Category Archives: Constitutional Rights

Drug DUI: The Brass Tacks

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, felony, Ignition Interlock Device, law enforcement, Legislation, marijuana, misdemeanor, police, Search and Seizure, Terry Stop, , ,

Pima County Drugged Driving Attorney | Tucson Drug DUI Defense Lawyer | AZ

Yes, I’ve blogged on this before – the passage of Washington Initiative 502 (I-502) and its impacts on DUI investigations. Consider this Part II of an ongoing discussion.

Under I-502, it is now legal to possess marijuana in small amounts. Undeniably, this opens many legal issues for motorists suspected of Driving Under the Influence of Marijuana, typically called “Drug DUI,” “stoned driving” and/or “DUI-D.” What are the legal limits of THC consumption? How do officers obtain proof of Drug DUI? How does I-502 affect minors charged with Drug DUI? What are the consequences of refusing an officer’s attempts to obtain proof of DUI-D?

Under I-502, the legal limit for THC is 5.00 nanograms. Officers obtain THC readings from blood tests administered in hospitals. Consequently, I-502 gives law enforcement officers more incentive to transport citizens to a hospital and seek a blood test if the officer suspects Drug DUI. Citizens refusing the blood test shall be charged with an upper level “Refusal” DUI for violating RCW 46.20.308, which is Washington’s Implied Consent Law. Worse, an officer now has discretion to immediately seek a warrant for a citizen’s blood. With warrant in hand, the officer may obtain a blood test from the citizen anyway, despite the citizen’s prior refusal.

Under RCW 46.20.308, which is Washington’s Implied Consent statute, the citizen’s license, permit, or privilege to drive will be revoked or denied for at least one year.  Refusal of the blood test is also admissible in a criminal trial. In the case of minors, I-502 imposes zero tolerance.

In short, the impacts of I-502 are extremely egregious. Fortunately, there’s also a lot of room for error on the part of law enforcement officers charging citizens with Drug DUI. Some of these issues – in the form of defenses – are as follows:

(1) Why did the officer initiate the pullover?

(2) Was the officer trained as a Drug Recognition Expert?

(3) What is the officer’s probable cause for arresting someone for Drug DUI?

(4) Was the citizen informed of the Implied Consent Law?

(5) What constitutes a Refusal?

(6) How did the officer obtain a warrant for a blood test?

(7) Did a licensed medical professional draw the blood?

(8) Can the Prosecutor establish the chain of custody showing who took the blood, who sealed it, and who tested it? And more, are these individuals available to testify?

(9) How does being charged with DUI-D affect citizens who are licensed to smoke marijuana; citizens who probably have elevated levels of THC in their blood anyway?

These issues, and more, affect the outcome of your case. Immediately consult an experienced criminal law attorney like myself if you’re facing Drug DUI charges.

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.

Extra DUI Patrols Nab 1,600 Washington Drivers

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Search and Seizure, Search Warrant, Terry Stop, Uncategorized, Washington State Patrol, , ,

Drive Hammered-Get Nailed - Impaired Driving TV Ad on Vimeo

Police across Washington state arrested more than 1,600 people during a recent drunken-driving enforcement campaign.

According to statistics from the Washington Traffic Safety Commission, 1,603 drivers got busted during this summer’s “Drive Hammered, Get Nailed” anti-DUI campaign, which ran from Aug. 17 to Sept. 3.

A grant from the Traffic Safety Commission paid for the extra patrols. The commission says August is typically one of the deadliest months on Washington’s roads.

My opinion?  Obviously, it’s important to know your Constitutional rights – and respectfully exercise them – during a DUI investigation.  Being stopped for DUI brings many legal issues to the forefront which a competent attorney can address.  Hopefully, your attorney can suppress the evidence and/or get the DUI charges reduced/dismissed.

Was the stop legal?  Was there enough evidence to establish probable cause to arrest?  Were you informed of the implied consent warnings?  Were you advised of your right to an attorney?  Did you provide a portable breath test reading?  Did you perform field sobriety tests?  Did you refuse the Blood Alcohol test at the jail?  If not, was your test result above .08?  Is there an administrative action from the Department of Licensing to suspend or revoke your driver’s license?

