(dissenting) — I would overrule State v. Cleppe, 96 Wn.2d 373, 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006 (1982), to recognize an intent element in the crime of unlawful possession of a controlled substance. RCW 69.50.4013.
Defendants are two truck drivers convicted of unlawful, but unwitting, possession of a controlled substance. Donald Bradshaw drove a borrowed truck across the Washington border at Blaine, where the border patrol found marijuana hidden in a propane tank on the truck. Christian Latovlovici, a commercial truck driver, also drove to the Blaine border crossing in a semitrailer loaded with 18 pallets of beer. Marijuana was found secreted in a void between 2 pallets. If these two knew about the controlled substance each was ferrying across the border, the government didn’t prove it. And under the majority’s rule, the government need not prove it.
The majority claims the legislature may create unintended strict liability crimes. Majority at 532. While this maybe true, such crimes are disfavored at common law and usually limited to public welfare offenses. State v. Anderson, 141 Wn.2d 357, 363, 5 P.3d 1247 (2000) (citing State v. Bash, 130 Wn.2d 594, 606, 925 P.2d 978 (1996)). In light of this disfavor, and the possibility that strict liability offenses may “ ‘criminalize a broad range of apparently innocent behavior,’ ” majority at 537 (quoting Anderson, 141 Wn.2d at 364), legislative direction to dispense with criminal intent must be crystal clear. There are two reasons why this legislative direction is insufficiently stated in the present context: uniformity and the nature of “possession.”
I. Uniformity between the States Requires Intent To Be Proved
As part of the Uniform Controlled Substances Act, the legislature adopted RCW 69.50.603 at the same time as the *541unlawful possession statute. This section provides that “[t]his chapter shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among those states which enact it.” RCW 69.50.603. At least 48 states have adopted the Uniform Controlled Substances Act, and all but two (Washington and North Dakota) expressly require knowledge to be proved as an element of unlawful possession. Dawkins v. State, 313 Md. 638, 646-49 & nn.6-7, 547 A.2d 1041 (1988).
But the majority dismisses this, claiming our legislature purposely omitted the words “knowingly or intentionally” from the unlawful possession statute when it adopted the Uniform Controlled Substances Act, thereby eliminating these elements from the crime in Washington. Majority at 534-35. Yet while numerous other states did the same, the courts of those states continued to interpret the same unlawful possession statute to require intent. Dawkins, 313 Md. at 647-49 (Maryland being one such state).
Alabama courts, for example, have construed their unlawful possession statute3 to include a mens rea element, McDaniel v. State, 589 So. 2d 767, 769 (Ala. Crim. App. 1991); see also Walker v. State, 356 So. 2d 672 (Ala. 1977), considering, among other factors, the seriousness of the penalty, Walker, 356 So. 2d at 673. As in Washington,4 in Alabama unlawful possession of a controlled substance is a class C felony punishable by lengthy prison terms or heavy fines or both.5 These punishments are severe, and most states have recognized a person should not be punished so harshly for an unintended violation of this law.
*542Similarly, California courts have construed their unlawful possession statute to include a mens rea element. People v. Camp, 104 Cal. App. 3d 244, 247-48, 163 Cal. Rptr. 510 (“The elements of the crime of unlawful possession of a controlled substance, such as PCP [phencyclidine], are dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character.” (emphasis added)), cert. denied, 449 U.S. 960 (1980). In Camp the statute in question classified unlawful possession as a misdemeanor,6 but the court still required intent to be proved.7
In light of these more recent developments, Cleppe’s conclusion that mens rea is unnecessary under our unlawful possession statute is untenable because RCW 69.50.603 requires uniformity of interpretation with other states, and almost all have required intent to be proved under language very similar to Washington’s.
While we should not lightly overrule a precedent that is 22 years old, neither should we hesitate to correct an error that can lead to devastating convictions of the innocent. “Stare decisis is a doctrine developed by courts to accomplish the requisite element of stability in court-made law, but is not an absolute impediment to change.” In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970). A case should be overruled upon “a clear showing that an established rule is incorrect and harmful.” Id.
The Cleppe rule meets this standard because it is out of step with national authority in the context of a uniform statute. The facts now before the court illustrate the harmfulness of this rule — two people convicted of possessing marijuana of which they were never proved to be aware. Washington is nearly alone in its interpretation of the *543unlawful possession statute; this can scarcely be called a uniform interpretation, and it violates RCW 69.50.603.
II. “Possession” Is a Term of Art that Includes Intent
Words may become terms of art with specific meanings derived from their legal traditions. Morissette v. United States, 342 U.S. 246, 263, 72 S. Ct. 240, 96 L. Ed. 288 (1952). The majority rejects the argument that the word “possession” includes a knowledge component, majority at 537-38, citing to a string of Washington cases beginning with Cleppe that rejects such an interpretation in the context of the unlawful possession statute, id. at 538. But once again, if Cleppe was wrongly decided, the foundation is shaky.
We have interpreted the word “possession” to include a knowledge component: “A defendant ‘possesses’ a controlled substance when the defendant knows of the substance’s presence, the substance is immediately accessible, and the defendant exercises ‘dominion or control’ over the substance.” State v. Hornaday, 105 Wn.2d 120, 125, 713 P.2d 71 (1986) (emphasis added) (citing In re Interest of R.B., 108 Wis. 2d 494, 496, 322 N.W.2d 502 (Ct. App. 1982)). The majority dismisses this clear definition of “possession,” however, by confining it to its facts (a minor in possession of alcohol) and by frowning upon its reliance on another state’s precedent. Majority at 538. But nothing in the Hornaday definition limits it to a minor in possession of alcohol or the statute’s forbidding only that conduct. The definition even uses the term “controlled substances” — the very subject of this case. I see no reason why this definition cannot “appropriately be applied,” id., to this case, nor does the majority supply one. Words should not change meaning because of the result the court desires to achieve.
