Category Archives: misdemeanor

Evidence of Self-Defense

Assault, Bellingham Defense Attorney, ER 404(B), ER 405(B), Evidence, misdemeanor, Self-Defense, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Self Defense Men | Meme Generator

In State v. Lee, the WA Court of Appeals held that the trial court violated the defendant’s Sixth Amendment right to present a defense by excluding evidence of self-defense.

BACKGROUND FACTS

On January 25, 2015, the defendant Chevalier  Lee’s girlfriend, Danielle Spicer, visited the home of Alice Gonzalez and her husband, Louis Gonzalez -Hernandez. Spicer went to the Gonzalez’s house and stayed there with Gonzalez and Gonzalez Hernandez’s’ five children while Gonzalez and Gonzalez-Hernandez ran errands. Gonzalez and Gonzalez-Hernandez returned home to find Lee at their house playing cards with their children and Spicer. Although they had not invited him, Lee had been to their home many times and was generally welcome there.

Later that evening, Lee and Spicer began arguing about whether they would spend the night with Gonzalez and Gonzalez-Hernandez or return to their respective individual residences. Lee loudly cursed at Spicer as the argument escalated. Gonzalez-Hernandez told Lee that he did not like “that kind of behavior” in his house and Lee would have to leave. Lee refused and said that he didn’t have to leave.

Gonzalez-Hernandez told Lee to leave approximately three-to-five times. According to Lee, he then cursed at Gonzalez-Hernandez who “came right at” him. Gonzalez-Hernandez had his hands up. Lee was scared and hit Gonzalez-Hernandez. The two men then wrestled. Lee left after seeing the scared looks Gonzalez, Spicer, and the children had.

According to Gonzalez-Hernandez, Lee called him a “f**king b***h” and hit him in the
face. Another witness saw Lee approach Gonzalez-Hernandez and get within inches of his face. Gonzalez-Hernandez again told Lee to leave and Lee “swung at him.” After they fought for a few minutes, Gonzalez called 911 and Lee and Spicer left.

Jury Trial

At trial, the defense sought to elicit testimony from Spicer that she and Lee had witnessed
Gonzalez-Hernandez being “physical with his wife” in a separate incident four days prior to the assault. Lee’s attorney argued that this evidence would show that Lee had actual knowledge that Mr. Gonzalez-Hernandez actually had the capacity to be aggressive and/or violent. According to Lee’s defense attorney, this evidence would show Lee’s state of mind regarding his need to defend himself.

The judge sustained the City’s objection, finding the evidence was “more prejudicial than probative” and that allowing such evidence would open the door to evidence about Lee’s prior misconduct. The defense suggested it would then elicit testimony that Lee “had prior information that Mr. Gonzalez-Hernandez had been known to be aggressive.” The trial court sustained the City’s objection to this evidence, finding it “more prejudicial than probative of anything.”

In fact, during Lee’s testimony, Lee stated that he “had reason to be scared of Gonzalez-Hernandez already,” to which the City objected and the court sustained. Neither the City nor the court stated any specific grounds for this objection or ruling.

A jury found Lee guilty of Assault Fourth Degree. He appealed to the Pierce County Superior Court which affirmed the conviction. The WA Court of Appeals granted Lee’s motion for discretionary review.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals held that the trial court violated Lee’s Sixth Amendment right to present a defense by excluding evidence of self-defense.

The Court agreed with Lee that evidence he had witnessed regarding Gonzalez-Hernandez’s recent violent behavior was critical to his defense because it both increased the likelihood he had a subjective fear of Gonzalez-Hernandez and it made his fear more objectively reasonable, thus strengthening his self-defense argument.

The Court of Appeals reasoned that self-defense is a complete defense under RCW 9A.16.020. A defense of self-defense requires proof (1) that the defendant had a subjective fear of imminent danger of bodily harm, (2) that this belief was objectively reasonable, and (3) that the defendant exercised no more force than was reasonably necessary. The City has the burden of proving the absence of self-defense beyond a reasonable doubt.

