Category Archives: Drug Offenses

Marijuana Use & Your Job

Bellingham Defense Attorney, Drug Offenses, marijuana, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

Can You Get Fired for Smoking Legal Weed?

Interesting article by Dr. Kelly Arps of abc news reports that a survey released by the Centers for Disease and Control Prevention (CDC) Thursday may help inform employers about marijuana use in their industry.

The Colorado Department of Public Health and Environment (CDPHE) analyzed data from the Behavioral Risk Factor Surveillance System (BRFSS) — a phone survey about health habits in general — and published a breakdown of marijuana use by industry and job.

Of the more than 10,000 workers surveyed, 14.6 percent answered yes to the question, “Did you use marijuana or hashish in the last 30 days?” They were not asked whether they used marijuana while on the job. Not surprisingly, use was more common in males and among young people, with nearly 30 percent of those in the 18- to 25-year-old age group reporting at least one use in 30 days.

Which profession smokes the most pot?

In the “accommodation and food services” industry, 30 percent of workers reported smoking pot at least once in the past month. Those in the job category “food preparation and serving” had the highest use at 32 percent of workers.

What other professions have a high proportion of marijuana users?

“Arts, design, entertainment, sports and media” came in second at 28 percent. Marijuana use was also reported by 19 to 21 percent of workers in “production,” “life, physical, and social science,” “sales and related,” and “installation, maintenance, and repair.”

What about people in high risk jobs?

While the study doesn’t reveal if anyone actually got high on the job, the researchers did take a special look at industries in “safety-sensitive occupations” in which workers are responsible for their own safety or the safety of others.

Those in construction, manufacturing, and agriculture industries all fell above the state average in percentage of workers reporting marijuana use. Notably, healthcare, utilities, or mining, oil, and gas all had less than 10 percent of their workers report marijuana use.

All three of these low-use industries are also those known to perform drug testing on employees.

Next steps: Workplace marijuana use policies

In states where marijuana use is legal, companies are currently left to their own judgment regarding workplace use.

Those with a policy that allows medicinal or recreational marijuana use during personal time will have difficulty interpreting a positive drug screen — was the employee high at work or does the result reflect his or her use last weekend?

Experts have suggested implementing standardized cognitive testing rather than drug screens for those approved to use marijuana while employed — or for those with a suspected marijuana-related workplace safety incident.

Marijuana use is frequently linked to mental health issues

Dr. Arps reports that if an employee is using marijuana, then employers should dig further.

“Is there anxiety, is there ADHD, is there depression?” said Dr. Scott Krakower. “If marijuana is there, what else are we missing? Are we meeting our employees’ needs?”

Dr. Arps also reports that federal law allows employers to prohibit employees from working under the influence of marijuana and may discipline employees who violate the prohibition without violating the Americans with Disabilities Act.

Several states have laws, however, which prohibit discrimination based on its use, citing evidence supporting the positive effects of marijuana on various health conditions.

“With widespread legalization, we will likely see publicized court cases surrounding these issues,” says Dr. Arps.

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

Whatcom County Sues Opioid Drug Manufacturer

Bellingham Defense Attorney, Drug Court, Drug Offenses, Opoids, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

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Impressive article by Kie Relyea of the Bellingham Herald discusses how the Whatcom County Council voted to join a growing legal fight against makers and wholesalers of prescription opioids, saying they have contributed to a public health crisis.

On Tuesday, the County Council decided to retain law firm Keller Rohrback in Seattle, which is representing a number of municipalities including Skagit, Pierce and King counties in Washington state.

The vote was 7-0.

“Pretty broad consensus it was a good thing to do for the county.”

-Council member Todd Donovan.

Relyea reports that the law firm will sue the makers and distributors of opioid painkillers, including Purdue Pharma, Endo Pharmaceuticals, Janssen Pharmaceuticals and other entities.

The law firm has so far filed lawsuits on behalf of five counties in the state, as well as the City of Tacoma.

Whatcom County isn’t paying the law firm, which will be compensated if there’s a judgment against the companies, Donovan said.

The county wants help responding to a public health crisis caused by opioids, according to Donovan.

“They are partially liable for over-prescribing these things and marketing them as non-addictive,” he said. “They should help us in bearing the cost.”

In a separate lawsuit filed in 2017, the state of Washington sued Purdue Pharma, the maker of OxyContin, accusing it of “fueling the opioid epidemic in Washington state.”

My opinion? GOOD. Opioids have turned many law-abiding  and hardworking Americans into drug addicts. A substantial portion of my criminal defense practice is dedicated to helping clients who suffer from drug addictions which force them to commit crimes.  You’d be amazed.

Please contact my office if you, a friend or family member is addicted to opioids and charged with a crime. The defense of Diminished Capacity may apply. Under this defense, evidence of mental illness or disorder may be taken into consideration in determining whether the defendant had the capacity to form the intent to commit the crime. In some cases, drug addicts lack intent to commit crimes because they are acting under the compulsion of their addiction.

The Particularity Requirement for Search Warrants

Access Devices, Bellingham Defense Attorney, Cell Phone, Constitutional Rights, Drug Offenses, Evidence, felony, Forensics, law enforcement, Methamphetamine, No Contact Order, police, Probable Cause, Search and Seizure, Search Warrant, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for cell phone search

In State v. McKee, the WA Court of Appeals held that a search warrant that authorized the police to search and seize a large amount of cell phone data, including images, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, and tasks, and authorized a “physical dump” of “the memory of the phone for examination,” violated the particularity requirement of the Fourth Amendment.

BACKGROUND FACTS

In 2012, A.Z. lived with her older brother and her mother in Anacortes. All parties were addicted to heroin, methamphetamine or both. A.Z. was using heroin and methamphetamine on a daily basis during 2012.

In January 2012, A.Z.’s mother introduced A.Z. to 40-year-old Marc Daniel McKee during a “drug deal” for methamphetamine. McKee started spending a lot of time with the family and supplied them with methamphetamine. They would often “get high” together. At the end of June, McKee left to go to Alaska for work.

