                                    July 18, 1989 

The Honorable Charlie Wolfe
State Representative
Fourth District
424 House Office Building
Olympia, Washington 98504 

Cite as:  AGO 1989 No. 13                                                                                                                

 Dear Representative Wolfe:

             As by letter previously acknowledged, you have asked that we issue a formal opinion on questions we have rephrased as follows:1/

              [[Orig. Op. Page 2]]

             1.         In light of RCW 69.50.412(2), which makes it a criminal violation to deliver drug paraphernalia, may a regional AIDS service network established pursuant to RCW 70.24.400 authorize the distribution of hypodermic needles to intravenous drug users in order to prevent or control the spread of AIDS?

             2.         To the extent a regional AIDS service network authorizes the distribution of hypodermic needles as described in question 1 above, are the persons distributing the needles exempt from prosecution under RCW 69.50.412(2)?

             We answer your first question in the negative and your second question in the manner indicated in the analysis below.

                                                                      ANALYSIS

 Question 1

 A.  The Uniform Controlled Substances Act

             Your first question is apparently inspired by a needle exchange program recently undertaken by the Tacoma-Pierce County Health Department.  In addition, we have learned that several other jurisdictions in the state are contemplating needle exchange programs, or may in some instances already have commenced such programs.  We are also aware that private parties in some instances have instituted needle exchange programs of their own.  While the details of these programs vary from one to another, and the rationales offered for commencing the programs similarly vary, the general purpose behind these programs appears to be a public health purpose:  to combat the spread of AIDS, a fatal disease which can be contracted through the use of an unsterilized hypodermic needle.  Because intravenous drug users have been identified as a group through which the AIDS virus is spreading, and because people in this group use hypodermic needles to inject drugs, the stated purpose of the needle exchange programs discussed above is to combat the spread of AIDS by insuring, to the extent possible, that those who use hypodermic needles to inject drugs use sterilized rather than unsterilized needles.

              [[Orig. Op. Page 3]]

             It is a criminal offense in Washington to deliver drug paraphernalia.  RCW 69.50.412(2) provides as follows:

             It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliverdrug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale,or otherwise introduce into the human body a controlled substance.  Any person who violates this subsection is guilty of a misdemeanor.

 (Emphasis added.)

             Hypodermic needles are included in the definition of "drug paraphernalia".  RCW 69.50.102(a) includes the following language:

             As used in this chapter, "drug paraphernalia" means all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.  It includes, but is not limited to:

                        . . .

                         (11)Hypodermic syringes, needles, and other objects used,intended for use, or designed for use in parenterallyinjecting controlled substances into the human body;

                        . . . .

 (Emphasis added.)

             Subsection (b) of RCW 69.50.102 directs a court to consider a number of factors in deciding whether an object is drug paraphernalia.  These factors are especially important in deciding whether an object which can have an unlawful or a lawful use (such as a hypodermic needle) should be defined as drug paraphernalia in a particular context.  Given the facts of your question, however, which presuppose that those distributing the needles know the needles will be used to inject unlawful  [[Orig. Op. Page 4]] controlled substances, there seems little doubt that hypodermic needles would be defined as drug paraphernalia for purposes of chapter 69.50 RCW.

             There is one other provision in chapter 69.50 RCW which relates to our discussion, so we will quote it here.  RCW 69.50.506(c) provides as follows:  "No liability is imposed by this chapter upon any authorized state, county or municipal officer, engaged in the lawful performance of his duties."  While we will discuss this provision in more detail later in the opinion, note that this exemption from liability under chapter 69.50 RCW is limited to persons who are (1) state, county, or municipal officers, (2) engaged in the lawful performance of their duties, and (3) "Authorized" to do what they are doing.  Only conduct meeting all three of these requirements is exempt from criminal liability.

 B.  The AIDS Act

             As explained above, under ordinary circumstances it is a crime for a person to supply another person with a hypodermic needle, knowing or having reason to believe that the other person will use the hypodermic needle to inject an unlawful controlled substance.2/

             We turn now to the 1988 AIDS Act to see whether there are any provisions in this new legislation which would serve to authorize previously unlawful conduct.

             Chapter 206, Laws of 1988 (informally known as the "AIDS act") is a broad statute intended to combat the spread of AIDS and other sexually transmitted diseases through a combination of public education, training for workers, counseling and testing, and certain public health measures relating to the control of sexually transmitted diseases.  Nothing in this act expressly amends chapter 69.50 RCW.