The Court further reasoned that evidence of self-defense is evaluated from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees. This standard incorporates both objective and subjective elements. The subjective portion requires the jury to stand in the shoes of the defendant and consider all the facts and circumstances known to him or her; the objective portion requires the jury to use this information to determine what a reasonably prudent person similarly situated would have done.

Also, said the Court, a fact finder evaluates self-defense from the defendant’s point of view as conditions appeared to him at the time of the act. For the subjective portion of the self-defense test, jurors must place themselves in the shoes of the defendant and evaluate self-defense in light of all that the defendant knew at the time. All facts and circumstances known to the defendant should be placed before the jury. Thus, reasoned the court, under ER 404(B) and ER 405 (B), where a defendant claims self-defense, a victim’s prior acts of violence known to the defendant are admissible to establish a defendant’s reason for apprehension and his basis for acting in self-defense.

ER 404(B)

To determine whether a specific act should be admissible under rule 404(B), the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect. The trial court is required to conduct an ER 404(b) analysis on the record.

“In this case, Lee sought to admit evidence of Gonzalez Hernandez’s prior acts of violence
to prove that Lee had knowledge of those acts, giving him reason to fear Gonzalez-Hernandez,” said the Court.

Furthermore, the Court reasoned that evidence that Lee had witnessed Gonzalez-Hernandez being “physical” with his wife four days before the incident was relevant to Lee’s state of mind. “The evidence would allow the jury to assess Lee’s reason to fear
bodily harm from the victim,” said the Court.

Finally, the Court weighed the probative value of Gonzalez-Hernandez’s history of violence against its prejudicial effect. “Because the evidence in this case was relevant and otherwise admissible, the trial court should only exclude it if the City showed that the evidence was so prejudicial as to disrupt the fairness of the fact-finding process at trial,” said the Court. “Here, the proffered evidence went to Lee’s complete defense. Its probative value is to allow Lee to present a defense.”

Consequently, the Court ruled that the City failed to demonstrate that evidence of Gonzalez-Hernandez’s prior violent conduct known to Lee would be so prejudicial as to outweigh Lee’s Sixth Amendment right to present his defense. “This type of evidence should be heard by a jury so it can assess the reasonableness of Lee’s actions,” said the Court.

With that, the Court of Appeals reversed Lee’s conviction.

My opinion? Good decision. Under the Sixth Amendment, citizens have a right to an adequate defense. Under Washington statute, self-defense is a complete defense. Therefore, suppressing evidence which proves self-defense violates the Sixth Amendment.

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.

Race-Based Jury Selection

Bellingham Defense Attorney, Constitutional Rights, Jury Selection, Jury Trial, misdemeanor, Race & Law, Resisting Arrest, Skagit County Criminal Defense, Uncategorized, Violent Crime, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In City of Seattle v. Erickson, the WA Supreme Court held that the Prosecutor’s peremptory strike of a minority juror was a prima facie showing of racial discrimination requiring a full analysis under Batson v. Kentucky.

BACKGROUND FACTS

In 2013, Matthew Erickson, a black man, was charged in Seattle Municipal Court with Unlawful Use of a Weapon and Resisting Arrest. After voir dire, the City of Seattle (City) exercised a peremptory challenge against tjuror #5, who was the only black juror on the jury panel. After the jury was empaneled and excused from the courthouse with the rest of the venire, Erickson objected to the peremptory challenge, claiming the strike was racially motivated. The court found that there was no prima facie showing of racial discrimination and overruled Erickson’s objection.

Erickson was convicted on both counts.

Erickson appealed the municipal court’s decision to King County Superior Court. The superior court affirmed the municipal court, finding that the circumstances surrounding the challenge did not raise any inference that the juror was stricken because of his race. The judge did not address whether Erickson’s motion was timely.

ISSUES

The WA Supreme Court granted review of Erickson’s appeal on the following issues:

1. Did Erickson waive his right to a Batson challenge when he objected after the jury was empaneled and both the jury and venire excused?

2. Did the trial court error in finding that Erickson did not make a prima facie showing of racial discrimination when the City struck juror #5?

