Category Archives: misdemeanor

Driving With Wheels Off the Roadway

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In State v. Brooks, the WA Court of Appeals held that the neutral area separating a highway on-ramp from an adjacent lane of travel does not meet the definition of “roadway.” A driver who crosses this area is properly stopped for a violation of Driving with Wheels Off Roadway under RCW 46.61.670.


While merging onto westbound U.S. Route 97 from U.S. Route 2 in Chelan County, Jena Brooks’s car crossed over a portion of the highway designated as a “neutral area.” A neutral area is a paved triangular space separating an entrance or exit ramp from an adjacent lane of highway. The neutral area between Route 97 and its merger with westbound Route 2 is marked on each side by thick white channelizing lines. The drawing below is a depiction of a neutral area similar to the one crossed by Ms. Brooks:

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A Washington State Patrol trooper observed Ms. Brooks’s vehicular activity and performed a traffic stop. Ms. Brooks was ultimately arrested for driving on a suspended license and other misdemeanor offenses.

During proceedings in district court, Ms. Brooks filed a motion to suppress, arguing her vehicle had been stopped without probable cause. The motion was denied. Pertinent to this appeal, the district court ruled Ms. Brooks’s merger over the highway’s neutral area constituted “driving with wheels off roadway,” in violation of RCW 46.61.670. 2

Ms. Brooks was subsequently convicted of several misdemeanor offenses after a jury trial. Later, she successfully appealed the suppression ruling to the superior court. It found Washington’s definition of a roadway ambiguous in the context of a highway’s neutral area. The superior court then invoked the rule of lenity and determined Ms. Brooks should not have been stopped for driving with wheels off the roadway in violation of RCW 46.61.670.


The Court of Appeals addressed (1) whether the term roadway is ambiguous in the current context, and (2) if the term is ambiguous, whether the rule of lenity is an available tool of statutory construction that might benefit a defendant such as Ms. Brooks.


“A highway’s neutral area is not a vehicle lane. It is too short to facilitate meaningful travel. And its triangular shape cannot consistently accommodate the size of a vehicle. Rather than being designed for vehicular travel, it is apparent the neutral area is designed as a buffer zone. It keeps vehicles separate so as to facilitate speed adjustment and, in the context of a highway on-ramp, safe vehicle merging.”

The Court further reasoned that National standards set by the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) confirmed its observations about the apparent design purpose of a highway’s neutral area. In short, the Court reasoned the MUTCD refers to the neutral area as an “island.” As such, it is an area intended for vehicle “separation.”

“Although a neutral area may be designated either by a wide or double solid white channelizing line, the two options carry no substantive significance” said the Court of Appeals. “Like a double white line, a solid white line can serve as an indicator that crossing is prohibited. The whole point of a neutral area is to exclude vehicles and promote orderly and efficient traffic flow,” said the Court of Appeals.

The Court concluded that Ms. Brooks failed to maintain her vehicle wheels on an area of the highway meeting the statutory definition of a roadway. A vehicle stop was therefore permitted under Washington’s wheels off roadway statute. Consequently, the superior court’s order on appeal from the district court is reversed.

Surprisingly, there’s quite a bit of caselaw on what constitutes “Driving With Wheels Off the Roadway.” Please contact my office if you, a friend or family member face criminal charges following after a police officer pullover where this citation led to arrest. It’s quite possible to suppress the fruits of a search based on unlawful stop, search and/or seizure.

Wine Glass Sizes Are Increasing

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An article by of the Guardian reports that scientists at the University of Cambridge have found that the capacity of wine glasses has ballooned nearly seven-fold over the past 300 years, rising most sharply in the last two decades in line with a surge in wine consumption.

Wine glasses have swelled in size from an average capacity of 66ml in the early 1700s to 449ml today, the study reveals – a change that may have encouraged us to drink far more than is healthy. Indeed, a typical wine glass 300 years ago would only have held about a half of today’s smallest “official” measure of 125ml.

Smithers reports that the university’s behaviour and health research unit quizzed antique experts and examined 18th-century glasses held at the Ashmolean museum in Oxford, glassware used at Buckingham Palace, and more recent glasses in John Lewis catalogues.

The evidence was clear: the newer glasses were bigger.

The study, published on Wednesday in the BMJ, measured wine glass capacity from 1700 to the present day to help understand whether any changes in their size might have contributed to the rise in wine consumption.