When McKee returned two months later, he immediately contacted A.Z. McKee told A.Z. he had heroin and methamphetamine. McKee and A.Z. spent three days together at a Burlington motel using the drugs and engaging in consensual sex.

Eventually, A.Z’s mother confronted McKee about the sexual encounters between A.Z. and McKee. Bringing another male with her A.Z.’s mother confronted McKee at a hotel room, beat him up, took his cell phone, and pulled A.Z out of the room. Later, A.Z.’s mother scrolled through the phone. She found pictures and videos of her daughter A.Z tied naked to a bed as well as videos of McKee and A.Z. having sex.

After A.Z.’s mother looked at the video clips and photographs on the cell phone, she contacted the Mount Vernon Police Department. On October 30, A.Z.’s mother met with Detective Dave Shackleton. A.Z.’s mother described the video clips and photographs she saw on the cell phone. She left the cell phone with Detective Shackleton. Later, A.Z.’s mother contacted Detective Shackleton to report that J.P., another minor female, told her that McKee gave J.P. drugs in exchange for sex. Brickley obtained a restraining order prohibiting McKee from contacting A.Z.

Application for a Search Warrant

On October 31, Detective Jerrad Ely submitted an application and affidavit (Affidavit) in support of probable cause to obtain a warrant to search McKee’s cell phone to investigate the crimes of “Sexual Exploitation of a Minor RCW 9.68A.040” and “Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct RCW 9.68A.050.” The court issued a search warrant.

The warrant allowed the police to obtain evidence from the cell phone described as an LG cell phone with model VX9100 currently being held at the Mount Vernon Police Department for the following items wanted:

“Images, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, tasks, data/internet usage, any and all identifying data, and any other electronic data from the cell phone showing evidence of the above listed crimes.”

The search warrant authorizes the police to conduct a “physical dump” of the memory of
the cell phone for examination. On November 7, 2012, the court filed a “Receipt of Execution of Search Warrant.” The Receipt of Execution of Search Warrant states the police conducted a “Cellebrite Dump” of the cell phone on November 6. Cellebrite software obtains all information saved on the cell phone as well as deleted information and transfers the data from the cell phone to a computer.

Criminal Charges

The State charged McKee with three counts of Possession of Depictions of Minors Engaged in Sexually Explicit Conduct in the First Degree in violation of RCW 9.68A.070(1) based on the three cell phone video clips, one count of Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct in the Second Degree in violation of RCW 9.68A.070(2) based on the cell phone photographs, one count of Commercial Sex Abuse of J.P. as a minor in violation of RCW 9.68A.100, three counts of Distribution of Methamphetamine and/or Heroin to a person under age 18 in violation of RCW 69.50.406(1) and .401(2), and one count of Violation of a No-Contact Order in violation of RCW 26.50.110(1).

Motion to Suppress

McKee filed a motion to suppress the evidence the police seized from his cell phone. McKee asserted the search warrant violated the Fourth Amendment requirement to describe with particularity the “things to be seized.” McKee argued the warrant allowed the police to search an “overbroad list of items” unrelated to the identified crimes under investigation. McKee also argued probable cause did not support issuing a search warrant of the cell phone for the crime of dealing in depictions of a minor engaged in sexually explicit conduct.

The court entered an order denying the motion to suppress. The court found the allegations in the Affidavit supported probable cause that McKee committed the crimes of sexual exploitation of a minor and dealing in depictions of minors engaged in sexually explicit conduct. The court concluded the citation to the criminal statutes established particularity and the search warrant was not overbroad.

At trial, the jury found McKee not guilty of distribution of methamphetamine and/or heroin. The jury found McKee guilty as charged on all other counts.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court of Appeals held that the search warrant violated the particularity requirement of the Fourth Amendment, and that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.

The Court reasoned that the Fourth Amendment was adopted in response to indiscriminate searches and seizures conducted under the authority of ‘general warrants.’

“The problem posed by the general warrant is not that of intrusion per se, but of a general,
exploratory rummaging in a person’s belongings,” said the Court. “The Fourth Amendment
addresses the problem by requiring a particular description of the things to be seized . . .

The court further reasoned that by limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and would not take on the character of the wide-ranging exploratory searches the Framers of the Constitution intended to prohibit.

“The degree of specificity required varies depending on the circumstances of the case and the types of items,” said the Court. “The advent of devices such as cell phones that store vast amounts of personal information makes the particularity requirement of the Fourth Amendment that much more important.” The Court also quoted language from the U.S. Supreme Court’s Riley v. California and the WA Supreme Court’s State v. Samilia; both cases strongly supporting the notion that cell phones and the information contained therein are private affairs because they may contain intimate details about individuals’ lives.

“Here, the warrant cites and identifies the crimes under investigation but does not use the language in the statutes to describe the data sought from the cell phone,” said the Court. “The warrant lists the crimes under investigation on page one but separately lists the “Items Wanted” on page two.” Consequently, the Court reasoned that the description of the “Items Wanted” was overbroad and allowed the police to search and seize lawful data when the warrant could have been made more particular.

Furthermore, the Court held that the warrant in this case was not carefully tailored to the justification to search and was not limited to data for which there was probable cause. The warrant authorized the police to search all images, videos, documents, calendars, text messages, data, Internet usage, and “any other electronic data” and to conduct a “physical dump” of “all of the memory of the phone for examination.”

“The language of the search warrant clearly allows search and seizure of data without regard to whether the data is connected to the crime,” said the Court. “The warrant gives the police the right to search the contents of the cell phone and seize private information with no temporal or other limitation.” As a result, reasoned the Court, there was no limit on the topics of information for which the police could search. Nor did the warrant limit the search to information generated close in time to incidents for which the police had probable cause:

“The warrant allowed the police to search general categories of data on the cell phone with no objective standard or guidance to the police executing the warrant. The language of the search warrant left to the discretion of the police what to seize.”

With that, the Court of Appeals held the search warrant violated the particularity requirement of the Fourth Amendment. The Court reversed and dismissed the four convictions of Possession of Depictions of a Minor Engaging in Sexually Explicit Conduct.

