Category Archives: Drug Offenses

Marijuana Arrests Increase

ACLU, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Jail, marijuana, Plain View, police, Prison, Race & Law, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , ,

Excellent article from reporter Timothy Williams of the New York Times discusses a new study by the American Civil Liberties Union and Human Rights Watch which reveals that marijuana arrests were about 13.6 percent more than the 505,681 arrests made for all violent crimes, including murder, rape and serious assaults.

The report comes in the wake of the fatal police shooting of Keith Lamont Scott last month in Charlotte, N.C. Mr. Scott, 43, had attracted police attention in part because, the police said, he was smoking marijuana.

The report is the latest study to highlight the disparate treatment African-Americans often receive in the criminal justice system, including disproportionate numbers of blacks who are sent to jail when they are unable to pay court-imposed fees, or stopped by the police during traffic stops or while riding bicycles. Its many findings are disturbing.

THE REPORT’S FINDINGS:

  • Although whites are more likely than blacks to use illicit drugs — including marijuana, cocaine, heroin, methamphetamine and prescription drugs for nonmedical purposes — black adults were more than two-and-a-half times as likely to be arrested.
  • In Iowa, Montana and Vermont — places with relatively small populations of African Americans — blacks were more than six times as likely to be arrested on drug possession charges than whites.
  • In terms of marijuana possession, black adults were more than four times as likely to be arrested as white adults in the 39 states in which sufficient data was available.
  • In Manhattan, where blacks make up about 15 percent of the population, African-Americans are nearly 11 times as likely as whites to be arrested on drug possession.
  • African-Americans may also be more apt to face arrest, according to researchers, because they might be more likely to smoke marijuana outdoors, attracting the attention of the police.
  • The above disparities persist whether there are few or many African-Americans in a given area.

Mr. Williams also wrote that, according to criminologists, African-Americans are arrested more often than whites and others for drug possession in large part because of questionable police practices. Police departments, for example, typically send large numbers of officers to neighborhoods that have high crime rates. A result is that any offense — including minor ones like loitering, jaywalking or smoking marijuana — can lead to an arrest, which in turn drives up arrest rate statistics, leading to even greater police vigilance.

“It is selective enforcement, and the example I like to use is that you have all sorts of drug use inside elite college dorms, but you don’t see the police busting through doors,” said Inimai M. Chettiar, director of the Justice Program at New York University’s Brennan Center for Justice.

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.

Trial Apparel

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, felony, Jury Trial, Methamphetamine, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Caver, the WA Court of Appeals Division I decided a defendant’s constitutional rights were not violated when the court refused to allow him to wear jail clothing at trial.  It does not prejudice a defendant to wear civilian clothes.

Defendant Terry Caver was arrested and charged for Possession of Methamphetamine. Caver remained in custody when his trial began two months after his arrest. At the start of trial, he asked the trial court for permission to wear his jail clothes in front of the jury. He explained that the clothes “represent that I’m in here, that I’m not on the street. It represents what’s really going on in my life. I don’t want these people thinking that I’m on the streets when I’m not on the streets.”

The trial court denied Caver’s request, stating that “it causes much mischief if the defendant is clothed in regular jail garb.” The court explained to Caver that wearing jail clothes would cause the jury to speculate about why he was in jail and whether he posed a danger to them. The jury found him guilty.

He appealed on numerous grounds to include arguments that the trial court violated his due process rights by not allowing him to wear jail clothes at trial.

The court reasoned that  although a defendant has the right not to appear in jail or prison clothing pursuant to Estelle v. Williams, these rights do not include a broad freedom for the defendant to express himself through his dress.

“Compelling Caver to wear civilian clothes did not erode the “physical indicia of his innocence,” as requiring him to wear jail clothes or shackles would. It did the opposite by making him appear as any member of the public. Similarly, civilian clothes did not single Caver out “as a particularly dangerous or guilty person.” And civilian clothes did not offend the dignity of the judicial process or restrict Caver’s ability to assist counsel and testify.”

