All posts by admin

State v. Barry: Whether a Defendant’s Demeanor Spells Trouble During Trial

Constitutional Rights, felony, Self-Incrimination, Sex Crimes, Washington Court of Appeals, , ,

Demeanor, Demeanor, Demeanor - Trial Practice Tips

In State v. Barry, the WA Court of Appeals decided it does NOT violate a defendant’s Constitutional rights to allow a jury to consider the defendant’s in-court demeanor during trial.

The State charged Barry with first degree child molestation (DV). The case proceeded to trial. Important to note, Barry chose not to testify. During deliberations, the jury sent a note asking the court, “Can we use as ‘evidence for deliberation,’ our observations of the defendants actions and demeanor during the court case?” The trial court instructed the jury, “Evidence is what you witness in the courtroom.” Barry objected to the jury instruction. The jury found Barry guilty as charged. Barry appealed.

The Court of Appeals reasoned that the trial judge misstated the law in giving that instruction because the defendant did not testify; and therefore, his demeanor was not evidence presented during trial.

Nevertheless, the Court of Appeals rejected arguments that Barry’s 5th Amendment rights against self-incrimination were violated. It stated, “Here, neither the State nor the trial court forced Barry to do anything with regards to his demeanor. He had full control over how he acted in the courtroom. Other than citing the Fifth Amendment, Barry does not explain how he was compelled to give evidence against himself. We hold that allowing the jury to consider the defendant’s demeanor as evidence does not violate the Fifth Amendment.”

Finally, the Court of Appeals discussed the absence of any discussion on the record regarding Barry’s demeanor. In other words, there was a lack of record on how Barry behaved. The Court said the following:

“Without any information identifying what demeanor the jury may have considered, it is impossible to know whether that consideration was favorable or unfavorable to Barry. In the abstract, a defendant’s behavior is neutral. Depending on the demeanor, a jury could draw a negative inference or a positive inference from how the defendant acts during trial. As a result, merely stating that a jury may have considered a defendant’s demeanor without any information about that demeanor cannot establish prejudice because that consideration may have favored the defendant.”

My opinion? This case is tough. I’ll agree with the Court of Appeals in saying that what we don’t know is the pink elephant in this room. I’ve had many jury trials. During preparations, I thoroughly inform defendants how to properly behave in court. And yes, it’s extremely difficult for many defendants to stay calm and stoic during trial. Most defendants are very emotional about the case, especially if they believe the State’s witnesses are lying and/or exaggerating  during testimony.

Consequently, the decision on whether to testify is a strategic one. And this decision – whatever it may be – can backfire for many reasons. Typically, jurors want to hear defendants testify. However, if a defendant does not testify, then human nature dictates that juries perceive how the defendants acts during trial.

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.

Whatcom County Domestic Violence Filings Increase

Assault, Domestic Violence, felony, law enforcement, misdemeanor, police, , ,

Coronavirus: Domestic violence 'increases globally during lockdown' - BBC News

The Bellingham Herald reported that in 2012, more protection orders were filed in Whatcom County. Also, more people were booked into jail for Domestic Violence.

This information was found in the 10th Annual Report About Domestic Violence. Report highlights for 2012 included the following:

* Law enforcement reported 1,387 domestic violence offenses in Whatcom County, down slightly from 1,422 in 2011. Nearly 55 percent were assaults and 30 percent were violations of protection or no-contact orders.

* The number of domestic violence protection orders filed in Whatcom County courts went up in 2012. At 427, it was the highest since 2004.

* Domestic violence made up 20 percent of Whatcom County Jail bookings in 2012, an increase from previous years and double the 10 percent of all jail bookings in 2011.

My opinion? Domestic violence is an AWFUL dynamic to have in a relationship. The effects of domestic violence wreak havoc on relationships, reputations and families.

However, most couples are not involved in ongoing domestic violence relationships. The vast majority of these situations involve a couple who argued a little too passionately, perhaps under the influence, and police are contacted. Unfortunately, when the criminal justice system gets involved, the wheels are very hard to stop.

For example, most people are unaware that under RCW 10.99, officers MUST arrest a primary aggressor and immediately take them to jail. Additionally, most defendants MUST move out of their own homes while the case is pending. This is a substantial hardship.

And defendants who are convicted of domestic violence crimes risk being incarcerated, paying court fines and restitution, obtaining domestic violence evaluations, undergoing treatment, being monitored by probation, losing their gun rights, and obeying court orders preventing them from communicating with family members. Finally, a domestic violence conviction carries a negative stigma which may deter employment opportunities.

