Trafficking Provisions

Convictions under RCW 69.50.401 for manufacture, delivery or possession with intent will constitute both controlled substance violations and drug trafficking aggravated felonies under immigration law

•  There is an argument that the manufacture of drugs—or possession with intent to do so—is not an aggravated felony. The Washington statute is not a direct analogue to the federal statute, which has an element of knowledge. Since it is possible to manufacture drugs for personal use, there is no establishment of a commercial element necessary for the offense to fall under the common sense definition of trafficking. However, these are only arguments. Conservatively speaking, counsel should make every effort to avoid conviction under these provisions. But, if a conviction under one of these statutes is unavoidable, pleading to manufacture or possession with intent to do so is better than pleading to delivery.