Monthly Archives: August 2013

State v. Saintcalle: The WA Supreme Court’s Recent Ruling on Race Discrimination in Our Criminal Justice System

That a man was tried six times for the same crime is remarkable enough.

In State v. Saintcalle, the WA Supreme Court addressed an interesting case regarding peremptory strikes against potential black jurors.

The defendant Kirk Saintcalle, a black man, was charged with Felony Murder in the First Degree. At trial, the State’s prosecutor used a peremptory challenge to strike the only black person in the jury pool. He was found guilty by a jury. On appeal, Saintcalle claimed the strike was racially motivated in violation of the U.S. Supreme Court’s Batson v. Kentucky, 476 U.S. 79 (1986).

The WA Supreme Court disagreed and agreed with Saintcalle. They disagreed with Saintcalle to the extent that the Prosecutor’s peremptory striking of the only African-American juror in this case did not give rise to a Batson violation. However, the majority agreed that Washington’s Batson procedures were not strong enough to effectively combat race discrimination in the selection of juries.

Justice Wiggins also stated our Batson procedures must change so as to deal with unconscious, institutional, or unintentional racism, however, “[T]his is not the case in which to announce a new standard.” Saintcalle’s conviction was upheld.

Chief Justice Madsen’s concurrence, which was signed by Justice Jim Johnson, also expressed her concern about racial discrimination during jury selection. She would not adjust Batson or do away with peremptory challenges in an attempt to address nonpurposeful discrimination based on race during jury selection. Chief Justice Madsen also took issue with Justice Wiggins’ charts and graphs that compared the prosecutor’s questioning of the African-American juror to the prosecutor’s questioning of other jurors.

Justice Stephens’ concurrence, which was signed by Justices Fairhurst and Charles Johnson, “sound[s] a note of restraint amidst the enthusiasm to craft a new solution to the problem of the discriminatory use of peremptory challenges during jury selection.”

Justice González’s concurrence calls for the immediate abolishment of peremptory challenges.

Justice Chambers dissented.

My opinion? I’ve heard that getting attorneys to agree to something – and judges, for that matter – is akin to trying to herd cats. Clearly, State v. Saintcalle  captures the “herding cats” imagery. The smattering of different opinions by our justices captures the complexity of racism in our judicial system. Some see it.  Some don’t. Others call it something else.

Although I’m saddened the WA Supremes passed on an opportunity to capture a racist act and make an example of it, I’m happy they said Washington needs to have stronger procedures and standards in place to stop these situations from happening again. Perhaps jury pools should intentionally include more minority jurors. Who knows? The solution, it seems, is potentially as multi-layered as the problem itself.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Drug Recognition Experts: The Newly Trained Weapon In Detecting Drug DUI

Drug-recognition experts gain importance as pot DUIs increase – San  Bernardino Sun

Think you can fool the cops? Don’t even try. Nowadays, Drug-Recognition Experts – nicknamed, “DRE’s” – are law enforcement’s answer to Initiative 502 and a U.S. Supreme Court ruling that officers must have a warrant for a drug test. They are trained to identify symptoms of impairment from alcohol and a variety of drugs.

Although Initiative 502 legalized recreational marijuana use in Washington last year, drivers still face a DUI charge if they’re too high to drive. State law limits a person’s BAC levels to 5 nanograms of THC, marijuana’s active ingredient, per milliliter of whole blood.

A blood test is the quickest way to indicate whether someone has these levels.  Recently, however, the U.S. Supreme Court ruled in April that officers must have a warrant to obtain blood samples. And since most DUI stops happen late at night, when judges aren’t available, officers must determine on the scene whether the driver is intoxicated and/or impaired.

This is where the DRE come in. These are police officers who receive two weeks of training on detecting impaired drivers and analyzing their behavior for the presence of alcohol or drugs. Typically, a DRE is called to investigate major collisions, especially those involving fatalities, and any in which police officers suspect drug impairment beyond alcohol. Their observations help prosecutors in “Drug DUI” cases.