“Wine will no doubt be a feature of some merry Christmas nights, but when it comes to how much we drink, wine glass size probably does matter,” said Prof Theresa Marteau, director of the Behaviour and Health Research Unit at the University of Cambridge, who led the research.

In 2016, Marteau and her colleagues carried out an experiment at the Pint Shop in Cambridge, altering the size of wine glasses while keeping the serving sizes the same. They found this led to an almost 10% increase in sales.

Smithers reports that for the new study, the researchers obtained measurements of 411 glasses from 1700 to the modern day. They found wine glass capacity increased from 66ml in the 1700s to 417ml in the 2000s, with the mean wine glass size in 2016-17 even higher at 449ml.

“Wine glasses became a common receptacle from which wine was drunk around 1700,” says author Dr. Zorana Zupan. “This followed the development of lead crystal glassware by George Ravenscroft in the late 17th century, which led to the manufacture of less fragile and larger glasses than was previously possible.”

The study points out that alcohol is the fifth largest risk factor for premature mortality and disability in high income countries. In England, the type of alcohol and volume consumed has fluctuated over the last 300 years, in response to economic, legislative and social factors. Significantly, wine consumption increased almost fourfold between 1960 and 1980, and almost doubled again between 1980 and 2004, a trend attributed to better marketing and licensing liberalisation which allowed supermarkets to compete in the lucrative drinks retail business.

“Our findings suggest that the capacity of wine glasses in England increased significantly over the past 300 years,” added Zupan.

“Since the 1990s, the size has increased rapidly. Whether this led to the rise in wine consumption in England, we can’t say for certain, but a wine glass 300 years ago would only have held about a half of today’s small measure.”

The strength of wine sold in the UK has also increased since the 1990s, adding to the amount of pure alcohol being consumed by wine drinkers.

In England, wine is increasingly served in pubs and bars in 250ml servings, with smaller measures of 125ml often absent from wine lists or menus despite a regulatory requirement that licensees make customers aware of them.

The Wine and Spirits Trade Association said sociological trends were probably part of the reason for the growing wine glasses.

“The size of a wine glass reflects the trend and fashions of the time and is often larger for practical reasons” said the WSTA chief executive Miles Beale. “Red wine, for example, is served in a larger glass to allow it to breathe, something which perhaps wasn’t a priority 300 years ago.”

Drink responsibly. If, however, your family or friends are charged with DUI or face any other alcohol-related charges, then contact my law offices and schedule a free consultation. You need effective and competent representation before the judge, prosecutors and the Department of Licensing.

Vehicle Prowl Prior Convictions

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In State v. LaPointe, the WA Court of Appeals held that when a defendant pleads guilty on the same day in a single proceeding to multiple counts of misdemeanor vehicle prowling, the crime of vehicle prowling in the second degree is not elevated to a felony.


On December 9, 2013, Clifford Paul LaPointe Jr. pleaded guilty as charged by amended information to two counts of misdemeanor vehicle prowling in the second degree in July 2013 and in September 2013. LaPointe also pleaded guilty as charged by amended information to vehicle prowling in the second degree in May 2013 under a different cause number. On January 3, 2014, the court sentenced LaPointe on the convictions. The court imposed a concurrent 364-day suspended sentence.

On January 6, 2016, the State charged LaPointe with felony vehicle prowling in the second degree. The information alleged LaPointe had “previously been convicted on at least two separate occasions of the crime of vehicle prowling in the second degree, each occurring on a separate date and not having been charged in the same charging document.”

LaPointe filed a Knapstad motion to dismiss the charge of felony vehicle prowling in the second degree. He argued that under the plain and unambiguous language of RCW 9A.52.100(3), he had not been previously convicted on “two separate occasions.” LaPointe argued the record established he pleaded guilty in 2013 by amended information to the misdemeanor vehicle prowling in the second degree charges on the same day and in the same proceeding.

However, the State counter-argued the court should deny the motion to dismiss under RCW 9A.52.100(4). The State reasoned that because LaPointe pleaded guilty as charged in two amended informations to offenses that occurred on different dates, his 2013 convictions elevated the current offense to a felony.