Furthermore, although some Defendants sometimes choose to wear jail clothes as a trial tactic, it does not imply that defendants have a right to pursue this trial tactic. Consequently, the Court of Appeals concluded that the trial court’s decision was not inherently prejudicial and that the trial court did not abuse discretion.

My opinion? Jail clothes make people look guilty. Period. That said, most defendants want to wear civilian clothing at trial. Looking “normal” – or at least not incarcerated – tells the jury the defendant might not be guilty of the charges.

Here, Mr. Caver wanted to wear his jail clothes at trial. Interesting. Was this a trial tactic? Who knows. I cannot speculate anything beyond this plain fact because I am not Mr. Carver’s attorney. However, as the court noted, ” . . . although some Defendants sometimes choose to wear jail clothes as a trial tactic, it does not imply that defendants have a right to pursue this trial tactic.”

Interesting 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.

Kansas Cops Can’t Stop Colorado Drivers Just Because they Suspect Marijuana Possession

42 U.S.C. § 1983, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, law enforcement, Legislation, marijuana, Police Misconduct, Qualified Immunity, Race & Law, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

In Vasquez v. Lewis & Jimerson, the 10th Circuit Court of Appeals reinstated a lawsuit filed by a Colorado motorist against two Kansas Highway Patrol officers who pulled him over and searched his vehicle for marijuana as he was driving alone at night through Kansas on his way to Maryland.

The KHP officers, Richard Jimerson and Dax Lewis, stopped Vasquez when they could not read the temporary tag taped to the inside of the car’s tinted rear window. The officers believed they were justified in searching the vehicle because Vasquez was a citizen of Colorado driving on I-70, a “known drug corridor,” in a recently purchased, older-model car. They said he also seemed nervous.

On February 28, 2012, Vasquez filed this lawsuit against the Officers under 42 U.S.C. § 1983 – which allows citizens to sue the government for violating Constitutional Rights – and argued that the officers violated his Fourth Amendment rights by detaining him and searching his car without reasonable suspicion. At first, his lawsuit was dismissed. He took his lawsuit up on appeal.

The 10th Circuit found the officers violated Vasquez’s Fourth Amendment rights in searching his car without his consent. Nothing illegal was found. He had nothing more than an out-of-state license plate from Colorado, a state that has legalized marijuana. The Court found the officers violated Vasquez’s rights in searching his car:

“Accordingly, it is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate,” the ruling states.”

My opinion? Good decision. And it makes sense.  Twenty-five states permit marijuana use for medicinal purposes, with Colorado, Alaska, Oregon, Washington, and Washington, D.C. permitting some recreational use under state law.  Our federal circuit courts are simply reading the writing on the wall.

Indeed, it even appears our federal courts are actually leading the charge toward the national legalization of marijuana. In my blog post titled, 9th Circuit Court of Appeals Bans Pot Prosecutions, I discuss recent news that the 9th Circuit prevented the U.S. Department of Justice from prosecuting pot charges if State laws allow for its legal possession.

Times are changing . . .

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.

9th Circuit Court of Appeals Bans Pot Prosecutions

9th Circuit Court of Appeals, Bellingham Defense Attorney, Drug Offenses, Legislation, marijuana, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

In U.S. v. McIntosh, the 9th Circuit Court of Appeals banned the U.S. Department of Justice (DOJ) from prosecuting medical marijuana cases if no state laws were broken.

U.S v. McIntosh consolidated 10 pending cases in Washington in California where defendants who sold medical marijuana were indicted for violating the Controlled Substance Act. The defendants sought dismissal of their charges or to enjoin their prosecutions under the Consolidated Appropriations Act, which prohibits the DOJ from spending funds to prevent states’ implementation of their medical marijuana laws.

Although marijuana remains illegal under federal law, Congress has barred the Justice Department from spending money to prevent states from regulating the use or sale of medical pot.