My opinion? For the most part, courts look dis favorably on the searches of people’s homes, cars, phones, etc., unless the probable cause for the search is virtually overwhelming, and/or an emergency exists which would spoil the evidence if it was not gathered quickly; and/or a search warrant exists. Even when search warrants are drafted and executed, they must be particular to the search. In other words, law enforcement can’t expect that a general, non-specific search warrant is going to win the day for them and allow a fishing expedition to take place.

Here, the Court of Appeals correctly followed the law. In this case, limiting the search to the crimes cited on the first page of the warrant was insufficient. The descriptions of what to be seized must be made more particular by using the precise statutory language to describe the materials sought.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member’s person, home, vehicle or cell phone was searched by police and evidence was seized. The search may have been unlawfully conducted in violation of your Constitutional rights.

Probation Searches

Bellingham Defense Attorney, Constitutional Rights, Department of Corrections, Drug Offenses, Evidence, felony, Fourth Amendment, law enforcement, Nexus, police, Probation, Resisting Arrest, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Image result for illegal search and seizure in vehicle

in State v. Cornwell, the WA Supreme Court held that Article I, section 7 of the Washington Constitution requires a nexus between the property searched and the suspected probation violation. Here, there was no nexus between the defendant’s failure to report to DOC and the car which the defendant was driving.

BACKGROUND FACTS

In September 2013, petitioner Curtis Lament Cornwell was placed on probation. His judgment and sentence allowed his probation officer to impose conditions of his release, which included the following provision:

“I am aware that I am subject to search and seizure of my person, residence, automobile, or other personal property if there is reasonable cause on the part of the Department of Corrections to believe that I have violated the conditions/requirements or instructions above.”

Cornwell failed to report to the Department of Corrections (DOC) in violation of his probation, and DOC subsequently issued a warrant for his arrest.

Cornwell first came to the attention of Tacoma Police Department Officer Randy Frisbie and CCO Thomas Grabski because of a distinctive Chevrolet Monte Carlo observed outside a house suspected of being a site for drug sales and prostitution. An officer conducted a records check and determined he had an outstanding warrant.

In late November 2014, Officer Frisbie testified that he intended to stop the vehicle because he believed Cornwell was driving it and he had an outstanding warrant. He did not initiate the stop based on any belief that the car contained drugs or a gun or because he observed a traffic violation.

Before Officer Frisbie could activate his police lights, the car pulled into a driveway and Cornwell began to exit it. Cornwell ignored Officer Frisbie’s orders to stay in the vehicle, and Officer Frisbie believed Cornwell was attempting to distance himself from the car. Officer Frisbie then ordered Cornwell to the ground. Cornwell started to lower himself in apparent compliance before jumping up and running. Cornwell was apprehended after both officers deployed their tasers. He had $1,573 on his person at the time of arrest.

After securing Cornwell, Officer Patterson called CCO Grabski to the scene. Upon arrival, CCO Grabski searched the Monte Carlo. He described the basis for his search as follows:

“When people are in violation of probation, they’re subject to search. So he’s driving a vehicle, he has a felony warrant for his arrest by DOC, which is in violation of his probation. He’s driving the vehicle, he has the ability to access to enter the vehicle, so I’m searching the car to make sure there’s no further violations of his probation.”

In this case, CCO Grabski found a black nylon bag sitting on the front seat of the car. The bag contained oxycodone, amphetamine and methamphetamine pills, sim cards, and small spoons. A cell phone was also found in the car.

Cornwell moved pursuant to CrR 3.6 to suppress the evidence obtained during the vehicle search. The trial court denied the motion.

A jury convicted Cornwell of three counts of unlawful possession of a controlled substance with intent to deliver and one count of resisting arrest. The Court of Appeals affirmed the conviction. The WA Supreme Court granted review on the issue of whether the search of the car Cornwell was driving an unlawful search.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court held that individuals on probation are not entitled to the full protection of the Constitution. The Court reasoned that probationers have a reduced expectations of privacy because they are serving their time outside the prison walls. Accordingly, it is constitutionally permissible for a CCO to search an individual based only on a well-founded or reasonable suspicion of a probation violation, rather than a search warrant supported by probable cause.

However, the Court also also reasoned that the goals of the probation process can be accomplished with rules and procedures that provide both the necessary societal protections as well as the necessary constitutional protections.

“Limiting the scope of a CCO’s search to property reasonably believed to have a nexus with the suspected probation violation protects the privacy and dignity of individuals on probation while still allowing the State ample supervision,” said the Court. “We therefore hold that article I, section 7 permits a warrantless search of the property of an individual on probation only where there is a nexus between the property searched and the alleged probation violation.”

The Court reasoned that the CCO’s search of Cornwell’s car exceeded its lawful scope.

“While CCO Grabski may have suspected Cornwell violated other probation conditions, the only probation violation supported by the record is Cornwell’s failure to report,” said the Court. It also reasoned that CCO Grabski’s testimony at the suppression hearing confirmed that he had no expectation that the search would produce evidence of Cornwell’s failure to report.

“In this case, the search of Cornwell’s vehicle was unlawful because there was no nexus between the search and his suspected probation violation of failure to report to DOC,” concluded the Court. “The evidence seized during the search should have been suppressed. Accordingly, we reverse the Court of Appeals and Cornwell’s convictions.”

Please contact my office if you, a friend or family member were subject to an unlawful search. It is imperative to hire experienced and competent defense counsel to suppress evidence of an unlawful search as quickly as possible.

Drug Offender Recidivism

Bellingham Defense Attorney, Drug Offenses, Federal Crimes & Prosecutions, felony, Opoids, Race & Law, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

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A recent Pew Study suggests that imprisoning drug offenders for longer prison sentences does not reduce drug problems in any given state. In other words, there is no statistical data showing a relationship between prison terms and drug misuse.

To test this, Pew compared state drug imprisonment rates with three important measures of drug problems— self-reported drug use (excluding marijuana), drug arrest, and overdose death—and found no statistically significant relationship between drug imprisonment and these indicators. In other words, higher rates of drug imprisonment did not translate into lower rates of drug use, arrests, or overdose deaths.

