Category Archives: marijuana

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. Pearson: DUI Blood Draw Held Unlawful

Bellingham Defense Attorney, Drug Offenses, Drug Recognition Expert, DUI, Evidence, law enforcement, marijuana, misdemeanor, Search Warrant, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Pearson the WA Court of Appeals Division I held that (1) exigent circumstances did not support a warrantless blood draw for marijuana, (2) it’s reversible error to discuss the .05 THC limit in a DUI case that arose prior to the passage of I-502.

Defendant Tamisha Pearson was a medicinal marijuana patient due to numerous health problems. She struck a pedestrian with her car, pulled over and called 911. Seattle Police Officers arrived. Officer Jongma was a drug recognition expert. Pearson initially denied consuming any drugs or alcohol that day. She agreed to perform field sobriety tests.

Some of Pearson’s behavior during the sobriety tests indicated she was impaired. Pearson told Officer Jongma that she is authorized to consume medicinal marijuana and that she had smoked earlier in the day. Based on that, Officer Jongma arrested Pearson for suspicion of Vehicular Assault and DUI.

Officer Jongma transported Pearson to Harborview Medical Center for a blood draw. They arrived at the hospital at approximately 5:26 pm—2 hours after the initial collision and 1 hour and 20 minutes after Officer Jongma arrived on the scene. At approximately 5:50 pm, a nurse drew Pearson’s blood without her consent and without a warrant. A toxicologist analyzed Pearson’s blood sample for cannabinoids on February 21, 2012. The analysis determined Pearson’s THC concentration was approximately 20 nanograms.

On August 18, 2012, the City of Seattle charged Pearson in Seattle Municipal Court on one count of driving while under the influence of an intoxicating drug. The court initially granted Pearson’s motion to suppress the blood evidence.

TRIAL

At trial, the City introduced testimony of forensic toxicologist Justin Knoy of the Washington State Toxicology Laboratory. Over Pearson’s objection, the City elicited testimony from Knoy that the per se legal limit of THC concentration under Washington law was 5 nanograms. At the time, however, no per se limit for THC concentration in Washington existed when the accident occurred. The jury found Pearson guilty of DUI.

ISSUES ON APPEAL

The Court of Appeals addressed four issues: (1) whether exigent circumstances existed to justify the warrantless extraction of Pearson’s blood, (2) whether exigent circumstances existed to justify the warrantless testing of Pearson’s blood, (3) whether the trial court erred when it failed to include Pearson’s proposed jury instruction, and (4) whether the trial court erred when it permitted Knoy to testify that the per se legal limit for THC concentration was 5 nanograms.

1.Exigent Circumstances did NOT Exist to Justify Extracting & Testing Pearson’s Blood.

First, the Court of Appeals decided the City failed to show that obtaining a warrant would have significantly delayed collecting a blood sample. It reasoned that the natural dissipation of THC in Pearson’s bloodstream alone did not constitute an exigency sufficient to bypass the warrant requirement.

2. Trial Court Mistakenly Admitted Testimony From Toxicologist.

Second, the Court of Appeals decided the trial mistakenly admitted testimony from the toxicologist regarding THC limits. At the time, evidence of the .05 legal THC limit was NOT in effect when the offense occurred and was irrelevant to the central question at trial—whether Pearson’s ability to drive was lessened in any appreciable degree by her use of marijuana. The court reasoned the evidence was highly prejudicial because the blood test showed that Pearson had a THC concentration of 20 nanograms. Consequently, evidence of the current per se legal THC limit of 5 nanograms invited the jury to retroactively apply law that was not in effect at the time of the alleged offense and conclude that the blood evidence alone was sufficient to prove guilt.

3. The Defendant’s Jury Instruction Was Properly Denied. 

At trial, the lower court denied the Defendant’s proposed jury instruction:

It is not unlawful for a person to consume a drug and drive. The law recognizes that a person may have consumed a drug and yet not be under the influence of it. It is not enough to prove merely that a driver had consumed a drug.

The Court of Appeals held that, under these circumstances, the trial court did not abuse its discretion when it refused to include Pearson’s proposed jury instruction because she was able to argue her theory of the case based on the instructions given.

In conclusion, the Court of Appeals reversed the Defendant’s conviction and remanded it back to the lower court.

My opinion? Good rulings; especially the one regarding the mistakenly-admitted testimony from the Toxicologist. I-502’s legal limits regarding THC was not in effect at that time. Having a witness testify to limits was, therefore, a mistake.

