Category Archives: Bellingham Defense Attorney

Mutually Violating No-Contact Orders With Protected Parties

Bellingham Defense Attorney, Burglary, Domestic Violence, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , ,

Restraining Order being signed by lawyer

In State v. Veith, the WA Court of Appeals held that Washington’s second-degree burglary statute does not require a “nexus” between the unlawful entry and the crime the defendant intends to commit in the building.  Here, the defendant committed second degree burglary by (1) unlawfully entering a grocery store in violation of a trespass order, and (2) with the intent to commit the crime of violating a Domestic Violence No Contact Order, the defendant entered the store together with a protected person.

FACTUAL BACKGROUND

On August 17, 2023, a grocery store trespassed Mr. Veith from its premises. Ten days later, on August 27, Veith went to the store and bought groceries with his ex-spouse. The store’s loss prevention officer observed Veith grocery shopping on surveillance video and called the police. Later, police contacted Mr. Veith and his ex-spouse inside a van in the store parking lot. It was determined there was a no-contact order (NCO) prohibiting Veith from being in the presence of his ex-spouse. The State charged Veith with felony violation of a protection order—domestic violence and second degree burglary. At trial, the jury found Veith guilty as charged.

On appeal, Veith argued that the second degree burglary statute should be read as requiring a “nexus” between the unlawful entry into a building and the intent to commit a crime therein. However, the Court of Appeals (COA) disagreed.

COURT’S ANALYSIS & CONCLUSIONS

First the COA explained that the second degree burglary statute sets forth the elements of second degree burglary: (1) entering or remaining unlawfully in a building other than a vehicle or dwelling, and (2) with the intent to commit a crime against a person or property therein. Next, the COA raised and dismissed Veith’s arguments that a “nexus” must exist:

“Nothing in the plain language of the second degree burglary statute requires a nexus between the unlawful entry and the crime being committed within the building and we cannot add words to the otherwise unambiguous plain language of the burglary statute.” ~WA Court of Appeals.

With that, the COA affirmed Mr. Veith’s conviction.

My opinion? This case reveals how seriously our courts consider cases involving DV and No-Contact Orders. It’s generally known that violating a no-contact or restraining order would result in a burglary charge if you unlawfully enter a protected person’s home or premises with the intent to commit a crime, such as assault or harassment. Nowadays, simply being in a public place with a protected party who mutually consents to violating the NCO right along with you can result in burglary charges.

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

U.S. Murder Rate Falls To Lowest Level In More Than a Century

Bellingham Defense Attorney, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Most violent crime rates declined in 2025 across big U.S. cities

Data: Council on Criminal Justice; Chart: Jacque Schrag/Axios

According to a report from the Council on Criminal Justice, the U.S. murder rate dropped sharply in 2025, reaching its lowest level since at least 1900. The data marks a dramatic reversal from the surge in violent crime seen during the COVID-19 pandemic.
KEY TAKEAWAYS
  • Reported levels of 11 of the 13 offenses covered in this report were lower in 2025 than in 2024; nine of the offenses declined by 10% or more. Drug crimes were the only offense category that increased (+7%); sexual assault remained even.  
  • Looking at changes in violent offenses, the rate of reported homicides was 21% lower in 2025 than in 2024 in the 35 study cities providing data for that crime, representing 922 fewer homicides. There were 9% fewer reported aggravated assaults, 22% fewer gun assaults, and 2% fewer domestic violence incidents last year than in 2024. Robbery fell by 23% while carjackings (a type of robbery) decreased by 43%.  
  • When nationwide data for jurisdictions of all sizes is reported by the FBI later this year, there is a strong possibility that homicides in 2025 will drop to about 4.0 per 100,000 residents. That would be the lowest rate ever recorded in law enforcement or public health data going back to 1900, and would mark the largest single-year percentage drop in the homicide rate on record.
  • Examining changes in property crimes, motor vehicle theft had been on the rise from the summer of 2020 through 2023, but that trend began to reverse in 2024 and the pattern continued in 2025. There were 27% fewer motor vehicle thefts last year than in 2024 in the study cities. Reports of residential burglaries (-17%), nonresidential burglaries (-18%), larcenies (-11%), and shoplifting (-10%) all decreased in 2025 compared to 2024.  
  • Assessing trends over a longer period, violent crime overall in 2025 was at or below levels in 2019, the year prior to the onset of the COVID-19 pandemic and racial justice protests of 2020. There were 25% fewer homicides in the study cities in 2025 than in 2019. Aggravated assault (-6%), gun assault (-13%), sexual assault (-4%), domestic violence (-19%), robbery (-36%), and carjacking (-29%) also were lower in 2025 than in 2019.   
  • Lethality (the share of serious violent crime that is fatal) declined 8% in a sample of 18 cities from 2024 to 2025. From 2019 to 2025, lethality fell 5%. Cities with the highest pre-pandemic homicide levels experienced the largest drop in lethality from 2019 to 2025 (-36%). 
  • Non-violent crime trends have been varied over the last seven years. There were fewer residential burglaries (-45%), larcenies (-20%), and reported shoplifting incidents (-4%) in 2025 than in 2019, but more nonresidential burglaries (+1%) and motor vehicle thefts (+9%). Drug offenses in 2025 were 19% below 2019 levels. 
  • The declines in crime, especially homicide, are promising, and are likely the result of a complex tangle of broad social and technological changes and direct policy interventions. Determining a cause for the decline requires a rigorous examination of the data. This report is not evidence of a policy’s success or failure; it simply documents recent crime trends from a sample of large U.S. cities.  