BATSON V. KENTUCKY: THE LEGAL BACKGROUND ON RACE-BASED PEREMPTORY STRIKES

For those who don’t know, in Batson v. Kentucky, the United States Supreme Court created a 3-step process for enforcing the constitutional rule against excluding a potential juror based on race. First, the defense must show that the circumstances at trial raise an inference of discrimination. Second, the prosecutor must give a nonracial reason for the strike. Third, the court decides if the prosecutor intentionally discriminated against the juror because of race. The decision was made to stop the unfair practice of race-based peremptory strikes of qualified minority jurors because at that time, prosecutors could easily mask their efforts to exclude racial minorities from jury service.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court ruled that Erickson did not waive His Right to a Batson challenge when he objected to the striking of a juror after the jury was empaneled but before testimony was heard. It reasoned that a number of federal courts also allow Batson challenges after the jury has been sworn. Read together, the case law has adopted rules requiring that a Batson challenge be brought at the earliest reasonable time while the trial court still has the ability to remedy the wrong.

“These cases recognize that judges and parties do not have instantaneous reaction time, and so have given both trial courts and litigants some lenience to bring Batson challenges after the jury was been sworn,” said the Court. “This is in line with our own jurisprudence.”

The Court further stated that objections should generally be brought when the trial court has the ability to remedy the error, and allowing some challenges after the swearing in of the jury does not offend that ability.

“Although the timing was not ideal, the Batson challenge was raised when the trial court still had an opportunity to correct it,” said the Court. “So even though Erickson brought his Batson challenge after the jury was empaneled, the trial court still had adequate ability to remedy any error. Therefore, Erickson made a timely Batson challenge.”

Second, the WA Supreme Court Court ruled that the trial court did, in fact, error in finding that Erickson did not make a prima facie showing of racial discrimination when the Prosecutor struck juror #5.

Here, and in bold strokes, the Court changed how Batson is applied in Washington so that striking a juror who is the only member of a cognizable racial group automatically triggers a full Batson analysis by the trial court:

“The evil of racial discrimination is still the evil this rule seeks to eradicate,” the court explained, writing that “this alteration provides parties and courts with a new tool, allowing them an alternate route to defend the protections espoused by Batson. A prima facie case can always be made based on overt racism or a pattern of impermissible strikes. Now, it can also be made when the sole member of a racially cognizable group is removed using a peremptory strike.”

With that, the WA Supreme Court carved the following bright-line rule adopted from State v. Rhone:

“We hold that the trial court must recognize a prima facie case of discriminatory purpose when the sole member of a racially cognizable group has been struck from the jury. The trial court must then require an explanation from the striking party and analyze, based on the explanation and the totality of the circumstances, whether the strike was racially motivated.”

In other words, the peremptory strike of a juror who is the only member of a cognizable racial group on a jury panel does in fact, constitute a prima facie showing of racial motivation. Also, the trial court must ask for a race-neutral reason from the striking party and then determine, based on the facts and surrounding circumstances, whether the strike was driven by racial reasons.

The WA Supreme Court reverse Erickson’s conviction and remanded his case back to the trial court for a new trial.

My opinion? I’m very pleased. I wrote about unlawful race-based peremptory strikes in my blog on State v. Saintcalle; a WA Supreme Court case having similar dynamics, peremptory strikes and Batson challenges to the case at hand. In that post, I was very disappointed that the WA Supreme Court failed to fix a systemic problem of Prosecutors exercising race-based peremptory strikes during jury selection.

Finally, the WA Supreme Court has become more proactive in stopping this unfair, unconstitutional practice. It’s not enough for Prosecutors to give utterly superficial reasons for striking minority jurors when the real reason for striking them is blatantly staring us in the face. Now, and finally, Prosecutors must prove that their decision to strike is not race-based. This subtle, yet oh-so-important shift in perspective effectively addresses what’s really happening during jury selection and makes a solution toward preventing race-based peremptory strikes. Excellent.

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.

Invalid Search Warrant

Bellingham Defense Attorney, Blood Test, Drug Offenses, DUI, Evidence, misdemeanor, Physical Control DUI, Probable Cause, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Youngs, the WA Court of Appeals suppressed evidence of the defendant’s blood test collected after a search warrant because the search warrant application did not contain sufficient facts to establish that the suspect was driving the car.