Federal prosecutors argued unsuccessfully that Congress meant only to bar the department from taking legal action against states and that it could still prosecute individuals who violate federal marijuana laws. The court rejected that, saying that medical marijuana-based prosecutions prevent the states from giving full effect to their own measures Judge Diarmuid F. O’Scannlain wrote the following in his opinion:

“DOJ, without taking any legal action against the Medical Marijuana States, prevents them from implementing their laws that authorize the use, distribution, possession, or cultivation of medical marijuana by prosecuting individuals for use, distribution, possession, or cultivation of medical marijuana that is authorized by such laws . . . If the federal government prosecutes such individuals, it has prevented the state from giving practical effect to its law providing for non-prosecution of individuals who engage in the permitted conduct.”

“If DOJ wishes to continue these prosecutions, Appellants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law, by which we mean that they strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana.”

With that, the Court of Appeals remanded the case back with instructions to conduct evidentiary hearings to determine whether Appellants complied with state law.

Marijuana activists and lawyers representing medical pot suppliers say the ruling is a significant addition to the growing support for broad legalization of the drug.

“This is the beginning of the end of federal prosecutions of state medical marijuana dispensary operators, growers and patients,” said Marc Zilversmit, an attorney representing five people who operate four marijuana stores in Los Angeles and nine indoor growing sites in Los Angeles and San Francisco.

My opinion? Good decision. These days, marijuana is legal for medicinal or recreational use in 25 states and the District of Columbia. In addition, ten states have marijuana legalization measures on the November ballot. This case is a positive shift toward legalizing marijuana on a federal level.

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.

New Washington Driver’s-License Exam Tackles Pot & Cellphone Risks

Bellingham Defense Attorney, Cell Phone, Department of Licensing, Distracted Driving, Drug Offenses, DUI, marijuana, National Highway Traffic Safety Administration, Reckless Driving, Skagit County Criminal Defense, Studies, Technology, Text Messages, Traffic Infractions, Whatcom County Criminal Defense, , ,

A recent news article by reporter E.J. Smith III of the Seattle Times reports that today’s driver’s license exams require not only a more thorough understanding of longstanding traffic laws but also an understanding of the risks associated with smartphones and the legalization of pot.

“We wanted to add more information about impaired driving beyond the information about driving while intoxicated,” said Department of Licensing spokesman Brad Benfield. “With all the growth of cellphone use … we wanted to make sure that type of information was highlighted in the driver’s guide and test.”

E.J. Smith III reports these driving issues are timely and should be addressed. For example, he quotes a recent study by the AAA Foundation for Traffic Safety concluded that teen drivers spend nearly a quarter of their driving time distracted. Additionally, one in six drivers involved in fatal crashes in Washington in 2014 had recently used marijuana, which is the most recent data available. Finally, according to the NSC preliminary estimates, 567 people died in motor-vehicle crashes in Washington last year, a 21 percent increase over 2014. Nationally, the increase was 8 percent.

“The old test didn’t have any questions on distractions,” said Nur Hassan, who has run MLK Simple Driving School in Seattle for three years. “Driving is very serious business, so people should not try to take it lightly or try to put in other distractions.”

My opinion? Kudos to the Department of Licensing for addressing issues of distracted driving and marijuana use. This is an excellent step in the right direction. Today’s teen driver’s need to know the risks of their driving behavior.

I practice a wide range of criminal defense, everything from low-level misdemeanors to Federal charges. I’m honored to represent them through difficult times. I’ve assisted clients who are minors charged with various forms of DUI (drugs as well as alcohol). Many didn’t know the slightest amount of alcohol or drugs in their system can lead to DUI charges. Others didn’t know the repercussions of their actions.

I’m a firm believer that education is the key to prevention. That said, if you’re interested in more information on these issues then please review my Drug DUI practice area and my Legal Guide titled Drug DUI’s in Washington: The Issues & Recent Case Law.

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.

Backpack Searches When Jailed

Bellingham Defense Attorney, Community Caretaking, Constitutional Rights, Drug Offenses, Evidence, felony, Inventory Searches, law enforcement, Methamphetamine, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Dunham, the WA Court of Appeals Division II decided that a warrantless search of a suspect’s locked backpack pocket was a lawful inventory search where the defendant was booked into jail, a search of his person produced knives, the backpack was to be logged into the jail’s temporary storage area and the officer felt knives on the outside of the backpack.

