Category Archives: felony

High Court Strikes Racism in Jury Selection

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The U.S. Supreme Court just sent a strong message about racism in the justice system.

In Foster v. Chatman, the Court reversed a defendant’s murder conviction after discovering that the Prosecutor systematically eliminated African American jurors from serving on Mr. Foster’s jury because of their race.

Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State used peremptory challenges to strike all four black prospective jurors qualified to serve on the jury.

Foster argued that the State’s use of those strikes was racially motivated, in violation of Batson v. Kentucky. The trial court rejected that claim, and the Georgia Supreme Court affirmed. Foster then renewed his Batson claim in a state habeas corpus proceeding.

While that proceeding was pending, Mr. Foster’s defense attorneys used the Georgia Open Records Act to obtained the Prosecutor’s file used during trial. In notes, prosecutors had highlighted the African Americans on several different lists of potential jurors. On one list, under the heading “Definite NOs,” prosecutors listed six potential jurors, all but one of whom were black.

Eventually, the U.S. Supreme Court granted review of the case on the issue of whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case.

The Court reasoned that the Georgia Supreme Court’s decision that Foster failed to show purposeful discrimination was clearly erroneous. They started with Batson’s three-step process for adjudicating claims such as Foster’s. First, a defendant must make a prima facie showing that a preemptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, the trial court must determine whether the defendant has shown purposeful discrimination.”

Here, and in sum, the Court reasoned that Foster established purposeful discrimination in the State’s strikes of two black prospective jurors:

” . . . along with the prosecution’s shifting explanations, misrepresentations of the record, and persistent focus on race, leads to the conclusion that the striking of those prospective jurors was motivated in substantial part by discriminatory intent . . . the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”

My opinion? Good decision. The decision is a forceful blow against racism in the courts. Although the Foster decision won’t end racial discrimination in jury selection, it is certainly vindication for the potential jurors who weren’t allowed to fulfill their civic duty all those years ago because of their race. As for Foster, his future is still in limbo. The Supreme Court’s decision entitles him to a new trial before a jury of his peers that hasn’t been tainted by racial discrimination. Still, that mere fact doesn’t guarantee a different outcome. The new jury may come to the same conclusion as the old one. But if nothing else, Mr. Foster’s death penalty has likely been put off for many years to come. And in the world of death penalty litigation, that counts as a win.

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.

The Neurology of Risky Driving Behavior

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A very interesting article from the Association for Psychological Science discusses how a team of Canadian psychological scientists is looking at the personality, cognitive, and neurobiological factors that contribute to reckless driving behavior. By better understanding the patterns of emotional processing and risk perception shown by repeat offenders, the researchers hope to design interventions that more effectively target these subgroups of dangerous drivers.

The evidence certainly exists. According to the article, drunk driving accounts for 35-40% of all driver fatalities in Canada and the United States, and drunk driving crashes kill more than 10,000 Americans every year. Amazingly, an estimated 30% of DUI offenders will continue to drink and drive, even after being arrested and punished.

“Surprisingly, these drivers usually don’t consider themselves as risk takers,” lead author Thomas G. Brown of McGill University said. “If drivers don’t believe they are risky, they will not accept the need to change. On the other hand, if we and they don’t understand their behavior, how can they be expected to change it effectively?”

The study began when Brown and his colleagues recruited four groups of male drivers who had different criminal histories: 36 men with at least two convictions for drunk driving (DUI group); 28 reckless drivers with at least three speeding violations in the past two years (speeders); 27 men with arrests for both DUI and speeding (DWI-speeders); and 47 low-risk drivers with no history of serious traffic offenses (control group).

According to the article, participants completed a battery of personality and impulsivity assessments, ranging from a Big Five personality measure to an executive control task that assessed their sensitivity to punishment and reward. Participants’ cortisol response, a hormonal reaction to stress, was measured by collecting saliva samples before and after they completed a timed mental arithmetic task previously shown to elicit stress.

Even more interesting, participants also completed a session of simulated driving that included driving on virtual highways, merging lanes, turning at intersections, and avoiding pedestrians.

The researchers found that different subgroups of risky drivers had distinctive neurobiological profiles. Compared to the low-risk control group, speeders were prone to making decisions based on thrill-seeking and a need for high levels of stimulation. Repeat DUI offenders, in contrast, had the lowest level of risk-taking behavior while sober.