The data suggest the steep rise in violence during 2020 through 2022 has fully receded. Since peaking during the pandemic era, homicide rates have steadily declined, falling below levels recorded in nearly every year since the early 1900s.

The findings land amid a political debate over crime and public safety. President Donald Trump has portrayed himself as a law-and-order leader, crediting federal crackdowns, including National Guard deployments and stricter immigration enforcement, for improving safety in major cities.

However, the report notes that violent crime was already falling to a two-decade low in the final year of President Joe Biden’s administration, raising questions about how much recent federal policies have influenced the trend. A White House spokesperson said the administration has taken a “whole-of-government” approach to crime reduction, while researchers cautioned against attributing the drop to any single factor.

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

Will AI Replace Criminal Defense Attorneys?

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Technology, Whatcom County Criminal Defense, , , ,

Will AI replace lawyers? What Canadian legal professionals should know

Artificial intelligence (AI) is quickly changing different industries – including the legal space. AI-powered tools are increasingly being integrated into criminal defense practice. As tech becomes more sophisticated, many are asking: will AI replace criminal defense lawyers?

The quick and short answer is No.

THE USE OF AI IN CRIMINAL DEFENSE WORK

The use of artificial intelligence has become a reality, redesigning how certain legal tasks are performed daily. AI is more than just a search engine. Defense attorneys are now regularly employing machine learning tools for a range of functions, including e-discovery and automating parts of the due diligence process. Defense attorneys who do not incorporate relevant technological competence into their work will likely be outpaced by those who effectively utilize these tools. The criminal defense community’s challenge is to not just acknowledge AI but to thoughtfully adopt it to modernize and enhance their practices, boost efficiency, and increase client value.

One of the key areas where defense attorneys are using machine learning is in e-discovery and document review. AI can quickly sift through massive amounts of discovery; such as emails, police reports, photos, videos, 911 Calls and other case-related documents. It can identify relevant keywords, flag privileged information, and even determine the likelihood of a document being relevant to a case. This automation drastically speeds up a previously time and labor-intensive process, leading to substantial reductions in both legal fees and operational costs.

Finally, another major application of AI in law is predictive analytics to gain a strategic advantage. Some criminal defense firms are utilizing specialized platforms that are designed to forecast case outcomes. AI can process and analyze vast amounts of historical legal data, including court records, judicial opinions, and a judge’s prior rulings. By analyzing this information, AI can identify patterns and trends that are difficult for humans to spot, to generate the statistical probability of a particular case’s outcome, such as the likelihood of a motion being granted or a case settling and the risks and benefits of continuing litigation.

AI’S CAPABILITIES & LIMITATIONS

AI’s primary strengths lie in its speed, scalability, and ability to recognize patterns within vast datasets. However, legal work is not solely technical. it encompasses interpretive, relational, and ethically complex dimensions. The application of statutes, case law, and regulations frequently occurs in emotionally charged or morally ambiguous situations and with years of experience, knowledge and understanding of the law.