These questions, and a host of others, affect how an attorney represents you case.  Although it’s best to avoid a DUI in the first place, it’s equally important to hire competent counsel if you’re charged with DUI.

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.

Mount Vernon and Burlington Sued for Allegedly Violating Constitutional Rights of Indigent Defendants

Constitutional Rights, , ,

Ineffective Assistance Of Counsel – Meaning And Remedies

On June 10, three inmates in Skagit County jail filed a class action lawsuit against the cities of Mount Vernon and Burlington. Allegedly, the cities are systematically failing to provide assistance of counsel to low‐income persons who face criminal charges in municipal court.  According to papers filed in Skagit County Superior Court, the plaintiffs are seeking an injunction that will stop the cities from violating the constitutional rights of low‐income individuals. They are not requesting monetary damages.

 

Documents obtained from the cities show that Mount Vernon and Burlington jointly contract with two attorneys to provide all of the public defense services in those jurisdictions. In 2010, these two attorneys were responsible for handling more than 2,100 public defense misdemeanor cases.

Under the Standards for Indigent Defense Services adopted by the Washington State Bar Association, a full‐time public defender should not have more than 400 such cases per year. The limit is even lower for attorneys working on a part-time basis.

 According to the plaintiffs, the attorneys who contract with Mount Vernon and Burlington spend no more than a third of their time on public defense work, which allows for a maximum of 267 misdemeanor cases per year between the two of them. The plaintiffs allege that excessive caseloads and inadequate monitoring by the cities have resulted in a public defense system that deprives indigent persons of their constitutional rights.

Among other things, plaintiffs claim the attorneys do not investigate the charges filed against indigent persons, do not respond to communications from indigent persons, do not meet with indigent persons in advance of court, and do not stand with or represent indigent persons during court hearings. 

 The plaintiffs cite numerous complaints with the cities of Mount Vernon and Burlington. In December 2008, for example, the Skagit County Office of Assigned Counsel emailed city officials to inform them that indigent persons in Mount Vernon and Burlington will “go to court, come to our office, and [go] again to court with no attorney there to represent them even though counsel has been appointed.”

One low‐income person charged in Mount Vernon wrote: “I have not been fairly represented by either [attorney]. They have neglected to help my case at all. I would like a new public defender appointed to my cases please. Someone who will go over my case w/ me, discuss my options, meet w/ me before court, [etc.].”

City officials have even received emails from Mount Vernon police officers who complain about the “difficulty” they have “contacting Public Defenders,” adding “we are not getting the service that is their obligation to perform.” Despite these complaints, Mount Vernon and Burlington recently agreed to extend their contract with the attorneys for an additional two years. Records obtained from Mount Vernon show the city council voted unanimously in favor of this extension.

Toby Marshall, one of the lead attorneys for the plaintiffs, says: “When you are arrested and charged with a crime, the right to counsel is the most fundamental and important right that you have. This is true regardless of your economic status.” The plaintiffs claim that in Mount Vernon and Burlington, low income individuals who are charged with a crime are being appointed counsel in name only. Matt Zuchetto, another lead attorney in the case, says: “We intend to present extensive evidence that will show the public defense system in Mount Vernon and Burlington is broken. At the end of the day, our clients are simply asking for one thing: to fix the system.”

My opinion?  I’ve got to agree with attorneys Marshall and Zuchetto.  The right to counsel is a civil right that is guaranteed by the constitutions of the United States and Washington.  This is especially true for low income defendants, who tend to face more criminal charges anyway. 

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.

DUI Emphasis Patrol Begin June 24

Bellingham, Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, felony, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Search Warrant, Terry Stop, Washington State Patrol, , ,

DUI Enforcement | City of Vancouver Washington

Be careful . . .

Extra DUI patrols will be enforced throughout Whatcom County from June 24 to July 4.

The patrols are part of an annual statewide emphasis on DUI enforcement. More than 20 percent of deaths related to drunk driving happen in June and July, according to the Washington Traffic Safety Commission, which is funding the increased patrols through a grant.

During last year’s summer patrol emphasis, police arrested 91 motorists in Whatcom County for driving under the influence.

Drunk driving is involved in about half of all deaths on state roads, according to the commission. In 2010, there were 229 deaths involving a driver under the influence of alcohol or drugs in Washington. That’s 17 percent below the previous five-year average.