             In reviewing the AIDS act, we find certain provisions in one section which might arguably be used as legal authority for a needle exchange program.  Section 801, chapter 206, Laws of 1988, codified as RCW 70.24.400, is a long section establishing a  [[Orig. Op. Page 5]] statewide system of regional acquired immuno deficiency syndrome (AIDS) service networks and prescribing the powers and functions of those networks.

             Relevant portions of RCW 70.24.400(3) provide as follows:

             The regional AIDS service network plan shall include the following components:

                        . . .

                         (b) A complement of services to include:

                       . . .

                         (iv) Education for the general public, health professionals, and high-risk groups;

                         (v) Intervention strategies to reduce the incidence of HIV infection among high-risk groups, possibly including needle sterilization and methadone maintenance;

                       . . . .

 Subsection (12) of the same section provides as follows:  "The use of appropriate materials may be authorized by regional AIDS service networks in the prevention or control of HIV infection."  RCW 70.24.400(12).

             The Legislature's use of the phrase "possibly including needle sterilization" and the phrase "distribute appropriate materials" is some indication that the Legislature contemplated that regional AIDS service networks might wish to engage in "intervention strategies" for intravenous drug users to stop the spreading of AIDS which occurs through the sharing of unsterile hypodermic needles.  A needle exchange program as described in your question would certainly be an example of such an "intervention strategy".  However, this language is not sufficient to authorize conduct which otherwise would violate the drug paraphernalia statute.

             As we noted earlier, nothing in the AIDS act purports to amend RCW 69.50.412, the drug paraphernalia statute.  Repeals and amendments by implication are not favored in Washington law.  Misterek v. Washington Mineral Prods., Inc., 85 Wn.2d 166, 531 P.2d 805 (1975).  In light of this fact, it is important to read the AIDS statute together with the drug paraphernalia statute, and give maximum meaning and effect to each.  Miller v. King Cy., 59 Wn.2d 601, 369 P.2d 304 (1962).  The best way to harmonize these two provisions is to read the AIDS statute as authorizing  [[Orig. Op. Page 6]] only such "intervention strategies" as are not contrary to other specific provisions of law, including the criminal law.  Educating the general public about the need to use sterile needles, or providing disinfectant to the general public for that purpose, for instance, would not likely be read as violating chapter 69.50 RCW.3/

             However, the distribution of hypodermic needles, explicitly defined as "drug paraphernalia" in chapter 69.50 RCW, especially where those distributing the needles have every reason to believe they will be used to inject illegal drugs, was clearly a crime before the AIDS act was passed.  Since the Legislature, as we will subsequently explain, chose not to amend the criminal statutes, we must conclude that the AIDS act was not intended to authorize conduct which previously had been declared criminal.

             The legislative history of RCW 70.24.400 shows that the Legislature specifically considered and rejected a provision that would have created an exception to the criminal statute under discussion.  The penultimate draft of the legislation which ultimately became the AIDS act, Engrossed Second Substitute Senate Bill 6221, provided in section 801(12) that:  "The use of appropriate materials as authorized by regional AIDS service networks in the prevention or control of HIV infectionshall not be deemed a violation of RCW 69.50.412."4/

             (Emphasis added.)  In an amendment just prior to final passage of Engrossed Second Substitute Senate Bill 6221, a full vote of the House of Representatives, later concurred in by a full vote of the Senate, stripped from the bill the proposed exemption from RCW 69.50.412.  House Journal, 50th Legislature (1988), at 1406.  The critical subsection was amended to read as finally enacted:  "The use of appropriate materials may be authorized by regional AIDS service networks in the prevention or control of HIV infection."