Crucially, legal advice depends on professional judgment and the establishment of interpersonal trust. AI cannot assess risk. And it cannot replicate the essential role of a  defense lawyer who advocates in court, negotiates deals face-to-face, and counsels clients through crises where experience, human insight and empathy are indispensable.

While AI excels at identifying clear-cut legal issues, it struggles with the subtle interpretations and strategic judgments often required in highly nuanced criminal defense litigation. Assessing risk in these contexts frequently depends not only on the letter of the law, but also on the specific type of defendant, the nature of the potential defenses involved, and the potential impact of presenting a case before judges and juries. These complex balancing acts requiring human judgment and ethical considerations are beyond AI’s capabilities.

PRACTICING WITHOUT A LICENSE

The accessibility of AI tools have fostered a dangerous overconfidence among some non-lawyers. Many believe they can draft legal opinions or provide legal advice without a license. This begets a false sense of legal expertise. AI has the ability to produce plausible sounding, but legally inaccurate or incomplete responses. Some defendants might turn to AI for legal advice and misinterpret its output as authoritative. This can lead to misguided decisions, unrepresented legal actions, or a fundamental misunderstanding of their Constitutional rights. The misleading legal information from AI poses a broad danger, potentially leading to serious negative consequences. This is precisely why the judgment of experienced and seasoned criminal defense attorneys are more critical than ever to navigate these complexities and mitigate potential risks.

OVERCONFIDENCE IN OUTCOMES

As noted above, AI tools can also create overconfidence in suggested outcomes primarily due to a phenomenon known as automation bias. This bias describes the human tendency to over-rely on automated aids and decision support systems, leading defendants to favor their suggestions and potentially disregard contradictory information or their own judgment.

AI tools are designed to generate responses that are highly fluent, coherent, and often appear authoritative, even when the information is incorrect or fabricated. This polished presentation can mask underlying inaccuracies, leading users to implicitly trust the output without sufficient scrutiny. Humans naturally tend to take the path of least cognitive effort. When AI provides a quick, seemingly complete answer, it reduces the need for the user to engage in deeper critical thinking, independent research, or verification. This fosters a sense of overconfidence in AI’s output.

CONCLUSION

AI should be viewed as a tool that can complement and enhance criminal defense work. It gives criminal defense attorneys to modernize their practices, increase their value to clients, and ensure that technology serves to enhance, rather than undermine, the delivery of justice. The challenge is to adapt proactively to a constantly changing technological landscape, ensuring that the criminal defense practice evolves in a way that preserves its core values while embracing new efficiencies.

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.

“Velocity Renormalization” Is Making You Drive Too Fast

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Reckless Driving, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Your speed versus speed limit

Photo courtesy of RiverNorth Photography via Getty Images.

The majority of households in North America own at least one car and driving is a daily activity for most people. In fact, driving is so normal that it becomes a routine performed with minimal concentration. And that can lead to all sorts of dangerous actions behind the wheel, like texting, eating, daydreaming. But amid these well-known concerns lies a relatively overlooked phenomenon: velocity renormalization.

WHAT IS “VELOCITY RENORMALIZATION?”

Velocity renormalization, or velocitization, is when your brain adapts to a certain driving speed (like highway speeds) and misjudges other speeds. This makes slower traffic seem extremely slow or makes you feel like you’re crawling when you slow down. The perceptual shift that can affect speed judgment and lead to errors like unintentional speeding or over-braking after exiting a freeway. It’s an adaptation effect where your internal “normal” changes, affecting how you perceive your own speed and that of others, highlighting the need to regularly check your speedometer. 

When drivers leave a highway and have to merge with slower traffic, their perception of normal speed is altered and they often unconsciously misjudge their own speed. This also works in reverse. Someone who was moving slower can perceive a faster speed limit as being higher than it actually is.

THE SCIENCE 

George Mather, a Professor of Vision Science at the University of Lincoln, led a study into this subject, concentrating on the adaptation effect. The study looked into a person’s perceived norms of how fast something goes or should go after having experienced short periods of exposure to different speeds. After watching a slowed-down video of human movement, participants in the experiment were then shown normal speeds, which they perceived to be unnaturally fast. They required the natural-speed video to be slowed down for it to appear “normal”.

