Pretrial Drug-Monitoring “Sweat” Patches Ruled Unconstitutional

Bellingham Defense Attorney, Constitutional Rights, DUI, Mount Vernon Criminal Defense Attorney, Pretrial Release, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In Bailey-Cobb v.Snohomish County District Court, No. 87738-1-I (Aug. 17, 2026), the WA Court of Appeals held that Pretrial Drug Monitoring Patches (PDMP’s) are a search and must therefore be supported by authority of law to be lawful.

WHAT ARE PRETRIAL DRUG MONITORING PATCHES?

Ingested drugs have been known to appear in sweat. This has created the development of sweat collection devices for use in drug detection, such as the PDMP sweat patches. However, externally applied drugs or drugs deposited on the skin, can cause false positives or contamination from within (CFWI). Different cleaning procedures are used to remove externally applied drugs, however some drugs can remain causing false positives. Also, if an individual lives in a drug-contaminated environment, CFWI could occur also producing misleading results for drug use.

FACTUAL BACKGROUND

In these consolidated cases, the State charged Mrs. Simone Bailey-Cobb and Mr. Toombs with DUI. As a condition of their pretrial release, the court required them to wear PDMP’s. Bailey-Cobb and Toombs challenged the imposition of the drug patch as a condition of pretrial release. The trial court denied the petitions. Bailey-Cobb and Toombs appealed, alleging the drug-monitoring patch violated the Washington State Constitution.

Additionally, Bailey-Cobb contended the trial court erred in finding she would interfere with the administration of justice, and Toombs claimed the trial court did not make the requisite findings under CrRLJ 3.2 to impose any conditions. We conclude that Bailey-Cobb and Toombs did not suffer diminished privacy interests as pretrial releasees, and the court’s imposition of a drug-monitoring patch violated their rights under article I, section 7. Accordingly, we reverse and remand for the trial court to remove the drug-monitoring patch condition from Bailey-Cobb’s and Toombs’s pretrial release requirements.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) began by saying both the United States Constitution and the Washington State Constitution protect individuals against unreasonable searches and seizures. When a party challenges an action, contending it violates constitutional rights, the court conducts a two-part inquiry.

“First, we must determine whether the alleged action “intruded upon a person’s private affairs,” said the COA. “If a privacy interest exists, the next question is whether relevant authority of law justifies the disturbance.”

Next, the COA discussed CrRLJ 3.2. This court rule gives courts the ability to impose conditions on the accused if the court determines there exists a substantial danger that the accused will commit a violent crime or that the accused will seek to intimidate witnesses, or otherwise interfere with the administration of justice. The conditions include prohibiting the accused from “consuming any intoxicating liquors or drugs not prescribed to the accused” and “any condition other than detention to assure noninterference with the administration of justice[] and reduce danger to others or the community.” To determine which conditions are reasonable, the court shall consider, among others, the accused’s criminal record, the nature of the charge, and the accused’s past interference with the administration of justice.

PDMP’s Are Invasive Technology

The COA reasoned that although Bailey-Cobb and Toombs would not need to submit a urine sample, they would be submitting far more personal information with the patch than urinalysis testing.

“And once affixed to the body, the patch collects and retains evidence of any and all drugs ingested, regardless of whether it is prescribed or otherwise not prohibited, and the individual wearing the patch is required to go into Triton’s office every 10 to14 days to get a new patch. Additionally, the patch does not test for alcohol, which is one of the substances the court order prohibited, so it is conceivable that further testing would be required. The drug patch is also susceptible to outside environmental contamination in limited situations. Because the drug-monitoring patch is invasive and would reveal far more personal information than necessary, it is not narrowly tailored and cannot survive the Olsen balancing test.” ~WA COA

The State Does Not Have a “Special Need”  to Monitor By Imposing PDMP’s.

Next, the COA rejected the argument that the State had a “special need” to monitor the drug use of pretrial releasees via a drug-monitoring patch. “The special needs exception permits an otherwise unlawful search when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impractical,” said the COA.