“One possibility in line with the present results is that once heavy drinking has occurred, more impulsive drivers are more vulnerable to alcohol’s disruptive effects on the behavioral control mechanisms required to avoid DWI,” the researchers explain.

All of the dangerous driving groups exhibited significant blunting in their cortisol stress response compared with the control group. Cortisol, along with other stress hormones, influences cognitive processes that range from risk assessment to encoding emotional memories. These results suggest that dysregulation of the body’s cortisol response could act as a neurobiological marker for risky driving behavior.

“Relative to the other [risky driving] profiles considered here, the profile exhibited by group DUI may be the most amenable to interventions that aim to augment recall of the negative consequences of DUI behavior and pre-emptively decouple alcohol use from driving,” the researchers conclude.

Stated differently, interventions designed to improve drivers’ recall of the negative consequences of drinking and driving are effective for preventing drunk driving. This explains the findings why repeat DUI offenders had the lowest level of risk-taking behavior while sober.

My opinion? The study is interesting, for sure. Not surprisingly, the criminal justice system uses many of these these psychological deterrents to “decouple alcohol use from driving.” When it comes to DUI cases, gaining a worthwhile reduction of the charges often means the defendant obtaining an alcohol/drug evaluation, attending mandatory treatment, attending AA meetings and attending a Victim Impact Panel. Additionally, the financial costs of DUI fines and mandatory ignition interlock devices are constant reminders to DUI offenders that future risky behavior is simply not worth it.

That said, hiring a competent DUI attorney to fight DUI charges might be a worthy endeavor. The basic legal issues surrounding a DUI arrest are (1) whether the stop was lawful, (2) whether there was enough evidence to arrest, (3) whether the officer informed the defendant of Implied Consent Warnings, and (4) whether the defendant either (a) refused the BAC breathalyzer machine or (b) blew over .08 and/or had .05 nanograms of active THC in their blood when pulled over.

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

State v. Deleon: Court Strikes Evidence of “Gang Affiliation” Due To Defendant’s Music Preferences

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In State v. Deleon, the  WA Supreme Court held that (1) a defendant’s musical preference does not establish gang membership, and their admittance to gang affiliation during jail  booking may not be used at trial.

The State prosecuted Mr. Deleon and two others for multiple counts of Assault in the First Degree with deadly weapon enhancements and with gang aggravators.  If convicted, these upward enhancements substantially increased Deleon’s prison sentence. At trial, the court admitted as evidence of gang affiliation statements the defendant made at booking about his gang affiliation and evidence of the type of music on his cell phone.  Also, the trial court allowed a police officer to testify as a gang expert regarding generalized information of gang affiliation.

Mr. Deleon was found guilty and sentenced to 1,002 months. He appealed on the issue of (1) whether the trial court violated his Fifth Amendment right against self incrimination improperly admitted the aforementioned evidence, and (2) whether the gang expert testimony regarding gang culture and behavior was irrelevant and thus improperly admitted.

The WA Supreme Court reasoned that the gang information from the jail intake forms was not gathered voluntarily, and thus should not have been admitted as evidence. In short, it reasoned that when a defendant’s self-incriminating statements are made in exchange for protection from credible threats of violence while incarcerated, the statements are coerced and involuntary:

“We do not see how statements made under these circumstances could be considered voluntary. The admission of these statements was a violation of the defendant’s Fifth Amendment rights.”

The WA Supreme Court also ruled that the trial court mistakenly allowed evidence of the type of music on the defendant’s phone as evidence of gang affiliation. “Los Tigres del Norte is a prominent and popular Latin band and there is no evidence in the record to support that enjoying their music is evidence of gang affiliation . . .  We take this opportunity to remind courts to be far more cautious when drawing conclusions from a defendant’s musical preferences.”  This scathing wisdom reminded courts to be careful when admitting generalized evidence about gang affiliation.  “Such evidence is often highly prejudicial and must be tightly constrained to comply with the rules of evidence.”

Finally, the Court ruled that much of the generalized “gang evidence” was irrelevant and prejudicial, and thus should not have been admitted. The court reasoned that, under ER 402, evidence which is not relevant is not admissible. Here, the gang evidence produced by the State’s gang expert witness was highly prejudicial:

“We agree and urge courts to use caution when considering generalized gang evidence. Such evidence is often highly prejudicial, and must be tightly constrained to comply with the rules of evidence.”