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. Schultz: Warrantless Search of Home

911 Call, Constitutional Rights, Domestic Violence, Drug Offenses, Exigent Circumstances, felony, Knock & Talk, law enforcement, marijuana, Methamphetamine, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

Vindictive Police: 6 Detectives Search Yehuda Glick's Home following Temple Mount Arrest | The Jewish Press - JewishPress.com | David Israel | 24 Shevat 5780 – February 19, 2020 | JewishPress.com

Excellent opinion. In State v. Schulz, the WA Supreme Court held that the Exigent Circumstances exception to the Search Warrant requirement was inapplicable when police unlawfully searched the Defendant’s home.

BACKGROUND FACTS

Officers received a 911 call about a couple was yelling inside their apartment.  Officers drove to the scene.  The woman, Ms. Schultz, consented to the officer’s request to enter the apartment.  Officers found a marijuana pipe.  Upon their find, they also conducted a more intrusive – and warrantless – search of the apartment.  Methamphetamine was found. Ms. Schultz was charged with Possession of Methamphetamine.

COURT’S REASONING AND CONCLUSIONS

The WA Supremes reasoned the test for an emergency aid exception (also called Exigent Circumstances) entry has been expanded to include the following elements: (1) The police officer subjectively believed that someone likely needed assistance for health or safety concerns; (2) a reasonable person in the same situation would similarly believe that there was need for assistance; (3) there was a reasonable basis to associate the need for assistance with the place being searched; (4) there is an imminent threat of substantial injury to persons or property; (5) state agents must believe a specific person or persons or property are in need of immediate help for health or safety reasons; and (6) the claimed emergency is not a mere pretext for an evidentiary search.

They further reasoned that here, the mere acquiescence to an officer’s entry is not consent to search.  It is also not an exception to our state’s constitutional protection of the privacy of the home. Finally, while the likelihood of domestic violence may be considered by courts when evaluating whether the requirements of the emergency aid exception to the warrant requirement have been satisfied, the warrantless entry in this case was unnecessary.  Officers merely heard raised voices from outside the home.  The agitated and flustered woman who answered the door indicated that no one else was present in the home.  No emergency existed.

My opinion?  Good decision.  Granting a police officer’s request to enter the home is not, by itself, consent to search the home.  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.

State v. Irby: Jury Selection Gone Wrong

Constitutional Rights, felony, Homicide & Manslaughter, Jury Trial, Washington Court of Appeals, Washington Supreme Court, , ,

How to weed out bad jurors during jury selection

Very interesting case. In State v. Irby, the WA Supreme Court held that a defendant’s right to be present during jury selection was violated when the trial judge emailed the attorneys and said he was inclined to release ten prospective jurors for hardship.

The defendant, Terrance Irby, was charged with first degree murder.  During jury selection, several members of the jury were disqualified by the judge and attorneys through email exchanges.  The communications occurred without the defendant being present.  Consequently, the Court of Appeals overturned Irby’s conviction.

The WA Supremes reasoned,  “In criminal prosecutions the accused shall have the right to appear and defend person, or by counsel”   under the due process clause of 14th Amendment of the U.S. Constitution and article I, section 22 of the WA Constitution.  Here, the State failed to show beyond a reasonable doubt that the removal of several potential jurors in Irby’s absence had no effect on the verdict.

My opinion?  Good decision.  The rule is clear as day.  Perhaps one of the jurors who was struck via email would have found Irby not guilty.  We’ll never know.  At any rate, Mr. Irby’s rights were clearly violated.

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.

Representing Veterans

Bellingham Defense Attorney, Constitutional Rights, Whatcom County Criminal Defense, , ,

Webinar: Representing Veterans in Criminal Cases: Obtaining and Understanding Military Records - July 15 at 1 PM - Florida Mental Health Law

Good news.  The Louisiana Public Defender Board, in collaboration with the Louisiana Department of veterans Affairs, has developed a guide for public defense attorneys who represent veterans.

The guide provides information on substance abuse services, PTSD treatment, VA recovery services in mental health, transitional work experience (TWE) and Supported Employment (SE) and Depression Treatment.

My opinion? The guide is a great tool that could fairly easily be replicated in every state in the country.  Although it’s written for public defenders, the guide also helps private defense attorneys identify the resources available to assist their veteran clients.