The trial court denied LaPointe’s Knapstad motion. It reasoned that LaPointe was previously convicted on at least two separate occasions because he pleaded guilty in 2013 to misdemeanor vehicle prowling in the second degree based on separate dates of occurrence as charged in separate charging documents.

LaPointe agreed to a trial on stipulated facts (bench trial). The court convicted LaPointe of felony vehicle prowling in the second degree. The court ruled the State proved beyond a reasonable doubt that LaPointe had been previously convicted on two separate occasions of the crime of misdemeanor vehicle prowling in the second degree.

On appeal, LaPointe contends the court erred in denying his Knapstad motion to dismiss the felony charge of vehicle prowling in the second degree.


On review, the Court of Appeals gave some necessary background. It explained that in 2013, the Washington State Senate proposed an amendment to RCW 9A.52.100 to elevate the crime of misdemeanor vehicle prowling in the second degree to a felony upon a third or subsequent conviction. Afterward, the Washington State House of Representatives amended Senate Bill 5053 to define when a third or subsequent conviction elevates vehicle prowling in the second degree to a felony.

Next, the Court turned to LaPointe’s arguments regarding statutory interpretation. “LaPointe argues that under the plain and unambiguous language of RCW 9A.52.100(3), the court erred in denying his Knapstad motion to dismiss the felony charge because he had not been previously convicted on two separate occasions,” said the Court. “The State asserts that under RCW 9A.52.100(4), LaPointe was previously convicted on two separate occasions because he was not charged in the same information and the crimes occurred on different dates.”

The Court of Appeals reasoned that when interpreting a statute, the fundamental goal is to ascertain and carry out the intent of the legislature:

“We seek to determine legislative intent solely from the plain language of the statute. The plain meaning of a statutory provision is to be discerned from the ordinary meaning of the language at issue.”

The court further explained that it derives legislative intent from the plain language of the statute by considering the text of the provision in question, the context of the statute in which the provision is found, related provisions, and the statutory scheme as a whole.

“We do not analyze individual subsections in isolation from the other sections of the statute when doing so would undermine the overall statutory purpose,” said the Court. “We must also interpret and construe a statute to harmonize and give effect to the language used in the statute with no portion rendered meaningless or superfluous and assume the legislature means exactly what it says.”

It reasoned that in this case, the defendant was convicted of two counts of vehicle prowling in the second degree under King County Cause No. 13-1-13980-1, and one count of vehicle prowling in the second degree under King County Cause No. 13-1-12822-1. These convictions are each based on separate dates of occurrence. The convictions under 13-1-13980-1 were charged in a charging document that is separate from the charging document in 13-1-12822-1. The two cause numbers were sentenced on the same date to give the defendant the benefit of presumptively concurrent sentences.

“The State’s argument that by identifying two situations that do not count as convictions for purposes of charging a felony in RCW 9A.52.100(4), the legislature has defined “separate occasions” that elevate the crime to a felony, is the inverse of what the language actually says,” said the Court. “RCW 9A.52.100(4) states that multiple counts of vehicle prowling either charged in the same information or ‘based on the same date of occurrence’ do not count as separate offenses for the purposes of charging as a felony:

“Multiple counts of vehicle prowling (a) charged in the same charging document do not count as separate offenses for the purposes of charging as a felony based on previous convictions for vehicle prowling in the second degree and (b) based on the same date of occurrence do not count as separate offenses for the purposes of charging as a felony based on previous convictions for vehicle prowling in the second degree.”

“The State’s argument also relies on a logical fallacy,” said the Court. “The proposition that ‘A implies B’ is not the equivalent of ‘non-A implies non-B,’ and neither proposition follows logically from the other.”  In other words, said the Court, identifying two situations that do not count as separate offenses does not mean the inverse—that pleading guilty on the same day in the same proceeding to multiple charges that occurred on different days in two different cause numbers elevates the crime to a felony.

The Court reasoned that because neither a plain reading of the statutory scheme as a whole nor legislative history clearly resolves the ambiguity, under the rule of lenity, it interpreted the statute to mean that when a defendant pleads guilty on the same day in a single proceeding to multiple counts of misdemeanor vehicle prowling as charged by amended information in two different cause numbers, the crime of vehicle prowling in the second degree is not elevated to a felony.

With that, the Court of Appeals reversed the lower court’s denial of LaPointe’s Knapstad motion to dismiss and also reversed his conviction of felony vehicle prowling in the second degree.