With that, the WA Supreme Court held the defendant was entitled to a new trial. Therefore, the Court reversed the convictions and gang aggravators.

My opinion? I really enjoyed the rulings in this case. Sometimes, mainstream culture and music can be misconstrued as “gang evidence” when said music/culture is heard/exhibited by minorities. The Court attacked this veiled racism. Good on them. Also, they made good rulings on the 5th Amendment issues. A defendant’s gang affiliation when being booked into jail is a matter of personal security. The information should not be admitted at trial.

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.

“Community Caretaking” Search Upheld as Lawful

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In State v. Duncan, the WA Supreme Court decided police officers may make a limited sweep of a vehicle under the community caretaking exception to the warrant requirement when (1) there is reasonable suspicion that an unsecured weapon is in the vehicle and (2) the vehicle has or shortly will be impounded and will be towed from the scene. However, this exception may not be used as a pre-text for an investigative search.

A little after midnight in Yakima one summer night in 2009, someone in a car shot into a home, grazing Kyle Mullins’ head. Other people in the home called 911 for medical assistance and to report the shooting. Callers described the car as white and possibly a Subaru or Impala. Officers were dispatched and stopped Duncan’s white Ford Taurus. Officers removed Duncan and his two passengers from the car at gunpoint, ordered them to the ground, handcuffed them, and put them in separate police cars. Without a warrant, officers opened the doors and found shell casings on the floor and a gun between the front passenger seat and the door. One officer removed the gun and placed it into an evidence bag in his own patrol car. The passengers told the police that Duncan had fired from the car and tossed the gun on the front floorboards. After the car was towed to a police annex, police obtained a warrant and made a more thorough search.

Duncan was charged with six counts of first degree assault and one count of unlawful possession of a firearm. Duncan moved to suppress the evidence under CrR 3.6 and confessions under CrR 3.5 that flowed from the traffic stop on several grounds, including that the police had insufficient grounds to stop him and that their initial warrantless search of his car was improper. At the pretrial suppression hearing, held a year and a half after the events of that summer night, the judge found that the stop was justified and that the search was reasonable, and denied the motions.

The jury returned guilty verdicts on all charges and found by special verdicts that Duncan was armed with a firearm. The judge sentenced Duncan to 1,159 months of incarceration, the top of the standard range. Duncan’s projected release date is March 26, 2099.

The case was appealed to the WA Supreme Court to decide the issue of whether the warrantless search of Duncan’s vehicle was lawful. The Court decided it was.

The Court reasoned that generally, warrantless searches and seizures are per se unreasonable. Nonetheless, there are a few jealously and carefully drawn exceptions to the warrant requirement which provide for those cases where the societal costs of obtaining a warrant, such as danger to law officers of the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate. The State bears the burden of showing that the search and seizure was supported by a warrant or an exception to the warrant requirement. The fruits of an unconstitutional search and seizure must be suppressed.

The Court reasoned that the search was not lawful under Arizona v. Gant for “officer safety” reasons  because the vehicles’ occupants are detained in police cars. Also the search was not lawful under the Plain View Doctrine because the officers could see the gun from outside the vehicle. Finally, the search was also not a valid inventory search because the car was not impounded.

However, the court found the search was lawful under the community caretaking exception to the warrant requirement. Under that exception, officers may make a limited sweep of a vehicle when (1) there is reasonable suspicion that an unsecured weapon is in the vehicle and (2) the vehicle has or shortly will be impounded and will be towed from the scene.

We caution, however, that the community caretaking exception is a strictly limited exception to the warrant requirement. It may not, however, be used as a pretext for an investigatory search:

“It will only rarely justify intrusion into a private place or vehicle after an arrest. However, given the facts of this case and the fact that the sweep of the vehicle occurred before our opinion in Snapp, 174 Wn.2d 177, was announced, we are confident that the desire to remove an unsecured gun from the vehicle was not here used as a pretext for an otherwise unlawful search.”

With that, the Court concluded that the limited search of the vehicle was lawful and affirmed Duncan’s conviction.

My opinion? For those who don’t know, pretextual searches are unlawful. They usually describes false reasons that hide the true intentions or motivations for a legal action. If a party trying to admit the evidence can establish good reasons, the opposing party – usually, the defense – must prove that the these reasons were “pretextual,” or false, and move to suppress the “fruits” of the search.

