Monthly Archives: March 2017

Unlawful Property Seizure

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In State v. Rivera, the WA Court of Appeals Div. II decided a trial court lacks authority to order defendants to forfeit their property as a condition of their felony sentencing.

BACKGROUND & FACTS

On September 20, 2014, Alicia Clements arrived at defendant Kevin Rivera’s home to serve him papers concerning a civil matter. Ms. Clements exited her vehicle to tape the documents to a post near Mr. Rivera’s driveway. While Clements was posting the paperwork, Rivera and his wife came out the front door and into the driveway. Rivera yelled at Clements that she was trespassing and needed to leave.

As Clements was getting back into her car, Rivera took down the documents she posted and approached her car to return them. In the process of returning the documents, Rivera shattered the driver’s side window on Clements’s car, causing glass to cascade into the car and onto the street.

Ms. Clements claimed that her window was completely rolled up and that Rivera had deliberately punched through the window with the documents in hand, striking her twice with his fist in the process. However, Rivera stated that Clements’s window was still open when he returned the documents, but that because Clements was attempting to roll up her windows, his fingers caught the edge of the window causing it to shatter.

Both Rivera and Clements called 911. Pierce County Sheriff’s Deputies responded to the incident. Mr. Rivera for assault. The State charged Rivera with second degree assault by battery under RCW 9A.36.021(1)(a), felony harassment, and third degree malicious mischief.

At trial, Rivera conceded that he had broken Clements’s window, but argued he did so accidentally rather than intentionally. The jury convicted Rivera of second degree assault and third degree malicious mischief. As part of his sentence, Rivera was required to forfeit “all property.”

CONCLUSION & ANALYSIS.

The Court of Appeals held that the trial court lacked authority to order property forfeiture as a sentencing condition.

It reasoned that under State v. Roberts, 185 Wn. App. 94, 96, 339 P.3d 995 (2014), the authority to order forfeiture of property as part of a judgment and sentence is purely statutory.. In other words, a trial court has no inherent power to order forfeiture of property in connection with a criminal conviction.

With that, the Court of Appeals held that the trial court erred by ordering forfeiture of seized property as a sentencing condition.

My opinion? Good decision. I’ve never heard of courts seizing a defendant’s property as a condition of sentencing. Indeed, the Fifth Amendment states that a person may not be deprived of property by the government without “due process of law,” or fair procedures. Typically, if property is an issue, then courts can lawfully order a defendant to pay restitution to the victim for the loss or damage to victim’s property. This makes sense. But to actually take a defendant’s property as a sentencing condition? No.

“No-Impeachment Rule” vs. Race Bias

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In Pena-Rodriguez v. Colorado, the U.S. Supreme Court held that when a juror says he or she relied on racial stereotypes to convict a criminal defendant, the Sixth Amendment requires that the “No-Impeachment Rule” give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

BACKGROUND FACTS & PROCEDURAL HISTORY

In 2007, in the bathroom of a Colorado horse-racing facility, the defendant  Peña-Rodriguez allegedly sexually assaulted two teenage sisters. The girls told their father and identified  Peña-Rodriguez as an employee of the racetrack. The police located and arrested him. Each girl separately identified  Peña-Rodriguez as the man who had assaulted her.

At trial, a Colorado jury convicted the defendant  Peña-Rodriguez of harassment and unlawful sexual contact. During deliberations, a juror named “H. C.” had expressed anti-Hispanic bias toward the defendant and his alibi witness. Defense Counsel, with the trial court’s supervision, obtained affidavits from the two jurors who witnessed and heard the racially biased statements from juror “H.C.”

Defense Counsel motioned for a new trial on the grounds of juror bias. Although the trial court acknowledged racial bias, it denied Defense Counsel’s motion for a new trial on the ground that Colorado Rule of Evidence 606(b) generally prohibits a juror from testifying as to statements made by other jurors during deliberations. The case made it’s way to the U.S. Supreme Court

ANALYSIS & CONCLUSIONS

The U.S. Supreme Court held that when a juror makes a clear statement indicating that he or she relied on racial stereotypes to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

Curing Racial Bias

The Court began by saying that the Civil War Amendments created the imperative to purge racial prejudice from the courts. It explained that ever since then, time and again, this Court has enforced the Constitution’s guarantee against state-sponsored racial discrimination in the jury system. The Court has interpreted the Fourteenth Amendment to prohibit the exclusion of jurors based on race, struck down laws and practices that systematically exclude racial minorities from juries, ruled that no litigant may exclude a prospective juror based on race and held that defendants may at times be entitled to ask about racial bias during voir dire.