“Here, the State maintains a special need exists because requiring a warrant or probable cause would jeopardize the State’s need to monitor the defendants for the sake of public safety. But our Supreme Court has repeatedly declined to apply a special needs exception under article I, section 7. See, e.g., Evans, 5 Wn.3d at 215 (declining to adopt the federal special needs exception for administrative searches of pretrial releasees); Blomstrom, 189 Wn.2d at 410 (declining to apply the special needs exception for urinalysis testing of pretrial releasees). Like the balancing test, precedent does not support applying the special needs exception to the imposition of a drug-monitoring patch for pretrial releasees.” ~WA COA

The COA concluded there was no authority of law to impose PDMP’s.  Also, neither the compelling interest test, nor the “special needs” exception to the search warrant requirement applied. “The drug monitoring patch, and the process for obtaining the patch, reveal more personal information than necessary,” said the COA.  “Thus, the patch condition was not narrowly tailored, and not lawful.”

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

WA Supreme Court: When Taking DUI Breathalyzer Tests, Tobacco Strands Are Not “Foreign Substances” In a Person’s Mouth

Bellingham Defense Attorney, DUI, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

In State v. Sliger, No. 103563-2 (Aug. 13, 2026), the WA Supreme Court held that tobacco strands are not a “foreign substance” in a person’s mouth and therefore do not invalidate a breath test if seen and not removed.

The court reasoned that in cases involving the debatable presence of a foreign substance in the defendant’s mouth within 15-minutes before or during the breath test, the State must rely on expert testimony to make a prima facie showing that the defendant’s mouth was free of foreign substances.  Here, the State met its burden when it presented expert testimony that the tiny strands of tobacco between the defendant’s teeth would not affect the reliability of the Draeger Breath Test results.  The other admissibility requirements for breath tests were also met.  Thus, the breath test was admissible.

FACTUAL BACKGROUND

Mr. Sliger was charged with Vehicular Homicide after being involved in a fatal collision with a dirt bike. At the scene, Sliger admitted to drinking a few hours before the crash. He voluntarily took a portable breath test. Prior to taking the test, Sliger was instructed to spit out a lump of chewing tobacco from his mouth.

Sliger was arrested and taken to jail. At jail, Sliger agreed to take a Draeger breath test. Prior to administering the test, Deputy Kahns asked Sliger if he had any foreign substances in his mouth, and Sliger denied having any. In his DUI arrest report, the officer checked off the box indicating that Sliger denied having any foreign substances in his mouth. He also checked off the box indicating that he visually examined Sliger’s mouth. Next, he checked the box indicating that foreign substances were found and explained that there were “tiny tobacco strands stuck in teeth.” The tiny strands of tobacco were not removed prior to administering the test. The breath test results indicated an alcohol level over the legal limit.

The State charged Sliger with vehicular homicide. Sliger filed a motion to suppress the breath test results. He argued that the test results were inadmissible because the tiny strands of tobacco in his teeth constituted a foreign substance that should have been removed before conducting the breath test. An evidentiary hearing was held during which the court heard testimony from the arresting officer and the State’s expert, Trooper Axtman, a breath test technician. While testifying, Trooper Axtman made a distinction between a lump of chewing tobacco and tiny strands of tobacco for purposes of determining admissibility of a breath test.

After hearing testimony, the trial court denied Sliger’s motion to suppress the breath test results. The court concluded that the State met the burden of providing prima facie evidence that Sliger did not have any foreign substances in his mouth at the beginning of the 15-minute observation period. Notably, the trial court’s rulings were based solely on Sliger’s verbal denial of having foreign substances present in his mouth. Sliger appealed the trial court’s rulings. On appeal, the Court of Appeals concluded that the trial court did not err in determining that Sliger’s denial alone constituted prima facie evidence that no foreign substances were present in his mouth.