             The significance of the Legislature's specific rejection of the proposed exemption to the applicability of RCW 69.50.412 cannot be overlooked.  Consideration of the legislative history of an enactment has long been held to be a legitimate method of ascertaining legislative intent.  Bellevue Fire Fighters, Local  [[Orig. Op. Page 7]]1604 v. Bellevue, 100 Wn.2d 748, 753, 675 P.2d 592 (1984),cert. denied, 471 U.S. 1015 (1985).  Further, the value and appropriateness of considering sequential drafts of a bill is likewise acknowledged.  Id.  Moreover, while the Legislature expressly demonstrated its awareness of RCW 69.50.412 in the prior drafts of Engrossed Second Substitute Senate Bill 6221 in the course of enacting the AIDS act, such an awareness is presumed in any event as a fundamental precept of statutory construction.  Bellevue Fire Fighters, 100 Wn.2d at 753.  Accordingly, we conclude that chapter 206, Laws of 1988, was not intended to and did not effect any amendment, repeal, or other limitation upon the applicability of RCW 69.50.412.5/

              In light of this legislative history, we conclude that the Legislature considered, but eventually decided against, amending the drug paraphernalia statutes in the AIDS act.  We note also that when Assistant Attorney General Ackerman took the same position in his informal opinion, the public statements made and the letters sent to us by legislators and others familiar with the circumstances under which the AIDS act was passed were consistent with the view of legislative history we have described.

             Since subsection (3) of RCW 70.24.400 contains an explicit reference to "possibly including needle sterilization", we have also considered whether this phrase authorizes needle exchange programs.  First, the phrase "needle sterilization" in and of itself does not ordinarily include the exchange of one needle for another.  Since the AIDS act leaves the phrase "needle sterilization" undefined, we assume the term has its general dictionary meaning.  Only one dictionary definition of the term "sterilization" has possible applicability to this situation:  "the rendering of a body or material free from living cells and esp. microorganisms usu. by killing those present (as by heat)".  Webster's Third New International Dictionary 2238 (1981).  At the  [[Orig. Op. Page 8]] same time, we recognize (as the Legislature surely did only a year ago), that most of the needles now in general use are disposable needles intended to be discarded after a single use.  Finally, "needle sterilization" is cited in subsection (3) of RCW 70.24.400 only as an example of possible "intervention strategies" and is not intended to indicate the only kind of strategy the Legislature was contemplating.

             In light of the considerations we discussed earlier, we cannot go so far as to say that a general reference to "intervention strategies" to be adopted by regional AIDS service networks was intended to authorize regional AIDS service networks to provide exemptions to the criminal law by making local decisions about what types of intervention strategies to adopt in their regional plans.  Reading the statute this way would have the result of making conduct justifiable and officially sanctioned in some areas of the state while in other areas (perhaps only a few miles away), the same conduct would be subject to prosecution under the criminal laws.  While the Legislature undoubtedly could provide for such a patchwork system if it so chose (the earlier draft of RCW 70.24.400(12) is an example of legislation which would have achieved that result), we will not infer such a choice from the general language of RCW 70.24.400(3).  Such a patchwork would be radically at odds with the well-accepted concept that the criminal laws are the same in all the areas of the state's jurisdiction and do not vary from one geographical location to another within the state.

             Finally, we note that the placement of the language about intervention strategies next to the provisions about public education indicates that the Legislature probably was thinking more about less controversial intervention strategies than needle exchange programs.  Public education about the dangers of illegal drug use, public education about the way AIDS is spread, public education about the need to engage in safe health practices such as avoiding the sharing of hypodermic needles,  and perhaps the distribution of disinfectant or other materials which are not in themselves "drug paraphernalia" might be examples of such intervention strategies.

             To summarize, we read the AIDS act as authorizing only such intervention strategies as are not otherwise unlawful.  Because the distribution of hypodermic needles to users of illegal drugs is otherwise unlawful, we conclude that the AIDS act is not broad enough to authorize such distribution, and we therefore answer your first question in the negative.

 Question 2

             To the extent a regional AIDS service network authorizes the distribution of hypodermic needles as  [[Orig. Op. Page 9]] described in question 1 above, are the persons distributing the needles exempt from prosecution under RCW 69.50.412(2)?

             In light of our negative answer to your first question, it is not, strictly speaking, necessary for us to address this second question at all, but we include some clarifying comments to avoid misunderstandings.

            First, as noted earlier, the drug paraphernalia statute contains a specific exception for certain public officers.  RCW 69.50.506(c) provides that "[n]o liability is imposed by this chapter upon any authorized state, county or municipal officer, engaged in the lawful performance of his duties."

