Category Archives: Legislation

I-873: Police Accountability

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We’ve all heard it. Killings by police in the line of duty have surged in Washington and the United States over the past decade, according to a Seattle Times analysis. During that period, only one police officer has been criminally charged in state courts with the illegal use of deadly force on the job.

In fact, that case is the only one to be brought in the three decades since Washington enacted the nation’s most restrictive law on holding officers accountable for the unjustified use of deadly force.

Not This Time! and Washington For Good Policing (W4GP) are a grass-roots movements that evolved from the  killing by the Seattle Police Department of Mr. Che Andre Taylor on February 21, 2016. The campaigns  are working to collect 350,000 signatures to put Initiative 873 in front of Washington State’s legislature in January 2017.

This is the first legislative initiative of its kind in the nation that would put forth police accountability. If passed, the legislative initiative may be a model for other states.

The initiative appears to be gaining momentum. It is endorsed by the Seattle Police Department, the ACLU of Washington, numerous state senators, Seattle Mayor Ed Murray, Seattle City Attorney Pete Holmes, Kshama Sawant and Lorena Gonzalez of the Seattle City Council, Lisa Duggaard of the Public Defenders Association, Jim Cooper and Jessica Bateman of the Olympia City Council.

Also, the following newspapers and media outlets have discussed and encouraged the passage of the bill:

It’s refreshing that I-873 has such a broad range of support, especially from the Seattle Police Department. Let’s move forward with the hope that holding officers accountable for unjustified shootings increases respect for police and professionalism within police ranks. For sure, it’s step in the right direction.

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

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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

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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.

The “Textalyzer” Battles Distracted Driving & Works Like A Breathalyzer

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A very interesting and well-written news article by reporter Matt Richtel of the New York Times discussed how lawmakers from New York want to treat distracted driving like drunken driving. The newest idea is to give police officers a new device that is the digital equivalent of the Breathalyzer — a roadside test called the Textalyzer.

The idea certainly carries momentum. Richtel wrote that over the last seven years, most states have banned texting by drivers, and public service campaigns have tried many tactics — “It can wait,” among them — to persuade people to ignore their phones when driving their cars.

Nevertheless, the problem appears to be getting worse. Americans confess in surveys that they are still texting while driving, as well as using Facebook and Snapchat and taking selfies. Richtel’s article emphasized that road fatalities, which had fallen for years, are now rising sharply, up roughly 8 percent in 2015 over the previous year, according to preliminary estimates. That is partly because people are driving more, but Mark Rosekind, the chief of the National Highway Traffic Safety Administration, said distracted driving was “only increasing, unfortunately.”

In response, legislators and public health experts want to treat distracted driving like drunken driving. The most provocative idea is to give police officers a new device that is the digital equivalent of the Breathalyzer — a roadside test called the Textalyzer.

Richtel explained it would work like this: an officer arriving at the scene of a crash could ask for the phones of any drivers involved and use the Textalyzer to tap into the operating system to check for recent activity.

The technology could determine whether a driver had used the phone to text, email or do anything else that is forbidden under New York’s hands-free driving laws, which prohibit drivers from holding phones to their ear. Failure to hand over a phone could lead to the suspension of a driver’s license, similar to the consequences for refusing a Breathalyzer.

Richtel described how the proposed legislation faces hurdles to becoming a law, including privacy concerns. But Félix W. Ortiz, a Democratic assemblyman who was a sponsor of the bipartisan Textalyzer bill, said it would not give the police access to the contents of any emails or texts. It would simply give them a way to catch multitasking drivers, he said.

If the legislation passed in New York, it could be adopted by other states in the same way that the hands-free rules did after New York adopted them.

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.

Police Brutality Bill in WA Senate

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Seattle Times reporter Steve Miletich wrote an article discussing a bill, introduced in the WA State Legislature, which  would make it easier to bring criminal charges against officers over the use of deadly force.

House Bill 2907, sponsored by 12 Democrats in the House, would remove language in state law RCW 9A.16.040 barring police officers from being prosecuted for killing someone in the line of duty as long as they acted in good faith and without malice, or what is defined as “evil intent.”

Miletich reports that RCW 9A.16.040 was the subject of a Seattle Times Special Report  and virtually precludes murder or manslaughter charges against police officers even if prosecutors concluded that an officer committed a wrongful killing.

House Bill 2907 comes at a time of national scrutiny of killings by police, marked by the Black Lives Matter movement. Miletich reports that it “faces a steep hurdle” to attract enough votes in the House, which is narrowly controlled by Democrats, some from conservative rural districts, and to win passage in the Republican-controlled Senate.

