Category Archives: Legislation

Bill Seeks Prison Time for Drone Crimes

Bellingham Defense Attorney, Department of Corrections, Drones, felony, Legislation, Sentencing, , ,

Interesting news article from the Skagit Valley Herald. In an article titled, “Senate OKs Bill That Would Add Prison Time For Drone Crimes,” The WA Senate passed a bill that would allow prosecutors to seek an extra year in prison for offenders who use a drone aircraft while committing a crime.

Senate Bill 5499 passed on a 34-15 vote Tuesday and now heads to the House forconsideration. It adds the allegation of a “nefarious drone enterprise” to Washington criminal law. The state currently has no restrictions on the use of drones, although 20 other states have enacted laws on drone-related issues.

The bill adds a year to the sentencing range that dictates how judges can punish an offense. The measure was one a handful of other bills concerning drones that were filed in the Legislature this session in the wake of Gov. Jay Inslee’s veto of a bill last year that would have restricted how state and local government agencies use the unmanned aircraft.

My opinion? Although sad, Senate Bill 5499 was foreseeable. For example, under  RCW 46.20.285, defendants convicted of felonies get their driver’s licenses revoked for 1 year if a vehicle was used during the commission of a crime. It makes sense, therefore, that Prosecutors would get aggressive toward defendants if drones were used to further the commission of a crime. Sad but true.

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.

Washington Legislature Passes Bill Supporting DNA Testing of Rape Kits.

Assault, Bellingham, Bellingham Defense Attorney, DNA, Domestic Violence, felony, Jury Trial, Legislation, Prior Bad Acts, Rape, Sex Crimes, Violent Crime, , ,

On March 2, 2015, the Washington House Appropriations committee voted “Yes” on House Bill 1068; which supports DNA testing of rape kits sitting in evidence rooms across Washington Counties. The bill passed 82-15.

Essentially, numerous Washington counties – including Whatcom County – could help find serial rapists. House Bill 1068 arrives on the heels of recent controversy that rape kit evidence containing DNA evidence has been ignored by police departments statewide.

The Bellingham Herald ran two articles on this news. One story, titled Prosecutor: Testing Evidence Kits Can Lead to Finding Repeat Rapists discussed people’s responses to House Bill 1068.

The article mentions that Prosecutors like Rick Bell of Ohio support House Bill 1068. He claims that out of 6,000 kits tested, 2,244 received a hit to a known offender in a national database. Additionally, of the rapists indicted by his his office in Cuyahoga County, 30 percent are serial rapists. “Those serial offenders were going undetected, in part because labs couldn’t process all cases, so kits involving acquaintance rapes weren’t tested,” said Bell.

Also according to the article, Western Washington University college students like Heather Heffelmire, who is working in Olympia as the Legislative Liaison for Western Washington University’s Associated Students, testified in favor of House Bill 1068 during a public hearing in January. She said one of the main legislative priorities for WWU’s student body this year is to support survivors of sexual violence. “If you think about assault on campuses, it’s not like a predator does one assault — it’s usually a pattern of behavior,” Heffelmire said. “If you’re not having these kits tested, you can’t find that out.”

Additionally, Leah Gehri, the Director of Emergency Services at St. Joseph hospital in Bellingham WA, said she thinks HB 1068 is timely. “When you think about how long DNA evidence has been around, … at one point there weren’t a lot of DNA profiles hanging out there, they just didn’t have a lot of them,” Gehri said. “Now however, 20 years later, when profiles are quite common, the likelihood that an untested kit would now match up against a perpetrator in the system is more likely than it ever has been.”

Another article from the Bellingham Herald titled, Washington Lawmaker Tries to Tackle Thousands of Untested Rape Kits in State discusses the efforts of Rep. Tina Orwall, D-Des Moines toward having House Bill 1068 passed. 

The specific language House Bill 1068 is as follows:

Substitute offered in the House on January 23, 2015, requires a law enforcement agency to submit a request for laboratory examination within 30 days of receiving a sexual assault examination kit, provided that the victim or the victim’s legal guardian has consented to analysis of the kit as part of a sexual assault investigation. Specifies that failure to comply with the 30-day deadline does not create a private right of action against the law enforcement agency and is not a basis to exclude evidence in a court proceeding or to set aside a conviction or sentence. Creates a work group to study the issue of untested sexual assault examination kits in Washington, which must file an annual report through June 30, 2018.