Sliger again appealed on the legal issue of whether the State provided prima facie evidence that Sliger did not have any foreign substances in his mouth at the beginning of the 15-minute observation period prior to administering the test.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the WA Supreme Court upheld the Court of Appeals and the trial court’s rulings. We hold that the State produced prima facie evidence that Sliger did not have any foreign substances in his mouth when it provided expert testimony that the tiny strands of

The WA Supreme Court began with a review of former RCW 46.61.506(4)(a). This statute, which was in effect at the time, governed the admissibility of breath tests. To determine whether a person has a foreign substance in their mouth before administering a breath test, WAC 448-16-040 requires officers to either examine the individual’s mouth or have the person deny that there are any foreign substances in their mouth.

Next the WA Supreme Court addressed Sliger’s arguments that the prosecution cannot meet its burden for admissibility here because the statutory term “any foreign substance” includes tiny strands of tobacco.  Sliger emphasized that “any” before the term “foreign substance” means that any quantity of a foreign substance, regardless of its size, results in an invalid test.

However, the WA Supreme Court disagreed with Mr. Sliger. It said the statute at issue here does not speak to quantity of substance in a person’s mouth. Furthermore, the Court emphasized that interpreting ‘any’ to mean any quantity of a foreign substance is not a reasonable interpretation of the statute. :

“Interpreting ‘any’ to mean any quantity of a foreign substance would lead to absurd results. This interpretation would mean that the presence of microscopic amounts of a foreign substance would prevent the admissibility of breath test results regardless of whether it has any impact on the reliability of the test. Officers are not equipped to conduct a thorough inspection of an individual’s mouth for any strand or speck of a foreign substance. In accordance with Fernandez, a more reasonable interpretation is that “any foreign substance” refers to any kind of foreign substance capable of impacting the reliability of the test results.” ~WA Supreme Court

With that the WA Supreme Court held that the State met its burden of establishing prima facie evidence that Sliger’s mouth was free of any foreign substances when it presented expert testimony that the tiny strands of tobacco would not affect the reliability of the breath test results.

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.

WSU Issues “Back To School” DUI Emphasis Patrols

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The Washington State Patrol (WSP) issued a Press Release stating “Back to School” DUI emphasis patrols are at Washington State University (WSU) are in effect. This comes wWith increased traffic and a history of serious collisions associated with students and families traveling back to WSU in Pullman after summer break.

WSP will conduct emphasis patrols from Friday, Aug. 14, through Sunday, Aug. 16. During the emphasis, District 6 troopers in Grant and Kittitas counties will focus on speeding, distracted driving, impaired driving, and other collision-causing violations. Speeding continues to be one of the leading causes of serious and fatal collisions across Washington.

Troopers will be actively enforcing posted speed limits throughout the emphasis. Drivers are reminded to pay close attention to changing speed limits as they travel across the state. Troopers will also have zero tolerance for impaired driving. In addition, motorists are encouraged to eliminate distractions and remain focused on the safe operation of their vehicles.

Motorists traveling to WSU can expect an increased WSP presence along State Route 26, Interstate 90 over Snoqualmie Pass, and through Ellensburg and Grant County.

“Whether you’re a first-year student or returning to campus, the start of the school year should be an exciting milestone, not one that ends in tragedy. The Washington State Patrol is committed to helping ensure everyone traveling back to school has a safe and enjoyable trip.” ~WA State Patrol

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.

Flock Cameras Raise Privacy Concerns

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Surveillance Creep, Technology, Whatcom County Criminal Defense, , , ,

Flock Safety is one of the largest ALPR vendors in the United States. Their cameras are installed for police departments, businesses, and HOAs. Captured vehicle data is uploaded to Flock’s cloud system, where participating agencies can search and share information across jurisdictions. Flock is not the only ALPR vendor. Other vendors still participate in similar practices.

WHAT ARE ALPR’S?

Automated License Plate Readers (ALPRs or LPRs) are AI-powered cameras that capture and analyze images of all passing vehicles, storing details like your car’s location, date, and time. They also capture your car’s make, model, color, and identifying features such as dents, roof racks, and bumper stickers, often turning these into searchable data points.