BACKGROUND FACTS

In the early morning hours of May 15, 2013, a Washington State Patrol Trooper arrested Youngs after driving a car involved in a rollover collision. The judge issued the warrant based on the Affidavit in Support of Search Warrant for Evidence of a Driving While Under the Influence of Intoxicants (DUI).

This affidavit is a largely preprinted form to which the law enforcement officer may add information.

Following the blood draw, the State charged Youngs with DUI. Youngs moved to suppress evidence obtained under authority of the warrant. The district court denied the motion. Youngs then agreed to a stipulated bench trial based on the police report and blood alcohol report. The district court found Youngs guilty and sentenced him.

Youngs sought review in the superior court. The Court affirmed based on the content in the state trooper’s affidavit. Eventually, the WA Court of Appeals granted Youngs’s appeal.

ISSUE

The question was whether the trooper’s search warrant affidavit had sufficient facts for a judge to make an independent decision whether there was probable cause that the defendant was driving.

COURT’S DECISION & ANALYSIS

The Court decided that although the factual information concerning intoxication is sufficient and unchallenged in this case, the factual information to establish driving is insufficient.

The Court reasoned that a judge may only issue a search warrant upon probable cause. The warrant must be supported by an affidavit identifying the place to be searched and the items to be seized. The affidavit must contain sufficient facts to convince an ordinary person that the defendant is probably engaged in criminal activity.

Furthermore, the Court reasoned that judges must evaluate the relevant affidavit “‘in a commonsense manner, rather than hypertechnically, and any doubts are resolved in favor of the warrant. Thus, a “negligent or innocent mistake” in drafting the affidavit will not void it. Also, judges may draw reasonable inferences from the stated facts.

However, the Court also reasoned that inferences alone, without an otherwise substantial basis of facts, are insufficient. The affidavit may provide summary statements so long as it also expresses the facts and circumstances underlying that summary.

Here, the Court found technical problems with the affidavit. For example, one problem is that the preprinted language in the form—”ceased driving/was found in physical control of a motor vehicle” — suggests that it is intended to apply to two different crimes. One crime is “Driving While Under the Influence under RCW 46.61.502, while the other is “Physical Control of Vehicle While Under the Influence under RCW 46.61.504, which is a totally separate and different crime with different elements for the State to prove:

The Court said that unlike the act of driving, which may be readily observed, “physical control” is a conclusion drawn from other facts. For example, a police officer may reach this conclusion based on the defendant’s proximity to the vehicle, possession of keys to it, or similar observable circumstances.  Because the magistrate must independently determine whether probable cause exists, he or she cannot simply accept such a conclusion without supporting allegations. Therefore, ruled the Court, the statements in the search warrant affidavit are conclusory, general, and insufficient to support probable cause that Youngs was driving the vehicle.

With that, the Court reversed Youngs’ conviction and remanded the case back to the district court with directions to suppress the evidence obtained by the warrant.

My opinion? Excellent decision. Sure, it’s sometimes safe to assume that the sole driver of a car involved in a collision is, in fact, the driver. However, it muddies the waters even further when law enforcement officers issuing search warrants fail to clarify whether the crime of straight DUI or Physical Control DUI took place.

These crimes are very different. One crimes involves officers seeing the defendant drive (straight DUI) while the other crime does not (Physical Control DUI). Combined with the fact that there was missing information regarding the defendant’s driving at all, this combination of errors makes for an ineffective search warrant.

Again, good decision.

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

The Most Charged Crime

ACLU, Bellingham Defense Attorney, Driving While License Suspended/Revoked, Due Process, misdemeanor, Race & Law, Search and Seizure, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , ,

Driven To Fail Report Cover

Apparently, the most commonly charged crime in Washington State – Driving While License Suspended in the Third Degree (DWLS III)- shouldn’t be a crime at all, the state chapter of the American Civil Liberties Union argues in a new report.