My opinion? As a defense attorney, I support the notion that evidence garnered from the DNA testing of rape kits could be probative, relevant and cumulative in proving that the the perpetrator had a pattern of rape. Nevertheless, I have two concerns:

First, while I understand and agree with intent to have kits processed as quickly as possible, the timelines set forth in this proposal are probably unattainable with existing resources and do not take into account the complexities of processing kits. The 30-day timeline is very problematic for crime labs and is not feasible without a huge influx of resources (equipment, personnel, and possibly larger facilities).

Second, House Bill 1068 does not take into account the multitude of legal circumstances surrounding these kits.  For example, in a number of rape cases, the identity of the involved parties is not in question and both parties affirmatively indicate a sexual act occurred. Here, the issue is consent, not identity. Consequently, DNA analysis would only confirm what is already known.

In all likelihood, the latter issue will rest on the shoulders of jury trial judges who decide pretrial motions to admit or suppress DNA evidence in rape cases. In other words, we’ll see what happens . . .

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 Brass Tacks Part II: Increased Penalties for DUI if Child Under 16 In Vehicle

Department of Licensing, DUI, Ignition Interlock Device, Legislation, Pretrial Investigations, Washington State Patrol, , ,

Here’s a summary of more changes that went into effect on September 28, 2013 regarding our ever-increasing and ever-punitive DUI laws. The changes included changes to RCW 46.61.5055 that increase DUI penalties if there was a passenger under 16 in the car. There’s also an increase in mandatory jail for repeat offenders. Here is what is NOW subsection 6 of RCW 46.61.5055: 

 

(6) If a person who is convicted of a violation of RCW 46.61.502 or 46.61.504 committed the offense while a passenger under the age of sixteen was in the vehicle, the court shall:

 

(a) Order the use of an ignition interlock or other device for an additional six months;

 

(b) In any case in which the person has no prior offenses within seven years, and except as provided in RCW 46.61.502(6) or 46.61.504(6), order an additional twenty-four hours of imprisonment and a fine of not less than one thousand dollars and not more than five thousand dollars. One thousand dollars of the fine may not be suspended unless the court finds the offender to be indigent;

 

(c) In any case in which the person has one prior offense within seven years, and except as provided in RCW 46.61.502(6) or 46.61.504(6), order an additional five days of imprisonment and a fine of not less than two thousand dollars and not more than five thousand dollars. One thousand dollars of the fine may not be suspended unless the court finds the offender to be indigent;

 

(d) In any case in which the person has two or three prior offenses within seven years, and except as provided in RCW 46.61.502(6) or 46.61.504(6), order an additional ten days of imprisonment and a fine of not less than three thousand dollars and not more than ten thousand dollars. One thousand dollars of the fine may not be suspended unless the court finds the offender to be indigent.

 

RCW § 46.61.5055 (6).

 

My opinion? The passage of I-502 has simultaneously loosened Washington’s Drug Laws and enhanced Washington’s DUI laws. Period.

 

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

The Brass Tacks: A Look at How Courts Are Automatically Imposing Ignition Interlock Devices ASAP

Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, Legislation, marijuana, misdemeanor, police, Uncategorized, Washington State Patrol, , ,

Recently, a client hired me to represent him on a new DUI charge. Unfortunately, this client already has a prior DUI conviction within 7 years. We met at my office. He showed me his paperwork – arraignment dates, property seizures, BAC ticket, etc. – and also showed me a document I haven’t yet seen in my years of practice.

It was a Court Order signed by the judge titled, “IGNITION INTERLOCK RULES.”

I knew I’d eventually see this document, sooner or later. Under the recent passage of RCW 46.20.740 and RCW 46.20.385 the COURTS – and NOT the DOL – shall order any person convicted of an alcohol-related violation to apply for an ignition interlock driver’s license and to have a functioning ignition interlock device installed on all motor vehicles operated by the person.