Evidence of Self-Defense

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In State v. Lee, the WA Court of Appeals held that the trial court violated the defendant’s Sixth Amendment right to present a defense by excluding evidence of self-defense.


On January 25, 2015, the defendant Chevalier  Lee’s girlfriend, Danielle Spicer, visited the home of Alice Gonzalez and her husband, Louis Gonzalez -ernandez. Spicer went to the Gonzalez’s house and stayed there with Gonzalez and Gonzalez Hernandez’s’ five children while Gonzalez and Gonzalez-Hernandez ran errands. Gonzalez and Gonzalez-Hernandez returned home to find Lee at their house playing cards with their children and Spicer. Although they had not invited him, Lee had been to their home many times and was generally welcome there.

Later that evening, Lee and Spicer began arguing about whether they would spend the night with Gonzalez and Gonzalez-Hernandez or return to their respective individual residences. Lee loudly cursed at Spicer as the argument escalated. Gonzalez-Hernandez told Lee that he did not like “that kind of behavior” in his house and Lee would have to leave. Lee refused and said that he didn’t have to leave. Gonzalez-Hernandez told Lee to leave approximately three-to-five times. According to Lee, he then cursed at Gonzalez-Hernandez who “came right at” him. Gonzalez-Hernandez had his hands up. Lee was scared and hit Gonzalez-Hernandez. The two men then wrestled. Lee left after seeing the scared looks Gonzalez, Spicer, and the children had.

According to Gonzalez-Hernandez, Lee called him a “f**king b***h” and hit him in the
face. Another witness saw Lee approach Gonzalez-Hernandez and get within inches of his face. Gonzalez-Hernandez again told Lee to leave and Lee “swung at him.” After they fought for a few minutes, Gonzalez called 911 and Lee and Spicer left.

Jury Trial

At trial, the defense sought to elicit testimony from Spicer that she and Lee had witnessed
Gonzalez-Hernandez being “physical with his wife” in a separate incident four days prior to the assault. Lee’s attorney argued that this evidence would show that Lee had actual knowledge that Mr. Gonzalez-Hernandez actually had the capacity to be aggressive and/or violent. According to Lee’s defense attorney, this evidence would show Lee’s state of mind regarding his need to defend himself.

The judge sustained the City’s objection, finding the evidence was “more prejudicial than probative” and that allowing such evidence would open the door to evidence about Lee’s prior misconduct. The defense suggested it would then elicit testimony that Lee “had prior information that Mr. Gonzalez-Hernandez had been known to be aggressive.” The trial court sustained the City’s objection to this evidence, finding it “more prejudicial than probative of anything.”

In fact, during Lee’s testimony, Lee stated that he “had reason to be scared of Gonzalez-Hernandez already,” to which the City objected and the court sustained. Neither the City nor the court stated any specific grounds for this objection or ruling.

A jury found Lee guilty of Assault Fourth Degree. He appealed to the Pierce County Superior Court which affirmed the conviction. The WA Court of Appeals granted Lee’s motion for discretionary review.


The Court of Appeals held that the trial court violated Lee’s Sixth Amendment right to present a defense by excluding evidence of self-defense.

The Court agreed with Lee that evidence he had witnessed regarding Gonzalez-Hernandez’s recent violent behavior was critical to his defense because it both increased the likelihood he had a subjective fear of Gonzalez-Hernandez and it made his fear more objectively reasonable, thus strengthening his self-defense argument.

The Court of Appeals reasoned that self-defense is a complete defense under RCW 9A.16.020. A defense of self-defense requires proof (1) that the defendant had a subjective fear of imminent danger of bodily harm, (2) that this belief was objectively reasonable, and (3) that the defendant exercised no more force than was reasonably necessary. The City has the burden of proving the absence of self-defense beyond a reasonable doubt.

The Court further reasoned that evidence of self-defense is evaluated from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees. This standard incorporates both objective and subjective elements. The subjective portion requires the jury to stand in the shoes of the defendant and consider all the facts and circumstances known to him or her; the objective portion requires the jury to use this information to determine what a reasonably prudent person similarly situated would have done.