These cameras collect data on millions of vehicles regardless of whether the driver is suspected of a crime. These systems are marketed as indispensable tools to fight crime, but they ignore the powerful tools police already have to track criminals, such as cell phone location data, creating a loophole that doesn’t require a warrant.

WHAT IS THE PROBLEM WITH FLOCK SURVEILLANCE?

Flock’s ALPR cameras aren’t like your normal traffic cameras. This surveillance technology records and tracks every car that comes into view.Next, an AI algorithm catalogs the make, model, color, license plate number, bumper stickers, and even scratches. This personal information is then uploaded into a nationwide database that any law enforcement agency with a Flock contract can search — with few regulations or oversight on how they use what they find.

Flock provides one of the most widely used ALPR systems, but they aren’t the only surveillance company. Other vendors still participate in similar practices. See this list of other common ALPR vendors.

Problematically, these ALPR’s have a lack of transparency, oversight, and regulation into how they collect, store, and use our data, and how to hold public and private actors accountable if they abuse it. Consider how much someone could learn about your life if cameras constantly tracked where you drove. They could discover which doctors you visit, what house of faith you worship at, who you visit or drive around with — even which political meetings and protests you attend.

And we’ve already seen how this mass surveillance tool can be weaponized and abused by law enforcement. ICE and CBP have repeatedly used Flock to go after immigrants without warrants. Kansas police used them to pursue a man who wrote a critical op-ed about the department, while a Colorado police officer wrongfully accused a woman of theft based on a Flock hit and then refused to look at evidence proving her innocence. A mother and her children were held at gunpoint because ALPR cameras wrongly flagged their car as stolen.

My opinion? Automatic license plate reader (ALPR) companies like Flock Safety are quietly trying to build a nationwide mass surveillance system. If there are Flock cameras in your city, they are tracking, logging, and sharing your movements without a warrant. Please contact my office if you, a friend or family member are charged with a crime involving Search & Seizure issues. Hiring an effective and competent defense attorney is the first and best step toward justice.

Crime of “Receiving Unlawful Compensation” Also Includes Receiving Sexual Contact

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In State v. Tarver, No. 40603-2-III (Jul. 14, 2026), the WA Court of Appeals held that the word “compensation” in the Receiving Unlawful Compensation statute is not limited to receiving money. It also includes receiving sexual contact that a public servant receives in exchange for exercising official discretion to assist another with a “transaction.”

FACTUAL BACKGROUND

Mr. Tarver, a former Department of Children, Youth and Families (the Department) caseworker, was charged with several crimes after having sexual contact with a mother he was assigned to investigate. Following a bench trial, he was acquitted of extortion but convicted of perjury and Receiving Unlawful Compensation. On appeal, he challenges only his conviction for receiving unlawful compensation. He argued that sexual contact is not “compensation,” and a “transaction” does not include parent-child visitations or a dependency case.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) began its analysis by reviewing the Receiving Unlawful Compensation statute, which reads: “A person is guilty of receiving or granting unlawful compensation if,being a public servant, he or she requests, accepts, or agrees to accept compensation for advice or other assistance in preparing a bill, contract, claim, or transaction regarding which he or she knows he or she is likely to have an official discretion to exercise (emphasis added).

The COA ruled that the definition of “Compensation” is not limited to an economic or financial exchange. While compensation might include something of pecuniary value, nothing in its ordinary meaning limits compensation to an economic benefit.:

“Instead, the definition of compensation, along with the context in which the word is used in RCW 9A.68.030(1)(a), focuses on whether the thing received functioned as remuneration . . . In short, we conclude compensation and pecuniary benefit are not interchangeable or synonymous.” ~WA Court of Appeals

The COA also ruled that the word “transaction” includes visits between a parent and child or a dependency case that the public servant assists with:

“Here, the dependency action filed by the State was a communicative activity that involved and reciprocally affected the children (through the State) and Mr. Tarver, as a public servant, advised and assisted in preparing this transaction by providing testimony intended to influence the ultimate decision-maker and exercising discretional authority to determine the terms of visitation.”  ~WA Court of Appeals

With that, the COA ruled that Tarver’s request for sexual contact was a request for compensation in exchange for his advice and assistance in preparing a transaction, which included R.J.’s visitation with her children and his influence in the dependency action.