The court may also order the installation of an interlock device for a driver that is convicted of Reckless Driving or Negligent Driving within 7 years of an alcohol related driving offense. An ignition interlock may be required for Reckless Driving or Negligent Driving without a prior DUI conviction. Finally, under the law, an ignition interlock device will be required for any driver convicted of vehicular homicide while driving under the influence.

This document was proof that the Courts are diligently following the passage of these laws. It read the following, ver batim:

* The defendant shall not operate a motor vehicle unless the defendant has a valid driver’s license and insurance;

* Once the defendant has a valid driver’s license and insurance, the defendant shall only operate a motor vehicle equipped with a functioning ignition interlock breath alcohol device while on pretrial;

* The defendant shall have an ignition interlock breath alcohol device installed by a Washington State Patrol certified ignition interlock breath alcohol device vendor on any motor vehicle the defendant will operate;

* The defendant shall bear the cost of installation and maintenance of the ignition interlock breath alcohol device and show proof of installation of the ignition interlock to the court;

* Any ignition interlock breath alcohol device installed pursuant to this order shall be monitored by the installer, and a report filed with the court every sixty (60) days;

* The defendant shall not adjust, tamper with, remove, or circumvent – (1) any ignition interlock breath alcohol device, (2) the wiring of any ignition interlock breath alcohol device, or (3) the ignition system of any vehicle equipped with an ignition interlock breath alcohol device. Any violation or tampering must be reported to the court by the ignition interlock breath alcohol device vendor, and;

* The ignition interlock breath alcohol device shall have certain minimum settings.

My opinion? Although I understand the need for community safety, it appears these new requirements are unconstitutional and overbearing in some cases. The government assumes people are guilty before they even go to trial. Indeed, this particular client showed NO signs of alcohol intoxication in his police reports. Police contacted him because someone complained of his driving.

After pulling him over, the police had no proof whatsoever that he was under the influence of alcohol, and instead believed he was under the influence of drugs. It’s going to take WEEKS to get his blood test back. In the meantime, he must drive around with an Ignition Interlock Device on his vehicle. Unfair.

If you’re facing a similar situation please contact a qualified attorney. I, for one, look forward to fighting this case tooth and nail and removing the Ignition Interlock Device from my client’s vehicle!

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.

Are Washington’s New Proposed DUI Laws Unconstitutional?

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, felony, Firearm, Ignition Interlock Device, law enforcement, Legislation, marijuana, misdemeanor, police, Washington State Patrol, , ,

Gov. Jay Inslee shall sign into law a measure to increase monitoring of motorists who repeatedly drive under the influence.

Under the revised bill to be signed this morning in Tacoma, drivers charged with a second impaired driving offense would face mandatory arrest AND booking in jail AND have an interlock device installed on their vehicles within five days of being charged. The state would also begin a pilot program to conduct daily alcohol monitoring on a person convicted twice under the DUI law.

Finally, the State will give counties and cities more money to prosecute and punish DUI offenders quicker. The law, sparked by tragic accidents earlier this year, is a scaled back version of an initial plan that would have increased minimum jail times for offenders.

My opinion? More and more, we are witnessing the erosion of our rights when it comes to DUI legislation and enforcement. There are four basic legal issues when it comes to DUI: (1) whether the stop conducted by the police was lawful, (2) whether the officer had enough evidence to arrest for DUI, (3) whether the defendant was informed of the Implied Consent law, and (4) whether the defendant’s breath test was over .08 and/or whether the defendant refused the test. These four basic issues bring LOTS of sub-issues; which is the stuff of good lawyering and effective pretrial motions to suppress and/or dismiss the case.

Most people don’t know that DUI charges bring separate actions from both the Department of Licensing (DOL) and the City/State Prosecutor. The DOL will try revoking or suspending your license. Following that, they’ll order defendants to obtain an Ignition Interlock Device (IID) and an Ignition Interlock Device License (IIDL) if the defendant wants to continue driving.

To combat this, defendants are entitled to a DOL hearing if they want to stop the DOL from suspending/revoking the license. The hearing costs $375.00. A good attorney will brief the legal issues and request a hearing before the DOL’s Hearing Examiner in order to persuade the Hearing Examiner to NOT suspend/revoke the defendant’s license.