The study found that nearly 300,000 people are held in state and federal prisons in the United States for drug-law violations, up from less than 25,000 in 1980. These offenders served more time than in the past: Those who left state prisons in 2009 had been behind bars an average of 2.2 years, a 36 percent increase over 1990, while prison terms for federal drug offenders jumped 153 percent between 1988 and 2012, from about two to roughly five years.

The study said that as the U.S. confronts a growing epidemic of opioid misuse, policymakers and public health officials need a clear understanding of whether, how, and to what degree imprisonment for drug offenses affects the nature and extent of the nation’s drug problems. To explore this question, The Pew Charitable Trusts examined publicly available 2014 data from federal and state law enforcement, corrections, and health agencies. The analysis found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests.

The findings—which Pew sent to the President’s Commission on Combating Drug Addiction and the Opioid Crisis in a letter dated June 19, 2017—reinforce a large body of prior research that cast doubt on the theory that stiffer prison terms deter drug misuse, distribution, and other drug-law violations. The evidence strongly suggests that policymakers should pursue alternative strategies that research shows work better and cost less.

“Although no amount of policy analysis can resolve disagreements about how much punishment drug offenses deserve, research does make clear that some strategies for reducing drug use and crime are more effective than others and that imprisonment ranks near the bottom of that list. And surveys have found strong public support for changing how states and the federal government respond to drug crimes.”

“Putting more drug-law violators behind bars for longer periods of time has generated enormous costs for taxpayers, but it has not yielded a convincing public safety return on those investments,” concluded the study. “Instead, more imprisonment for drug offenders has meant limited funds are siphoned away from programs, practices, and policies that have been proved to reduce drug use and crime.”

My opinion? Public safety should be the number one reason we incarcerate. However, penalties should be the most effective, proportional, and cost-efficient sanction to achieve that goal. This would create more uniform sentences and reduce disparities, while preserving judicial discretion when necessary.

Please contact my office if you, a friend or family member face drug charges. If convicted, your loved ones risk facing an unnecessary amount of incarceration. Only a competent and experienced criminal defense attorney can reduce of criminal charges and/or facilitate the implementation of sentencing alternatives which reduce the amount of prison time an offender faces.

Witness Tampering

Bellingham Defense Attorney, Drug Offenses, Methamphetamine, Skagit County Criminal Defense, Theft of Motor Vehicle, Washington Court of Appeals, Whatcom County Criminal Defense, Witness Tampering, , , , ,

FCC Regulates Prison Phone Call Prices: No More $14 a Minute Rates

In State v. Gonzalez, the WA Court of Appeals decided there was sufficient evidence that the defendant attempted to influence a witness to testify falsely where he asked the witness to give a different story than the one she told the police.

BACKGROUND FACTS

The defendant Leonel Gonzalez was in a relationship with Nona Hook for several years. Hook lived with her mother, Carol Salyers, and several other family members, and Gonzalez was frequently in the home. Salyers owned a Jeep and permitted Hook, but not Gonzalez, to drive it.

In the early morning hours of September 21, Gonzalez called Hook, and she asked him if
he had taken her Jeep. According to Hook, Gonzalez denied knowing anything about the Jeep, but he told her that he was “coming home.” At some point after this call, someone contacted the police.

The police were waiting when Gonzalez arrived at Hook’s home in the Jeep. Upon seeing
the police, Gonzalez drove away, jumped out of the Jeep while it was still moving, and attempted to flee on foot. The Jeep rolled into and damaged a parked vehicle. The police caught and arrested Gonzalez. Following his arrest, officers discovered a white substance that later tested positive for both methamphetamine and cocaine in Gonzalez’s back pocket.

Jail Call

While in jail following his arrest, Gonzalez called Hook. This call was recorded.

During the call, Gonzalez insisted that Hook listen to him and told her that some people
were trying to contact her and that when his “investigator” or “somebody” called her, she was to tell them that she “gave him permission.” Hook responded, “Tell them that I gave you permission,” and Gonzalez interrupted her and told her to “listen” and said adamantly, “That’s it.”

Hook responded by chuckling and saying, “That’s gonna be a little bit hard for me to do.”  Gonzalez appears to respond, “Well, then don’t do it.” The rest of Gonzalez’s response is unclear.

Hook replied, “I mean, for one thing, I was—you already know what the deal was.” And Gonzalez told her aggressively to “listen” and that they were not “going to talk about all that.” He then stated, “You know what to do, so.” Gonzalez and Hook then talked about when Hook could visit so they could talk about their relationship and whether they would marry even if he was in prison. During this part of the conversation, Hook commented about how hard it was for her to be away from him, and Gonzalez responded by asking her whether she “would rather deal with” 6 or 15 years.

Criminal Charges

The State charged Gonzalez with theft of a motor vehicle, unlawful possession of a controlled substance (methamphetamine), hit and run, and tampering with a witness.

Jury Trial & Appeal

At trial, Ms. Hook testified about the jail calls. Ultimately, the jury found Gonzalez guilty of unlawful possession of a controlled substance and tampering with a witness.

Gonzalez appealed under arguments that the evidence was insufficient to support the witness tampering conviction because (1) he asked Hook to speak to his investigator and never discussed her testimony and (2) there was no evidence he was asking Hook to testify falsely.

COURT’S ANALYSIS & CONCLUSIONS

Gonzalez argues that the State failed to prove that he was attempting to influence Hook to
testify falsely because he asked her to tell the defense investigator only something different than she told the police. He asserts that speaking to the defense investigator is not the equivalent of testimony.

“We disagree,” said the Court of Appeals. The Court reasoned that Gonzalez’s request that Hook tell the defense investigator a different story than she told the police would have little effect if it did not also imply that Hook needed to also be willing to testify consistently with what she told the defense investigator. “Thus, a rational finder of fact could have easily found that Gonzalez was attempting to influence Hook’s potential testimony,” said the Court.

Gonzalez also argued that there was insufficient evidence to establish that he asked Hook
to testify falsely.