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

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

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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.

Lower Legal Alcohol Limit?

Bellingham Defense Attorney, Boating Under the Influence, Deferred Prosecution, Department of Licensing, Drug Offenses, Drug Recognition Expert, Due Process, DUI, Evidence, Ignition Interlock Device, marijuana, misdemeanor, Studies, Terry Stop, Washington State Patrol, Whatcom County Criminal Defense, , ,

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The National Transportation Safety Board wants the nationwide legal limit of .08 cut almost in half to .05, in an effort to save more lives.

Oddly, Mothers Against Drunk Driving (MADD), the nation’s most prominent advocacy group against drunk driving, does not support the legislation. MADD says there’s not enough data to show it would make much of a difference.

“Until we know that and can compare that and have an intellectual conversation on that, we want to focus on what we know is effective,” said Jason Derscheid, the Executive Director of MADD North Texas.

The organization most recently helped pass an interlock ignition law in Texas, allowing DWI offenders to have a device installed on their car. MADD has found that the alternative, suspending an offender’s license, doesn’t prevent them from continuing to drink and drive.

It’s advocating for similar laws to be passed in all 50 states.

Despite its lack of support for lowering the legal limit, MADD says it does not condone any level of drinking of driving.

“The only safe way to get home is to have a non-drinking, designated driver,” said Derscheid.

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

 

Marijuana Legalization is Making Mexican Drug Cartels Poorer.

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a report from Deborah Bonello for the Los Angeles Times shows one way that legalization for recreational and medical purposes is working:

The loosening of marijuana laws across much of the United States has increased competition from growers north of the border, apparently enough to drive down prices paid to Mexican farmers. Small-scale growers here in the state of Sinaloa, one of the country’s biggest production areas, said that over the last four years the amount they receive per kilogram has fallen from $100 to $30.

The price decline appears to have led to reduced marijuana production in Mexico and a drop in trafficking to the U.S., according to officials on both sides of the border and available data.

This was welcome news. One of the major arguments for legal pot is that it will weaken drug cartels, cutting off a major source of revenue and inhibiting their ability to carry out violent acts — from mass murders to beheadings to extortion — around the world. And cannabis used to make up a significant chunk of cartels’ drug export revenue: as much as 20 to 30 percent, according to previous estimates from the Mexican Institute of Competitiveness (2012) and the RAND Corporation (2010).

Will this be enough to completely eliminate drug cartels? Certainly not. These groups deal in far more than pot, including extortion and other drugs like cocaine and heroin.

Still, it will hurt. As the numbers above suggest, marijuana used to be a big source of drug cartels’ revenue, and that’s slowly but surely going away. It’s still possible that legalization in America could produce downsides in the U.S., such as more cannabis abuse. But it’s a potentially huge win for Mexico and other Latin American countries.

Please contact my office if you, a friend or family member face Drug Charges or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Ignition Interlock Devices Are Cash Cows for States.

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According to news released from the Blow & Drive Interlock Corporation (BDIC) The Alcohol Ignition Interlock Industry is experiencing tremendous growth as more and more states continue to pass laws requiring Ignition Interlock Devices for DUI/DWI offenders.

The Centers for Disease Control and Prevention (CDC) reports that requiring or highly incentivizing interlocks for all convicted drunken drivers reduces drunken driving recidivism by 67 percent. The CDC recommends ignition interlocks for everyone convicted of DWI, even for first offenders.

Mothers Against Drunk Driving (MADD) Continues to Push for Tougher DUI Laws. In 2006, there were only 100,000 interlocks installed in the United States. As of July 2013, there were nearly 305,000 interlocks in use.

NEW 2016 IGNITION INTERLOCK LAWS

Texas: Gov. Greg Abbott signed House Bill 2246 into law in June 2015, allowing those convicted of DWI with blood alcohol content less than 0.15 percent to be able to drive as long as they have an ignition interlock system installed in their car.

New Hampshire: After Jan. 1st 2016, anyone convicted in New Hampshire for a first offense of driving while intoxicated can petition a judge for a limited driver’s license that will allow them to drive to work, school or medical appointments, while their license is suspended, the new law comes with a host of restrictions – including installation of an alcohol-detecting automotive interlock device.

Illinois: New Ignition Interlock Law goes into effect January 1st, 2016, requiring anyone convicted of two or more DUIs to install a Breath Alcohol Ignition Interlock Device on their vehicles for 5 years.