Also, said the Court, a fact finder evaluates self-defense from the defendant’s point of view as conditions appeared to him at the time of the act. For the subjective portion of the self-defense test, jurors must place themselves in the shoes of the defendant and evaluate self-defense in light of all that the defendant knew at the time. All facts and circumstances known to the defendant should be placed before the jury. Thus, reasoned the court, under ER 404(B) and ER 405 (B), where a defendant claims self-defense, a victim’s prior acts of violence known to the defendant are admissible to establish a defendant’s reason for apprehension and his basis for acting in self-defense.

ER 404(B)

To determine whether a specific act should be admissible under rule 404(B), the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect. The trial court is required to conduct an ER 404(b) analysis on the record.

“In this case, Lee sought to admit evidence of Gonzalez Hernandez’s prior acts of violence
to prove that Lee had knowledge of those acts, giving him reason to fear Gonzalez-Hernandez,” said the Court.

Furthermore, the Court reasoned that evidence that Lee had witnessed Gonzalez-Hernandez being “physical” with his wife four days before the incident was relevant to Lee’s state of mind. “The evidence would allow the jury to assess Lee’s reason to fear
bodily harm from the victim,” said the Court.

Finally, the Court weighed the probative value of Gonzalez-Hernandez’s history of violence against its prejudicial effect. “Because the evidence in this case was relevant and otherwise admissible, the trial court should only exclude it if the City showed that the evidence was so prejudicial as to disrupt the fairness of the fact-finding process at trial,” said the Court. “Here, the proffered evidence went to Lee’s complete defense. Its probative value is to allow Lee to present a defense.”

Consequently, the Court ruled that the City failed to demonstrate that evidence of Gonzalez-Hernandez’s prior violent conduct known to Lee would be so prejudicial as to outweigh Lee’s Sixth Amendment right to present his defense. “This type of evidence should be heard by a jury so it can assess the reasonableness of Lee’s actions,” said the Court.

With that, the Court of Appeals reversed Lee’s conviction.

My opinion? Good decision. Under the Sixth Amendment, citizens have a right to an adequate defense. Under Washington statute, self-defense is a complete defense. Therefore, suppressing evidence which proves self-defense violates the Sixth Amendment.

Race-Based Jury Selection

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In City of Seattle v. Erickson, the WA Supreme Court held that the Prosecutor’s peremptory strike of a minority juror was a prima facie showing of racial discrimination requiring a full analysis under Batson v. Kentucky.


In 2013, Matthew Erickson, a black man, was charged in Seattle Municipal Court with Unlawful Use of a Weapon and Resisting Arrest. After voir dire, the City of Seattle (City) exercised a peremptory challenge against tjuror #5, who was the only black juror on the jury panel. After the jury was empaneled and excused from the courthouse with the rest of the venire, Erickson objected to the peremptory challenge, claiming the strike was racially motivated. The court found that there was no prima facie showing of racial discrimination and overruled Erickson’s objection.

Erickson was convicted on both counts.

Erickson appealed the municipal court’s decision to King County Superior Court. The superior court affirmed the municipal court, finding that the circumstances surrounding the challenge did not raise any inference that the juror was stricken because of his race. The judge did not address whether Erickson’s motion was timely.


The WA Supreme Court granted review of Erickson’s appeal on the following issues:

1. Did Erickson waive his right to a Batson challenge when he objected after the jury was empaneled and both the jury and venire excused?

2. Did the trial court error in finding that Erickson did not make a prima facie showing of racial discrimination when the City struck juror #5?


For those who don’t know, in Batson v. Kentucky, the United States Supreme Court created a 3-step process for enforcing the constitutional rule against excluding a potential juror based on race. First, the defense must show that the circumstances at trial raise an inference of discrimination. Second, the prosecutor must give a nonracial reason for the strike. Third, the court decides if the prosecutor intentionally discriminated against the juror because of race. The decision was made to stop the unfair practice of race-based peremptory strikes of qualified minority jurors because at that time, prosecutors could easily mask their efforts to exclude racial minorities from jury service.


First, the Court ruled that Erickson did not waive His Right to a Batson challenge when he objected to the striking of a juror after the jury was empaneled but before testimony was heard. It reasoned that a number of federal courts also allow Batson challenges after the jury has been sworn. Read together, the case law has adopted rules requiring that a Batson challenge be brought at the earliest reasonable time while the trial court still has the ability to remedy the wrong.