On January 29, 2014, Sergeant Gwen Carrell of the Chehalis Police Department responded to a reported shoplifting at a local department store. Upon arrival, Sgt. Carrell met with loss prevention officers. They told Sgt. Carrell that defendant Jason Dunham had multiple knives in his backpack and that they had removed the backpack from Dunham’s reach. Sgt. Carrell placed Dunham in handcuffs for officer safety and searched him for weapons. She located two more knives on Dunham’s person, arrested Dunham for theft and booked him into jail.

Sgt. Carrell searched Dunham’s backpack for items to be logged into the jail’s temporary storage. This is called an inventory search. In short, it is every police department’s policy to inventory items to be held in its storage facility for any dangerous items. As part of this policy, knives are to be kept in secure containers, preventing them from puncturing anything.

Sgt. Carrell used Dunham’s keys to unlock the backpack pocket. She opened the pocket and observed a flashlight, a butane torch, and a glass pipe. What Sgt. Carrell thought was a knife was actually the butane torch. The residue in the glass pipe tested positive for methamphetamine. The State charged Dunham with Possession of a Controlled Substance and Theft in the Third Degree.

Dunham filed a motion to suppress the evidence found during Sgt. Carrell’s search of the locked portion of his backpack pursuant to CrR 3.6, arguing that the search violated his constitutional rights. The trial court denied the motion and ruled that the inventory search was valid. Later, the trial court found him guilty on both counts at a bench trial.

Dunham appealed. He argued that the warrantless search of his backpack’s locked pocket violated the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. He claims that the search was not a valid inventory search.

Unfortunately for Dunham the Court of Appeals disagreed. First it reasoned that  inventory searches are an exception to the requirement that police have a warrant to search people’s personal property. Second, the Court described the purpose of an Inventory Search:

“The purpose of an inventory search is not to discover evidence of a crime, but to perform an administrative or caretaking function. The principal purposes of an inventory search are to (1) protect the owner’s property, (2) protect the police against false claims of theft by the owner, and (3) protect the police from potential danger. The scope of an inventory search should be limited to those areas necessary to fulfill its purpose.”

Third, the Court reasoned that Officer Carrel’s safety concern about potentially exposed knives in the locked pocket was reasonable based on the facts that (1) several knives were found on Dunham’s person, (2) additional knives were found in the unlocked portion of Dunham’s backpack, (3) one of the knives found in the backpack was unsheathed, and (4) Sgt. Carrell felt what she believed to be another knife in the locked pocket of the backpack. Therefore, a manifest necessity existed for searching the locked portion of the backpack.

Finally, the Court concluded that the inventory search was valid and affirmed Dunham’s conviction:

“Substantial evidence supports the challenged finding of fact. Given the reasonable indication that the locked portion of the backpack contained dangerous items along with Sgt. Carrell’s reasonable fear of being stabbed, we hold that a manifest necessity existed to search No. 46169-2-II 8 inside the locked portion of the backpack. Therefore the trial court’s findings of fact support its conclusion that the inventory search was valid. We affirm Dunham’s conviction.”

My opinion? Search and seizure issues are a HUGE aspect of unlawful possession cases. The legal issues come down to whether the search was lawful, and if not, whether the evidence can be suppressed. Here, the court’s decision appears sound. Under Washington law, officers may search a suspect’s person if they feel “hard and sharp” objects through the outside of a suspect’s clothing. This is done for officer safety. Similarly, Inventory Searches are conducted under the same policy of preserving officer safety. Here, the hard and sharp objects felt through Dunham’s backpack raised a safety concern. Therefore, the search appears lawful.

For more information, please review my Legal Guide titled, “Search & Seizure: Basic Issues Regarding Their Search for Weapons, Drugs, Firearms and Other Contraband.” There, I provide links to my analysis of Washington cases discussing searches of persons, vehicles, cars and homes. Also, please go the search engine of my Blog if you have specific queries about these issues.

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.