Take my word, these types of charges probably won’t get reduced or dismissed quickly. Most prosecutors and judges want to continue these cases out to see if people will violate no-contact orders. Indeed, many defendants end up facing more criminal charges if they accidentally or intentionally violate a no-contact order. A vindictive and/or vengeful “victim” may invite communication and persuade a defendant to violate the court’s no-contact order.

I’ve seen this happen many times. And once a victim has proof that a contact happened, they can – and most will – contact the police and pursue additional charges of Violating a No-Contact Order (NCOV). These are particularly nasty charges which are very difficult to defend against. An NCOV charge damages the defendant’s bargaining position in reducing and/or dismissing the underlying domestic violence charge that got them in trouble in the first place!

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.

Washington’s New DUI Pilot Program: “Plea Tenderizing” Gains Momentum

DUI, law enforcement, misdemeanor, police, Washington State Patrol, , ,

Alcohol-monitoring devices are an effective tool, Harrisburg-area probation officials say - pennlive.com

Apparently, the legislative movement to heavily monitor defendants charged with DUI is gaining momentum.

Starting January 1, intoxicated drivers charged with their second DUI in Chelan County, Spokane County, and Thurston County may face much tougher punishment after their second offense.

The “24/7 DUI Monitoring Program” requires daily monitoring of any substance use. Defendants – who are still innocent until proven guilty, mind you – must either report to jail twice a day to give a breath test or pay more for an ankle monitor. Offenders pay $4 a day for the breath test and up to $12 a day for the ankle monitor.

“If they pass the test, they’re out the door. If they fail the test, they’re incarcerated,” explained Program Manager Bruce Bjork.

Repeat offenders are a major frustration for law enforcement officers. Many complain the current laws puts people back out on the street with lesser penalties than what they should have.

My opinion? The monitoring is another way of “plea tenderizing” defendants into pleading guilty to alcohol-related offenses. Daily monitoring is a significant inconvenience in time and money. As a result, defendants beleaguered with the time and expense of this excessive pretrial monitoring will want to plead guilty to DUI or a lesser alcohol related charge simply to stop the monitoring rather than fight the case on its merits.

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.

State v. Ollivier: What Happens When the Defense Attorney Wants a Continuance and the Defendant Doesn’t?

Constitutional Rights, Discovery, Pretrial Investigations, Speedy Trial & Continuances, Washington Supreme Court, , ,

How to Write a Letter for Not Being Able to Attend Court

In State v. Ollivier, the WA Supremes held that a defendant’s speedy trial rights were NOT violated when a defendant’s attorney requested the continuance over the objection of his client. The facts were such that the defendant, Ollivier, was charged with Possession of Depictions of Minors Engaged in Sexual Activity. The depictions involved the use of the defendant’s computer. Ollivier was arraigned on April 18, 2007. His case went pending for 5 years before finally going to trial.

There were, in total, 22 continuances. The reasons for the continuances varied: defense counsel sought most of the continuances to allow time for investigation, obtain expert review of computer content, obtain discovery material from the Washington State Department of Corrections and the King County Sheriff’s Office, and because of a new investigator on the case.

Some of the requested continuances mentioned circumstances involving the State and some motions were joined by the State. At one point, an arresting officer resigned. Consequently, a continuance was requested to allow time to investigate her misconducts.

The Court reasoned that, in order to establish that multiple continuances of Ollivier’s trial dates violated his constitutional right to trial, a defendant must establish actual prejudice to the ability to prepare a defense. Further, prejudice will only be presumed in extremely unusual cases in which the post-indictment delay lasted at least five years or the government was responsible for the delay by virtue of something beyond simple negligence.

Finally, the Court stated the following: “Nearly all of the continuances were sought so that defense counsel could be prepared to defend. This is an extremely important aspect of the balancing and leads us to conclude that the length of delay was reasonably necessary for defense preparation and weighs against the defendant.”

My opinion? I agree with the WA Supremes. I’ve conducted MANY jury trials in my career, and shall probably conduct many more. Although few, my trial losses typically happen when clients insist on going to trial too early, and usually against my advice.

It’s important for clients and attorneys to have frank discussions of how long it will take to resolve the case. This decision usually depends on whether the client wants to resolve the case or go to trial. And THAT decision usually rests on the evidence contained within witnesses, police reports, forensics, etc. These decisions are not easy. It takes an exorbitant amount of time, preparation and patience for all parties to fashion and execute a successful trial defense. But as the old saying goes, “Cooler heads will prevail.”