The Court further reasoned this specific case lies at the intersection of the Court’s decisions endorsing the “No-Impeachment Rule” and the need to eliminate racial bias in the jury system. Those lines of precedent need not conflict. Moreover, the Court said racial bias implicates unique historical, constitutional, and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice.

ER 606(b): The “No-Impeachment” Rule

Under ER 606(b), a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

However, exceptions exist. For example, a juror may testify about whether (a) extraneous prejudicial information was improperly brought to the jury’s attention; (b) an outside influence was improperly brought to bear on any juror; or (c) a mistake was made in entering the verdict on the verdict form.

“This case lies at the intersection of the Court’s decisions endorsing the no-impeachment rule and those seeking to eliminate racial bias in the jury system,” said the Court. “Racial bias . . . implicates unique historical, constitutional, and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice.”

With that in mind, the Court reasoned that a constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after a verdict has been entered—when necessary to prevent a systemic loss of confidence in jury verdicts; which is “a confidence that is a central premise of the Sixth Amendment trial right.”

The Test

The Court reasoned that before the “No-Impeachment” Rule can be set aside, there must be a threshold showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. “To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict.”

The Court explained that whether the threshold showing has been satisfied depends on the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence. In constructing this rule, the Court said that standard and existing safeguards may prevent racial bias in jury deliberations, including careful voir dire and a trial court’s instructions to jurors about their duty to review the evidence, deliberate together, and reach a verdict in a fair and impartial way, free from bias of any kind.

With that, the U.S. Supreme Court reversed Mr. Peña-Rodriguez’s conviction and remanded the case back to the trial court for further proceedings.

My opinion? Great decision. This case represents a substantial step toward eliminating racial bias in our courtrooms. Even better, this decision is consistent with pre-existing Washington law under Seattle v. Jackson.

Jail Mail

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In Mangiaracina v. Penzone, the Ninth Circuit Court of Appeals held that prisoners have a Sixth Amendment right to be present when legal mail related to a criminal matter is inspected.

BACKGROUND FACTS

Nick Mangiaracina was jailed as a pre-trial detainee in Maricopa County’s Fourth Avenue Jail in Phoenix, Arizona. The jail’s stated policy is to open legal mail addressed to a prisoner only in the presence of that prisoner. Mangiaracina alleged, however, that his mail was repeatedly opened outside his presence in contravention of this policy. His complaint included descriptions of nine specific instances of the jail improperly opening his mail to/from his attorney.

In describing his injury resulting from the improper opening of his legal mail, Mangiaracina alleged that he and his two attorneys “are afraid to communicate by mail which is hard as I have so many cases and so much paperwork to go back and forth.” He further explained that his “right to confidentiality and privacy was violated” and that his “defense strategy and his rights in general were just shredded.”

PROCEDURAL HISTORY

Mangiaracina initially filed suit in Arizona superior court pursuant to 28 U.S.C. § 1983, alleging violations of his First and Sixth Amendment rights by a number of jail employees and John Doe defendants. The case was moved to federal court. Unfortunately, the U.S. district court ultimately dismissed Mangiaracina’s complaint with prejudice. it noted that Mangiaracina had failed to specifically allege that the pieces of mail were marked as “legal mail” and that, for most of the instances, he failed to explain how he knew the mail was opened outside his presence. He appealed to the Ninth Circuit.

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit reasoned that under the U.S. Supreme Court’s Wolff v. McDonnell  and the Ninth Circuit’s Nordstrom v. Ryan, that prisoners have a Sixth Amendment right to confer privately with counsel and that the practice of opening legal mail in the prisoner’s presence is specifically designed to protect that right.

Furthermore, other circuit courts have similarly recognized the importance of this practice. In Jones v. Brown, the Third Circuit recognized, in the context of a First Amendment challenge, that opening legal mail outside the addressee’s presence was unlawful.

The Ninth Circuit further reasoned that the jail failed to identify any legitimate penological interest that would be served by opening legal mail outside Mangiaracina’s presence: “As we have emphasized in the past, a criminal defendant’s ability to communicate candidly and confidentially with his lawyer is essential to his defense.”  By necessity, reasoned the court, prisoners and pre-trial detainees rely heavily on the mail for communication with their attorneys. Unfortunately, the Maricopa County jail system does not allow incoming phone calls or provide access to e-mail, and outgoing phone calls can only be placed as collect calls.