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.

High Court Rules “Geofence Warrants” Constitute a Search Under 4th Amendment

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Technology, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

In Chatrie v. United States, No. 25-112 (Jun. 29, 2026), the U.S. Supreme Court held that Geofence Warrants constitute a “search” under the Fourth Amendment. They acquire people’s location data from Google by linking to their cell-phone location information.

WHAT ARE “GEOFENCE WARRANTS?”

Geofence warrants are an investigative tool typically employed when law enforcement knows the approximate time and location of a crime but not the identities of suspects. In executing a geofence warrant, law enforcement compels a company to provide certain information indicating which particular smartphones were present within a geographic area during a specified time frame. Law enforcement can then use the information to potentially identify the owner of a smartphone found in the area of interest during the time frame. Because geofence warrants do not begin with an identifiable suspect, they have been said to “‘work in reverse” from traditional search warrants.

FACTUAL BACKGROUND

On May 20, 2019, a man robbed a credit union in Virginia. Local police officers learned from witness interviews and surveillance footage that the robber had approached the credit union from a corner of an adjacent church while appearing to talk on a cell phone, but they could not find out anything more, and the robber remained at large. On June 14, the police officers applied to a Virginia magistrate for a Geofence Warrant directed to Google.

Here, the Geofence Warrant would require Google to hand over data about the cell phones located within a 150-meter radius of the credit union—the so-called “geofence”—near the time of the crime.

The federal magistrate judge granted and issued the warrant. Through this process, Google ultimately produced three cell-phone users’ identifying information, including the Defendant Mr. Chatrie. His location data showed that he entered the geofence about ten minutes before the robbery and headed toward a residential area immediately after leaving the bank.

Following further police work, a federal grand jury charged Chatrie with robbery and related firearms offenses. He moved to suppress the information the police obtained from Google. According to Chatrie, the officers had acquired that data through a Fourth Amendment search, and the warrant ostensibly authorizing that search was invalid.

The Fourth Circuit found that the Geofence Warrant “plainly violates the rights enshrined in the Fourth] Amendment. However, it denied the motion based on the good-faith exception to the Exclusionary Rule. A divided panel of the Fourth Circuit affirmed on different reasoning, holding that no search occurred because Chatrie did not have a reasonable expectation of privacy in two hours’ worth of Location History data voluntarily exposed to Google. Eventually, the U.S. Supreme Court decided to hear the case solely on the question whether the police violated the Fourth Amendment in obtaining Chatrie’s location data.

COURT’S ANALYSIS & CONCLUSIONS

Justice Kagan delivered the opinion of the Court. He stated that police officers conducted a Fourth Amendment search when they acquired Chatrie’s location data from Google because an individual has a reasonable expectation of privacy in his cell-phone location information. Justice Kagan based his reasoing in Carpenter v. United States, which held that accessing cell-site location information (CSLI) constitutes a Fourth Amendment search. In Carpenter, the Court reasoned that CSLI provides a “detailed” and “encyclopedic” portrait of a person’s whereabouts, and, with that, an intimate window into a person’s life. Because people compulsively carry their cell phones all the time, the Carpenter Court explained, a cell phone tracks nearly exactly the movements of its owner, and thus faithfully follows him not only through public thoroughfares but into private residences, doctor’s offices, political headquarters, and other potentially revealing locales. The Carpenter Court further observed that the newfound tracking capacity that CSLI gives the police runs against everyone —not just those under investigation—and travels back in time, making possible a form of surveillance that would have been unknown prior to the digital age.

“Most cell-phone users have no awareness of CSLI records, and would never try to retrieve them; by contrast, Google users regularly employ Location History as a personal journal. In that way, Location History resembles other private materials – e.g., emails, documents, photographs, or calendars – that even if stored on Google’s servers, a user reasonably views as his own and expects to be shielded from the inquisitive eyes of the government.” ~Justice Kagan, U.S. Supreme Court

Against that background, Justice Kagan rejected the Government’s argument that accessing only a short amount of cell-phone location information does not count as a Fourth Amendment search fails. “Even short-term monitoring can provide a wealth of detail about a person’s familial, political, professional, religious, and sexual associations,” said Justice Kagan.