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.

State v. Green: When Inventory Searches Become Overbroad

Constitutional Rights, DUI, felony, law enforcement, police, Pretrial Investigations, Privacy, Search and Seizure, Search Warrant, Theft, Washington Court of Appeals, Washington State Patrol, , ,

Vehicle Inventory Search - Daigle Law Group

In State v. Green, the WA Court of Appeals decided that evidence of Identity Theft  was not admissible when the officer obtained the evidence after searching the defendant’s car during a DUI and Hit & Run investigation.

Mr. Green was arrested for DUI after his vehicle struck a pedestrian who later died. After arrest, police searched Mr. Green’s car. They found a paper bag containing numerous receipts. After more investigating,  it was later determined the receipts were evidence of purchases using stolen credit cards. The car was later towed to a police impound lot. The officer began investigating the defendant for theft/fraud charges in addition to the Vehicular Homicide charge. However, the officer’s search warrant was only specific to the Vehicular Homicide charge.

A few days later, the officer obtained a second search warrant to search the car for evidence of fraud and identity theft. Mr. Green moved to suppress the receipts. The state argued the receipts were properly seized pursuant to an inventory search and were admissible pursuant to the independent source doctrine.

Some background is necessary. Under the 4th Amendment to the U.S Constitution and article I section 7 of the Washington Constitution, warrantless searches and seizures are unconstitutional. However one exception to the warrant requirement are Inventory Searches accompanying a lawful vehicle impound. The purpose of an inventory search is to (1) protect the vehicle owner’s property; (2) protect the police against false claims of theft by the owner, and (3) protect the police from potential danger.

The direction and scope of an inventory search must be limited to the purpose of justifying the exception. Under the Independent Source Exception, evidence obtained by unlawful governmental action is not suppressed under the exclusionary rule if the evidence was obtained pursuant to a valid search warrant or other lawful means independent of the unlawful action.

In this case, the officer did not find the receipts as part of an inventory search. Stated different, the officer looked in the paper bag but did not consider the receipts to be relevant to the inventory search. Therefore, there was no evidence that he inventoried them. The officer seized the receipts for investigatory purposes on a different matter altogether, namely, the soon-to-be-pending Identity Theft charges.

 

The Court further reasoned the receipts were not admissible under the Independent Source doctrine because the officer neither found the receipts nor had knowledge of them through an independent source.

My opinion? This was a reasonable, practical approach. In this case, it makes no sense to allow the police to conduct investigations of different crimes other than the one they are already working on, especially if they lack independent evidence to begin with.

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.

Winter DUI Emphasis Patrols to Begin Again

Bellingham Defense Attorney, Department of Licensing, DUI, Ignition Interlock Device, Washington State Patrol, Whatcom County Criminal Defense, , ,

DUI Emphasis Patrols this summer (click to read) - Paul Hanson

Be aware, all . . .

All along the I-5 corridor from Canada to Mexico, law enforcement agencies begin emphasis enforcement beginning on Wednesday November 27, 2013.

The goal is to prevent even a single death on I-5 during the Thanksgiving weekend.   To that end, Washington, Oregon, and California law enforcement are combining forces this week to keep the road safe from impaired drivers.  Spread the word!

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

More DUI Drivers Are Testing Positive for Marijuana

Blood Test, Department of Licensing, DUI, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Privacy, Search Warrant, Terry Stop, Uncategorized, Washington State Patrol, , ,

Marijuana DUI: How Long Does Marijuana Stay in Your System | Leyba Defense Seattle

According to new data released from the Washington State Patrol, more drivers have been testing positive for marijuana since Washington legalized the drug last year.

In the first six months of 2013, 745 people tested positive for marijuana. Typically, there are about 1,000 positive pot tests on drivers in a full year. But this doesn’t necessarily mean there’s been a rash of people driving high, says patrol spokesman Bob Calkins. Well, then what’s the reason?

“We’re testing blood we didn’t test before,” he said.

In addition, the overall number of impaired-driving cases handled by the patrol doesn’t appear to have risen this year, and should be on track to hit the rough annual average of 20,000 – which could mean some people are using marijuana instead of alcohol before getting behind the wheel, Calkins said.