“Again, we disagree,” said the Court of Appeals. “At no point in her testimony did Hook testify that she had given Gonzalez permission to take the Jeep on September 18th,” said the Court. Instead, she testified that she dropped Gonzalez off, drove the Jeep home and parked it, and left the keys near the back door. Although Gonzalez came into her bedroom the next morning, Hook did not testify that he asked for or that she gave him permission to drive the Jeep.

The Court of Appeals further reasoned that taking this evidence in the light most favorable to the State, the jury could find that Hook’s testimony established that Gonzalez took the Jeep without her permission and that Hook’s testimony was truthful.

“Given that Gonzalez asked Hook to state that she had given him permission, a rational finder of fact could have easily found that Gonzalez was asking Hook to testify falsely. Accordingly, Gonzalez’s insufficient evidence arguments fail, and we affirm his witness tampering conviction.”

In sum, the Court of Appeals affirmed Gonzalez’s convictions, but remanded for re-sentencing on the unlawful possession of a controlled substance conviction consistent with this 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.

Wine Glass Sizes Are Increasing

Bellingham Defense Attorney, Drug Offenses, DUI, misdemeanor, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , ,

Image result for wine glass size increased

An article by of the Guardian reports that scientists at the University of Cambridge have found that the capacity of wine glasses has ballooned nearly seven-fold over the past 300 years, rising most sharply in the last two decades in line with a surge in wine consumption.

Wine glasses have swelled in size from an average capacity of 66ml in the early 1700s to 449ml today, the study reveals – a change that may have encouraged us to drink far more than is healthy. Indeed, a typical wine glass 300 years ago would only have held about a half of today’s smallest “official” measure of 125ml.

Smithers reports that the university’s behaviour and health research unit quizzed antique experts and examined 18th-century glasses held at the Ashmolean museum in Oxford, glassware used at Buckingham Palace, and more recent glasses in John Lewis catalogues.

The evidence was clear: the newer glasses were bigger.

The study, published on Wednesday in the BMJ, measured wine glass capacity from 1700 to the present day to help understand whether any changes in their size might have contributed to the rise in wine consumption.

“Wine will no doubt be a feature of some merry Christmas nights, but when it comes to how much we drink, wine glass size probably does matter,” said Prof Theresa Marteau, director of the Behaviour and Health Research Unit at the University of Cambridge, who led the research.

In 2016, Marteau and her colleagues carried out an experiment at the Pint Shop in Cambridge, altering the size of wine glasses while keeping the serving sizes the same. They found this led to an almost 10% increase in sales.

Smithers reports that for the new study, the researchers obtained measurements of 411 glasses from 1700 to the modern day. They found wine glass capacity increased from 66ml in the 1700s to 417ml in the 2000s, with the mean wine glass size in 2016-17 even higher at 449ml.

“Wine glasses became a common receptacle from which wine was drunk around 1700,” says author Dr. Zorana Zupan. “This followed the development of lead crystal glassware by George Ravenscroft in the late 17th century, which led to the manufacture of less fragile and larger glasses than was previously possible.”

The study points out that alcohol is the fifth largest risk factor for premature mortality and disability in high income countries. In England, the type of alcohol and volume consumed has fluctuated over the last 300 years, in response to economic, legislative and social factors. Significantly, wine consumption increased almost fourfold between 1960 and 1980, and almost doubled again between 1980 and 2004, a trend attributed to better marketing and licensing liberalisation which allowed supermarkets to compete in the lucrative drinks retail business.

“Our findings suggest that the capacity of wine glasses in England increased significantly over the past 300 years,” added Zupan.

“Since the 1990s, the size has increased rapidly. Whether this led to the rise in wine consumption in England, we can’t say for certain, but a wine glass 300 years ago would only have held about a half of today’s small measure.”

The strength of wine sold in the UK has also increased since the 1990s, adding to the amount of pure alcohol being consumed by wine drinkers.

In England, wine is increasingly served in pubs and bars in 250ml servings, with smaller measures of 125ml often absent from wine lists or menus despite a regulatory requirement that licensees make customers aware of them.

The Wine and Spirits Trade Association said sociological trends were probably part of the reason for the growing wine glasses.

“The size of a wine glass reflects the trend and fashions of the time and is often larger for practical reasons” said the WSTA chief executive Miles Beale. “Red wine, for example, is served in a larger glass to allow it to breathe, something which perhaps wasn’t a priority 300 years ago.”

Drink responsibly. If, however, your family or friends are charged with DUI or face any other alcohol-related charges, then contact my office and schedule a free consultation. You need effective and competent representation before the judge, prosecutors and the Department of Licensing.

Corpus Delicti & Drugs

Bellingham Defense Attorney, Corpus Delicti, Drug Offenses, felony, Methamphetamine, police, Self-Incrimination, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Image result for “8-ball” coke

In State v. Hotchkiss, the WA Court of Appeals held that, despite the corpus delicti defense, the discovery of 8.1 grams of methamphetamine and $2,150 in cash during a search of the defendant’s home, provided sufficient corroborating evidence of possession of methamphetamine with intent to deliver.

BACKGROUND FACTS

Law enforcement officers executed a search warrant on Hotchkiss’s residence in Vancouver. During the search, Hotchkiss admitted that he had an “8-ball” – approximately 3.8 grams – of methamphetamine in a safe and provided the officers with the code. He also stated that he procured about one 8-ball of methamphetamine every day and broke it down, and estimated that he had about 10 customers. Inside the safe, officers found 8.1 grams of methamphetamine and $2,150 in cash.

The State charged Hotchkiss with possession of a controlled substance with intent to deliver – methamphetamine. At a bench trial, officers testified about finding the methamphetamine and cash and about Hotchkiss’s statement that he had 10 methamphetamine customers. After the State rested, Hotchkiss requested that the trial court disregard the testimony regarding his incriminating statement under the corpus delicti rule because there was insufficient evidence corroborating his statement. The court reserved its ruling on the corpus delicti issue.