In addition to striking the “malice” and “good-faith wording,” House Bill 2907 eliminates language outlining some scenarios in which officers may use deadly force. It’s replaced requirements stating that an officer must “reasonably” believe that there is an “imminent threat” of death or serious injury to the officer or a third party, and that lethal action is necessary to prevent it.

What is reasonable, imminent and necessary is likely to be hotly debated. Supporters believe the proposed changes would be beneficial.

“This legislation provides much-needed guidance to law enforcement officers statewide on the use of deadly force,” Kathleen Taylor, executive director of the ACLU of Washington, said in a statement. “It rightly allows officers to use deadly force only if they reasonably believe that there is an imminent threat of serious harm to themselves or other persons.” She argues that  current laws have made it nearly impossible for the public to hold officers accountable for the wrongful use of deadly force and has hindered our ability to ensure justice for all.

The bill has been referred to the House Committee on Public Safety. It grew from legislation prepared by the Black Alliance of Thurston County, formed in the aftermath of the shooting of two young black men in Olympia last year by a white police officer.

My opinion? The legislation is timely, for sure. Statistics suggest that shootings from police are increasing. Modern technology by way of dash-cams, cell phone cameras and police body cameras has exposed the phenomenon. Archaic laws should not continue to protect police officers who unnecessarily shoot people.

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.

Drowsy Driving

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An recent news article by Krithika Varagur of the Huffington Post discusses the oft-ignored epidemic of how sleep deprivation has severe effects on performance. Staying awake for 24 hours is equivalent to having a BAC of 0.08 percent, which is legally drunk.

The evidence exists. For example, the National Sleep Foundation suggests that drowsy driving is linked to about 100,000 car crashes every year. Also, the National Highway Traffic Safety Administration determined the average number of accidents linked to sleep deprivation between 2005 and 2009 to be about 83,000 per year. Finally, studies by the American Automobile Association estimate that more than 300,000 accidents each year involve a drowsy driver, with 6,400 resulting in someone’s death.

Varagur says that despite these staggering numbers, only two states in the U.S. have any laws against “drowsy driving,” and even these are largely symbolic and tough to enforce.

Problematically, it’s difficult to prove that drowsy drivers were, in fact, asleep at the wheel while driving. “The burden of proof in drowsy driving cases falls almost totally on police officers,” Jeff Evans, program manager of the National Sleep Foundation, told Varagur of The Huffington Post. “Barring a confession from the accused driver, it is very difficult to prove that someone was sleep-deprived.”

New Jersey became the first state to pass drowsy driving legislation in 2003 with “Maggie’s Law,” which says that if a driver kills someone after not sleeping for more than 24 hours, the driver can be charged with vehicular homicide.  “Maggie’s Law” was the result of a campaign by Carole McDonnell, whose daughter Maggie was killed in a 1997 car crash by a van driver who had smoked crack and hadn’t slept in 30 hours. The driver’s case resolved with him paying a $200 fine because the jury could not consider driver fatigue as a factor of guilt.

Again, however, the law is difficult to enforce because it requires the driver to admit sleeplessness in court. Also, there’s no test yet to prove someone is sleep-deprived. In the decade since the law’s passage, only one person has been prosecuted under it for driving while fatigued.

In 2013, Arkansas passed a similar law that allows the state to charge a driver with “negligent homicide” in a fatal crash if the driver hasn’t slept in 24 hours.

At the moment, the issue of drowsy driving lacks the strong political will that drunk driving had. Mothers Against Drunk Driving helped reduce alcohol-related accidents dramatically in the 1980s, and in the 1990s, Harvard public health professor Jay Winsten led a national “designated driver” campaign to popularize one possible solution for the drunk driving crisis. Both these efforts elevated the problem of drunk driving in the American public consciousness.

My opinion? It’s terrible to say, but I don’t know if criminalizing this behavior through legislation is the proper solution. Again, “drowsy driving” is very hard to prove unless a police officer or witness actually saw the driver asleep. And although police might get the driver to admit they were sleeping, these incriminating statements can be suppressed, explained away or justified at trial.

There’s a range of opinions on how best to address the problem, and not all of them include 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 Law Would Require Bartenders to Cut Drunk People Off

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A news article written by S.E. Smith of www.care2.com reveals that a new bill was introduced into the California State Assembly that would require bartending personnel and managers to undergo training in how to handle alcohol and cut off intoxicated customers.

Under the Responsible Interventions for Beverage Servers Training Act of 2016 (RIBS), Assembly Bill 2121 would require bartenders to intervene when a bar customer has had too much to drink. The law, which if passed would go into effect in 2020, hopes to save lives decrease DUI, and curb drunk drivers. Bartenders would be required to complete a minimum of four training hours on subjects like recognizing intoxication and understanding the physical and social effects of alcohol. The course would also examine state laws surrounding beverage service. Every three years, participants would need to renew their certifications.

