Monthly Archives: January 2019

Signalling Turns

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In State v. Brown, the WA Court of Appeals held that a driver, who moved left from a middle lane to a dedicated left turn lane while signaling his intention to change lanes, is not required to reactive his turn signal before turning left from the reserve lane unless public safety is implicated. Therefore, evidence discovered when a driver is stopped for failing to signal a turn when public safety is not implicated must be suppressed.

BACKGROUND FACTS

On the evening of March 22, 2015, Trooper Acheson of the WA State Patrol patrolled the streets of Kennewick. At 10:15 p.m., while traveling eastbound on Clearwater Avenue, Trooper Acheson saw Mr. Brown driving a Toyota Tundra, turn right from Huntington Street onto Clearwater Avenue. During the turn, the left side tires of the Tundra, a large pickup, crossed the white dashed divider line between the two eastbound lanes by one tire width for a brief moment, after which the vehicle fully returned to its lane of travel. Brown’s diversion across the dividing line did not endanger any travel. Acheson observed Brown’s tires cross the white dashed divider line, and he continued to view Brown’s driving thereafter.

Shortly after entering Clearwater Avenue, Mr. Brown signaled his intent to change lanes, and to move to the left or inner eastbound lane, by activating his left turn signal that blinked numerous times. Brown entered the inner lane of the two lanes.

Soon, Mr. Brown approached the intersection of Clearwater Avenue and Highway 395, where the eastbound lanes widen to three lanes. The innermost of the three lanes becomes a designated left turn only lane. Brown again wished to change lanes so he could turn left. Brown signaled his intent to move left into the dedicated turn lane. Brown maneuvered his vehicle into the dedicated turn lane, at which point the left turn signal cycled-off.

Mr. Brown stopped his vehicle in the dedicated left turn lane while awaiting the light to turn green. He did not reactivate his turn signal. Trooper Acheson pulled behind Brown. No other traffic was present on eastbound Clearwater Avenue. When the light turned green, Brown turned left onto northbound Highway 395. Trooper Mason Acheson then activated his patrol vehicle’s emergency light and stopped Brown.

Trooper Acheson stopped David Brown based on Brown’s crossing the eastbound lanes’ divider line during his turn from Huntington Street onto Clearwater Avenue. He did not stop Brown based on Brown’s failure to signal his left turn onto Highway 395. After stopping Brown, Trooper Acheson investigated Brown for suspicion of driving under the influence of intoxicants (DUI). Acheson arrested Brown for DUI.

Brown filed a motion to suppress evidence garnered from the stop of his car by Trooper Acheson. The court concluded that, because Brown violated no traffic law, Trooper Acheson lacked probable cause to initiate the traffic stop. Therefore, the court suppressed all evidence gained from the stop and thereafter dismissed the prosecution.

The Prosecutor appealed the dismissal to the superior court. According to the superior court, David Brown violated RCW 46.61.305(2), which requires a continuous signal of one’s intent to turn during the last one hundred feet before turning left. Because Trooper Mason Acheson observed Brown’s failure to continuously signal before turning left onto the highway, Acheson gained reasonable suspicion of a traffic infraction. The superior court remanded the case to the district court for further proceedings.

Mr. Brown appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that RCW 46.61.305(2) declares that a driver must, “when required,” continuously signal an intention to turn or cross lanes during at least the last one hundred feet traveled before turning or moving lanes. This appeal asks if this statute compels a driver, who moved left from a middle lane to a dedicated left turn lane while signally his intention to change lanes, to reactivate his turn signal before turning left from the reserved turn lane.

“We hold that the statute only requires use of a signal in circumstances that implicate public safety. Because the circumstances surrounding David Brown’s left-hand turn from a left-turn-only lane did not jeopardize public safety, we hold that Trooper Acheson lacked grounds to stop David Brown’s vehicle.”

With that, the Court of Appeals reversed the superior court, reinstated the district court’s grant of David Brown’s motion to suppress and dismissed the charge of driving while under the influence.

My opinion? Good decision. It makes sense that unless public safety is an issue, police officers shouldn’t have probable cause or reasonable suspicion to pull over a vehicle that’s clearly in the left-turn lane even though their vehicle turn signal is not activated. Please contact my office if you, a friend or family member face criminal charges of DUI, Reckless Driving, Driving While License Suspended or other criminal traffic violations.

Bounty Hunters

of the Seattle Times reports that obtaining a Bounty Hunter’s license in Washington is relatively easy, and hardly anyone is turned away — even if they have a history of violence.