Here, I understand the Court’s logic. I’m glad the Court appreciates the unlawfulness of pretextual searches and makes distinctions in the case at hand. Unfortunately, until now, unlawful pretext searches have been mitigated and/or simply ignored by our courts for many years.

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.

Bellingham Police Department Body Cameras Now Mandatory

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A news article by Samantha Wohlfiel from of the Bellingham Herald reports that starting this July, Bellingham Police Department (BPD) will require all uniformed patrol officers to wear and use body cameras.

In 2014, the BPD started a voluntary program, allowing officers to use a body camera if they were willing. Now, Police Chief Cliff Cook has decided all uniformed patrol officers will need to wear the cameras while on duty:

“I think the original pilot and then the past year and a half … has shown us that having the videos is not only beneficial in cases of prosecution of individuals for crimes, as evidence of the actions of our officers, especially when they’re appropriate . . .  It also generally helps us resolve disputes or disagreements about what may have transpired between an officer and a citizen much more quickly and in a more definitive way.”

~Police Chief Cliff Cook

Initially, 18 officers volunteered for Bellingham’s program, and currently 34 officers are using the cameras, Cook said. He also mentioned that his police officers have noted that people often change their behavior for the better when they’re told they’re being filmed.

One of the main concerns for officers and community members has been privacy, Cook said:

“One of the concerns we talked about was the overriding concern about creating video of individuals in pretty personally trying situations that involve personal privacy, such as mental illness, or a domestic violence call in a private residence, or interviewing the victim of a crime. So there are provisions within the policy where officers are given discretion on whether they want to turn that camera on or not.”

~Police Chief Cliff Cook

Basically, the “policy” requires that officers turn on the cameras for any enforcement activity, an arrest, use of force or where they believe there will be the need to use force.

The department has a mix of cameras, some that are clipped on a lapel, others that are worn on glasses, but both have easily been knocked off in situations where officers were restraining someone, Cook said, so the department may shift toward other models.

Between 2014 and 2016, the total program cost has been $315,250, which includes things such as all hardware (the cameras, clips, glasses they sit on, etc.), software and docking stations, Cook told the council.

According to the article, the projected costs moving forward are about $35,000 to $56,000 per year each of the next two years for renewed data storage management.

Another concern was, of course, privacy:

“One of the concerns we talked about was the overriding concern about creating video of individuals in pretty personally trying situations that involve personal privacy, such as mental illness, or a domestic violence call in a private residence, or interviewing the victim of a crime. So there are provisions within the policy where officers are given discretion on whether they want to turn that camera on or not.”

~Police Chief Cliff Cook

The current policy requires that officers turn on the cameras for any enforcement activity, an arrest, use of force or where they believe there will be the need to use force.

My opinion? This is a step in the right direction. Body cameras make everyone behave better. They also catch evidence of what really transpired. Good move, BPD.

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.

Second Amendment Protects Stun Guns

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In Cadtano v. Massachusetts, the U.S. Supreme Court ruled that the Second Amendment presumably extends to stun guns.

After a “bad altercation” with an abusive boyfriend put her in the hospital, Jaime Caetano found herself homeless and in fear for her life. She obtained multiple restraining orders against her abuser, but they proved futile. So when a friend offered her a stun gun “for self-defense against her former boy friend, Caetano accepted the weapon.

It is a good thing she did. One night after leaving work, Caetano found her ex-boyfriend waiting for her outside. He “started screaming” that she was “not gonna [expletive deleted] work at this place” any more because she “should be home with the kids” they had together. Caetano’s abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn’t need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: “I’m not gonna take this anymore. . . . I don’t wanna have to use the stun gun on you, but if you don’t leave me alone, I’m gonna have to.” The gambit worked. The ex-boyfriend “got scared and he left her alone.”

Under Massachusetts law, however, stun guns are illegal.

When police later discovered the weapon, Ms. Caetano was arrested, tried, and convicted for violating the law. The Massachusetts Supreme Judicial Court affirmed the conviction, holding that a stun gun “is not the type of weapon that is eligible for Second Amendment protection” because it was “not in common use at the time of the Second Amendment’s enactment.”

Her case was appealed to the United States Supreme Court.