With that, the Ninth Circuit reversed the lower court’s dismissal of Mangiaracina’s Sixth Amendment and First Amendment claims with respect to some mail-opening incidents and affirmed the lower court’s dismissal of the remaining counts of alleged improper mail opening.

My opinion? Excellent decision. It’s extremely difficult to communicate with jailed clients. Some jails offer limited hours of visitation and/or phone calls. Reading a defendant’s jail mail deprives the expression of confidentiality and chills the inmates’ protected expression. This is wrong, and violates a defendant’s First Amendment rights.

With respect to phone calls, I don’t discuss important details over the jail phones because the conversations are recorded. Although recorded phone calls with my clients are inadmissible at trial, these conversations are still surveillance which can “tip off” prosecutors to the strategies and tactics I develop with my clients.

Kudos to the Ninth Circuit for a very well-reasoned and substantial decision.

No Motion to Suppress?

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In Mahrt v. Beard, the 9th Circuit Court of Appeals held that a defendant may bring a pre-plea ineffective assistance of counsel claim when counsel’s failure to argue a motion to suppress the fruits of a search prevents the defendant from making an informed choice whether to plead guilty.

BACKGROUND FACTS

On September 3, 2012, Sonoma County Sheriff’s deputies were dispatched to a residence in Petaluma, California. A neighbor had reported that a male and female subject were arguing over a gun. The Defendant Gregory Mahrt was living in a garage on the property that had been converted into a room. As the deputies approached the property, Mahrt walked out and met them at the front gate. The deputies detained Mahrt and asked about the argument, the gun and whether anyone else was inside the residence.

Mr. Mahrt was “uncooperative.” The deputies conducted a “protective sweep” of Mahrt’s room in the garage. As the deputies approached the garage, Mahrt began yelling that he did not want the officers to enter his room. According to the report, the deputies observed ammunition cans, ammunition, and what appeared to be an AR-15 Rifle (later determined to be a replica).

The deputies subsequently learned that Mahrt had a prior felony conviction and arrested him for being a felon in possession of ammunition. The deputies then asked Mahrt for permission to search his room.

This is where the facts differ: according to police reports, Mr. Mahrt consented. The deputies conducted a second search of the room. They found additional ammunition, rifle magazines, and two firearms. According to Mahrt, however, he did not consent to the search.

On September 5, 2012, the State of California charged Mahrt with having been a felon in possession of a firearm and ammunition in violation of California Penal Code § 29800(a)(1) and § 30305(a)(1). Mahrt believed that the warrantless search (or searches) of the garage was (or were) illegal. However, neither of the two public defenders who represented him at the trial court level moved to suppress the firearms and ammunition recovered from his room.

Nevertheless, despite his defense counsel’s failure to move to suppress, Mahrt pleaded guilty to both charges and received a six-year sentence. He appealed. On appeal, Mahrt’s appointed counsel did not raise any issues. Instead, his counsel filed a Wende brief, the California analogue to an Anders brief. A Wende brief is filed when a California appellate attorney concludes that an appeal would be frivolous.  On November 27, 2013, the California Court of Appeal affirmed Mahrt’s conviction.

On April 11, 2014, Mahrt filed a federal habeas petition pursuant to 28 U.S.C. § 2254(d). The petition alleged that Mahrt’s Sixth Amendment right to effective assistance of counsel was violated by his trial counsels’ failure to move to suppress the firearms and ammunition found in his room. A magistrate judge, sitting by consent, granted Mahrt’s petition. The State timely appealed.

ANALYSIS & CONCLUSION

  1. The Defendant May Proceed With a Pre-Plea Ineffective Assistance of Counsel Claim.

The 9th Circuit  reasoned that Mahrt’s ineffective assistance of counsel claim, premised upon a failure to file a motion to suppress, is squarely within this line of case discussing pre-plea ineffective assistance of counsel by failing to file a motion to suppress:

“The State’s entire case against Mahrt depended on its ability to introduce into evidence the firearms and ammunition found in his room. If the deputies unconstitutionally searched Mahrt’s home, counsel’s failure to move to suppress the fruits of that search prevented Mahrt from making the informed choice to which he was entitled.”