Although the California Business & Professions Code reveals that bartenders have always practiced some discretion in this area, the bill would create a more robust legal framework and provide bars with specific training requirements for staff. Furthermore, the legislation would ensure that bartenders across the state follow the same curriculum when they learn how to interact with customers.

According to S.E. Smith, one of the most frustrating parts of the job can involve making judgement calls about when someone has had too much to drink and needs to go home. Some states – including Washington State – have “cut off” laws requiring bartenders to stop serving intoxicated customers. Most have laws barring service to people who are already drunk. Individual bars also have their own policies and procedures for handling customers.

Drunk drivers are the main concern here. Intoxicated people who hurt themselves — an uninsured person who requires care for a broken limb, for instance —  may create public health nuisances and expenses. However, when intoxicated people get in cars, the decision can be fatal.

S.E. Smith emphasizes that 30 people die as a result of drunk driving every day in the United States, including sober drivers in other vehicles, pedestrians and cyclists. One third of traffic deaths can be attributed to intoxicated driving.

My opinion? Similar to Ms. Smith, this bill is a step in the right direction. Many of my DUI clients tell me they were over-served at the bars they frequented before being pulled over for DUI. It helps to have backup — like policies a bartender can apply — to remind a customer that they’re breaking the law if they kept serving.

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. Robison: Implied Consent & Pot DUI

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In State v. Robison,  the WA Court of Appeals Division I held that a BAC test requires suppression when the officer giving the breath to a driver suspected of marijuana DUI fails to provide that driver with Implied Consent warnings required by that statute.

On June 29, 2013, Washington State Patrol Trooper B.S. Hyatt stopped Darren J. Robison for traffic violations. Trooper Hyatt smelled intoxicants and marijuana. Trooper Hyatt asked how long it had been since Robison had smoked marijuana. Robison responded that it had been a couple of hours. Trooper Hyatt arrested Robison. At the Tulalip Police Department, officers read Robison an “Implied Consent Warning for Breath” form, which Robison stated he understood and signed.

The form included warnings only about alcohol and did not include any marijuana-related warnings. The two breath tests given Robison both produced results over the legal limit. The State charged Robison with DUI. Robison asked the district court to suppress evidence based on an illegal stop and to suppress the breath test because Robison did not receive all required implied consent warnings.

The district court denied the motion. It concluded that Trooper Hyatt had probable cause to stop Robison. The district court also took judicial notice that the breath test used cannot detect THC, and that its purpose was to determine the alcohol concentration in Robison’s breath. The district court decided that the implied consent warnings given accurately informed Robison of the consequences of the breath tests, which “were all the warnings that were legally required on the date of violation given the decision facing the defendant.” The district court found Robison guilty but stayed his sentence pending his appeal. Robison appealed to the superior court.

The superior court reversed the district court. It found that the marijuana-related warnings were a significant part of the required implied consent warnings and the failure to give these warnings under the circumstances made the warnings given incomplete and misleading. The superior court suppressed the test results and remanded the case to the district court for further proceedings consistent with its decision.

Ultimately, the WA Court of Appeals granted the State’s request for discretionary review of the superior court’s decision.

First, the Court of Appeals gave background on how police officers apply Washington’s Implied Consent Laws in DUI investigations. Before giving a breath test to a person reasonably believed to be driving under the influence, an officer must provide that person with certain warnings required by statute. Specifically, an officer must inform the driver of his right to refuse the test or to have additional tests done.

The Court reasoned that the officer’s warning must also state that refusal to take the test will result in license revocation, that the refusal may be used at a criminal trial, and that the driver may be eligible for an ignition interlock license. Pertinent to this case, the officer must also warn about the consequences of certain test results. This warning has changed several times in recent years.

The court further explained that in 2012, Washington voters enacted Initiative 502, which legalized some uses of marijuana. This initiative also amended Washington’s Implied Consent laws by adding a warning about marijuana test results.

In this case, Trooper Hyatt warned Robison about the consequences of test results showing an alcohol concentration in his breath. However, Trooper Hyatt failed to warn Robison of the consequences of test results showing a prohibited level of THC concentration in his blood. Consequently, the Court of Appeals reasoned that the BAC test was properly suppressed because of this omission.

Additionally, the Court rejected the State’s argument that (1) an arresting officer has discretion to edit implied consent warnings as he deems appropriate to the facts of a case, and (2) the officer’s incomplete warning was harmless. Here, Robison smelled of marijuana when arrested and admitted smoking marijuana to the arresting officer. “Under these circumstances, we cannot conclude beyond a reasonable doubt that Robison would have agreed to take the breath test had he received the THC warning.”