In “Driven to Fail: The High Cost of Washington’s Most Ineffective Crime – DWLS III” the report describes the costs of enforcing this law, explores how it burdens individuals and communities, and calls for policies that address the harm of driving with a suspended license without criminalizing it. According to the ACLU, taxpayers spend more than $40 million a year to prosecute cases of DWLS III.

“Not every social problem needs to be treated as a crime,” said Mark Cooke, the ACLU of Washington’s Campaign for Smart Justice Policy Director. “DWLS III enforcement costs taxpayers millions of dollars, yet does little to improve public safety. The crime is largely punishing people for being poor, not because they are scofflaws or dangerous drivers,” said Cooke.

Typically, a DWLS III charge comes about this way: A driver receives a ticket for a moving violation (such as speeding or rolling through a stop sign) and for various reasons does not follow through by paying the ticket or showing up in court to contest it. Hundreds of thousands of people in Washington have had their license suspended for not responding to a ticket for a moving violation. Those who continue to drive once their license is suspended may be arrested and charged with DWLS III.

The report estimates that Washington taxpayers have spent more than $1.3 billion enforcing this crime between 1994 and 2015. These costs stem from the filing of nearly 1.5 million DWLS III criminal charges, resulting in nearly 900,000 convictions. In 2015, there were nearly 40,000 DWLS III charges filed, costing taxpayers $42,199,270. The report also shows that the law is applied unequally across the state and disproportionately impacts people of color, the young, and the poor.

The report recommends that the crime of DWLS III should be taken off the books. Short of that, law enforcement, prosecutors and courts can exercise their inherent discretion and treat DWLS III as a civil offense and offer relicensing programs. Civil remedies and relicensing can be more effective and use fewer criminal justice resources. The data in the report also shows that some jurisdictions, such as the cities of Yakima and Seattle, have started to treat DWLS III as a non-criminal offense.

My opinion? It’s no mystery that DWLS III allows police to arrest people with suspended licenses. However, most don’t know that it allows police to search people’s vehicles after arrest.  Therefore, any contraband, guns or other illegal items found in people’s cars can be lawfully seized.

Additionally, the defendant will face unlawful possession charges for whatever contraband found during the search. In my opinion, this is the essence of an unlawful pretextual search. And for that reason, DWLS III should be a civil infraction which circumvents the need for arrest and searches. It should not be a crime.

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 Senate Passes Bill Making Fourth DUI a Felony.

Bellingham, Bellingham Defense Attorney, Blood Test, Boating Under the Influence, Department of Licensing, Diminished Capacity, Drug Court, Drug Offenses, Drug Recognition Expert, DUI, felony, First Time Offender Waiver, I-502, Ignition Interlock Device, Implied Consent, Jail, Legislation, marijuana, misdemeanor, Persistent Offender, Prison, Sentencing, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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The WA State Senate has unanimously passed a bill that would make driving under the influence (DUI) a felony if the driver has three or more prior offenses on their criminal record within 10 years.

Senate Bill 5037 passed Thursday and now heads to the House, where it has stalled in previous years. The bill’s sponsors are as follows: Padden, Frockt, O’Ban, Darneille, Miloscia, Kuderer, Zeiger, Carlyle, Pearson, Conway, Rolfes, Palumbo, Angel, and Wellman.

Under the measure, a person who is charged with a fourth DUI, and has no other criminal history, would be subject to a standard sentencing range of 13 to 17 months in jail.

However, this bill allows first-time felony offenders to spend up to six months in jail, instead of nine, and finish out the rest of their sentence under supervision, such as attending Alcoholics Anonymous meetings and other programs.

My opinion? We shouldn’t be surprised. Over the past 20 years, Americans have seen a significant increase in the harsh penalties for intoxicated drivers. Perhaps this is necessary move given the thousands of lives lost to drunk drivers. Speaking as a criminal defense attorney, there’s serious question as to whether people commit these violations purely out of willful disregard for the law and for the safety of others or because of an untreated mental illness or alcohol addiction. Nevertheless, public outcry has led to increased sentences.

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.

Holiday Drinking In The U.S.