    2. Mahrt’s Counsel Was Ineffective.

The Court held that Mahrt’s counsel was ineffective in failing to move to suppress the firearms and ammunition. It reasoned that there was at least a chance that such a motion would have succeeded. First, there was a clear conflict in the available evidence. Second, a police officer’s report mischaracterized the first search as a “protective sweep.”

The Court reasoned that a warrantless protective search is permitted under Maryland v. Buie, based on the “interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack.” Here, Mahrt was being detained by the deputies, and they had no reason to suspect that there was some other person inside the residence who could pose a danger to themselves or to others. Consequently, the Court reasoned that defense counsel should have filed and argued a motion to suppress the search of Maert’s premises.

My opinion? It’s very importnant to retain qualified defense counsel in search and seizure cases such as this. Here, the defendant accepted a plea bargain on the advice of defense counsel who, according to the court, failed to argue motions to suppress. Pretrial motions are essential. It’s imperative to hire defense counsel who know the law and argue it effectively. Contact my office if you, a friend or family matter face criminal charges where a search was involved.

Another Study Finds Few Consequences For Prosecutor Misconduct

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Blogger Radley Balko of the Washington Post describes how a large-scale study from the New England Center for Investigative Reporting discovered that systemic prosecutor misconduct in Massachusetts dated back to 1985.

The report found more than 1,000 cases in which misconduct was alleged by criminal defendants and 120 in which a state appeals court reversed conviction due to misconduct. The group found an additional 134 verdicts reversed or thrown out due to misconduct after reviewing data from the state bar.

Balko says it’s difficult to draw conclusions from the raw number of incidents because most prosecutor misconduct goes unreported. He says the failure to turn over exculpatory evidence often becomes apparent only once a defendant has exhausted their appeals, after which the defense gets access to the prosecutor’s files. But by this point, many defendants no longer have legal counsel.

Additionally, Balko poignantly describes why defense attorneys intentionally do not report prosecutorial misconduct:

“When defense attorneys do find misconduct by prosecutors, there are also some strong incentives against reporting it. Most criminal defense attorneys will also have several other clients being prosecuted by the same office, perhaps even the same prosecutor. Reporting misconduct could jeopardize the attorney’s ability to bargain for those clients. Often, the more enticing option is to use the discovery of misconduct as a bargaining chip to get a better deal for the defendant in that case and perhaps earn favor from the prosecutor in others.”

The topic is not new to Mr. Balko. He summarized a handful of similar studies in a piece for the Huffington Post a few years ago.

“There are a handful of ways to keep wayward public officials honest,” says Balko.  He believes in the success of electoral accountability as a viable option. Still, relying on voters to keep prosecutors honest is a risky proposition. “The groups more likely to be victimized by excessive prosecutors are also the groups with the least amount of political power.”

State v. Froehrich: Unlawful Inventory Search

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In State v. Froehlich, the WA Court of Appeals Division II upheld the suppression of methampetamine found in a vehicle because the defendant’s car was unlawfully searched.

BACKGROUND

Ms. Froehlich was driving her car. She collided with a pickup truck waiting at a stop sign. After the collision, the car came to rest on the right shoulder of the highway. It was not obstructing traffic. A Washington State Patrol Trooper arrived at the scene. By this time, Froehlich was seated in the pickup truck that she had hit.

Ms. Froehlich eventually left the scene in an ambulance after talking with police at the scene. One trooper followed her to the hospital to do sobriety testing, and she was not arrested. However, the trooper at the scene of the accident decided to impound her car. At the scene, he performed an inventory search of the vehicle which also included the search of Froerich’s purse which she left inside the car. He found methamphetamine.

Ms. Froehrich was charged with Unlawful Possession of a Controlled Substance With Intent to Manufacture or Deliver. Froehlich filed a motion to suppress the methamphetamine, arguing in part that the Trooper had no reason to impound the car and failed to consider reasonable alternatives to impoundment. The trial court granted the motion, suppressed the evidence and ultimately dismissed the charges. The State appealed.

ANALYSIS

Ultimately, the Court of Appeals agreed with the lower court that the impoundment was not lawful and therefore the search was not lawful because (1) under the community caretaking exception, the State did not prove that the impounding officer considered whether Froehlich, her spouse, or her friends were available to remove the vehicle; and (2) even though there was statutory authority for impoundment, the State failed to prove that the impounding officer considered all reasonable alternatives.