Problematically, it appears Inslee’s new DUI legislation circumvents the DOL process altogether. It appears a defendant’s car will be automatically installed with an IID 5 days after arrest. Defendants will be closely monitored while their case is pending. In all likelihood, they’ll be forced to take time out of their day to appear before their probation officer and succumb to UA and/or portable breath testing. All of these actions assume the defendant is guilty. They violate the “innocent until proven guilty” standard.

Also, the bill’s enforcement of pretrial orders for IIDs violates State v. Rose, 146 Wn.App. 439 (2008). That case held government programs which require the defendant to pay fees/costs before conviction are unconstitutional. Additionally, these provisions may violate Art. 1 Section 22 of the WA Constitution by requiring advancement of money before conviction.

Now, more than ever, it’s imperative to find a competent defense attorney to help maneuver the pitfalls of our increasing anti-DUI legislation.

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.

Proposed Changes in DUI Laws: Draconian or Timely?

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

The state Legislature shall consider strengthening DUI consequences in Washington.

It makes sense, in a way. News reports indicate that DUI accidents have increased, or at least, a recent string of crashes in Washington leads us to believe so. While these tragedies are awful, it is important to remember that these results are not typical.

It’s no secret that DUI penalties are already harsh. Mandatory minimum penalties start at 24 consecutive hours in jail (convertible to 15 days of electronic home monitoring); $941 fine/court assessment; a 90-day license suspension; court-ordered alcohol evaluation, treatment, and victim impact panel; a one-year ignition interlock device (IID) requirement; five years of probation; and mandatory 12- hour impoundment of the vehicle immediately following arrest.

The mandatory minimum penalties get stiffer with subsequent convictions within seven years or higher BAC levels. Even worse, defendants convicted of DUI cannot vacate or expunge their conviction. The DUI remains on their criminal history forever.

The Legislature has amended DUI penalties 11 times in the past 10 years. It’s a subject of intense debate among lawmakers. Nowadays, legislatures are looking at different ways to, once again, enhance the penalties of DUI drivers.

The proposals could be seen as Draconian. They include making someone’s third DUI a felony; requiring impounded vehicles have Ignition Interlock Devices be installed before releasing the vehicle; random sobriety checkpoints; increasing jail sentences;  a 10- year prohibition on the consumption or purchase of alcohol following the third DUI conviction; faster filing of charges and mandatory jail booking following arrest.

My opinion? The proposals are Draconian. Requiring installation of IID devices on impounded vehicles is potentially unconstitutional. What if the defendant borrowed the vehicle from a family member or friend? Additionally, the Washington Supreme Court has already ruled random sobriety checkpoints unconstitutional. Finally, mandatory incarceration following arrest will cause a massive need for more jail space and money to pay for it.

Yes, increasing DUI penalties to stop repeat offenders – or even first-time offenders – is a worthwhile goal. However, careful measures must be taken by our lawmakers to draft laws and policies that address the problem while keeping in mind that everyone is entitled to make mistakes.

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.

Toxicologist Says, “No Spike YET In Marijuana DUI Arrests”

Blood Test, Constitutional Rights, Drug Offenses, DUI, felony, Jail, law enforcement, Legislation, marijuana, misdemeanor, police, Terry Stop, Uncategorized, Washington State Patrol, , ,

The state toxicologist hasn’t seen a spike in positive blood tests for marijuana since pot became legal under Washington law.

Voters last fall passed Initiative 502, allowing adults over 21 to possess up to an ounce of marijuana. The measure, which took effect Dec. 6, set a DUI limit designed to be similar to the .08 blood-alcohol content for drunken driving – 5 nanograms of active THC per milliliter of blood.

State toxicologist Fiona Couper told a legislative hearing in Olympia on Wednesday that the Washington State Patrol’s toxicology lab has completed tests on all blood samples taken from drivers in December, and has started on samples from last month. She says there’s no spike, but notes the law has only just taken effect.

Couper says that every year, about 6,000 blood samples from drivers are submitted to the lab. About 1,000 to 1,100 of those come back positive for active THC, with the average being about 6 nanograms.