Hotchkiss then testified that he and a woman who lived with him used three or four grams of methamphetamine per day. He also testified that the cash in the safe came from other people living at his residence, who paid rent of $1,150 per month in cash, and from his employment. He claimed that any statement he made to the officers about selling methamphetamine referred to his actions 20 years earlier.

On rebuttal, an officer with extensive experience dealing with methamphetamine users
and sellers testified that a typical methamphetamine dose is 0.2 to 0.4 grams. He also testified that it would be very rare that someone would possess eight grams of methamphetamine solely for personal use.

The trial court found that the quantity of methamphetamine in Hotchkiss’s possession
combined with the amount of cash recovered with the drugs was sufficient corroborating
evidence to satisfy the corpus delicti rule. The court then found Hotchkiss guilty of possession of methamphetamine with intent to deliver. Hotchkiss appeals his conviction.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the corpus delicti rule prevents the State from establishing that a crime occurred solely based on the defendant’s incriminating statement. The State must present corroborating evidence independent of the incriminating statement that the charged crime occurred. Without such corroborating evidence, the defendant’s statement alone is insufficient to support a conviction.

The Court then addressed the question of whether there was enough independent evidence to support the conviction for possession of methampetamine with intent to deliver.

“The general rule is that mere possession of a controlled substance, including quantities greater than needed for personal use, is not sufficient to support an inference of intent to deliver,” said the Court. Here, the State presented evidence that (1) Hotchkiss had 8.1 grams of methamphetamine in his possession; (2) given an average dose size of 0.2 to 0.4 grams, such an amount typically would produce 20 to 40 doses; and (3) it would be very rare for a person to possess that amount merely for personal use.

The Court reasoned that under the general rule, this evidence standing alone would not be sufficient either to convict Hotchkiss of possession of methamphetamine with intent to deliver or to provide corroborating evidence under the corpus delicti rule.

“But the State presented evidence of an additional factor suggestive of intent to deliver –
$2,150 of cash in Hotchkiss’s safe next to the methamphetamine,” said the Court. “This methamphetamine and cash evidence would be sufficient to support a conviction for possession of methamphetamine with intent to deliver.”

With that, the Court of Appeals concluded that the State satisfied the corpus delicti rule and affirmed Hotchkiss’ conviction of possession of methamphetamine with intent to deliver.

My opinion? Corpus Delicti is a tricky defense. It usually works best in cases where there is a gaping hole between the corroborating evidence and the defendant’s statements.

For example, let’s say that police received a 911 call about a red truck driving around in your neighborhood swerving in an out of traffic. The police respond to the call, drive to your neighborhood, and look a for a red truck. They find one parked at your home. They knock on your door. You open the door. You’re intoxicated from drinking alcohol.

“Were you driving?” asked the police.

“Yes,” you say. Police immediately arrest you for DUI.

Corpus delicti would be the appropriate defense in a case like this. Under our current DUI laws, the State must prove that not only were you driving that particular red truck, but that you were under the influence of alcohol when driving. In short, corpus delicti ensures that your statements and admission shall not be used against you in cases where there is a lack of independent evidence supporting your statements.

Please contact my office if you, a family member of friend face criminal charges with weak and/or questionable evidence supporting the charges. No matter what a person’s admissions are, we have the constitutional right to question the sufficiency of the evidence supporting the charges and perhaps argue the corpus delicti defense.

City of Everett Sues OxyContin Manufacturer

Bellingham Defense Attorney, Drug Offenses, Opoids, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , ,

Image result for opioid epidemic

Timely article by Diana Hefley of the Everett Herald reports that lawyers for Everett are expected in federal court Monday to defend the merits of a lawsuit filed earlier this year against the makers of the pain medication OxyContin.

Purdue Pharma, the drug’s maker, is asking U.S. District CourtJudge Ricardo Martinez to toss the lawsuit before it ever goes to trial.

According to Hefley’s article, the City of Everett is blaming Purdue for ignoring the diversion of its product, a prescription opioid, to the black market. The lawsuit alleges the multibillion-dollar pharmaceutical company’s irresponsible business practices helped set in motion what some officials now call an opioid epidemic in Snohomish County, marked by a spike in overdoses, deaths and crime.

The lawsuit claims Purdue knew OxyContin was being funneled to “pill mills” and drug traffickers, including some who set up shop in Everett. Heroin use in Snohomish County and nationwide has skyrocketed in recent years. Addicts often cite prescription painkillers as the source of their introduction to opioids.

Hefly reports that Everett’s lawsuit doesn’t name a dollar amount. Instead, it claims the city has spent and will need to continue to spend significant tax dollars addressing addiction in the community.

Purdue filed a motion to dismiss the case.The company’s lawyers wrote that the city’s allegations are based largely on a false theory that Purdue did nothing to alert law enforcement to the illegal diversion.

Two criminal prosecutions into trafficking rings show that “law enforcement was, at the time, already aware of, and investigating, the criminal conduct of physicians, pharmacies and gang members at issue,” Purdue’s attorney, Thomas Adams, wrote in court papers. Apparently, the city lacks any standing to hold Purdue responsible for Everett’s costs associated with responding to addiction and crime, the defendants argue.

“While we are deeply troubled by the abuse and misuse of our medication, this lawsuit paints a completely flawed and inaccurate portrayal of events that led to the crisis in Everett,” the company wrote on its website.

Hefley reports that Purdue was sued a decade ago in Washington. Several states alleged the company had engaged in deceptive marketing practices. Purdue agreed to pay the states $19.5 million as part of a consent judgment. Washington received more than $700,000. As part of the judgment, Purdue agreed to implement diversion detection programs.

However, the City of Everett claims Purdue ignored its obligations. The city pointed to the criminal prosecution of Jevon Lawson, a California transplant and aspiring rap artist, living in Snohomish County, who peddled large amounts of OxyContin. The Daily Herald wrote about Lawson’s indictment in 2011. Everett has defended its lawsuit in a 31-page response.

Its lawyers cited multiple cases — one involving a gun maker and other companies that sell toxic chemicals — to support the contention that Everett has a legal right to hold the manufacturer of a product responsible for harm done to the community.