The U.S. Supreme Court rejected the Massachusetts Supreme Court’s conclusion that stun guns are unsuited for militia or military use. It reasoned that law enforcement and correctional officers carry stun guns and Tasers, presumably for such purposes as nonlethal crowd control. Also, subduing members of a mob is little different from suppressing insurrections, a traditional role of the militia.  Finally, several branches of the U. S. armed services equip troops with electrical stun weapons to “incapacitate a target without permanent injury or known side effects.”

The Court also reasoned that “hundreds of thousands of Tasers and stun guns have been sold to private citizens,” who may lawfully possess them in 45 States. Finally, the U.S. Supreme Court concluded with powerful language stated below:

A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds. This Court’s grudging per curiam now sends the case back to that same court. And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense. If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.

With that, the U.S. Supreme Court vacated the judgment of the Massachusetts Supreme Court and remanded the case for further proceedings.

My opinion? Good decision. Stun guns are non-lethal use of self-defense. They shouldn’t be outlawed or classified as a dangerous weapon.

FYI, stun guns are (mostly) legal in WA State. State law only prohibits the possession of a stun gun on school property under RCW 9.41.280.

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.

Some Bellingham Inmates Transported Out Of County

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Today, the Bellingham Herald reported that the City of Bellingham shall transport inmates to a King County jail if the Whatcom and Yakima County jail don’t have room available.

Recently, council members approved a contract with the South Correctional Entity regional jail (SCORE) located in King County.
It was reported that because the City did not promise to send a certain number of inmates to the facility per year, the cost to house someone there would be charged at higher rate of $157 per day.

The City has moved inmates to Yakima County Jail on a weekly basis since mid-January, in response to Whatcom County Sheriff Bill Elfo’s policy shift in the new year to keep the population in the main Whatcom County Jail at or below about 212 inmates. The daily cost to house inmates in Yakima is about $54.

Under the agreement, the City shall transfer inmates who only have misdemeanor charges in Bellingham. The county is still responsible for all people being held on felony charges, regardless of which agency books them into jail.

It was reported that since the beginning of the year, there have been on average about seven inmates with Bellingham-only charges in the main jail on any given day. Consequently, the City’s inmates are a relatively small percentage of the total jail population.

As of Friday, March 18, the City had eight people in the main jail, 13 in the work center on Division Street, and seven people on electronic home monitoring through the City’s contract with Friendship Diversion Services.

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

State v. Castillo-Lopez: Substituting Counsel & Continuances

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In State v. Castillo-Lopez, Division II of the WA Court of Appeals upheld that the trial court’s decision to deny a motion to continue a trial on five counts of Rape of a Child in the Second Degree to allow the defendant’s retained attorney to replace the defendant’s court appointed attorney.

Mr. Castillo-Lopez was charged with having sexual intercourse with his step-daughter “T.S.” on five separate occasions between January 2012 and February 2013. T.S. turned 12 years old in 2012.

The court set the case for trial on July 7, 2014.

On June 19, 2014, Castillo-Lopez argued motions for substitution of counsel and for a continuance of the trial date. Castillo-Lopez argued the case should be continued because his new attorney needed time to prepare and the parties were still awaiting DNA evidence. Although the trial court ruled it would grant the substitution, the court denied the continuance. The Court referenced  “a statute that says the court has to consider also the impact of this on the child . . . (RCW 10.46.085).

On July 3, a different judge presided over a trial confirmation hearing. And again, the trial court made it clear that it would allow the substitution, but would not grant the continuance.

The matter proceeded to trial. The jury found Castillo-Lopez guilty of five counts of rape of a child in the second degree. The trial court sentenced Castillo-Lopez to a minimum of 500 months’ confinement.

Castillo-Lopez appealed on the argument that the trial court denied him his counsel of choice and abused its discretion when it denied his motions to substitute counsel that were dependent upon the court granting his motions to continue the trial date.

