Chapter 9.04


9.04.010    Definitions.

9.04.020    Orders – Conditions.

9.04.030    Person subject to court order defined.

9.04.040    Stay Out of Drug Areas orders – Issuance – Other court orders.

9.04.050    Prohibited areas – Designation – Modification and termination.

9.04.060    Repealed.

9.04.070    Drug loitering prohibited.

9.04.080    Chapter cumulative.

9.04.090    Penalties.

9.04.010 Definitions.

A.    “Controlled substances” means a drug, substance, or its immediate precursor, listed in Schedule I, II, III, or IV of the Uniform Controlled Substances Act, Chapter 69.50 RCW.

B.    “Drug” means:

1.    Substances recognized as drugs in the official U.S. pharmacopoeia, official homeopathic pharmacopoeia of the United States, or official national formulary, or any supplement to any of them; or

2.    Substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of diseases in humans or animals; or

3.    Substances affecting or intended to affect the structure or any function of the body of humans or animals, except for food, and except for vitamins and minerals approved by the U.S. Food and Drug Administration for use as minerals and vitamins.

C.    “Drug-related activity” means any of the following:

1.    Administering drugs, controlled substances or imitation controlled substances, whether by injection, inhalation, ingestion, or any other means, to oneself or to another person; or

2.    Delivering drugs, controlled substances or imitation controlled substances by the actual, constructive or attempted transfer of drugs, controlled substances or imitation controlled substances from one person to another; or

3.    Distributing drugs, controlled substances or imitation controlled substances by transferring or arranging for their transfer other than by administering or delivering them; or

4.    Exhibiting the effects of having consumed any drug. For purposes of this subsection, “exhibiting the effects of having consumed any drug” means that a person by speech, manner, appearance, behavior, lack of coordination, or otherwise exhibits that he or she has injected, inhaled, ingested, or otherwise consumed any drug or that he or she is under the influence of any drug.

D.    “Prohibited area” means the portion of the city described by the Bothell police department as having a high occurrence of drug-related activity which has been declared an area to be included in a Stay Out of Drug Area order.

E.    “Imitation controlled substance” means a substance that is not a controlled substance, but which by appearance or representation would lead a reasonable person to believe that the substance is a controlled substance. Appearance includes, but is not limited to, color, shape, and size markings of the dosage unit. Representation includes, but is not limited to, representations or factors of the following nature:

1.    Statements made by the person who owns or controls the substance regarding its nature, use or effect;

2.    Statements made to the recipient that the substance can be resold for inordinate profit; or

3.    Packing of the substance in a manner normally used for illicit controlled substances, such as but not limited to folded paper bundles, cellophane packages, aluminum foil balls or squares, 35 mm film canisters, zip-lock plastic baggies, two-inch glass vials, rubber balloons, bindles, or condoms.

F.    “Known unlawful drug user, possessor or seller” means a person who has, to the knowledge of the arresting officer, within one year prior to the date of his or her arrest for violation of this chapter, been convicted of any infraction or crime involving the use, possession or sale of any drug, legend drug, controlled substance, or imitation controlled substance, either in any court in Washington State, or in the courts of any other state; or

1.    Who is displaying the physical characteristics of use of any drug, legend drug, or controlled substance, such as poor coordination, slurred speech, needle marks on the body, constricted pupils or dilated pupils; or

2.    Who is in possession of drug paraphernalia as defined in BMC 9.11.010; or

3.    Who is the subject of an order prohibiting his or her presence in a prohibited area.

G.    “Legend drug” means drugs which are required by Washington State statutes or administrative regulations, or regulations of the State Board of Pharmacy, to be dispensed on prescription only, or are restricted to use only by health care practitioners licensed by the state of Washington (including physicians under Chapter 18.71 RCW, osteopaths under Chapter 18.57 RCW, dentists under Chapter 18.32 RCW, podiatrists under Chapter 18.22 RCW, veterinarians under Chapter 18.92 RCW, registered nurses under Chapter 18.79 RCW, osteopaths’ assistants under Chapter 18.57A RCW, physicians’ assistants under Chapter 18.71A RCW, or pharmacists under Chapter 18.64 RCW, or pharmacies, hospitals or institutions licensed to distribute, dispense, conduct research with, or administer legend drugs to persons in the course of professional practice or research in the state).

H.    “Loiter” means to stand about or to proceed with many stops. (Ord. 2226 § 1, 2017; Ord. 2218 § 1 (Exh. A), 2017).

9.04.020 Orders – Conditions.

Any judge or judge pro tempore of the Bothell municipal court may issue written orders to criminal defendants describing conditions of their pretrial release or the post-conviction conditions of suspension or deferral of their sentences. Orders must be substantially in the form described in this chapter. (Ord. 2218 § 1 (Exh. A), 2017).

9.04.030 Person subject to court order defined.

As used in this chapter, “person subject to court order” means any person who is subject to an order issued under this chapter. (Ord. 2218 § 1 (Exh. A), 2017).

9.04.040 Stay Out of Drug Areas orders – Issuance – Other court orders.

A.    Any order issued pursuant to this chapter that specifically orders as a condition of pretrial release and/or deferral or suspension of sentence that the defendant stay out of areas with a high level of illegal drug trafficking shall be hereinafter referred to as a “SODA” (“Stay Out of Drug Areas”) order.

B.    SODA orders may be issued to anyone charged with or convicted of possession of drug paraphernalia, manufacture/delivery of drug paraphernalia, delivery of drug paraphernalia to a minor, selling/giving drug paraphernalia to another person, solicitation of a violation of the Uniform Controlled Substances Act, or any of the aforementioned crimes that occur within a drug-free zone or a prohibited area.