My opinion? This could be the proverbial calm before the storm. Who knows, perhaps law enforcement officers are being trained and retrained on becoming Drug Recognition Experts on marijuana DUI detection. Progressive laws are slow to get enacted, and the government’s response to progressive legislation even slower; especially if it costs money to train/retrain officers. Yes, there’s no spike yet. But don’t get too comfy . . .

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.

Jury Nullification Bill Gaining Momentum

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Interesting. There’s pending legislation from Georgia on jury nullification.  Titled, The Fully Informed Jury Act of 2013, this bill would ensure jurors are informed of their rights, including the right to acquit defendants because the law was seen as unjust and/or unconstitutional. For those who don’t know, jury nullification in a criminal trial is what happens when a jury effectively nullifies the law in that specific case by acquitting the defendant, regardless of the weight of evidence against them.

My opinion? I hope the law passes. As a juror, it is your duty to protect our citizens by sending criminals to jail; however, if you believe the defendant is being prosecuted under an unjust law, you have the right, and the constitutional and moral obligation to protect the defendant from tyrannical government and acquit.

Does nullification happen often during trial? No. Although I’ve been instructed via the Prosecutor’s pretrial motions to NOT argue for nullification – and I’ve conducted numerous criminal jury trials for DUI, drug possession, assault, sex crimes, property crimes, etc. – I’ve never blatantly asked a jury to nullify anyway. First, I’ve always thought jurors would consider nullifying under their own volition, and without my behest.

Second, I’ve always feared that prosecutors and judges would probably frown upon my asking jurors to nullify. In short, jury nullification encourages jurors to not follow the law. This is big. After all, jury trials are a very expensive use of the Prosecutor’s and court’s time. And at the end of the day, these parties do not want to encourage citizens to acquit people on the basis that the law itself is unjust.

Still, and as the article illustrates, during the first century of the U.S. it was common practice for judges to inform jurors of this right as part of their instructions. Prior to the Civil War and thanks to jury nullification, many abolitionists and slaves  were safeguarded and set free by juries when prosecuted for participating in the Underground Railroad in violation of the Fugitive Slave Act. Jury nullification was also successful in acquitting defendants whoe were prosecuted during the alcohol prohibition era.

And when you think about it, a juror’s right to nullification, to be judge of both the facts and the application of the law, is enumerated in many State Constitution’s Right to trial by jury; which outline the number of jurors; selection and compensation of jurors. Most constitutions state, “In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.”

Let’s see where this goes . . .

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 DUI Law: Ignition Interlock Devices Now Take Pictures of Driver

Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, Legislation, marijuana, misdemeanor, Search Warrant, Terry Stop,

Starting January 1, 2013, people charged with DUI and having their driver’s licenses suspended or revoked by the Department of Licensing (DOL) will undergo more monitoring. Starting January 1, a camera will snap a picture every time their Ignition Interlock Device is used, verifying that the driver is the person who took the test.

Interlocks are required on the vehicles whose drivers have been caught driving impaired. They allow those drivers to continue to use their cars, but only after making sure they are sober. Anyone caught trying to fool the machine will get recorded and that information will go to Washington State Patrol. Drivers can lose their Ignition Interlock License as a result. Apparently, impaired drivers often ask passengers, friends or even children to take the test for them, said Washington State Patrol Lt. Rob Sharpe.

“We’ve even heard stories of people trying to use portable air compressors to take the test,” he said.

My opinion? I respect the implied need for increased safety, however, this new law seems invasive and unnecessary. I haven’t heard of any traffic accidents where someone faked blowing into their Ignition Interlock Device in some way, shape or form. Why is there a need for increased monitoring of people convicted of DUI if something horrible hasn’t yet happened?

The passage of this law is another reminder to hire a competent defense attorney if you’re charged with DUI. Good representation might save your license from getting suspended/revoked and an Ignition Interlock Device installed on your vehicle.

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.

Drug DUI: The Brass Tacks

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

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

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

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

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

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

(1) Why did the officer initiate the pullover?

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

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

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

(5) What constitutes a Refusal?

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

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

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

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

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

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