The Court of Appeals, however, disagreed. It decided the trial court did not abuse its discretion because the denial of the continuance was based on tenable grounds. In considering these types of motions, a trial court should consider all relevant information because “these situations are highly fact dependent and there are no mechanical tests that can be used.” State v. Hampton. Finally, it reasoned that  trial courts should consider all relevant information including the 11 factors described in the most recent version of LaFave’s Criminal Procedure treatise:

(1) whether the request came at a point sufficiently in advance of trial to permit the trial court to readily adjust its calendar;

(2) the length of the continuance requested;

(3) whether the continuance would carry the trial date beyond the period specified in the state speedy trial act;

(4) whether the court had granted previous continuances at the defendant’s request;

(5) whether the continuance would seriously inconvenience the witnesses;

(6) whether the continuance request was made promptly after the defendant first became aware of the grounds advanced for discharging his or her counsel;

(7) whether the defendant’s own negligence placed him or her in a situation where he or she needed a continuance to obtain new counsel;

(8) whether the defendant had some legitimate cause for dissatisfaction with counsel, even though it fell short of likely incompetent representation;

(9) whether there was a “rational basis” for believing that the defendant was seeking to change counsel “primarily for the purpose of delay”;

(10) whether the current counsel was prepared to go to trial;

(11) whether denial of the motion was likely to result in identifiable prejudice to the defendant’s case of a material or substantial nature.

Here, the trial court did not abuse its discretion because the denial of the continuance was based on tenable grounds. It considered relevant information and applied a number of the above-listed factors in making its decision. It also reasoned Castillo-Lopez never expressed dissatisfaction with his appointed counsel. Castillo-Lopez did not want a continuance. Again, the trial court made it clear it would grant the motion for substitution of counsel, but without a continuance.

Thus, the denial of the motion for a continuance on July 3, 2014 was not an abuse of discretion because there were no substantial or compelling reasons to continue the trial date and the benefit to Castillo-Lopez was outweighed by the detriment of a continuance on the child victim.

My opinion? The Court should have granted at least  one continuance. Although the crimes were heinous, that’s not the point. Under the 6th Amendment, all defendants deserve a fair trial and to be represented by counsel of their choosing. It takes a lot of time to prepare for jury trial in a multi-count sex case involving Class A felonies. At least one continuance is warranted.

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

State v. Feely: Endangering Other Officers During Pursuit Brings Enhanced Penalties

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Here’s an interesting case out of Whatcom County.

In State v. Feely, the WA Court of Appeals held that a defendant convicted of Attempting to Elude a Police Vehicle also faces sentencing enhancements under RCW 9.94A.834 when an officer who deploys spike strips is endangered.

Shortly after midnight, Trooper Travis Lipton was parked in an unmarked vehicle on the shoulder of the northbound on ramp to Interstate 5. A pickup truck driven by defendant Thomas Feely passed very close to Trooper Lipton’s car while merging onto the freeway. Trooper Lipton saw the truck drift into the left lane before returning to the right lane. He followed Feely.

Once Trooper Lipton caught up to Feely, he started his car’s audio and video recording system. He observed Feely drift “back and forth within the right lane continuously,” and cross the fog line and the “center skip line” dividing the two lanes. After Feely failed to signal a lane change, Trooper Lipton activated his siren and emergency lights.

Feely continued northbound. Trooper Lipton advised dispatch of Feely’s failure to stop. Feely took the next exit and ran the stop sign at the top of the exit ramp. Feely continued on the two-lane road, greatly exceeding the speed limit and drifting “over onto the oncoming lane frequently.” He bypassed two cars that slowed or stopped as a result. Trooper Lipton requested dispatch contact other troopers to deploy spike strips.

Police set up a spike strip, but Feely went around it. Sergeant Larry Flynn set up another spike strip. Feely attempted to drive around it but “immediately locked up” his brakes. He “slid almost the whole way” towards Sergeant Flynn and stopped just short of where Sergeant Flynn was standing. Feely then “started to jerk forward” towards Sergeant Flynn by the side of the road. Sergeant Flynn released some slack on the spike strips so he could get farther off the road. Feely ran over one of the spike strips with his front left tire and sped away. Trooper Lipton maintained his pursuit.

After turning down a private driveway, Feely drove his truck into a swamp. He ran into the woods, leaving one shoe behind in the mud. More police officers shortly arrived, and after searching with two police dogs, they found Feely hiding in a tree. He had no shoes on and his clothes were wet. The officers took Feely into custody and smelled alcohol on his breath.

Trooper Lipton took Feely to a hospital. About an hour later, Trooper Lipton collected Feely’s blood, which registered a blood alcohol level of 0.13.