Read more here: http://www.bellinghamherald.com/2013/11/22/3331209/more-drivers-testing-positive.html#storylink=cpy

Last year, Washington and Colorado voters legalized the recreational use of marijuana by adults over 21. Both states have set a legal limit of 5 nanograms of active THC per milliliter of blood for drivers; anything above that is a per se violation of impaired driving laws, similar to blowing 0.08 or above on an alcohol breath test. The violation is generally a gross misdemeanor punishable by up to a year in jail — and at least one day in custody for a first offense.

Read more here: http://www.bellinghamherald.com/2013/11/22/3331209/more-drivers-testing-positive.html#storylink=cpy

Of the 745 people who tested positive for marijuana in the first half of this year, the State Patrol says a slight majority tested above the legal limit. The exact number: 420. It’s a curious coincidence, since “420” is an old slang term for marijuana.

Read more here: http://www.bellinghamherald.com/2013/11/22/3331209/more-drivers-testing-positive.html#storylink=cpy

My opinion? If they can, they will. Meaning, if the police can test your for blood for marijuana, they will. As I predicted in earlier blogs, the passage of I-502 gives police more search authority. If police think you’re high, they’ll request a blood test. If you refuse, they’ll get a warrant for your blood and/or enter a “Refusal” DUI.

The data is predictable. What I’m seeing happen, unfortunately, is the police seeking blood tests on my clients who are not smoking marijuana. Making matters worse, I’m seeing judges impose Ignition Interlock Devices as a condition of pretrial release, and before clients are convicted of ANYTHING!

There’s something wrong with that. Just saying.

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.

State v. Quaale: Mistrials Happen When Police Officers Offer Opinion Testimony

Constitutional Rights, DUI, law enforcement, misdemeanor, police, Prosecutorial Misconduct, Washington Court of Appeals, , ,

Pushback on Capitol Police chief testimony continues - Roll Call

In State v. Quaale, the WA Court of Appeals wrote an excellent opinion on the issue of whether a defendant’s right to a fair trial was violated when the Prosecutor invited objectionable testimony from the officer.

The defendant was charged with Eluding Police and DUI. At trial, the Trooper  was asked to describe the extent of his experience, explain the Horizontal Gaze Nystagmus and the procedure for testing it, and tell the jury about his administration of the test to the defendant. The prosecutor also asked, “In this case, based on the HGN test alone, did you form an opinion based on your training and experience as to whether or not the defendant’s ability to operate a motor vehicle was impaired?”

Rightfully, the defendant’s lawyer immediately objected that the Trooper was being asked to provide an opinion on the ultimate issue determining guilt. The objection was overruled. The Trooper answered, “Absolutely. There was no doubt he was impaired.”

The Court of Appeals reasoned that impermissible testimony regarding the defendant’s guilt may be reversible error because such evidence violates the defendant’s constitutional right to a jury trial, which includes independent determination of the facts by the jury. Here, and even where expert testimony is helpful to the jury, it is unnecessary for a witness to express belief that certain facts or findings lead to a conclusion of guilt. Opinion testimony should be avoided if the information can be presented in such a way that the jury can draw its own conclusions.

 My opinion? The defense attorney was very smart to object to the Officer’s opinion testimony and preserve the issue for appeal. Opinion testimony should NEVER be allowed at trial. The State’s witnesses – including officers – may only testify to their observations. They are not expert witnesses who can offer opinions.

Before trial, I routinely draft and argue motions in limine expressly requesting the judge to instruct the Prosecutor to not ask questions instructing witnesses/officers to provide opinion testimony. These motions strengthen a standing objection and help preserve legal issues for appeal when they are violated. Great opinion.

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.

The Brass Tacks Part II: Increased Penalties for DUI if Child Under 16 In Vehicle

Department of Licensing, DUI, Ignition Interlock Device, Legislation, Pretrial Investigations, Washington State Patrol, , ,

What Happens If You Get a DUI

Here’s a summary of more changes that went into effect on September 28, 2013 regarding our ever-increasing and ever-punitive DUI laws. The changes included changes to RCW 46.61.5055 that increase DUI penalties if there was a passenger under 16 in the car. There’s also an increase in mandatory jail for repeat offenders. Here is what is NOW subsection 6 of RCW 46.61.5055: 

 

(6) If a person who is convicted of a violation of RCW 46.61.502 or 46.61.504 committed the offense while a passenger under the age of sixteen was in the vehicle, the court shall:

 

(a) Order the use of an ignition interlock or other device for an additional six months;