Next, Justice Kagan rejected the Government arguement that the so-called third-party doctrine precludes Chatrie from invoking the Fourth Amendment’s protections. The Government’s idea is that in authorizing Google to collect, retain, and use his location information, Chatrie lost his legitimate expectation of privacy, and therefore his right to complain of a search. However, Justice Kagan emphasized that Carpenter refused to apply the third-party doctrine to CSLI, and no good reason exists to reach a different result for Location History:

“The exposure of that information to Google is merely what happens when a user avails himself of one of the services on his cell phone. The Government’s argument that generating Location History, unlike producing CSLI, is a voluntary choice is meritless.” ~Justice Kagan, U.S. Supreme Court

With that, Justice Kagan remanded the case back to the Federal Court of Appeals to decide whether, at each step of the search process, the Geofence Warrant satisfied the Fourth Amendment’s requirements of particularity and probable cause.

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

Can Ozempic Decrease Violent Behavior?

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The Journal of Criminology published a study suggesting GLP-1 drugs might potentially curb people’s violent tendencies.

Scientists at Rutgers University examined nationally representative survey data that compared former and current GLP-1 users. In people currently taking GLP-1s, they found, the link between being impulsive and being more prone to violence was noticeably weaker. These potential benefits in reducing addiction likely stem from how the drugs can affect people’s sense of impulse control and reward processing.

GLP-1 DRUGS AND BEHAVIOR

GLP-1s, by virtue of treating weight loss, can treat or reduce the risk of many health conditions closely tied to obesity, such as heart disease or knee pain. Some research, however, has also indicated these drugs have behavioral effects that go beyond simply reducing a person’s appetite. Numerous studies have found evidence that GLP-1s can decrease people’s harmful cravings for alcohol or other recreational drugs, for instance.

“As criminologists and violence researchers, that caught our attention because impulsivity and alcohol use are among the most established behavioral risk factors for violence. “We wanted to explore whether GLP-1 use might be associated with changes in the relationship between those risk factors and violent behavior. To our knowledge, no previous study had examined that question directly.” ~Daniel Semenza, Director of Research at the New Jersey Gun Violence Research Center at the Rutgers School of Public Health.

THE STUDY’S METHODOLOGY

The study reviewed data collected from a nationally representative survey of 7,521 U.S. adults. They specifically looked at 821 people who reported ever having taken a GLP-1, including 597 people currently on one. People were asked questions about their alcohol use and level of impulsivity, such as whether they would enjoy being in a high-speed chase or a fistfight. They were also asked (with a guarantee of confidentiality) if they had taken part in various violent crimes sometime in the past year.

Sure enough, the researchers noticed a sizeable difference between people taking a GLP-1 and people who used GLP-1s in the past but are no longer taking them.

“Among former users, people with higher levels of impulsivity and alcohol use reported much higher levels of violent behavior, which is consistent with decades of prior research. Among current users, those relationships were much less pronounced.” ~ Daniel Semenza

Overall, the link between impulsivity and violence was about 62% weaker in current GLP-1 users, while the link between alcohol use and violence was 52% weaker. That said, after conducting further analysis, there was less clear evidence of GLP-1s specifically affecting the relationship between alcohol use and violent behavior.

My opinion? Despite the findings, scientists still have a lot to learn about how these increasingly popular drugs could affect behavior in general. We’re only beginning to understand the broader behavioral effects of these medications. Much more research is needed before drawing firm conclusions.

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

U.S. Supreme Court Limits the Federal Gun Ban on Drug Users

Bellingham Defense Attorney, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , , ,

In United States v. Hemani, the U.S. Supreme Court voted unanimously to narrow the federal ban on gun possession by people who use illegal drugs. Additionally, the Court ruled government must show that their drug use poses a risk of dangerous behavior.