THE EFFECT ON DRIVERS

Velocity Renormalization is exactly what happens to a driver’s brain after they drive at a certain speed. In short, they will be prone to misjudging their velocity and, for example, approaching a highway exit ramp too fast. It can take time to mentally make the transition from faster to slower zones (or vice versa). Therefore, it’s important for drivers to double-check their speed when moving from one speed limit to another.

Because driving is so routine and natural for most people, it’s sometimes easy to forget that it’s a dangerous activity involving thousands of pounds of metal moving at high speeds. As Professor Mather’s research shows, drivers are also affected by a variety of effects that can alter their perception. All those factors add up and over 37,000 people die in car crashes in America every year—that’s over 100 a day.

Driving 35 mph, especially after you’ve been on the freeway, feels slow, while 35 mph on a bicycle feels like a bullet train. In a modern luxury car, even 70 mph can feel tedious. There are a few things going on here. Our eyes and our ears provide input for our perception of speed. On the freeway everything is far away, compared to city driving. The shoulders are wide, the road signs are set back, the closest trees might be 50 feet from the edge of the road, the other traffic nearly matches our speed. We don’t have any nearby markers to indicate how fast the world is zipping by. Compare that to when you’ve encountered a freeway work zone with concrete barriers at the edge of your lane. The lane width hasn’t gotten any narrower, but now you’re zooming past objects right next to you, and suddenly it feels too fast.

CAN YOU BE CRIMINALLY CHARGED FOR DRIVING TOO FAST?

Yes. Driving significantly over the limit (often 20-30 mph or more) or too fast for conditions (rain, fog, ice) can elevate a speeding ticket to criminal charges like Reckless Driving. Being convicted of this charge can lead to potential jail time, hefty fines, and license suspension.

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

ACLU Maps Out Washington’s Anti-Homeless Criminal Laws By County

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Poverty Defense, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Mapping Displacement - ACLU of Washington

Photo courtesy of ACLU WA

The Washington chapter of the ACLU gathered data on how many anti-homeless ordinances exist in Washington state, and how many unsheltered people are subjected to them across each county. They also tracked how many shelter beds are available in these counties. The information is very insightful on how cities and counties in WA state criminalize the homeless.

WHAT IS THE PROBLEM?

In its findings, the ACLU concluded that Washington is facing a severe housing and homelessness crisis. The problem is a direct result of decades of policy failure, housing disinvestment, and growing inequality. Thousands of our neighbors are pushed into homelessness. Rather than addressing root causes, cities are doubling down on punishment. Local governments often respond to visible homelessness by enacting and enforcing laws that criminalize the basic act of existing in public — sleeping, sitting or trying to stay warm.

THE LEGAL LANDSCAPE

In 2024’s City of Grants Pass v. Johnson,  the Supreme Court of the United States addressed the legality of an Oregon city ordinance that issued tickets to people sleeping in public when there were not enough available shelter beds. The court ruled that cities may punish people for sleeping in public, even when no shelter is available. The decision opened the door to further criminalization of people experiencing homelessness for unavoidable behavior tied directly to their life circumstances— signaling that survival itself can be punished. The case is criticized as undermining human dignity.

MAPPING THE CRISIS

Since this ruling, cities have become further emboldened in criminalizing people experiencing homelessness.

The issue of homelessness is incredibly complex, and the data we collected cannot fully represent the lived experience of those forced to live outside. While numbers are at times reductive and don’t show the whole story, they are a powerful visual tool to help build shared understanding of the pervasiveness of these laws and the crisis we are facing.

DATA GATHERING

The ACLU gathered three main data points:

  1. The Number of Anti-Homeless Ordinances In Each County.
  2. The Number of Unhoused Individuals In Each County.
  3. The Number of Low-Barrier Shelter Beds In Each County.

FINDINGS

Based on its data, the ACLU made the following conclusions:

  1. Access to Shelter And Other Services Varies Widely.
  2. Urban and Rural Counties Experience Similar Rates of Homelesness.
  3. Deep Funding Gaps In The State’s Housing Systems.
  4. Shelter Bed Availability Varies Darmatically By County.
  5. Counties Continue to Pass Anti-Homelessness Laws

CONCLUSION

The ACLU’s findings illustrate how uneven and disconnected Washington state’s homeless response has become. Whether someone can find a shelter bed, or simply exist outside without the threat of punishment, often depends entirely on where they live. Across the state, a clear pattern emerges. Instead of a coordinated, statewide response, Washington has developed a confusing patchwork of local laws that criminalize homelessness and punish people for being poor.