VIOLENCE BY BOUNTY HUNTERS IS INCREASING

According to Zhang, local bounty hunters have become increasingly violent. For example, in 2016, a bounty hunter shot and killed a fugitive’s mother in Graham, Pierce County, in a botched apprehension attempt. The bail-recovery agent in that case obtained a license despite three previous arrests for domestic violence and harassment.

That same year, three bounty hunters armed with guns and tear gas stormed a motel room in Spokane, sending other guests fleeing and illegally detaining an occupant who was not their target. One of the bounty hunters had been charged with crimes ranging from aggravated battery to resisting arrest, and had a felony conviction for grand theft that was later vacated — all before he was granted his license. He and another bounty hunter pleaded guilty to criminal mischief in the hotel case; the third was acquitted by a jury.

LICENSING REQUIREMENTS TOO LOW?

Washington state law does not prohibit people with criminal histories from becoming bounty hunters. Instead, the Department of Licensing reviews the legal histories of applicants case by case to determine whether they should be disqualified.

 Apparently, the standards for becoming a bounty hunter are somewhat lax. As of June, the department had rejected only two out of nearly 400 new bounty-hunter applications submitted over the past decade. Of 187 licensed bounty hunters as of June, 75 had been charged with a felony or misdemeanor, most before they applied. Of those charges, nearly three-quarters led to criminal convictions that included felony assault, burglary, misdemeanor harassment, disorderly conduct and driving under the influence.
To get a license, an applicant must take 32 hours of training, which can include self-study, and must pass a 50-question, multiple-choice exam. The state has no formalized curriculum or certification process for instructors. Only the person teaching the firearms portion of the training is required to be certified through the state.

Unlike Washington, New York and New Jersey require applicants to have at least three and five years of law-enforcement experience, respectively. New York regulates who can train bounty hunters and approves the curriculum.

New York also considers arrests and a history of criminal charges on top of convictions in approving applications, said Robert McCrie, professor at John Jay College of Criminal Justice. “If someone has a series of arrests that shows propensity for violence, officials at the Division of Licensing Services can reject them.”

HIGHLY UNREGULATED AND VERY UNTRAINED

Zhang reports that bounty hunters have sweeping powers to apprehend fugitives, in contrast to police officers, thanks in part to the 1872 U.S. Supreme Court case Taylor vs. Taintor. They can enter homes without warrants; they can break down doors without knocking or announcing themselves; and they can transport fugitives across state lines without extradition orders.

“The bail-bonds-recovery industry has been highly unregulated and very untrained,” said Brian Johnson, a professor studying the American bail-bonds recovery industry at Grand Valley State University in Michigan. In most states, commercial bail bondsmen and the bounty hunters they hire are an integral part of the justice system.

When suspects are arrested, a judge can release them on their own recognizance or on bail to ensure they show up for court. If the defendants can’t afford bail, they can turn to private bail-bond companies, which will post it for them, typically for a fee of about 10 to 15 percent of the bond. If a defendant doesn’t show up for court, the company is on the hook for the full amount, unless it can apprehend the defendant and return him or her to court.

That’s where bounty hunters come in.

INCREASE TRAINING?

Former state Sen. Adam Kline, who sponsored a bill that passed in 2008 increasing mandatory training hours from four to 32, called the department’s background-check system concerning.

“The DOL needs to be very clear that no felony and violence-related convictions, even if they have been vacated, should be permitted,” he said. Kline said he also considers the current lack of training oversight troubling, and said the Legislature should strengthen regulations.

Please contact my office if you, a friend or family member are charged with a crime, are out on bail and failed to appear for court. Trust me, quashing a warrant is far easier than dealing with bounty hunters.

Pot Convictions Pardoned

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People seeking a pardon can apply by filling out a simple petition form on the governor’s office’s website.

The new pardon process will allow applicants to skip the usual step of making a request to the state’s Clemency and Pardons Board, which typically reviews requests and makes recommendations to the governor, said Tip Wonhoff, the governor’s deputy general counsel.

For people granted pardons, the governor’s office will ask the State Patrol to remove those convictions from the criminal-history reports that are available to the public, though the records will remain available to law enforcement, according to a summary of the pardon plan provided by the governor’s office. Records also will remain in court files unless petitioners successfully petition to have them vacated by the court that imposed the sentence.

The pardon announcement comes amid Inslee’s well-publicized explorations of a 2020 presidential run. While relatively unknown in the field of potential Democratic contenders, Inslee has formed a federal political-action committee and garnered attention for making climate change the centerpiece of his potential national campaign.