The State initially charged Feely with one count of Felony Driving Under the Influence (DUI) and one count of Attempting to Elude a Pursuing Police Vehicle with an endangerment sentencing enhancement. The State later amended the information to allege an aggravating circumstance under RCW 9.94A.535(2)(c) because Feely had committed multiple current offenses and his high offender score results in some of the current offenses going unpunished.

At trial, Feely stipulated that he had four prior qualifying convictions, elevating the DUI to a felony. The jury found Feely guilty as charged. In a special verdict, the jury also found that a “person, other than [Feely] or a pursuing law enforcement officer, was endangered by Feely’s actions during his commission of the crime of Attempting to Elude a Police Vehicle.”

The trial court sentenced Feely to 60 months for the felony DUI. The court sentenced him to 29 months for attempting to elude, plus 12 months and one day for the endangerment enhancement. The court ordered “all counts shall be served consecutively, including the portion of those counts for which there is an enhancement.” The court imposed this upward exceptional sentence after expressly finding that Mr. Feely committed multiple current offenses and the defendant’s high offender score resulted in some of the current offenses going unpunished.

Feely appealed. One of his arguments was that the prosecutor misstated the law when he argued the jury “could find Feely endangered someone other than himself or a pursuing police officer if it found he endangered the officers who deployed the spike strips.”

However, the Court of Appeals disagreed. It reasoned that the prosecutor did not misstate the law in arguing that the jury could consider Feely’s endangerment of the spike strip officers for the sentencing enhancement.

The Court also reasoned that multiple, corroborating facts identified Feely as the driver of the truck, consequently, compelling evidence supports his convictions:

Moreover, Feely’s crime was captured on Trooper Lipton’s vehicle’s video recording system and admitted at trial. This video showed one driver driving a truck registered to Feely’s parents. The officers testified that they followed Feely down the private driveway, where they found his truck stuck in a swamp with the driver side window partially rolled down and the driver side door ajar. The passenger side door was closed and an expired Washington State identification card belonging to Feely was in the center console. The officers also testified that they heard what “sounded like one person” “making his way through the brush and the sticks,” and that they did not hear any sounds coming from any other direction. Moreover, police dogs, who arrived within five minutes of finding Feely’s truck, were able to locate him hiding nearby in a tree. These dogs led the officers to the same tree. Feely smelled of alcohol, and several hours after the incident, had a blood alcohol level of 0.13.

Additionally, the Court of Appeals rejected Feely’s argument that the Prosecutor’s minimization of the State’s burden of proof here was improper. It reasoned that the prosecutor here never implied the jury had a duty to convict without a reason to do so or ever suggested that the burden of proof shifted to Feely. “In context of the total closing argument, we conclude the prosecutor did not trivialize the State’s burden.” Consequently, and because Feely did not object at trial and fails to establish any resulting prejudice, the Court decided Feely’s claim fails.

Finally, the Court of Appeals concluded the trial court properly imposed an exceptional sentence based on Feely’s high offender score: “Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, the sentencing range increases based on the defendant’s offender score, up to a score of 9.59. Based on Feely’s offender score of 14 for each count, he faced a 60–month sentence for the felony DUI conviction alone.”

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.

Harsher DUI Penalties Pass Washington House

Bellingham Defense Attorney, DUI, felony, Ignition Interlock Device, Legislation, marijuana, misdemeanor, Whatcom County Criminal Defense, , ,

Image result for washington house bill 2280 DUI

According to Q13 Fox News, a bill that would require harsher penalties for people convicted of felony-level offenses for driving under the influence of drugs or alcohol has unanimously passed the House.

House Bill 2280, approved Monday, would make a driver’s fourth DUI conviction within 10 years a Class B felony, rather than a Class C felony.

According to Mothers Against Drunk Drivers of Washington State, in 2015, 149 people died from crashes related to drunk driving. That makes up more than 34-percent of all traffic deaths in the state of Washington. And MADD says that 2015 number increased by more than four-percent from 2014.

The bill will now be considered by the Senate.

A Class C felony has a maximum of five years in prison, a $10,000 fine or both.

A Class B felony has a maximum of 10 years in prison, $20,000 fine or both.

A DUI is a gross misdemeanor in existing law.

A DUI for someone convicted of vehicular homicide or vehicular assault while intoxicated would also be a Class B felony under the bill.

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