The Court reasoned that both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit warrantless searches unless an exceptions to the warrant requirement applies. One exception to the warrant requirement is a non-investigatory, good faith inventory search of an impounded vehicle. Law enforcement may lawfully impound a vehicle for three reasons: (1) as evidence of a crime, (2) under the community caretaking function, or (3) when the driver has committed a traffic offense for which the legislature has expressly authorized impoundment. Even if one of these reasons exists, however, an officer may impound a vehicle only if there are no reasonable alternatives.

Here, the Trooper’s impoundment of Froehlich’s car was not lawful under the community caretaking function because there were reasonable alternatives to impoundment. Here, the Trooper never asked Froehlich about arranging to have someone else remove the car as an alternative to impoundment, and the State presented no evidence that the Trooper considered Froehlich’s ability to arrange for the car’s removal.

CONCLUSION

Because Richardson unlawfully impounded the vehicle, his seizure of methamphetamine from Froehlich’s purse was unlawful.

My opinion? Good decision. Very simple, straightforward and correct analysis. As usual, I’m extremely impressed with Division II’s handling of search and seizure issues, especially when it comes to vehicle searches. Here, it’s clear that police officers cannot go about impounding people’s vehicles and searching through belongings when reasonable legal alternatives exist.

The “Drug House” Statute

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In State v. Menard, the WA Court of Appeals Division II reversed the lower court dismissal of charges of  Maintaining a Drug Dwelling under RCW 69.50.402.

BACKGROUND

The defendant Rodney Menard owned and lived at his home in Yakima. Menard lived at the home since he was 5 years old. He rented rooms to five individuals, occasionally received methamphetamine from tenants as rent payment, consumed twenty dollars’ worth of methamphetamine per day, and possessed drug pipes. Menard knew his tenants used methamphetamine, but denied knowledge of the use of his home for methamphetamine sales.

The Drug Enforcement Agency (DEA) received complaints of drug traffic from Menard’s home. On July 15, 2015, a DEA confidential informant purchased approximately a gram of methamphetamine at Menard’s home. On July 23, 2015, the DEA Task Force conducted a narcotics search. The front door was unlocked. Rodney Menard and thirteen other individuals were present when law enforcement officers entered the residence. In a basement bedroom, a lady rested on a small couch with a bag of methamphetamine next to her pillow.

Law enforcement officers spoke with Rodney Menard and other residents of the home. When asked if people who visit take drugs, Menard answered: “most people do.” Two renters informed the officers that 10 to 15 different people came daily to the house to use drugs. Menard claimed he unsuccessfully tried to end the heavy traffic at the house. Officers confiscated drug paraphernalia and 25.5 grams of drugs inside the home.

MOTION TO DISMISS

Menard was charged with Maintaining a Drug Dwelling under RCW 69.50.402. He filed a Knapstad motion under arguments that (1) his conduct is unlawful only if the drug activity constituted the residence’s major purpose, and (2) selling drugs was not the primary purpose of the residence. The trial court granted Menard’s motion to dismiss. The State appealed.

LAW & ANALYSIS

The Court of Appeals reasoned that under Washington law, a defendant may present a pretrial motion to dismiss a charge when the State lacks ability to prove all of the elements of the crime. RCW 69.50.402(1), known colloquially as the “Drug House” Statute, declares:

It is unlawful for any person: ( f) Knowingly to keep or maintain any … dwelling, building … or other structure or place, which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.

Here, Menard argued that he may be found guilty of maintaining a drug dwelling only if he maintains the home for the principal purpose of facilitating the use of controlled substances. However, the Court of Appeals disagreed.

The court reasoned that to convict under the “Drug House” Statute, the evidence must demonstrate more than a single isolated incident of illegal drug activity in order to prove that the defendant “maintains” the premises for keeping or selling a controlled substance.

The Court further reasoned that sporadic or isolated incidents of drug use are not enough to prove criminal conduct. Here, however, there was substantial evidence that people other than Menard used drugs in the house. Apparently, 10 to 15 people each day entered the home to use drugs. When police searched the house, fourteen people, some of whom admitted to use of methamphetamine, occupied the premises. One resident rested methamphetamine near her pillow. Officers found drug devices scattered throughout the home. When asked if people who visit take drugs, Menard answered: “most people do.”