My opinion? Excellent work by the ACLU. Public safety concerns aside, we must remain committed to building a future where all Washingtonians – regardless of their housing status – are treated with dignity, fairness, and humanity. To this end, the ACLU is advocating for a bill which would set a clear and consistent statewide standards for criminal charges levied against houseless population.

The legislation is based on the premise that local governments should not be allowed to adopt or enforce laws that punish people for basic, life-sustaining activities on public property, such as sleeping or resting, unless adequate alternative shelter space is actually available. People should not face punishment simply because they have nowhere else to go. To learn more about the bill and ways to get involved, follow this link.

And 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.

How Inflation Makes The Criminal Justice System Harsher Today Than It Was Yesterday

Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Theft, Whatcom County Criminal Defense, , , , ,

Inflation and Crime | Pinkerton

The rise of Inflation makes already-outdated criminal laws more punitive each year. In Washington State, for example, one can be charged with Felony Theft in the Second Degree for stealing property or services valued at a mere $750.00. Problematically, the Theft statute hasn’t been recently amended to reflect value increases due to inflation. This means the theft of everyday items now qualify as felonies, leading to harsher punishments (prison and parole instead of jail and probation).

WHAT’S THE SOLUTION?

Updating felony theft statutes is one simple way to reduce the number of people serving time in prison for low-level offenses. Making more minor thefts into misdemeanors will also spare more people from the often lifelong collateral consequences of felony convictions that can limit their access to public housing, welfare benefits, and even voting.

Decreasing the punishment for minor thefts is unlikely to encourage more thefts. As Pew Charitable Trusts found in their invaluable 2018 report, States Can Safely Raise Their Felony Theft Thresholds, Research Shows, South Carolina’s property crime rates actually continued to fall years after the threshold increased.

This isn’t unique to South Carolina, either. Pew’s article also included a brief comparison of crime rates in all 50 states, reporting that between 2000 and 2012, the 30 states that increased their thresholds had property crime rates similar to the 20 states that had not yet updated their laws.

My opinion? Keeping laws up-to-date is critical to saving taxpayer dollars and improving the effectiveness of Washington’s criminal-justice system. Updating the state’s theft statute is one small step to take to make Washington smarter on crime. Punishment for property-crime offenders must also focus on the victims of these crimes. An offender in prison isn’t working to reimburse his or her victim for the value of the stolen property. Instead, the victims pay, through tax dollars, to support the people who have wronged them.

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

State v. Ianniciello: The Right to Remain Silent

Bellingham Defense Attorney, Constitutional Rights, Fifth Amendment, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Self-Incrimination, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Photo courtesy of Premious Shots Productions.

In State v. Ianniciello, No. 86711-3-I (Dec. 15, 2025), the WA Court of Appeals reversed a defendant’s conviction for First Degree Murder. In its holding, the Court found the Ms. Ianniciello did not receive a fair trial because the State violated her Fifth Amendment right to silence by eliciting testimony regarding her pretrial silence in the wake of her husband’s murder and subsequent investigations.

FACTUAL BACKGROUND

On April 2, 2016, Ianniciello’s husband Tom was killed by a single gunshot to his head as he slept in his bed. Ianniciello called police after discovering Tom’s body in the bed. Police arrived and immediately began investigating. At the time of the murder, Tom and Ianniciello had been married for over sixteen years. The marriage was turbulent, as Tom had an issue with alcohol abuse and would become abusive to Ianniciello.

Police arrived and immediately began investigating. Detective Broggi, the lead detective, asked Ianniciello, “Did you shoot your husband?” Detective Broggi expressed concern with Ianniciello’s silent demeanor, saying “I want you to look at our side kind of this” because “you don’t seem overly concerned, or, you know, just upset about it.” Detective Broggi asked Ianniciello if she would be willing to take a polygraph examination, and Ianniciello agreed to do so. A few weeks later, on April 18, Ianniciello’s attorney contacted Detective Broggi, notified her that Ianniciello would not be taking a polygraph examination, and asked her to have no further contact with Ianniciello.

After nearly three years, the State charged Ianniciello with first-degree murder. Ianniciello’s first trial, in 2022, ended in a mistrial after the jury was unable to render a unanimous verdict.