FACTUAL BACKGROUND

Ali Hemani was a dual citizen of the United States and Pakistan who was born in Texas. He has spent most of his life living in the Dallas area with his parents and working a stable job. Suspecting Mr. Hemani and his family members of terrorism-related activities, the government conducted a search of the family home in 2022. Throughout the process, Mr. Hemani proved cooperative. He surrendered a gun he kept in the house, pointed agents to some marijuana on the property, and consented to an interview during which he told law enforcement agents that he used marijuana about every other day.

More than six months after the search, and relying solely on Mr. Hemani’s admitted use of marijuana, the government prosecuted Mr. Hemani under 18 U. S. C. §922(g)(3) (herein, “§922(g)(3)”) for knowingly possessing a gun in his home while being an unlawful user of a controlled substance. Mr. Hemani moved to dismiss the indictment, arguing that the government’s effort to enforce §922(g)(3) against him violated the Second Amendment. The federal district court granted the motion, and after an unsuccessful appeal to the Fifth Circuit, the government asked this Court to review the case.

COURT’S ANALYSIS & CONCLUSIONS

Justice Gorsuch delivered the opinion of the Court.

He explained that under the Supreme Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen, courts should uphold restrictions on gun rights only when there is a tradition of such regulations in early U.S. history.

Here, Gorsuch wrote, the federal government cannot meet this high bar. Although the government points to early American laws targeting “habitual drunkards” – for example, by jailing them, placing them in workhouses, committing them to asylums, or requiring them to post a bond to ensure their good behavior – these laws are not sufficiently analogous to justify Hemani’s prosecution.

Gorsuch suggested, a “habitual drunkard” was not the same thing as someone who regularly uses intoxicants such as alcohol. He wrote that even some of the Founding Fathers were heavy drinkers by today’s standards, Gorsuch noted, but to be regarded as a “habitual drunkard” someone would have to frequently be so drunk that they were practically incapacitated and incapable of managing their affairs.

Gorsuch next rejected the government’s argument that the law at the center of this case serves a similar purpose as the law targeting habitual drunkards – that is, to protect the public from ‘unusually dangerous’ individuals who will misuse firearms to commit violent crimes. Even if that is the goal of the law in this case, Gorsuch countered, the habitual drunkard laws normally had little to do with protecting the public from categorically violent and unusually dangerous persons.

Moreover, Gorsuch continued, the habitual drunkard laws are not an apt analogy because their operation differs significantly from the operation of the law at the center of this case. In particular, Gorsuch stressed, those laws usually provided some form of process – such as a trial, proceedings in a probate court, or a bond hearing – before an individual lost any of his liberties, even temporarily. By contrast, under the government’s rule, the law in this case automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user and until he ends his drug use.

Gorsuch made clear that the court did not question that sometimes an individual’s unlawful use of marijuana (or any other controlled substance) may render him a danger to others. But here, he said, the government is asking the court to conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing. Such a position, Gorsuch posited, is at odds with the government’s own actions – for example, its recent decision to downgrade the categorization of marijuana on its list of controlled substances, so that it is now classified as having a lower potential for dependence and abuse and a currently accepted medical use.

Gorsuch emphasized this ruling was “a narrow one” that did not address whether the government could prosecute drug addicts for having a gun or the legality of other gun restrictions – such as the ban on the possession of guns by people who have been convicted of felonies. Indeed, Gorsuch added, the decision did not even address whether the government could prosecute someone if it had proof that a specific individual’s drug use renders him a danger to himself or others.

My opinion? Good decision. Hemani makes it clear that the government cannot make it crime for people to own a gun – which the Supreme Court has held is a fundamental constitutional right – simply because they use marijuana. With nearly half of Americans reporting marijuana use at some point in their lives, this ruling protects the rights of millions and curbs the government’s ability to impose arbitrary and discriminatory penalties. The court has sent a strong message that the government cannot criminalize the conduct of large numbers of people by making categorical and unfounded assumptions about whether they are dangerous.