South Carolina: Governor signed Emma’s Law, which requires all offenders, including first-time offenders, with a blood alcohol concentration (BAC) of .15 or greater mandated installation of an ignition interlock device.

Hawaii: New Law Requires Ignition Interlock Users to drive with a Hawaii ID Card. The new law, Act 40, goes into effect on Jan. 1, 2016

PENDING IGNITION INTERLOCK LEGISLATION

Federal: Legislation, called “Alisa’s Law”, would require all first time DUI offenders in all 50 states to have an ignition interlock device installed in their vehicle for up to 2 years

Pennsylvania: Senate unanimously approved Senate Bill 290, which would require all repeat convicted drunk drivers as well as first-time offenders with a blood-alcohol concentration of .10 or above to use the alcohol ignition interlock devices.

Oregon: House Bill 2660 Provides court discretion to order person participating in driving while under influence of intoxicants a diversion agreement to install an ignition interlock device if person submitted to chemical test of person’s breath, blood or urine and test disclosed blood alcohol content below 0.08 percent by weight.

Washington: House Bill 1276 includes many provisions to deal with impaired driving.

Ohio: Lawmakers introduced a bill, called Annie’s Law, calling for ignition interlocks to be installed on vehicles if the driver has been convicted two or more times for drunk driving.

Indiana: Lawmakers plan to discuss the problem of repeat drunk drivers this legislative session, including a bill that would improve the ignition interlock system in Indiana.

Wisconsin: Lawmakers have proposed closing a loophole in state law so people who are required to have an ignition interlock device in their vehicle would face criminal punishment if they get caught driving a vehicle without such a device

Massachusetts: State Senate proposed a bill that would give drunk drivers a chance to avoid a license suspension, requiring them instead to install an ignition interlock

Maryland: Governor Larry Hogan is trying to push through one of his latest initiatives, which would require drivers arrested on drunk-driving charges to install an ignition interlock device inside their vehicle.

MADD will continue to push for stricter DUI Laws, and they will continue to Ask More States to pass All-Offender Ignition Interlock Legislation in an effort to keep the roads safe for sober motorists. From only one state requiring interlocks in 2006 today twenty‐six states require or highly incentivize the use of ignition interlocks for every convicted offender and as a result they have reduced drunk driving deaths by 24% overall.

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.

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.

U.S. Supreme Court to Update DUI Procedures

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The US Supreme Court plans to update the rules for prosecuting individuals accused of drunk driving by reviewing a trio of cases dealing with “Refusal” statutes.

In North Dakota, a state law makes it a crime for a motorist to refuse to take “any” type of test — blood, alcohol or urine — used to prosecute driving under the influence (DUI) cases. The court will decide the constitutionality of this provision in the context of two cases, Birchfield v. North Dakota and Beylund v. North Dakota, each of which presents the same question from a slightly different angle.

In Beylund, motorist Steve Michael Beylund agreed to take a blood test after being threatened with criminal penalties if he refused. In Birchfield, motorist Danny Birchfield refused to take a breath test. The highest court in North Dakota reviewed the existing legal precedent and found no reason to overturn the refusal law.

The drunk-driving cases provide the Court with something of a sequel to its ruling in 2013 in Missouri v. McNeely, which left the clear impression that, if police have enough time, they should get a warrant before taking a test of a suspected drunk driver.  The Court ruled that the natural dissipation of alcohol in the bloodstream does not always amount to an emergency situation that permits a DUI test without a warrant.

The North Dakota justices wrote, “Birchfield has not drawn our attention to any appellate court decisions striking down criminal refusal statutes, and we have found that since the U.S. Supreme Court’s ruling in McNeely, criminal refusal statutes have continued to withstand Fourth Amendment challenges, particularly in Minnesota.”

Last month, however, in Hawaii v. Won, the Hawaii Supreme Court cited the US Supreme Court’s reasoning in finding refusal statutes as unconstitutional. In light of McNeely, Hawaii’s justices decided the US Supreme Court had clearly ordered law enforcement to obtain a warrant before compelling a “search” of a person’s blood, as the Fourth Amendment requires.

The US Supreme Court will tackle the different rulings from these States in the context of a third case, Bernard v. Minnesota, which deals with that state’s law treating a breath test as a “search incident to arrest.” Here, William Robert Bernard Jr used his truck to pull a boat out of the water. Officers believed he was DUI. After Bernard was arrested, he refused a breath test.

At any rate, the U.S. Supreme Court will soon decide whether criminalized refusal statutes represent a DUI exception to the Constitution.

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.