“These cases recognize that judges and parties do not have instantaneous reaction time, and so have given both trial courts and litigants some lenience to bring Batson challenges after the jury was been sworn,” said the Court. “This is in line with our own jurisprudence.”

The Court further stated that objections should generally be brought when the trial court has the ability to remedy the error, and allowing some challenges after the swearing in of the jury does not offend that ability.

“Although the timing was not ideal, the Batson challenge was raised when the trial court still had an opportunity to correct it,” said the Court. “So even though Erickson brought his Batson challenge after the jury was empaneled, the trial court still had adequate ability to remedy any error. Therefore, Erickson made a timely Batson challenge.”

Second, the WA Supreme Court Court ruled that the trial court did, in fact, error in finding that Erickson did not make a prima facie showing of racial discrimination when the Prosecutor struck juror #5.

Here, and in bold strokes, the Court changed how Batson is applied in Washington so that striking a juror who is the only member of a cognizable racial group automatically triggers a full Batson analysis by the trial court:

“The evil of racial discrimination is still the evil this rule seeks to eradicate,” the court explained, writing that “this alteration provides parties and courts with a new tool, allowing them an alternate route to defend the protections espoused by Batson. A prima facie case can always be made based on overt racism or a pattern of impermissible strikes. Now, it can also be made when the sole member of a racially cognizable group is removed using a peremptory strike.”

With that, the WA Supreme Court carved the following bright-line rule adopted from State v. Rhone:

“We hold that the trial court must recognize a prima facie case of discriminatory purpose when the sole member of a racially cognizable group has been struck from the jury. The trial court must then require an explanation from the striking party and analyze, based on the explanation and the totality of the circumstances, whether the strike was racially motivated.”

In other words, the peremptory strike of a juror who is the only member of a cognizable racial group on a jury panel does in fact, constitute a prima facie showing of racial motivation. Also, the trial court must ask for a race-neutral reason from the striking party and then determine, based on the facts and surrounding circumstances, whether the strike was driven by racial reasons.

The WA Supreme Court reverse Erickson’s conviction and remanded his case back to the trial court for a new trial.

My opinion? I’m very pleased. I wrote about unlawful race-based peremptory strikes in my blog on State v. Saintcalle; a WA Supreme Court case having similar dynamics, peremptory strikes and Batson challenges to the case at hand. In that post, I was very disappointed that the WA Supreme Court failed to fix a systemic problem of Prosecutors exercising race-based peremptory strikes during jury selection.

Finally, the WA Supreme Court has become more proactive in stopping this unfair, unconstitutional practice. It’s not enough for Prosecutors to give utterly superficial reasons for striking minority jurors when the real reason for striking them is blatantly staring us in the face. Now, and finally, Prosecutors must prove that their decision to strike is not race-based. This subtle, yet oh-so-important shift in perspective effectively addresses what’s really happening during jury selection and makes a solution toward preventing race-based peremptory strikes. Excellent.

Invalid Search Warrant

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In State v. Youngs, the WA Court of Appeals suppressed evidence of the defendant’s blood test collected after a search warrant because the search warrant application did not contain sufficient facts to establish that the suspect was driving the car.


In the early morning hours of May 15, 2013, a Washington State Patrol Trooper arrested Youngs after driving a car involved in a rollover collision. The judge issued the warrant based on the Affidavit in Support of Search Warrant for Evidence of a Driving While Under the Influence of Intoxicants (DUI).

This affidavit is a largely preprinted form to which the law enforcement officer may add information.

Following the blood draw, the State charged Youngs with DUI. Youngs moved to suppress evidence obtained under authority of the warrant. The district court denied the motion. Youngs then agreed to a stipulated bench trial based on the police report and blood alcohol report. The district court found Youngs guilty and sentenced him.

Youngs sought review in the superior court. The Court affirmed based on the content in the state trooper’s affidavit. Eventually, the WA Court of Appeals granted Youngs’s appeal.


The question was whether the trooper’s search warrant affidavit had sufficient facts for a judge to make an independent decision whether there was probable cause that the defendant was driving.



The Court decided that although the factual information concerning intoxication is sufficient and unchallenged in this case, the factual information to establish driving is insufficient.

The Court reasoned that a judge may only issue a search warrant upon probable cause. The warrant must be supported by an affidavit identifying the place to be searched and the items to be seized. The affidavit must contain sufficient facts to convince an ordinary person that the defendant is probably engaged in criminal activity.