I’m honored to represent veterans against criminal charges.  In my experience, their crimes can be traced back to an underlying PTSD issue from serving in the war.  They deserve the highest level of legal representation, and should be treated with dignity from the judges and prosecutors.  Our veterans fought for our country.

Attorneys representing veterans MUST KNOW their veteran clients may lose pension benefits if they plead to any convictions garnering 60 or more days of incarceration.  For more information, please click “Section A: General Information on Payment of Benefits After Incarceration after clicking the link below:

http://www.index.va.gov/search/va/va_search.jsp?SQ=&TT=1&QT=incarceration

To the veterans, I salute you. 🙂

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. Werner: Who Let The Dogs Out?

911 Call, Animal Abuse, Assault, Constitutional Rights, felony, Firearm, Jury Trial, Self-Defense, Washington Court of Appeals, , ,

HOA Senior Communities Should Ban Vicious Dogs | YourHub

In State v. Werner, the WA Supreme Court held that a defendant is entitled to a jury instruction on self-defense in the prosecution for first degree assault after accidentally discharging a firearm when confronted by a neighbor’s pack of dangerous dogs.

“Victim” Daniel Barnes moved to the property next door to to defendant Gary Werner. Almost immediately, Werner and Barnes  began an ongoing property dispute concerning a shared easement.  Barnes kept seven dogs on Barnes’s property, including a Rottweiler and pit bulls. At least  three times before the incident giving rise to criminal charges, the dogs came onto Werner’s property and acted menacingly, barking and circling Werner. Werner started carrying a handgun with him on the property because he was afraid of the dogs.

The property dispute  intensified.  On the day of the incident, Werner was on his property in the easement area when one of Barnes’s pit bulls approached him, baring its teeth. Werner noticed six other dogs with the pit bull, including the Rottweiler and other pit bulls.  The dogs started circling Werner.  He pulled out his pistol, thinking he could scare the dogs, and started yelling for Barnes to call off the dogs.  Werner panicked and called 911 on his cell phone, but due to his arthritis, the gun went off, discharging into the ground.  The police were contacted.

The State charged Werner with Assault First Degree and Malicious Harassment. The jury acquitted him of the Malicious Harassment charge but found him guilty of Assault First Degree.  He appealed.  The case ended up before the WA Supremes.

The Court reviewed the law on self-defense.  “To prove self-defense, there must be evidence that (1) the defendant subjectively feared that he was in imminent danger of death or great bodily harm; (2) this belief was objectively reasonable; [and] (3) the defendant exercised no greater force than was reasonably necessary.” Callahan, 87 Wn. App. at 929 (citation omitted).

The Court reasoned that here, Werner stated that he was afraid. That fear was arguably reasonable, given that he was facing seven snarling dogs, including several pit bulls and a Rottweiler.  Pursuant to State v. Hoeldt, 139 Wn. App. 225, 160 P.3d 55 (2007), a pit bull can be a deadly weapon under RCW 9A.04.110(6). There is evidence that Barnes’s friend refused requests to call off the dogs. By that conduct, Werner could reasonably have believed that Barnes’s friend personally posed a threat through the agency of a formidable group of canines that were under his control.

As to the firing of the weapon, the WA Supremes believed Werner’s accounting that it was an accident.  They found sufficient evidence of both accident and self-defense to warrant instructing the jury on self-defense.  “Since the outcome turns on which version of events the jury believed, the failure to give a self-defense instruction prejudiced Werner.” Accordingly, the WA Supremes reversed Werner’s conviction.

My opinion?  Good decision.  A pack of wild dogs surrounding and growling at you definitely warrants self-defense.  That’s a no-brainer!  The “victim” is lucky none of his dogs were killed.

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. Garcia-Salgado: DNA Swab is Unlawful if State Lacks Warrant Supported By Probable Cause

Constitutional Rights, DNA, felony, Jail, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

My Rights When Police Want my DNA in a Sex Assault Case | Berry Law

In State v. Garcia, the WA Supreme Court held that collecting a DNA swab from a defendant was unlawful search because it was made without a warrant and without probable cause based on oath or affirmation.