Everett isn’t the only city taking on the pharmaceutical giant. Last week, the City of Tacoma filed a federal lawsuit against Purdue, along with co-defendant pharmaceutical companies Endo and Janssen. The lawsuit claims the opioid manufacturers made misleading statements about the risks of their products to doctors and patients for the past 20 years.

My opinion? A large amount of my clients charged with DUI, drug crimes, assaults, property crimes and identity theft are, in fact, suffering from drug addictions to opiods. Recent reports and crime data also reflects an uptick in opiod-related crimes. Although we must take accountability for our actions, it violates justice to assume that drug addicts are totally responsible for their actions when prescription “medicine” drives them to abuse drugs and exhibit criminal behavior. Good luck to the City of Everett. And excellent reporting from reporter Diana Hefley, by the way.

Please contact my office if you, a friend or family member face criminal allegations that you allegedly committed while under the influence of prescribed opioids. the defense of Diminished Capacity may apply. Under this defense, diminished capacity means that although the accused was not insane, due to emotional distress, physical condition, drug addiction or other factors he/she could not fully comprehend the nature of the criminal act he/she is accused of committing.

Racial Bias in Media Coverage of the Opioid Crisis vs. Crack Epidemics

Bellingham Defense Attorney, Drug House, Drug Offenses, Methamphetamine, Opoids, Skagit County Criminal Defense, Whatcom County Criminal Defense

Excellent, informative article by Michael Shaw of in the Columbia Journalism Review discusses the clear double standard in the visual framing of the opioid crisis in comparison to the crack cocaine crisis of the 1980’s.

Shaw claims that media coverage of the opioid epidemic—which largely affects suburban and rural whites—portrays it as an outside threat and focuses on treatment and recovery, while stories of heroin in the 1970s, crack-cocaine in the 1980s, and other drug problems that impact urban people of color today have focused on the drug user’s morality.

Photos of the opioid crisis depict well-lit spaces, stress domesticity, and emphasize close-knit communities. In contrast, pictures of urban drug problems have depicted nighttime scenes on seedy streets or portrayed individuals interacting with the police, courts, or jails—often using starker black and white photography. In sum, Shaw argues, “Elected officials, the criminal justice system, and the American media have adopted a ‘kinder and gentler’ tone around the opioid crisis.”

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“A sub-theme of opioid crisis coverage: Many stories showcase children who have been saved by loving grandparents.” Photo from The New York Times, 2016.

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Drug stories about black families in cities present a “narrative of broken homes, addicted babies, mothers depicted as unfit, the engagement of state agencies, and children routinely placed into foster care.” Photo from The Washington Post, 1989.

The racial bias is inescapable. A drug crisis that is largely affecting suburban and rural whites is being treated with a drastically different attitude and approach in words and imagery than those used to characterize heroin use in the 1970s, crack cocaine in the late 1980s, and the drug problem plaguing America’s people of color and urban poor today.

Shaw claims that elected officials, the criminal justice system, and the American media have adopted a “kinder and gentler” tone around the opioid crisis. The attitude and phrasing of a recent New York Times article—titled: “In Heroin Crisis, White Families Seek Gentler War on Drugs”—is both an example and an illustration. As is Time’s just-published photo story “A caring lens on the opioid crisis.” The visual language is just as illuminating. The opioid crisis has been framed as a threat from outside, with drug users facing an “illness or a “disease” rather than a personal moral shortcoming.

 

“You can see in this photo how demonstrators cast addicts who have died from drugs as victims, and in the inset photo, literally as an angel,” says Shaw. “In another photograph, you can see how the same group, FedUp!, has co-opted the quilt as a protest symbol reminiscent of the AIDS crisis.”

Shaw also argues that the largely white drug “epidemic” we’re facing now bears little resemblance to the scenes of squalor, sociopathy, and criminality depicted in this 33-photo Getty package shot in the Bronx and published in June. And photos from the urban “war on drugs” don’t look much different today than they did 30 years ago.

A US Marshal, far left, keeps his pistol trained on suspects as other marshals raid a crackhouse. (AP Photo/Scott Applewhite)

 The photo above by Scott Applewhite, also shot in the Bronx, appeared in 1989. It was published to illustrate an eight-week federal anti-drug initiative characterized by armed police raids on inner city crack houses. Suffice it to say police in general have taken a different approach to white opioid drug users (more on that later).

Over the years, photographers have produced many landmark photo stories and bodies of work about drug addiction. The subjects and the settings have been uniformly harsh, the subjects primarily indigent and wayward, and the environs largely decrepit. Those stories include Larry Clark’s “Tulsa,” shot in the mid-1960s and published in 1971; Jessica Dimmock’s “The Ninth Floor,” shot in the Flatiron District of Manhattan and published in 2007; Michel Du Cille’s Pulitzer Prize winning work in 1988 documenting crack addiction in Miami.

Another important photo story in the canon of addiction is Eugene Richards’s “Cocaine True Cocaine Blue.” The project was shot primarily in New York and Philadelphia from 1988 to 1992 and published in 1994. The Instagram post above captures the visual tone and sensibility of that historical investigation. Notice the difference in tone between the historical work and a opioid story in June in The New Yorker shot by Richards in one West Virginia county.

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This tweet depicts four of six Richards images that illustrated the story. In the top left photo, the girl playing in the yard lives with her grandmother. She lost her father to a heroin overdose. The top right photo shows people running a project that helps place addicts in rehab. The middle photo shows a mother, a recovering addict, showing off her newborn. And the last photo is a doctor who offers free public classes in the use of Narcan, the drug that reverses opioid overdoses.

“What are the larger themes of photo coverage of the opioid crisis, centered on rural and suburban white America, and where do they contrast with coverage of drugs in cities?” asks Shaw. “Photos are almost always shot in color rather than the starker black and white. We typically see daytime or well-lit indoor photos, as opposed to night action on seedy streets or dark alleys.” Shaw further emphasizes that there is minimal engagement with courts, jail, or the police. And there is a stress on domesticity. The photos often are shot at a home, the spaces mostly tidy or pulled together. Bedroom portraits are common.