Furthermore, the Court reasoned that judges must evaluate the relevant affidavit “‘in a commonsense manner, rather than hypertechnically, and any doubts are resolved in favor of the warrant. Thus, a “negligent or innocent mistake” in drafting the affidavit will not void it. Also, judges may draw reasonable inferences from the stated facts.

However, the Court also reasoned that inferences alone, without an otherwise substantial basis of facts, are insufficient. The affidavit may provide summary statements so long as it also expresses the facts and circumstances underlying that summary.

Here, the Court found technical problems with the affidavit. For example, one problem is that the preprinted language in the form—”ceased driving/was found in physical control of a motor vehicle” — suggests that it is intended to apply to two different crimes. One crime is “Driving While Under the Influence under RCW 46.61.502, while the other is “Physical Control of Vehicle While Under the Influence under RCW 46.61.504, which is a totally separate and different crime with different elements for the State to prove:

The Court said that unlike the act of driving, which may be readily observed, “physical control” is a conclusion drawn from other facts. For example, a police officer may reach this conclusion based on the defendant’s proximity to the vehicle, possession of keys to it, or similar observable circumstances.  Because the magistrate must independently determine whether probable cause exists, he or she cannot simply accept such a conclusion without supporting allegations. Therefore, ruled the Court, the statements in the search warrant affidavit are conclusory, general, and insufficient to support probable cause that Youngs was driving the vehicle.

With that, the Court reversed Youngs’ conviction and remanded the case back to the district court with directions to suppress the evidence obtained by the warrant.

My opinion? Excellent decision. Sure, it’s sometimes safe to assume that the sole driver of a car involved in a collision is, in fact, the driver. However, it muddies the waters even further when law enforcement officers issuing search warrants fail to clarify whether the crime of straight DUI or Physical Control DUI took place. These crimes are very different. One crimes involves officers seeing the defendant drive (straight DUI) while the other crime does not (Physical Control DUI). Combined with the fact that there was missing information regarding the defendant’s driving at all, this combination of errors makes for an ineffective search warrant.

Again, good decision.

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.

State Senate Passes Bill Making Fourth DUI a Felony.

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The WA State Senate has unanimously passed a bill that would make driving under the influence (DUI) a felony if the driver has three or more prior offenses on their criminal record within 10 years.

Senate Bill 5037 passed Thursday and now heads to the House, where it has stalled in previous years. The bill’s sponsors are as follows: Padden, Frockt, O’Ban, Darneille, Miloscia, Kuderer, Zeiger, Carlyle, Pearson, Conway, Rolfes, Palumbo, Angel, and Wellman.

Under the measure, a person who is charged with a fourth DUI, and has no other criminal history, would be subject to a standard sentencing range of 13 to 17 months in jail.

However, this bill allows first-time felony offenders to spend up to six months in jail, instead of nine, and finish out the rest of their sentence under supervision, such as attending Alcoholics Anonymous meetings and other programs.

My opinion? We shouldn’t be surprised. Over the past 20 years, Americans have seen a significant increase in the harsh penalties for intoxicated drivers. Perhaps this is necessary move given the thousands of lives lost to drunk drivers. Speaking as a criminal defense attorney, there’s serious question as to whether people commit these violations purely out of willful disregard for the law and for the safety of others or because of an untreated mental illness or alcohol addiction. Nevertheless, public outcry has led to increased sentences.

Many attorneys in Whatcom County and Skagit County claim to represent clients in DUI cases, but not all attorneys have the experience and successes of attorney Alexander F. Ransom.  To learn more about DUI laws or if you have been charged with a driving offense, make your first call count. Call the Law Office of Alexander F. Ransom today.

Holiday Drinking In The U.S.

Interesting article by Christopher Ingraham of the Washington Post discusses how data on total monthly alcohol sales in the United States carries a time-tested seasonal trend: the spikes in December of each year.

Clearly, the holidays are traditionally a time for boozing it up.

For example, the Department of Health and Human Services recently updated the official federal statistics on the percent of state residents ages 12 and older who drink at least once a month. Also, Ingraham’s article discusses how various direct and indirect measures of alcohol consumption, including breathalyzer data, Web searches for hangover relief and alcohol-related traffic deaths all suggest that peak American drinking happens between Thanksgiving and New Year’s.