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

The Crackdown On Repeat Impaired Driving

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Between Memorial Day and Labor Day, DUI arrests spike dramatically across the country. Law enforcement agencies ramp up patrols, set up more checkpoints, and dedicate extra resources to catching impaired drivers.

Earlier this year, Washington State is updated its DUI laws in ways that could have significant consequences for drivers with prior DUI convictions. One of the most important changes involves how past offenses are counted when determining whether a DUI charge rises to a felony.

EXTENDED “LOOK-BACK” PERIOR FOR PRIOR DUI’S

Under the updated law, HB 1493 updates the “look-back” period used to determine whether an impaired driving offense becomes a felony by increasing it from 10 years to 15 years. This means that if a person has three or more prior DUI or physical control convictions within the past 15 years, a subsequent impaired driving offense can be charged as a felony rather than a gross misdemeanor. Also, older convictions that would not have counted under the previous 10-year rule may now be considered in charging and sentencing.

ADDITIONAL DUI LAW CHANGES

In addition to the extended look-back period, the new law also includes the following:

  • New sentencing alternatives for some felony DUI cases, including treatment-based options aimed at addressing substance use issues.
  • Expanded options for deferred prosecution, including limited eligibility for a second deferred prosecution in certain circumstances.
  • Clarifications to ignition interlock and license processes, which may affect driving privileges and reinstatement procedures after a DUI.

WHY DO THESE CHANGES IN THE LAW MATTER?

A DUI conviction—especially a felony impaired driving charge—can carry serious penalties. Longer jail sentences, extended probation, ignition interlock device requirements, and lasting impacts on your driving record and insurance. And because the new law looks further back into a person’s history, older convictions now heavily influence how current charges are handled.

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.

Public Defenders Join Lawsuit Against WA For Funding

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Public defenders are suing.

To be more precise, the King County Department of Public Defense is joining a lawsuit by rural counties that’s already in progress. The move shows that some advocates are running out of patience with the Legislature, which earlier this year retracted a proposal to dedicate some revenue from the state’s new “millionaires tax” for public defenders.

THE PROBLEM

For years, public defenders have reasoned and pleaded with Washington lawmakers to address a crisis in the courts by dramatically increasing what the state spends to provide attorneys for poor people. Unfortunately, the lawmakers haven’t taken much action. Public Defenders now see legal action as a way to force the Legislature’s hand to fund public defense.

“You don’t want to become a pessimist and say there’s no chance, but you realize you may have to have different approaches to motivate lawmakers. Sometimes, litigation is the only way.” ~Matt Sanders, Director of King County’s Public Defense Department

THE LAWSUIT

The lawsuit began in 2023, when Lincoln, Pacific and Yakima counties and the Washington State Association of Counties accused the state of neglecting its constitutional obligations by not adequately funding public defense. The suit suffered an initial setback in 2024. At this time a Superior Court Judge dismissed it, saying the counties lacked standing. But an appeals court disagreed last year and the state Supreme Court declined to intervene.

Under Washington’s longstanding approach, the Legislature has delegated its public defense obligations to the counties. This forces the counties to shoulder almost all those expenses, which total hundreds of millions of dollars each year. The counties claim the system is broken. They argue they can’t raise enough money at the local level to provide all their defendants with adequate counsel. Although the Legislature boosted its spending last year, the counties want much more.

WHY DOES THIS MATTER?

The debate matters because funding struggles and heavy caseloads have led to attorney shortages and uneven services across Washington, sometimes depriving defendants of representation and hampering prosecutions. The state Supreme Court has scheduled lower caseloads for defenders to reduce burnout and attract more recruits over time. For some counties, the new standards could exacerbate budget and staffing woes in the short term.

My opinion? Public defenders are indeed overworked. The situation is driven by systemic underfunding, high caseloads, and the growing complexity of criminal cases. This overwork not only affects the mental health and retention of attorneys but also undermines the constitutional right to effective legal representation. We urgently need reform in the public defense system.

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.