 

(b) In any case in which the person has no prior offenses within seven years, and except as provided in RCW 46.61.502(6) or 46.61.504(6), order an additional twenty-four hours of imprisonment and a fine of not less than one thousand dollars and not more than five thousand dollars. One thousand dollars of the fine may not be suspended unless the court finds the offender to be indigent;

 

(c) In any case in which the person has one prior offense within seven years, and except as provided in RCW 46.61.502(6) or 46.61.504(6), order an additional five days of imprisonment and a fine of not less than two thousand dollars and not more than five thousand dollars. One thousand dollars of the fine may not be suspended unless the court finds the offender to be indigent;

 

(d) In any case in which the person has two or three prior offenses within seven years, and except as provided in RCW 46.61.502(6) or 46.61.504(6), order an additional ten days of imprisonment and a fine of not less than three thousand dollars and not more than ten thousand dollars. One thousand dollars of the fine may not be suspended unless the court finds the offender to be indigent.

 

RCW § 46.61.5055 (6).

 

My opinion? The passage of I-502 has simultaneously loosened Washington’s Drug Laws and enhanced Washington’s DUI laws. Period.

 

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.

The Brass Tacks: A Look at How Courts Are Automatically Imposing Ignition Interlock Devices ASAP

Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, Legislation, marijuana, misdemeanor, police, Uncategorized, Washington State Patrol, , ,

California's Ignition Interlock Law Takes Effect Jan. 1 -- Occupational Health & Safety

Recently, a client hired me to represent him on a new DUI charge. Unfortunately, this client already has a prior DUI conviction within 7 years. We met at my office. He showed me his paperwork – arraignment dates, property seizures, BAC ticket, etc. – and also showed me a document I haven’t yet seen in my years of practice.

It was a Court Order signed by the judge titled, “IGNITION INTERLOCK RULES.”

I knew I’d eventually see this document, sooner or later. Under the recent passage of RCW 46.20.740 and RCW 46.20.385 the COURTS – and NOT the DOL – shall order any person convicted of an alcohol-related violation to apply for an ignition interlock driver’s license and to have a functioning ignition interlock device installed on all motor vehicles operated by the person.

The court may also order the installation of an interlock device for a driver that is convicted of Reckless Driving or Negligent Driving within 7 years of an alcohol related driving offense. An ignition interlock may be required for Reckless Driving or Negligent Driving without a prior DUI conviction. Finally, under the law, an ignition interlock device will be required for any driver convicted of vehicular homicide while driving under the influence.

This document was proof that the Courts are diligently following the passage of these laws. It read the following, ver batim:

* The defendant shall not operate a motor vehicle unless the defendant has a valid driver’s license and insurance;

* Once the defendant has a valid driver’s license and insurance, the defendant shall only operate a motor vehicle equipped with a functioning ignition interlock breath alcohol device while on pretrial;

* The defendant shall have an ignition interlock breath alcohol device installed by a Washington State Patrol certified ignition interlock breath alcohol device vendor on any motor vehicle the defendant will operate;

* The defendant shall bear the cost of installation and maintenance of the ignition interlock breath alcohol device and show proof of installation of the ignition interlock to the court;

* Any ignition interlock breath alcohol device installed pursuant to this order shall be monitored by the installer, and a report filed with the court every sixty (60) days;

* The defendant shall not adjust, tamper with, remove, or circumvent – (1) any ignition interlock breath alcohol device, (2) the wiring of any ignition interlock breath alcohol device, or (3) the ignition system of any vehicle equipped with an ignition interlock breath alcohol device. Any violation or tampering must be reported to the court by the ignition interlock breath alcohol device vendor, and;

* The ignition interlock breath alcohol device shall have certain minimum settings.

My opinion? Although I understand the need for community safety, it appears these new requirements are unconstitutional and overbearing in some cases. The government assumes people are guilty before they even go to trial. Indeed, this particular client showed NO signs of alcohol intoxication in his police reports. Police contacted him because someone complained of his driving.

After pulling him over, the police had no proof whatsoever that he was under the influence of alcohol, and instead believed he was under the influence of drugs. It’s going to take WEEKS to get his blood test back. In the meantime, he must drive around with an Ignition Interlock Device on his vehicle. Unfair.

If you’re facing a similar situation please contact a qualified attorney. I, for one, look forward to fighting this case tooth and nail and removing the Ignition Interlock Device from my client’s vehicle!

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.