C.    SODA orders may be issued to anyone charged with or convicted of any offense if the court finds that reasonable grounds exist to believe that any chemical dependency, substance abuse, or drug-related activity contributed to the offense.

D.    Nothing within this section shall be construed as precluding the court from issuing an order pursuant to this chapter that is not specifically a SODA order. (Ord. 2226 § 2, 2017; Ord. 2218 § 1 (Exh. A), 2017).

9.04.050 Prohibited areas – Designation – Modification and termination.

A.    Whenever an order is issued under this chapter, the subject of the order may be ordered to stay out of certain areas that are set forth within the written order. These areas will hereinafter be referred to as “prohibited areas.”

B.    Prohibited areas that are set forth in SODA orders shall be established by a resolution of the city council, at a minimum of every two years. The police department shall provide information to the city council to support establishment and/or the elimination of prohibited areas in the form of one or more declarations and/or other sworn testimony. The declaration(s) and/or other sworn testimony shall:

1.    Be by declarant(s) familiar with areas of the city that suffer a high incidence of drug trafficking activity;

2.    Set forth the education, experience and other relevant qualifications of the declarant(s);

3.    Set forth the basis for proposing prohibited areas, e.g., crime mapping data or other information;

4.    Describe the proposed prohibited areas; and

5.    Provide other information that supports the council’s review and determination of prohibited areas.

C.    Prohibited areas that are set forth in orders issued under this chapter other than SODA orders may be set by court discretion and are not required to be set in accordance with subsection B of this section.

D.    Upon request for modification or termination of any order issued under this chapter, the court shall consider the requested modification or termination by allowing for a process by which the subject of the order can provide relevant testimony or other evidence in support of his/her request.

E.    Unless otherwise ordered by the court, an order issued under this chapter shall have as its termination date two years from the date of its issuance.

F.    Whenever an order is issued, modified or terminated pursuant to this chapter, the clerk of the court shall forward a copy of the order on or before the next judicial day to the Bothell police department. Upon receipt of the copy of the order, the Bothell police department shall enter the order until the expiration date specified on the order into any computer-based criminal intelligence information system(s) available to Bothell police officers. Upon receipt of notice that an order has been terminated, the Bothell police department shall remove the order from the computer-based criminal intelligence information system(s).

G.    Nothing in any provision of this chapter related to SODA orders shall be construed as prohibiting the subject of a SODA order from participating in a scheduled court hearing or from attending a scheduled meeting with his/her legal counsel within a prohibited area. (Ord. 2218 § 1 (Exh. A), 2017).

9.04.060 Stay Out of Drug Areas – Defined boundaries.

Repealed by Ord. 2226. (Ord. 2218 § 1 (Exh. A), 2017).

9.04.070 Drug loitering prohibited.

A.    It is unlawful for any person to loiter in or near any prohibited area, thoroughfare, place open to the public, or any public or private place for the purpose of engaging in drug-related activity, which activity is in violation of Chapter 69.41 RCW (regarding legend drugs), Chapter 69.50 RCW (the Uniform Controlled Substances Act), or Chapter 69.52 RCW (regarding imitation controlled substances).

B.    Among the circumstances which may be considered in determining whether the person’s manner or circumstance manifests an intent to engage in unlawful drug-related activities include:

1.    The Place. The area where the person is loitering has been designated as a prohibited area; or the premises involved have been reported, to the knowledge of law enforcement officers, to be a place suspected of illegal drug-related activity; and

2.    The Vehicle Involved. Any motor vehicle involved is registered to a known unlawful drug user, possessor, or seller, or a person for whom there is an outstanding warrant for arrest for a crime involving unlawful drug-related activity; and

3.    The Person. The person loitering is:

a.    A known unlawful drug user; or

b.    The person is acting as a “lookout” by repeatedly leading, directing or responding to others for no obvious lawful purpose; or

c.    The person repeatedly transfers objects or packages for currency in a furtive fashion other than in a retail transaction licensed under the business and occupation and sales tax ordinances of the city; or

d.    The person manifestly endeavors to conceal himself, herself or some object that reasonably could be involved in unlawful drug-related activity; or

e.    The person is known by law enforcement officers to be a member of a “gang” or association that is known by law enforcement officers to be engaged in illegal drug activity; or

f.    The person takes flight upon the appearance of a police officer; or

g.    The person is currently subject to an order prohibiting his/her presence in a high drug activity geographic area; or

h.    The person displays physical characteristics of drug intoxication or usage, such as “needle tracks”; or

i.    The person possesses drug paraphernalia as defined in BMC 9.11.010. (Ord. 2218 § 1 (Exh. A), 2017).

9.04.080 Chapter cumulative.

The provisions of this chapter are intended to be cumulative and do not expressly or impliedly repeal any other ordinance involving the same subject matter. (Ord. 2218 § 1 (Exh. A), 2017).

9.04.090 Penalties.

A.    Written orders issued under this chapter shall contain the court’s directives and shall bear the legend:

WARNING: Violation of this order subjects the violator to arrest under Chapter 9.04 of the Bothell Municipal Code and shall constitute a separate criminal offense and may result in imposition of suspended or deferred jail time and/or fine.

B.    Penalties. A person who knowingly and willfully disobeys a SODA (“Stay Out of Drug Areas”) order issued under this chapter is guilty of a gross misdemeanor. Any person who violates any other provisions of this chapter is guilty of a gross misdemeanor. (Ord. 2218 § 1 (Exh. A), 2017).