Utah v. Strieff: High Court Upholds Unlawful Search

Attenuation Doctrine, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Evidence, Exclusionary Rule, felony, law enforcement, police, Privacy, Search and Seizure, Skagit County Criminal Defense, Terry Stop, United States Supreme Court, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In Utah v. Strieff, the U.S. Supreme Court held in a 5-3 vote that an illegal police stop and resulting drug arrest did not ultimately violate the Fourth Amendment because the officer later discovered the defendant had an outstanding traffic warrant.

The case began when a police officer stopped Edward Strieff on the street and ran his identification. The state of Utah concedes that this was an illegal police stop. However, when the Officer ran Strieff’s identification, it was discovered that Strieff had an outstanding traffic warrant. The officer then arrested him, searched him, and discovered drugs in his pockets. Strieff argued that the drugs should have been inadmissible under the Fourth Amendment because they are the fruits of an illegal search.

In an opinion authored by Justice Clarence Thomas, the U.S. Supreme Court disagreed with Mr. Strieff, ruled for the State, and found there was no flagrant police misconduct:

“The evidence Officer Fackrell seized as part of his search incident to arrest is admissible because his discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to arrest.”

Furthermore, the Court also noted that although the Exclusionary Rule prohibits the admissibility of evidence which is illegally seized in violation of people’s Constitutional rights, there are several exceptions to the rule. One exception is the Attenuation Doctrine, which admits typically inadmissible evidence when the connection between unconstitutional police conduct and the evidence is sufficiently remote or has been interrupted by some intervening circumstance.

The Court reasoned that the Attenuation Doctrine therefore applies here, where the intervening circumstance is the discovery of a valid, pre-existing, and untainted arrest warrant: “Assuming, without deciding, that Officer Fackrell lacked reasonable suspicion to stop Strieff initially, the discovery of that arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to his arrest.” Justice Thomas’s majority opinion was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito.

Writing in dissent, Justice Sonia Sotomayor blasted the majority for excusing police misconduct and undermining the Fourth Amendment:

“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic war rants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.”

“This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

My opinion? I agree with Sotomayor’s dissent. Utah v. Strieff is a terrible blow to every American’s Fourth Amendment rights to be free from unlawful and intrusive government searches. Period.

That aside, will Utah v. Strieff negatively impact the constitutional rights of citizens in Washington State? Probably not. We already have time-tested precedents like State v. Doughty, State v. Afana and State v. Winterstein. All of these WA Supreme Court cases – and more – are recent opinions that are factually similar to Utah v. Streiff. Fortunately, these cases have already ruled against police officers violating people’s Constitutional rights against illegal search and seizure.

As a colleague of mine said, “The rest of the country may be SOL, but Utah v. Strieff should not survive here in WA State.”

Let’s keep our fingers crossed.

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.

Refusing Field Sobriety Test is Admissible as “Consciousness of Guilt”

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Drug Recognition Expert, Due Process, DUI, Evidence, Jury Trial, National Highway Traffic Safety Administration, police, Privacy, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Terry Stop, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In State v. Mecham, the WA Supreme Court decided that Prosecutors in DUI trials may admit evidence that a defendant is declining field sobriety tests as evidence of consciousness of guilt.

FACTS

In 2011, Officer Campbell made a traffic stop of defendant Mark Tracy Mecham. Although Mecham’s driving showed no signs of intoxication, Mecham smelled of intoxicants and had slurred speech. The officer asked Mecham to perform voluntary field sobriety tests (FSTs), which would have involved Officer Campbell’s observing Mecham’s eye movements and ability to walk a straight line and stand on one leg. Mecham refused.

At trial, Mecham moved to suppress his refusal to perform the FSTs. Typically, trial courts grant this defense motion. In Mecham’s case, however, the trial court denied his motion and ruled that even if FSTs were a search, probable cause supported the search. Mecham’s refusal was admitted to the jury as evidence to support the Prosecutor’s theory that Mecham exhibited “Consciousness of Guilt.” The jury found Mecham guilty of DUI.