Inslee’s advisers said he supports more sweeping legislation that would allow anyone with a misdemeanor adult marijuana-possession conviction to have it removed from their records.

A bill proposed in 2017 by Rep. Joe Fitzgibbon, D-Burien, would require sentencing courts to grant any person’s request to vacate such convictions. The proposal received a hearing but did not advance in the Legislature.

The city of Seattle has taken action to expunge old marijuana records. After a request by City Attorney Pete Holmes, Seattle Municipal Court judges last year moved to vacate convictions and dismiss charges for as many as 542 people prosecuted for marijuana possession between 1996 and 2010, when Holmes’ office ceased prosecuting marijuana possession.

My opinion? Kudos for Governor Inslee for making a bold step in the right direction. Washington has moved beyond prosecuting people for minor marijuana offenses. It seems right to vacate criminal convictions for these same offenses.

Please contact my office if you, a friend or family member face drug charges. Being convicted can limit career, housing and travel opportunities. Hiring qualified counsel is the first step toward gaining justice.

Words Alone

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In State v. Kee, the WA Court of Appeals held that words alone are not sufficient to make a defendant the primary aggressor in an altercation.

BACKGROUND FACTS

The State charged Ms. Kee with the second degree assault of Mr. Ostrander based on an
incident on August 1, 2016. Kee punched Ostrander in the face and broke his nose.

Apparently, they exchanged words when Kee was walking down the street playing her radio loud. Eventually, they engaged in mutual combat by hitting each other back and forth several times.  Although Ostrander struck Kee in the face several times, Kee’s final blow to Ostrander broke Ostrander’s nose.

The case proceeded to a jury trial. Kee’s defense was self-defense.

At trial, the State proposed a first aggressor jury instruction. Kee objected to the instruction, arguing that it was not supported by the evidence presented at trial. The trial court disagreed and gave the following first aggressor jury instruction:

“No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon use, offer or attempt to use force upon or toward another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that [the] defendant’s acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.”

The jury found Kee guilty of second degree assault. She appealed on arguments that the trial court erred because its jury instruction denied her the ability to argue her theory of self-defense. Specifically, Kee argued there was insufficient evidence to justify a first aggressor jury instruction because words alone do not constitute sufficient provocation.

COURT’S ANALYSIS & CONCLUSION

Ultimately, the Court of Appeals agreed with Kee. It held that although sufficient evidence supported the first aggressor jury instruction, the trial court nevertheless erred in giving the jury instruction without also instructing the jury that words alone are not sufficient to make a defendant the first aggressor.

The Court reasoned that generally, a defendant cannot invoke a self-defense claim when she is the first aggressor and provokes an altercation. Also, a first aggressor jury instruction is appropriate when there is credible evidence from which a jury can reasonably determine that the defendant provoked the need to act in self-defense.

Nevertheless, the Court of Appeals also reasoned that although there was evidence of a physical altercation,  their interaction started with a verbal altercation. Therefore, the evidence supported a finding that Kee’s words, rather than her physical acts, first provoked the physical altercation.

“By failing to instruct the jury that words alone are insufficient provocation for purposes of
the first aggressor jury instruction, the trial court did not ensure that the relevant self-defense legal standards were manifestly apparent to the average juror,” said the Court of Appeals. “Moreover, the trial court’s instructions affected Kee’s ability to argue that she acted in self-defense.”

Accordingly, the Court of Appeals reversed Kee’s conviction.

My opinion? Good decision. I’ve conducted many jury trials involving defendants who acted in self-defense to assault allegations. Under the law, self-defense is an affirmative defense to assault charges. In my experience, prosecutors combat a defendant’s self-defense theories by trying to prove the defendant was the primary aggressors. If successful, then the jury cannot consider whether the defendant acted in self-defense. The “aggressor “juror instruction exists to  nullify, circumvent and/or defeat a defendant’s self-defense claim.

State v. Kee is pertinent to the issue of whether words alone exchanged between two participants who willingly fight each other – whether words alone – allow the jury to decide if the defendant was the primary aggressor. Of course not! By themselves, words are not enough, and the Court of Appeals agreed. Indeed, words can be quite motivational for people to engage in mutual combat similar to the parties in State v. Kee. And by the way, mutual combat is lawful because Washington imposes no duty for either party to retreat from a fight.

Please contact my office if you, a friend or family member face criminal charges of assault. It’s important to hire an experienced defense attorney who knows the law, is aware of possible defenses and is willing to take the case to trial.