In 2024, the case proceeded to a second trial after which the jury rendered a guilty verdict. On appeal, Ianniciello argued the State violated her right to silence under the Fifth Amendment of the United States Constitution and article I, section 9 of the Washington Constitution by eliciting testimony from multiple witnesses that she did not “reach out,” “call,” “check in,” or “provide information” to law enforcement.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (Court) discussed Ianniciello’s Fifth Amendment right against self-incrimination. In short, the State violates a defendant’s Fifth Amendment rights when the State calls to the attention to the accused’s pre-arrest silence to imply guilt.

The Court found that here, the record established that Ianniciello invoked her Fifth Amendment right to silence. She purposefully did not answer Detective Broggi’s questions and declined the offer to take a polygraph. This clear statement that Ianniciello would not provide additional information to the police and should not be contacted by them is sufficient to invoke her Fifth Amendment privilege.

Neverthess, at trial, the State elicited at trial direct testimony from two detectives about Ianniciello’s failure to contact them. During its examination of law enforcement officers, the State elicited testimony that Ianniciello did not reach out and did not check in on the status of the investigation. The State also continued this theme of drawing the jury’s attention to Ianniciello’s pre-arrest silence by eliciting testimony that Tom’s other family members would reach out and check in on the investigation, “but not Ms. Ianniciello.”

The Court found the State’s tactics and testimony from its witnesses violated Ianniciello’s Constitutional rights:

“The State’s conduct was an attempt to convince the jury that Ianniciello’s silence, by not communicating with law enforcement, demonstrated her guilt. This is precisely what the Fifth Amendment prohibits.” ~WA Court of Appeals

Next, the Court found that the State’s error was not harmless. Preliminarily, it commented that the State’s case depended largely on circumstantial evidence. More important,  the Court found that testimony from the State’s witnesses about Ianniciello’s pre-arrest silence may have swayed the jury – thus rendering the testimony not harmless – and the State failed to prove beyond a reasonable doubt this constitutional error had no impact on the jury’s verdict.

With that, the Court of Appeals reversed Ianniciello’s conviction and remanded for a new trial.

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

Roadside DUI Tests to Add Oral Fluid Screening

Bellingham Defense Attorney, DUI, Skagit County Criminal Defense, Technology, Whatcom County Criminal Defense, , , , ,

Oral Swab Tests | DUI Drugs | Oxnard Criminal Defense Attorney | DUID

Photo Courtesy of Margaret Johnson: MargJohnsonVA – stock.adobe.com

In recent news, numerous states – including Washington State – are adopting some form of oral fluid specimen use in DUI cases. These technological advancements will transform how law enforcement agencies detect and prosecute DUI cases.

WHAT IS ORAL FLUID TESTING?

Oral fluid testing for DUI involves police using a swab to collect a saliva sample from a driver at a traffic stop to quickly screen for recent drug use (marijuana, cocaine, opioids, etc.) Oral fluid tests help establish probable cause for impairment in addition to field sobriety tests. They’re advocayed as fast, non-invasive tools to detect active impairment, complementing blood/urine tests by showing recent use, not just past usage. 

WHICH STATES ARE ACTIVELY USING ORAL FLUID TESTING?

Alabama initially conducted a pilot program established by the Alabama Department of Forensic Sciences and later transitioned to a permanent oral fluid toxicology program. Alabama’s field screening devices test for marijuana, cocaine, methamphetamine, amphetamine, opioids and benzodiazepines. Oral fluid devices are administered at roadside in a screening capacity to confirm any suspicion of drug use after law enforcement conducts a standardized field sobriety test. The results help obtain a search warrant to collect blood or oral fluid for a laboratory test that would provide evidence for trial.

Law enforcement officers in Indiana began using roadside screening around the state in December 2020 to build probable cause and determine whether or not to call for a DRE. Data collected through the program will be used to evaluate a possible expansion.

The Michigan legislature (Public Act 242 and 243 of 2016) authorized state police to develop an oral fluid pilot program. The initial pilot was conducted in five counties and used DREs to administer the oral fluid test. Unlike previous programs (like the three-year pilot program in Colorado that began in March of 2015), this program was not voluntary as drivers were not given the option of opting out from providing a sample. The program was extended for a second year and expanded statewide. Michigan State Police released a report concluding it found oral fluid testing accurate for purposes of preliminary roadside testing.