Eventually, Mecham’s case was appealed to the WA Supreme Court. He argued that his right to be free from unreasonable searches was violated when the trial court admitted evidence of his refusal to undergo FSTs.

THE DECISION

Unfortunately for Mecham, the WA Supreme Court disagreed and upheld his DUI conviction. In a deeply divided decision, the Court held that while a FST is a seizure, it is not a search either under article I, section 7 of the Washington Constitution or under the Fourth Amendment to the United States Constitution. The State may, therefore, offer evidence of a defendant’s refusal to perform FSTs. Field sobriety tests may only be administered when the initial traffic stop was supported by reasonable suspicion and the officer has reasonable suspicion that the defendant was driving under the influence.

The lead majority opinion was authored by Justice Wiggins. Justice Fairhurst concurred in part and dissented in part. Justice Fairhurst would prohibit the administration of FSTs once the defendant is already under formal arrest for an offense other then DUI. Justice Johnson dissented on the grounds that the defendant had been told by the officer who administered the FSTs that they were voluntary. Finally, Justice Gordon McCloud dissented on the grounds that FSTs are searches.

My opinion?

I agree with Justice McCloud’s dissent. Here’s a portion:

“An FST can reveal information about a person’s body and medical history that are unquestionably private in nature. According to the National Highway Traffic Safety Administration (NHTSA), in addition to possible inebriation, FSTs can reveal a head injury, neurological disorder, brain tumors or damage, and some inner ear diseases. These conditions are not necessarily observable in the subject’s normal public behavior; they may well be revealed only by the special maneuvers the subject is directed to perform during the FST. Indeed, if an FST did not reveal information beyond what is readily observable by the general public, there would be no need to administer it in the first place. I therefore conclude that FSTs are searches under article I, section 7 of our state constitution.”

FSTs are a search. Period. Clearly, Officers who ask citizens to performs FSTs are seeking evidence of DUI. Because FSTs are a search, Mecham had a constitutional right to refuse to perform them unless (1) the officers had a warrant, or (2) an exception to the warrant requirement applied. Here, the Officer neither possessed or obtained a warrant for a blood test. Nor did the Officer even attempt to get a warrant.

Even more concerning, Prosecutors now have free reign to spin a citizen’s refusal of FSTs as “consciousness of guilt.” That’s unfair. Indeed, there’s a lot of debate in criminal law on whether FSTs accurately and/or scientifically indicate whether someone is DUI. These tests are, quite simply, balancing and memory tests administered under extremely uncomfortable and stressful conditions. These tests – which more of less reflect bad balance, lack of memory and preexisting health issues – simply do not accurately depict intoxication.

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.

Unlawful Arrest for Failure to Pay Court Fines

Bellingham Defense Attorney, Bench Warrant, Constitutional Rights, Court Fines, Drug Offenses, Due Process, felony, Legal Financial Obligations, Methamphetamine, Search and Seizure, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Sleater, the WA Court of Appeals Div. III held an arrest warrant may not issue for a defendant who fails to schedule an appearance in court to explain why she had failed to pay her court fines.

The Defendant Ms. Sleater had prior convictions for various Drug Offenses. As of April 2014, she was making a combined monthly payment of$75 toward three cases. She was also entered into Benton County’s “pay or appear” program. It required her to make her legal financial obligation (LFO) payments every month or appear to schedule a hearing to explain why she could not make the payments. The program agreement also stated that if the defendant did not make a payment and failed to schedule a hearing, “a warrant will be issued for the Defendant’s arrest.”

For months, Ms. Sleater’s mother paid the monthly fines. Her mother made a $150 on-line payment on April 17, 2014. Unfortunately, the computer did not apportion the sum among the three accounts, but applied all of the money to only one case number identified with the payment. AS a result, The other two counts were four and seven months behind.

On April 22, 2014 the clerk’s office obtained arrest warrants for Ms. Sleater since she had not made payments on those two cases and had not scheduled a hearing to explain the lack of payments.