             This provision applies, first of all, only to "officers" of states, counties, or municipal corporations.  The term "officer" in Washington has a case law definition which is fairly limited, essentially the holder of an elective or appointive office who exercises some delegated legislative, executive, or judicial authority.  See State ex rel. Brown v. Blew, 20 Wn.2d 47, 145 P.2d 554 (1944).  Thus, this exception under no circumstances appears to apply, for instance, to private citizens engaged in a needle exchange program, even under some purported authorization by a regional AIDS service network.  Because the term "officers" has not been read as extending to those acting on a contractual basis for a government body, neither would we read the exception in RCW 69.50.506(c) as applying to those providing designated network responsibilities by contract, as for instance under RCW 70.24.400(8).

             For those state, county, or municipal employees who do qualify as "officers", RCW 69.50.506(c) may provide an immunity from criminal prosecution when such officers are acting within the scope of their duties and performing acts which are "authorized".  We have concluded in our answer to question 1 that the AIDS act itself does not authorize a needle exchange program, and thus would not insulate public officers or employees from criminal prosecution.

             However there may be statutes, not apparent to us, which others might cite as "authorizing" needle exchange activities on the part of particular state or local officers.  Furthermore, there may be instances in which a particular officer engages in a needle exchange program in good faith under color of statutory authorization, perhaps upon advice of counsel, in which these factors would be considered a sufficient defense against a criminal charge under RCW 69.50.412.  We will not attempt here to define what those particular circumstances might be.

             [[Orig. Op. Page 10]]

             Finally, although we generally conclude that persons engaging in a needle exchange program for the purposes of combatting the spread of AIDS or similar diseases would not be immune from criminal prosecution under the drug paraphernalia statutes, it does not necessarily follow that a prosecuting attorney (or other officer authorized to prosecute crimes) would actually file charges in the situation described in your questions.  The decision whether to file criminal charges in connection with a specific set of facts is ordinarily entrusted to the sound discretion of the prosecutor involved.  In the exercise of that discretion, prosecutors routinely weigh many factors, both legal and practical, before deciding whether to allocate scarce resources to a particular potential prosecution.  We assume that the same weighing process would occur in the evaluation of a potential violation of RCW 69.50.412(2) of the sort analyzed above.

             We trust the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

JAMES K. PHARRIS
Sr. Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/We responded to a previous request with an informal opinion to you (letter of Assistant Attorney General Jerry A. Ackerman dated March 28, 1989).  Mr. Ackerman concluded that a particular hypodermic needle exchange program would violate the drug paraphernalia laws, specifically RCW 69.50.412(2).  We understand that, subsequent to Mr. Ackerman's letter, the Senate inserted language in the omnibus drug bill (House Bill 1793) specifically prohibiting needle exchange programs, while the House of Representatives inserted language specifically permitting this practice.  The final version of House Bill 1793 contained the Senate proposal prohibiting needle exchange programs.  The governor vetoed the portion of that bill which related to needle exchange programs.  Laws of 1989, ch. 271, § 107, p. 1277.

 2/"Delivery" of drug paraphernalia does not require a sale or payment of consideration.  See RCW 69.50.101(f).  Therefore, a violation of the statute does not require any proof of profit or payment for the drug paraphernalia supply.  Furthermore, under the general principles of criminal law, high political, moral, or religious motives are not a sufficient justification to prevent criminal liability.  See State v. Aver, 109 Wn.2d 303, 745 P.2d 479 (1987).  See also Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1879).

 3/It would be impractical for us here to attempt to draw the precise line between conduct which would and conduct which would not violate the drug paraphernalia statute.  That line, wherever it is, is the outer boundary of conduct permitted by the AIDS statute.

 4/RCW 69.50.412 provides that it is a crime to deliver drug paraphernalia knowing or under circumstances where one reasonably should know that it would be used to inject into a human body a controlled substance.

 5/Question might be raised whether we leave RCW 70.24.400(12) with any meaning, if it does not authorize the distribution of materials such as sterile needles.  We can see a number of ways in which the final version of subsection (12) has significance.  First, it clearly does authorize the distribution of a variety of materials, not contrary to any criminal law, which may be found to assist in the prevention or control of HIV infection.  Without subsection (12) there might well be question whether regional networks would actually have the statutory authority to authorize such distribution.  In addition, subsection (12), when read together with the rest of RCW 70.24.400, makes it clear that the distribution of "appropriate materials" is eligible for public funding as described in subsection (6) of the section.

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