Vermont (SB 54) amended its implied consent law to include the testing of saliva in 2020 for evidentiary purposes only. Law enforcement officers can now require a person to submit to a saliva test when they have reasons to believe that they are under the influence of drugs or a combination of drugs and alcohol. Saliva samples cannot be taken at roadside and must be analyzed in a laboratory.

HAS WASHINGTON STATE EMBRACED FLUID TESTING?

Yes. In 2024, the Legislature enacted RCW 46.61.5062. This statute, which goes into effect January 1, 2026, allows law enforcement agencies to utilize “oral fluid roadside information” as part of DUI enforcement. Law enforcement agencies must ensure the following:

  1. The oral fluid test instrument(s) used must be valid and reliable;
  2. Any officer who administers an oral fluid test is properly trained in the administration of the test;
  3. Prior to administering the test, the officer advised the subject of the following information:
    • The test is voluntary and does not constitute compliance with the implied consent requirement of RCW 46.20.308;
    • Test results may not be used against a person in a court of law; and
    • Submission to the test is not an alternative to any evidentiary breath or blood test; and
  1. The law enforcement agency establishes policies to protect personal identifying information from unnecessary and improper dissemination including, but not limited to:
    • Destruction of biological samples from oral fluid tests as soon as practicable after collection of test results; and
    • Prohibition against entering DNA samples or results from such tests into any database.

CONCERNS ABOUT ORAL FLUID TESTING

Drugs do not affect users uniformly or in a manner that is easy to measure. Differing characteristics of the drug, of the user, and of the circumstances in which the drug is used renders distinguishing between presence of drugs and impairment by drugs an opaque endeavor. There are no consistent standards in the manufacture of oral fluid tests. The lack of industry-wide consensus reflects research challenges like dearth of quality studies and information challenges. Finally, laws concerning the use of oral fluid tests are inconsistent across all 50 states.

LEGAL ARGUMENTS AND CHALLENGES

Challenges can be made from collection, preservation, and chain of custody to accuracy of results. Other challenges include the effect of methods of consumption on results, factors affecting the presence of a substance in one bodily fluid while being absent in another, and whether the results even indicate impairment.

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.

Federal Intrusion Into State Criminal Law

Bellingham Defense Attorney, Federal Crimes & Prosecutions, Mount Vernon Criminal Defense Attorney, Race & Law, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

WATCH: Law enforcement expert explains DC Federalization, police reactions

Photo courtesy of AP Photo/Jacquelyn Martin

Excellent working paper brief by Sentencing Reform Counsel  Liz Komar discusses how the expanding encroachment of federal criminal law on traditionally local offenses threatens justice, equity, and local democracy.

WHY IS FEDERAL INTRUSION INTO LOCALIZED CRIMES PROBLEMATIC?

In her brief, Komar writes that over-federalization can lengthen sentences and increase incarceration because federal sentences tend to be longer and carry higher mandatory minimums than their state counterparts. Furthermore, over-federalization may also result in arbitrary and racially disparate sentencing outcomes for similarly situated defendants. Finally, overly broad federal laws can be wielded by federal authorities to usurp the power of locally elected officials or to suppress protest. This comes as a significant infringement on democracy.

WHAT ARE THE SOLUTIONS?

Rather than allow the encroachment of federal criminal law on traditionally local offenses, Ms. Komar’s brief suggests that federal lawmakers and leaders should do the following:

  • Respond to constituent concerns about crime by investing in community-based solutions, rather than with duplicative federal criminal statutes. Investment in evidence-based interventions like gun violence prevention and programs focusing on preventing youth crime and overdose reduction can respond to the underlying concerns of constituents.
  • Limit interventions by federal prosecutors in traditionally local offenses, particularly in the context of successive prosecutions (prosecutions in which individuals are prosecuted by both the local and federal authorities), or when there is conflict regarding a duly elected local prosecutor’s lawful exercise of discretion.
  • Abolish federal mandatory minimums. Federalizing local offenses tends ultimately to lengthen sentences because of the longer mandatory minimums at play in the federal system.
  • Improve the federal criminal legislative drafting process by requiring judiciary committee oversight of every bill proposing criminal offenses or penalties.
  • Repair the past harms of over-federalization through retroactive sentencing reforms. Some federal mandatory minimums, such as those involving crack cocaine or unlawful possession of a firearm, have played an outsize role in deepening racial disparities and lengthening sentences. Retroactive resentencing laws are a means of addressing these harms, reducing excess incarceration, and strengthening communities.