With that, the Court of Appeals reversed the trial court’s dismissal of charges.

DUI: Men vs. Women

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Great news article from the Bellingham Herald discusses the physiological differences in alcohol impairment levels experienced between men and women.

In Who Gets Arrested More for DUI: Men or Women?,  author Doug Dahl states that over the past couple decades, alcohol-impaired driving has steadily been decreasing, however, the reduction in impaired driving doesn’t apply to women. Dahl is the Target Zero Manager for the Whatcom County Traffic Safety Task Force.

Apparently, in a recent 10-year period, DUI arrests for men decreased by 7.5 percent while DUI arrests for women increased by 28.8 percent.

“According to the CDC, the average weight of an American man is 196 pounds, while the average American woman weighs 166 pounds,” said Dahl.  “Also, because of differences in enzymes, hormones and body fat percentages between men and women, women generally metabolize alcohol at a slower rate.” Simply put, says Dahl, women get drunk faster and stay drunk longer than men:

“To be clear, both of our imaginary people in this example shouldn’t drive. A BAC of .06 will cause impairment. It’s a big enough concern that legislators in some states, including Washington, have proposed reducing the legal limit to .05.”

Mr. Dahl further states that the level of impairment between a BAC of .06 and .09 is significant. According to a study of impaired driving crashes, a driver with a BAC of .06 is about 1.6 times more likely to cause a crash than a sober driver. For a driver with a BAC of .09, that jumps up to 3.5 times more likely. “Don’t judge your own impairment based on how someone else handles the same amount of alcohol, and always have a plan for a safe ride home before going out for drinks,” says Dahl.

Regardless of your gender, please contact my office if you, a friend or relative faces charges of DUI. These charges are serious, threaten careers and can significantly limit one’s driving privileges.

The Most Charged Crime

Driven To Fail Report Cover

Apparently, the most commonly charged crime in Washington State – Driving While License Suspended in the Third Degree (DWLS III)- shouldn’t be a crime at all, the state chapter of the American Civil Liberties Union argues in a new report.

In “Driven to Fail: The High Cost of Washington’s Most Ineffective Crime – DWLS III” the report describes the costs of enforcing this law, explores how it burdens individuals and communities, and calls for policies that address the harm of driving with a suspended license without criminalizing it. According to the ACLU, taxpayers spend more than $40 million a year to prosecute cases of DWLS III.

“Not every social problem needs to be treated as a crime,” said Mark Cooke, the ACLU of Washington’s Campaign for Smart Justice Policy Director. “DWLS III enforcement costs taxpayers millions of dollars, yet does little to improve public safety. The crime is largely punishing people for being poor, not because they are scofflaws or dangerous drivers,” said Cooke.

Typically, a DWLS III charge comes about this way: A driver receives a ticket for a moving violation (such as speeding or rolling through a stop sign) and for various reasons does not follow through by paying the ticket or showing up in court to contest it. Hundreds of thousands of people in Washington have had their license suspended for not responding to a ticket for a moving violation. Those who continue to drive once their license is suspended may be arrested and charged with DWLS III.

The report estimates that Washington taxpayers have spent more than $1.3 billion enforcing this crime between 1994 and 2015. These costs stem from the filing of nearly 1.5 million DWLS III criminal charges, resulting in nearly 900,000 convictions. In 2015, there were nearly 40,000 DWLS III charges filed, costing taxpayers $42,199,270. The report also shows that the law is applied unequally across the state and disproportionately impacts people of color, the young, and the poor.

The report recommends that the crime of DWLS III should be taken off the books. Short of that, law enforcement, prosecutors and courts can exercise their inherent discretion and treat DWLS III as a civil offense and offer relicensing programs. Civil remedies and relicensing can be more effective and use fewer criminal justice resources. The data in the report also shows that some jurisdictions, such as the cities of Yakima and Seattle, have started to treat DWLS III as a non-criminal offense.

My opinion? It’s no mystery that DWLS III allows police to arrest people with suspended licenses. However, most don’t know that it allows police to search people’s vehicles after arrest.  Therefore, any contraband, guns or other illegal items found in people’s cars can be lawfully seized. Additionally, the defendant will face unlawful possession charges for whatever contraband found during the search. In my opinion, this is the essence of an unlawful pretextual search. And for that reason, DWLS III should be a civil infraction which circumvents the need for arrest and searches. It should not be a crime.