Opioid stories typically discuss family, extended family, and community.

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This image in the tweet above appeared in The New York Times “gentler drug war” story mentioned above. It’s a photo of Courtney Griffin, who died of a heroin overdose in 2014. The picture in the center show Courtney closely flanked by her sister and her mother. Emphasizing love and closeness, as well as nostalgia and irony, the photo exemplifies how the opioid imagery stays away from pain, despair, isolation, and, of course, relationship problems.

Victims are often depicted in a sympathetic light, with an emphasis on family bonds and survivor grief. A sub-theme of opioid crisis coverage: Many stories showcase children who have been saved by loving grandparents.

In the photo accompanying a Times story, notice the child safe in her bedroom, the letters on the wall spelling out her name, reinforcing identity and continuity. This pattern is a dramatic contrast to the narrative of broken homes, addicted babies, mothers depicted as unfit, the engagement of state agencies, and children routinely placed into foster care that is so characteristic of drug stories focused on black families in cities.

 This photo by Jahi Chikwendiu appeared in a Washington Post article highlighting a recovery house in Bowie, Maryland. Opioid stories consistently stress close-knit towns and support communities.This is a reunion picnic with residents, graduates, family members, and supporters. Of course, the bonding and intimacy in these photos obscure the alienation and the emotional isolation that go hand in hand with addiction.
“The issue of responsibility is largely absent until the theme of recovery comes into play,” says Shaw. At that point, users and addicts are often shown exercising remarkable will and winning the battlewith the disease. Photos stress dignity, help-seeking, coping skills, and self-reliance in the face of poverty and other challenges.

Paul Wright shows a picture of himself in the hospital after a near fatal overdose in 2015, Thursday, June 15, 2017, at the Neil Kennedy Recovery Clinic in Youngstown, Ohio. (AP Photo/David Dermer)

Consider this AP photo of a young man showing a picture of himself after a near-fatal overdose in 2015. It’s like it can’t be the same person, the Nike “Just Do It” accentuating a sense of agency over addiction.

This photo was featured in a major article on the opioid crisis published this month by The New York Times Magazine. Faith, love, and patriotism are themes that often lace photos of the opioid crisis.

 

In this photo, we see a look of conviction on the man’s face and an American flag in the background. This formerly homeless man started a wildly popular Facebook group after his friend died of heroin and is now a sought after drug counselor. What’s more American than bringing nationalism, patriotism, and a sense of can-do to a problem otherwise riddled with shame?

When you do see photos of actual drug use, the images are typically clinical and objective, as opposed to desperate and dingy. After all the crafted photojournalism like the images you see above, it’s jarring to see these user pictures more in the style of stock photography.

 

This photo by John Moore is part of a story about New London, Connecticut, which is suffering an unprecedented heroin and opioid pain pill epidemic. You’ll notice that the user wears a crucifix, a symbol of faith and a visual buffer with the drug use. Unlike other drug scourges, where photos of users using were common and showed faces, many opioid portraits hide the users’ faces. We hardly ever see anguish, craving, or the high, the rush, or the stupor. The subjects look as if they are doing a routine task, like brushing their teeth.

Compare this to a frame from a story about New York City in May 2015 on the rise of synthetic marijuana, or K2, in New York City.

 

The above photo by Spencer Platt shows a black male drug user unceremoniously splayed out on an East Harlem sidewalk.

“Of course, there are exceptions,” says Shaw.

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 This tweet captures several photos from a St. Louis Post-Dispatch story that the public found widely disturbing. Administration of heroin in most opioid stories is visualized in a casual way. In the unusual instance that depiction is blatantly graphic or inordinately casual though, a much stronger impact has been elicited. In this case, a couple is photographed shooting up at home, the woman six months pregnant. Beyond the act of administration, however, the rest of the imagery still conforms to many of the domestic norms described above. The February 6, 2017 photo was made in the kitchen, as the couple apparently prepared a meal. The place looks otherwise spotless; both wear clean clothes, and the dishes on the far counter seem to be washed. In the accompanying images by photojournalist David Carson, the drug use fits a larger routine. It might be a horror, but it’s a particularly antiseptic and contained one.

In light of campaign politics and now the debate over healthcare, geography has been almost as prominent a theme in the opioid crisis as demographics. A great deal of the towns are down-and-out, suffering from poverty and a loss of industry. In many cases, however, the photography softens the blow.

“The visual narrative around the opioid crisis has largely sidestepped criminality,” says Shaw. In fact, many opioid stories depict police as social advocates fighting for the community, as exemplified by the July New York Times Magazine cover story. In some cases, they are even a lifeline for users thanks to first responders who carry the drug Naloxone for reversing an overdose.

 

Contrast this August 2015 arrest photo from East Harlem, the charges unspecified, (shot in this case by Spencer Platt for Getty Images), with the NYPD Instagram post below, from May.

As a form of public service announcement, the two officers promote their use of Naloxone spray accompanied by an account of how they “saved a man from a potentially fatal overdose” just the week before. In fact, the visual stories hardly address the dealers and distributors of opioids at all.

“I’m not sure what the race or ethnicity was of the person the NYPD rescued, but a thorough news image search reveals that most articles about Narcan or Naloxone either feature white drugs users or addicts, photos of white people who are being resuscitated (such as in this slideshow), or else they feature trainings or simulations with white volunteers and, almost exclusively, white mannequins,” says Shaw. “There is a clear double standard in the visual framing of the opioid crisis.

Shaw points out that the gentler tone presents a marked departure from historical drug coverage, and the bias in the depiction of the problem as it plagues urban people of color feels “baked in.” Shaw further states that what is even more concerning is the prospect for closing this perceptual gap. Besides racial disparity in journalism, the dog-whistle politics of President Trump is encouraging divisiveness and driving a deeper wedge. Still worse, the GOP leadership is patronizing addicts and states with proportionally larger populations of afflicted rural white populations with the promise of increased prevention and treatment funding as part of its argument for repealing Obamacare.

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.