The two-week course is rigorous. It includes lectures, quizzes and comprehensive tests.  Training officers must also perform six field-sobriety tests and observe another six by their colleagues. They’ll write reports for all 12 tests, which are reviewed and signed by an observing instructor. After the course is completed, each officer must perform four evaluations in front of an instructor every two years to maintain DRE status.

Calculating the standard filed sobriety tests performed on intoxicated drivers is nothing new to the majority of police officers. Most often, an impaired driver’s eyes are the giveaway. In one part of the test – called the “Horizontal gaze Nystagmus Test” – a driver must follow a pen-sized light left and right without turning his or her head. If the driver is impaired, the eyes often have trouble tracking the light, or don’t dilate properly.

A subsequent recital of the alphabet isn’t just a memory test: It can give way to slurring the letters “L-M-N-O-P” if the speaker has been drinking or doing drugs. And most people say the letters quickly, all in one or two big exhaled breaths that can carry the telltale scents of alcohol or marijuana.

The walk-and-turn, counting backward, standing on one leg, and other tests give officers a clear picture of the person’s motor skills. The test ends with a Breathalyzer.

DREs focus on the more “subtle” signs in drivers while on patrol. They look for a wide turn, crossing the line, taking an extra second or two to realize the light is green, etc.

My opinion? Contact an attorney if you’re pulled over. Just as the DRE’s are trained to observe whether someone is high on drugs when driving, a competent attorney can analyze whether the stop was lawful, whether there was enough evidence to arrest for Drug DUI, whether the nanogram levels were active or inactive, etc. Don’t allow the State’s “experts” to convince judges and prosecutors that you were high when, in fact, you may not have been.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Seafair 2013 Brought Less Arrests for Boating Under the Influence.

Washington's New Boating Under the Influence 'Implied Consent' Law

The numbers are out: 34 people were cited for boating under the influence of drugs or alcohol (BUI) during the Seafair events on Lake Washington this weekend. This shows a drop of more than 40 percent from last year’s Seafair BUI total, which was 61.

Matching the decrease, however, was the fact that Seafair’s ticket sales also decreased dramatically. Seafair officials said that since it’s an open festival, exact numbers weren’t available, but ticket sales at the log boom were down 20 percent.

Police contacted 473 boats, down 32 percent from last year’s event, and doled out 42 citations for speeding or unsafe lane changes, among other infractions. Medical assistance was called for four boaters. Of those contacted, 15 refused breath tests. Nowadays, refusing a breath test carries a fine of $2,050.

Of the 34 people charged with BUIs, four were booked and taken to jail. Others were pulled over and told to have someone come pick them up. Four search warrants were served for blood samples and one for search of a vessel resulted in a drug arrest.

RCW 79A.60.040 is Washington’s Boating Under the Influence Statute. In short, It prevents people from operating a boat while under the influence of intoxicating liquor or any drug. A person is considered to be under the influence of intoxicating liquor or any drug if the person has 0.08 grams or more of alcohol. This can be proven by breath tests of a blood test. Drugs and/or the combination of drugs and alcohol may also constitute Boating Under the Influence.

Unlike DUI, Boating Under the Influence is a simple misdemeanor. It isn’t viewed as seriously as DUI, and carries less punishment as far as court fines and jail time is concerned. Still, the court may still order the defendant to pay restitution for any damages or injuries resulting from the offense. Additionally, a BUI charge/conviction can negatively impact a Skipper’s license to operate their vessel.

And it only gets worse. If someone is seriously injured at the hands of an intoxicated boat operator, that operator can be charged under RCW 79A.60.60, a Class B felony. And if someone dies as a result as a proximate cause of the operation of any vessel by an intoxicated person, that person will be charged with a Class A felony under RCW 79A.60.50. Finally, any operator of a boat who willfully fails to stop when requested or signaled to do so by a law enforcement officer is guilty of a gross misdemeanor under RCW 79A.60.080.

Hire an attorney if you find yourself charged with any of the above-referenced water related crimes. You’ll need all the help you can get. Nowadays, consuming two beers while enjoying your vessel can easily get you in trouble.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.