My opinion? Ms. Komar’s proposed reforms could help to halt the expansion of over-federalization. They can also reduce the unnecessary harm of overlapping and largely duplicative offenses.

Criminal conduct often falls under the jurisdiction of both state and federal laws. Take drug trafficking as an example. If someone brings illegal drugs into the U.S. from abroad, federal laws covering international drug smuggling come into play. But if that person intends to distribute those drugs within a particular state, they’ve also violated state drug laws. In such cases, it’s not just possible—it’s likely—that both federal and state prosecutors will be interested in the case.

These overlapping offenses give prosecutors significant discretion, especially when the crime crosses state lines or involves larger federal interests, like bank security or interstate commerce. This overlap makes the dual prosecution landscape much more common than most people realize.

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.

AI Technology Can Effectively Assist Police. But What’s the Risk?

Artificial Intelligence, Bellingham Defense Attorney, Constitutional Rights, Mount Vernon Criminal Defense Attorney, police, Skagit County Criminal Defense, Technology, Whatcom County Criminal Defense, , , , ,

Longeye

Photo courtesy of Longeye.

When a crime happens, police begin compiling a mountain of digital evidence. The evidence can include surveillance videos, phone records, crime scene photos and interviews. The evidence compiled into data sets can be quite substanial, weighty and lengthy. Be as it may, police agencies are hesitant to assign officers to these tasks, especially in light of budget constraints.

King 5 News reports that the Redmond Police Department addressed these challenges by using a new Artificial Intelligence (AI) platform to sift through evidence to solve crimes. In a recent case, an AI platform called Longeyehelped investigators on a cold case by combing through hours of jail phone calls, including a key confession.

HOW DOES LONGEYE WORK?

Longeye’s AI-powered workspace rapidly digests and understands video, photography, and text at speeds up to 100x faster than a human. It makes information searchable and parsable and it ‘reads’ the data contextually to find key intelligence that can break the case open. In theory, this saves thousands of desk hours, closing cases before the trail goes cold, avoiding burnout and getting police investigators back in the field.

Here, Longeye helped the Redmond Police Department process 60 hours of jail phone calls in a matter of minutes. This apparently saved a significant amount of time, and verified the lead investigator’s facts in the case. By using Longeye to search for and locate key information, the investigator was able to work more efficiently.

DOES LONGEYE USE AI FOR ILL PURPOSES?

In short, advocates of Longeye say it gives police more time to serve victims and close cases. Longeye does not create or predict information. It only points detectives to evidence they already have, helping them work smarter and faster. It verifies facts already known to police in a cold cases. It is not used to uncover new information.

WHAT ARE THE CRITICISMS OF LONGEYE?

Accordingt to Google’s AI Overview, key criticisms and concerns of Longeye include the following:
  • Risk of Errors (“Hallucinations”): A primary concern is that, like other large language models, the AI could generate incorrect information or misinterpret evidence (known as “hallucinations”). This could potentially misguide investigations, leading to wasted time or, more seriously, incorrect assumptions about suspects.
  • Wrongful Arrests: Critics point to the history of other technologies like facial recognition leading to wrongful arrests and worry Longeye could be subject to similar issues if not used with extreme caution.
  • Dependence on Human Oversight: The platform’s designers emphasize it is a tool to assist, not replace, human investigators. This means its ultimate reliability depends on the diligence of human officers to double-check the AI’s findings against original evidence, which might not always happen in practice.
  • Potential for Misuse: As with any powerful surveillance or investigation technology, there are general privacy concerns about how law enforcement uses the tool and what data they are looking for.
  • Unreliable in Court: Courts are already seeing problems with attorneys using other AI tools that cite nonexistent case law, raising fears about the admissibility and reliability of AI-generated insights as evidence. 

Please contact my office if you, a friend or family member are charged with a crime. Any ill-gotten evidence in a criminal case which was obtained, reviewed, presented and organized by AI tools can possibly be suppressed. Hiring an effective and competent defense attorney is the first and best step toward justice.