Petitioner Alejandro Garcia-Salgado was convicted of a Sex Offense in King County Superior Court after the results of his D.N.A. test linked him to the victim, and were were admitted into evidence during his trial.  He appealed his conviction, saying that the State lacked probable cause to test his D.N.A. and that conducting the test without his consent pursuant to a court order violated his constitutional rights.

The Washington Court of Appeals affirmed Garcia-Salgado’s conviction, holding that sufficient evidence existed in the record to establish probable cause for a test of Garcia-Salgado’s D.N.A.  Garcia-Salgado appealed this decision to the Supreme Court of Washington.

The WA Supreme Court reasoned that a cheek swab for DNA is indeed a search that intrudes into the body.  A search that intrudes into the body may be made  pursuant  to  an order entered under  CrR 4.7(b)(2)(vi) if (1) the order is supported by probable case based on oath or affirmation, (2) is entered by a neutral and detached magistrate, (3) describes the place to be searched and the thing to be seized, and (4) if there is a clear indication that the desired evidence will be found, the test is reasonable, and the test is performed in a  reasonable manner.

Here, the WA Supremes decided the trial court errored in procuring the DNA swab because the State lacked a warrant supported by probable cause.  “Consequently, this court cannot say that there was probable cause to search Garcia-Salgado’s DNA.  We reverse the Court of Appeals and remand.”

My opinion?  Heinous as the crime was, the WA Supremes decided correctly.  Defendants have rights, plain and simple.  The criminal justice system must conduct investigations in accordance with these rights.  If the process is short-cutted or made sloppy, then convictions cannot stand.  Here, the State failed to get a warrant for the DNA swab.  Consequently, they should not be allowed to present the DNA evidence at trial.  Good 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.

Child Witness Competency

Child Competence, Constitutional Rights, felony, Jury Trial, Pretrial Investigations, Rape, Sex Crimes, Washington Supreme Court, , ,

Children Witnesses in the Criminal Courts: Recognizing Competence and Assessing Credibility

In State v. S.J.W., the WA Supreme Court held that a party challenging the competency of a child witness must show that the child is of unsound mind, intoxicated at the time of his production for examination, incapable of receiving just impressions of the facts, or incapable of relating facts truly.

S.J.W., a minor, was charged with a sex offense against a 14-year-old W.M., a developmentally delayed boy.  The State wanted W.M. to testify against S.J.W., and S.J.W. challenged W.M.’s competency to testify.  At the competency hearing, the trial judge concluded S.J.W. failed to meet his burden to establish that W.M. was not competent to testify.  The trial judge permitted W.M. to testify at the bench trial, and S.J.W. was convicted.

S.J.W. appealed.  The Court of Appeals affirmed S.J.W.’s conviction but held  that the party offering a child witness bears the burden to show the witness is competent to testify.  The Court of Appeals concluded that, although the trial judge erroneously placed that burden on S.J.W., this error was harmless.  The State challenges this holding, arguing that the trial judge properly placed the burden on S.J.W.  The WA Supremes agreed.

The WA Supremes reasoned that until 1986, former RCW 5.60.050 provided that all persons of suitable age could be witnesses except those of unsound mind, those who were intoxicated at the time of examination, and children under 10 who appeared incapable of receiving just impressions of the facts or of relating them truly.  State v. Allen, however, changed the notion.

The court in Allen concluded that the true test of the competency of a “young child” of “tender years” consists of (1) an understanding of the obligation to tell the truth, (2) the mental capacity at the time of the occurrence concerning the testimony, (3) sufficient memory to retain an independent recollection of the occurrence, (4) the capacity to express in words her memory of the occurrence, and (5) the capacity to understand simple questions about the occurrence.

In other words, all persons, regardless of age, are now subject to this rule because there is no longer any requirement that a witness be of suitable age or any suggestion that children under 10 may not be suitable witnesses.  A child’s competency is now determined by the trial judge within the framework of RCW 5.60.050, while the Allen factors serve to inform the judge’s determination.

My opinion?  I prefer having the 10-year old “cutoff age” when it comes to child testimony.  All to often, children are coached by biased adults.  I’ve conducted enough jury trials to know that children usually repeat whatever the trusted adult wants them to say.  Unfortunately, this court decision places an extra burden on attorneys – defense attorneys, undoubtedly – to show the respective child witness is incompetent to testify.

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.