New England is home to the nation’s heaviest drinkers – New Hampshire, where about 64 percent of residents age of 12 or older drink monthly, is tops in the country. Vermont, Maine and Connecticut also come in at drinking rates above 60 percent. Hard-drinking cheeseheads in Wisconsin see to it that their home is the only Midwestern state in the top tier of American drinkers.


Ingraham discusses how the next tier of heavy drinking states are all in the northern part of the country. Some researchers posit that there may be a relationship between heavy drinking and latitude. At the country level, alcohol consumption tends to increase the farther you get away from the equator. This could be a function of the potential for boredom and depression during winter months when the nights are long and the days are short. For a prime example of this, see recent stories involving alcohol and misconduct among people who live in Antarctica.


Ingraham discusses other cultural factors affect some States’ attitudes about drinking. On the map above, take a look at Utah and particularly Idaho. They’re in the bottom tier of the states for drinking frequency. Utah, where only 31 percent of adults drink in a given month, comes in dead last. This is almost certainly because of the large Mormon populations in those states — 58 percent of Utahans are Mormon, as are 24 percent of people in Idaho. Mormonism generally prohibits the use of alcohol and other drugs.

There’s likely a similar religious influence in places Alabama, Mississippi and the other Southern states where drinking is low. Those states have large evangelical Christian populations, many of whom are abstainers.


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Coincidentally, the Washington State Patrol announced its increased Holiday DUI Patrol campaign of “Drive Sober Or Get Pulled Over.” Our State Troopers are extremely proactive in reaching their Target Zero goal of zero traffic fatalities by 2030.

Also, our local police and sheriff’s offices are working very hard responding to incidents of domestic violence, burglary, assault and other criminal incidents associated with holiday celebrations.


For many, the holiday season is a joyous time when family and friends get together and celebrate. Naturally, our holiday merriment could involve the libations of alcohol and/or legal (and illegal) drugs.

We must enjoy the holidays safely and responsibly. Unfortunately, incidents of domestic violence, DUI, and other criminal behaviors – intentional or otherwise – can dampen our holiday festivities.

It’s never desirable to face criminal charges which could negatively affect your life for years to come. However, if you, friends or family find themselves in situations involving law enforcement, jail and/or criminal charges then contact the Law Office of Alexander Ransom as soon as possible.  I staunchly defends my clients’ constitutional rights to a fair trial, just proceedings and the suppression of evidence involving unlawful searches, seizures and self-incrimination. My practice involves saving people’s careers and reuniting families by seeking reductions and dismissals of criminal charges when appropriate.

Happy holidays!

-Alex Ransom, Esq.

Panhandling is Free Speech

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 In  City of Lakewood v. Willis, the WA Supreme Court held that a Lakewood Municipal Ordinance that prohibited begging near highways and intersections of major highways violated the First Amendment.
Mr. Willis was standing near an exit ramp from I-5 in Lakewood and holding a sign saying he was disabled and needed help.  An officer cited Mr. Willis for “Aggressive Begging,” a crime under Lakewood Municipal Code (LMC) 9A.04.020A.
At trial, the jury found Mr. Willis guilty. The municipal court sentenced him to 90 days in jail and a fine of $1,000, with 90 days and $750 suspended. The court also assessed $125 in costs. Mr. Willis appealed, raising several constitutional challenges to the statute.
On appeal, the WA Supreme Court reasoned that although the government can impose certain restrictions on speech in a public forum, such as reasonable time, place, and manner restrictions; it cannot impose restrictions based on content. Consequently, Willis may challenge the ordinance as facially overbroad regardless of his conduct. “Because both provisions impose a content-based speech restriction in a substantial number of traditional public forums, Willis’ facial challenge succeeds. Thus, his conviction must be reversed.”
My opinion? This is a great decision, and should be helpful to defense attorneys in other municipalities with ordinances that limit and outlaw panhandling.  Sure, aggressive panhandling from the homeless is annoying. However, it should not be criminalized. It wastes taxpayer money to incarcerate the homeless on these charges. Next thing you know, the Girl Scouts of America will be jailed for selling cookies at your grocery store.
Big congratulations to attorney David Ionnotti, who represented Mr. Willis.  The ACLU and Washington Defender Association filed one amicus brief in the case, and the Seattle/King County Coalition on Homelessness filed another.