The Court of Appeals concluded that because the State cannot show that an officer gave Robison all the statutorily required warnings, it cannot establish the foundation required for admission of the breath tests given to him. “While cases have characterized this result as suppression, when the State cannot show that it complied with the implied consent statute, the State has failed to meet its burden of proof for admission of evidence it offers to prove guilt. The defendant does not have to show prejudice in this circumstance.”

With that, the Court of Appeals affirmed the superior court’s decision to suppress Robison’s BAC test.

My opinion? Good decision.  DUI investigations involving Implied Consent Warnings must keep up with today’s legislative amendments. The law is the 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.

Harsher DUI Penalties Pass Washington House

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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.

Court Reverses Pot Conviction

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In State v. Rose, the WA Court of Appeals Division III decided to reverse Mr. Rose’s conviction for Possession of Marijuana because Washington’s general criminal prosecution saving statute does NOT permit a prosecution for less than 1 ounce of marijuana that was pending when Initiative 502 became effective.

On June 26, 2012, defendant Justin Rose was fishing on the Yakima River below the Roza Dam when he and his companions were approached by a Washington Fish and Wildlife agent interested in checking for their fishing licenses. The Fish and Wildlife agent noticed that Mr. Rose was smoking. Based on the agent’s training and experience, he believed Mr. Rose was smoking marijuana from a bong. When the agent told Mr. Rose what he had seen, Mr. Rose admitted he had been smoking marijuana and handed over the bong, which contained some marijuana, to the agent. Mr. Rose was over age 21 at the time. He was charged with one violation of RCW 69.50.4014 (possession of less than 40 grams of marijuana) and one violation of former RCW 69.50.412(1) (2002) (use of drug paraphernalia).

In October 2012, Mr. Rose entered into a deferred prosecution agreement with the State, staying the prosecution. For those who don’t know, a deferred prosecution is an agreement between someone who is charged with a crime and the State Attorney’s Office. This agreement will require that within a specified period of time, the person charged with a crime will complete all requirements in the agreement. The State agreed that if Mr. Rose complied with the conditions. identified in the agreement for one year, it would move to dismiss both charges. The conditions imposed on Mr. Rose included performing community service, paying a fee and costs, obtaining an alcohol and drug evaluation, and fully complying with any recommendation of alcohol or drug treatment or other services resulting from the evaluation.

Initiative 502 came into effect while Mr. Rose’s case was pending. The law unconditionally decriminalized possession of less than one ounce of marijuana by persons 21 and over, and did remove marijuana paraphernalia from the unlawful categories of paraphernalia.

Unfortunately, Mr. Rose  violated the conditions of his deferral agreement by failing to enter into an intensive outpatient treatment program. The district court revoked the agreement, proceeded to a bench trial, and found Mr. Rose guilty of both counts.

Before sentencing, Mr. Rose moved to dismiss the charges based on the decriminalization of his offenses by I-502. The district court denied Mr. Rose’s motion. It recognized that RCW 10.01.040 – which provides that offenders are prosecuted under the laws in effect at the time of their offenses – does not apply if intervening legislation conveys a contrary intent. It sentenced Mr. Rose to 180 days confinement. Mr. Rose appealed to the Superior Court, which upheld his convictions. In response, he successfully appealed his case to the WA Court of Appeals.

The WA Court of Appeals reversed Mr. Rose’s convictions. It acknowledged that  although the common law provides that pending cases be decided according to the law in effect at the time of the decision, the Washington legislature adopted a criminal prosecution saving statute, now codified at RCW 10.01.040, whose saving clause “presumptively ‘save[s]’ all offenses already committed and all penalties or forfeitures already incurred from the effects of amendment or repeal,” requiring that they be prosecuted under the law in effect at the time they were committed “unless,” as the statute provides, “a contrary intention is expressly declared in the amendatory or repealing act.”

Here, the WA Court of Appeals sought to reconcile these countervailing laws.

The Court reasoned that in this case – and unlike actual laws written legislatures – we are dealing with an initiative to the legislature:

“While standard rules of statutory construction apply, our concern is with the intent of the voters. The issue is whether an intent by the voters to apply its decriminalization provisions to stop pending prosecutions is fairly conveyed by the initiative.”

The Court further reasoned that we look at the language of 1-502 from the perspective of the average informed lay voter rather than from the perspective of the legislature. It acknowledged that average lay voters presented with an initiative that they are told will stop treating adult marijuana use as a crime are more likely to make the assumption that prosecution will be stopped on the effective date. Consequently, and in these rare cases where legislation includes additional language that conveys disapproval or concern about continued prosecution, the Court felt compelled to respect the intent of the voters.

My opinion? Good decision. Washington General Criminal Prosecution Saving Statute should not allow prosecutors to enforce archaic laws which were ultimately killed by the will of the voters. Period. Kudos to Division III.

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.