The majority’s reliance on a Wisconsin case cited in Hornaday (a state that infers knowledge into its unlawful *544possession statute8) in no way undermines this conclusion. If anything, it supports the argument that “possession” is a term of art with a knowledge component,9 even as applied to unlawful possession statutes.
The Hornaday definition strikes at the very heart of Cleppe and calls into question its holding. The legislature did not need to include “knowingly or intentionally” in the statute since the word “possession” includes a knowledge component. Because of the harsh penalties of unlawful possession, we cannot understand RCW 69.50.4013 to create a strict liability crime “absent express legislative language.” State v. Boyer, 91 Wn.2d 342, 344, 588 P.2d 1151 (1979). That required clarity is simply not present in this statute, and so the general disfavor of strict liability crimes has not been overcome.
Moreover, characterizing unwitting possession as an affirmative defense improperly shifts the burden of proof to the defendant and does not cure the problem. Contra majority at 538.
The first mention of an affirmative defense in a controlled substance case is State v. Helmer, 166 Wash. 602, 8 P.2d 412 (1932), holding the defendant has the burden to prove any exception in the statute criminalizing unlawful possession. Id. at 604. Specifically, the statute then in effect provided:
“It shall be deemed a violation of this act for any person to have in his or her possession any narcotic drug, or any preparation or compound containing same in unexempt quantities, unless the same shall have been obtained pursuant to this act and to the laws of the Congress of the United States and the rules and regulations now in force or hereafter promulgated thereunder.”
Id. at 603 (emphasis added) (quoting Rem. Comp. Stat. § 2509-3 (Supp. 1927)). Another provision placed the burden of proving any exception on the defendant: “ ‘such excep*545tions shall be considered as a matter of defense, and the burden shall be upon the defendant to show that he comes within such exceptions.’ ” Id. at 604 (quoting Rem. Comp. Stat. § 2509-5 (Supp. 1927)). The defendant bore the burden to prove that he had obtained the drug in a lawful manner, which is an affirmative defense clearly defined in the statute.
Nearly 30 years later, we again addressed this issue in State v. Boggs, 57 Wn.2d 484, 358 P.2d 124 (1961). In Boggs we interpreted former RCW 69.33.390 (1959), repealed by Laws of 1971, 1st Ex. Sess., ch. 308, § 69.50.606, of the Uniform Narcotic Drug Act to require the defendant to prove lawful possession. Id. at 486. The defendant contended the state must affirmatively prove the possession did not fall within any of the authorized exceptions, but we disagreed. We cited Boggs approvingly in State v. Morris, 70 Wn.2d 27, 422 P.2d 27 (1966). In Morris we held for the first time that the defendant had the burden to prove unwitting possession. Id. at 34. The relevant statute there said nothing about any “unwitting” defense, using only the clause “except as authorized in this chapter.” Former RCW 69.33.230 (1959), repealed by Laws of 1971, 1st Ex. Sess., ch. 308, § 69.50.606. The defendant had the burden to prove any authorized defense, but “unwitting” was not such a defense! But the court said, “When possession was thus proved, it became a matter of defense, a burden resting on the appellant, to show to the satisfaction of the jury that his possession of the drug was either unwitting, or authorized by law, or acquired by lawful means in a lawful manner, or was otherwise excusable under the statute.” Morris, 70 Wn.2d at 34 (emphasis added). The court’s reference to a statutory affirmative defense for “unwitting” possession was loosely phrased and lacked legislative foundation.
Since Morris, simple citation to past cases suffices as a reason to characterize unwitting possession as an affirmative defense. See, e.g., State v. Staley, 123 Wn.2d 794, 799, 872 P.2d 502 (1994). But this ignores the legislature’s repeal of the Uniform Narcotic Drug Act (chapter 69.33 *546RCW) and replacement with the Uniform Controlled Substances Act (chapter 69.50 RCW). While the statutory language is very similar, compare former RCW 69.33.230 and former 69.33.390 with RCW 69.50.4013 and 69.50.506, the code does not reference “unwitting” possession. The legislative silence, however, is perfectly consistent with a proper understanding of “possession” to include intent. The judicially invented affirmative defense of unwitting possession does not cure the harshness of what the majority improperly characterizes as a strict liability crime when the legislature did not here create one.
That is the second reason Cleppe should be overruled. It is incorrect and harmful. We should correct this error before more innocent people are convicted of crimes they had no intent to commit. Intent is part of the unlawful possession statute, for “without the mental element of knowledge, even a postal carrier would be guilty of the crime were he innocently to deliver a package which in fact contained a forbidden narcotic.” Boyer, 91 Wn.2d at 344.
I dissent.
Ala. Code § 13A-12-212(a) (“A person commits the crime of unlawful possession of controlled substance if: (1) Except as otherwise authorized, he possesses a controlled substance .. ..”). Compare id. with RCW 69.50.4013(1) (“It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription ....”).
RCW 69.50.4013(2).
See RCW 9A.20.021; Ala. Code §§ 13A-5-6, 13A-5-11.
Cal. Health & Safety Code § 11377.
See Dawkins, 313 Md. at 647 & n.8, for examples of other states that follow the same reasoning.
See State v. Sartin, 200 Wis. 2d 47, 53-54, 546 N.W.2d 449 (1996); Wis. Stat. Ann. § 961.41(3g). The majority inexplicably cites a Minnesota case to support this claim. Majority at 538.
It also strengthens the uniformity argument in section I above.