On May 16, 2014 officers arrested Ms. Sleater on the two warrants. She possessed methamphetamine at the time of her arrest. Consequently, the prosecutor filed one count of possession of a controlled substance. Her attorney moved to suppress the evidence under CrR 3.6 on the claim that the warrants were wrongly issued. However, the trial court denied the motion and found Ms. Sleater guilty at trial.  She appealed.

The WA Court of Appeals held that the arrest warrants were invalidly issued in violation of the Fourth Amendment to the United States Constitution.

The Court reasoned that the Fourth Amendment protects against unreasonable seizures, and that seizure is reasonable if it serves a governmental interest which is adequate to justify imposing on the liberty of the individual.” However, it violates due process to punish defendants for failing to pay fines if the defendant cannot pay simply because they are impoverished.

“Nor can a state impose a fine and convert it to jail time solely because a defendant has no ability to pay the fine. The State must afford the defendant a hearing before jailing him for failing to pay his obligations. While the court can put the burden to prove inability to pay on the defendant, it still has a duty to inquire into a defendant’s ability to pay fines prior to jailing him.”

Here, the Court reasoned that the effect of the arrest warrants was to require Ms. Sleater to go to jail for failing to pay her LFOs without first conducting an inquiry into her ability to pay them:

“The facts of this case demonstrate the need for such an inquiry. Ms. Sleater’s mother did make a payment toward her daughter’s LFOs, but through some type of error the payment was not reflected in all three files. A hearing before the warrants issued would have allowed the court to resolve the problem without the necessity of an arrest.”

Here, reasoned the Court, a warrant should not have issued for defendant’s failure to pay without first determining the willfulness of that violation. Accordingly, the Court of Appeals reversed Ms Sleater’s conviction for possessing methamphetamine.

Good decision.

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.

AAA Questions Marijuana DUI Laws

Bellingham Defense Attorney, Blood Test, Boating Under the Influence, Department of Licensing, Drug Offenses, Drug Recognition Expert, Due Process, DUI, law enforcement, marijuana, Search and Seizure, Search Warrant, Studies, Technology, Whatcom County Criminal Defense, , ,

According to a news article from the Chicago Tribune, recent studies conducted by car insurer AAA find that blood tests given to drivers suspected of Marijuana DUI have no scientific basis.

A handful of studies released by the AAA Foundation for Traffic Safety found that drivers can have a low level of THC, the active ingredient in marijuana, in their blood and be unsafe behind the wheel, while others with relatively high levels may not be a hazard. Below are the individual studies accompanied by capsule summaries comprising the effort:

“If you’ve had marijuana whether it’s medicinal or otherwise, don’t drive,” said AAA Chicago spokeswoman Beth Mosher, “It’s really that simple.”

The studies examined the results of more than 5,300 people nationwide who were arrested for driving under the influence of marijuana, 600 of whom tested positive for THC only, while the others had THC and other substances. This is because marijuana isn’t metabolized by the body in the same way as alcohol. The researchers compared the Drug Recognition Expert (DRE) exam results of 602 drivers that only had THC present in their blood at the time of arrest to those of 349 volunteers that took the test drug-free and sober. Ultimately, the degree to which a driver is impaired by marijuana use depends a lot on the individual, the foundation said.

The data appears confusing because AAA also looked at Washington – one of the first states to legalize marijuana – and found fatal crashes involving drivers who recently used marijuana doubled.

“ In most recent data 1 in 6 drivers who are involved in a fatal crash there had marijuana in there system,” Mosher  said.  “And as more and more states look at legalizing marijuana we see this as a concerning trend.”

Nevertheless, AAA is sending the message that the legal limits established for marijuana are arbitrary. A handful of states have moved to specify the maximum amount of active THC — the main chemical in marijuana — that drivers can have in their system. But AAA says that doesn’t work.

“We think those are meaningless,” said Mosher. “They are not backed by any science. One person can have one limit of THC in their blood and be significantly impaired and others can have that same limit and not be impaired at all,” Mosher said.

Many in law enforcement and AAA say that officer recognition of impaired drivers is really the only what to determine whether someone is too high to drive.  Of course all of this a public safety concerns as pot becomes legal across the country.

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.