Bellingham Defense Attorney, Constitutional Rights, Distracted Driving, Domestic Violence, Drowsy Driving, Drug Offenses, DUI, felony, Jail, law enforcement, marijuana, Miranda, misdemeanor, police, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Violent Crime, Washington State Patrol, Whatcom County Criminal Defense, , ,

Interesting article by Christopher Ingraham of the Washington Post discusses how data on total monthly alcohol sales in the United States carries a time-tested seasonal trend: the spikes in December of each year.

Clearly, the holidays are traditionally a time for boozing it up.

For example, the Department of Health and Human Services recently updated the official federal statistics on the percent of state residents ages 12 and older who drink at least once a month. Also, Ingraham’s article discusses how various direct and indirect measures of alcohol consumption, including breathalyzer data, Web searches for hangover relief and alcohol-related traffic deaths all suggest that peak American drinking happens between Thanksgiving and New Year’s.

THE NORTHEAST

New England is home to the nation’s heaviest drinkers – New Hampshire, where about 64 percent of residents age of 12 or older drink monthly, is tops in the country. Vermont, Maine and Connecticut also come in at drinking rates above 60 percent. Hard-drinking cheese heads in Wisconsin see to it that their home is the only Midwestern state in the top tier of American drinkers.

THE NORTHWEST

Ingraham discusses how the next tier of heavy drinking states are all in the northern part of the country. Some researchers posit that there may be a relationship between heavy drinking and latitude. At the country level, alcohol consumption tends to increase the farther you get away from the equator. This could be a function of the potential for boredom and depression during winter months when the nights are long and the days are short. For a prime example of this, see recent stories involving alcohol and misconduct among people who live in Antarctica.

RELIGIOUS STATES

Ingraham discusses other cultural factors affect some States’ attitudes about drinking. On the map above, take a look at Utah and particularly Idaho. They’re in the bottom tier of the states for drinking frequency. Utah, where only 31 percent of adults drink in a given month, comes in dead last. This is almost certainly because of the large Mormon populations in those states — 58 percent of Utahans are Mormon, as are 24 percent of people in Idaho. Mormonism generally prohibits the use of alcohol and other drugs.

There’s likely a similar religious influence in places Alabama, Mississippi and the other Southern states where drinking is low. Those states have large evangelical Christian populations, many of whom are abstainers.

HOLIDAY DUI PATROLS IN WASHINGTON STATE

Image result for wa state patrol target zero

Coincidentally, the Washington State Patrol announced its increased Holiday DUI Patrol campaign of “Drive Sober Or Get Pulled Over.” Our State Troopers are extremely proactive in reaching their Target Zero goal of zero traffic fatalities by 2030.

Also, our local police and sheriff’s offices are working very hard responding to incidents of domestic violence, burglary, assault and other criminal incidents associated with holiday celebrations.

SEEK COMPETENT LEGAL REPRESENTATION IF YOU FACE CRIMINAL CHARGES THIS HOLIDAY SEASON.

For many, the holiday season is a joyous time when family and friends get together and celebrate. Naturally, our holiday merriment could involve the libations of alcohol and/or legal (and illegal) drugs.

We must enjoy the holidays safely and responsibly. Unfortunately, incidents of domestic violence, DUI, and other criminal behaviors – intentional or otherwise – can dampen our holiday festivities.

It’s never desirable to face criminal charges which could negatively affect your life for years to come. However, if you, friends or family find themselves in situations involving law enforcement, jail and/or criminal charges then contact the Law Office of Alexander Ransom as soon as possible.  I staunchly defends my clients’ constitutional rights to a fair trial, just proceedings and the suppression of evidence involving unlawful searches, seizures and self-incrimination. My practice involves saving people’s careers and reuniting families by seeking reductions and dismissals of criminal charges when appropriate.

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.

Happy holidays!

-Alex Ransom, Esq.

Panhandling is Free Speech

ACLU, Bellingham Defense Attorney, Constitutional Rights, First Amendment, misdemeanor, Panhandling, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense

Image result for panhandling free protected speech

 In  City of Lakewood v. Willis, the WA Supreme Court held that a Lakewood Municipal Ordinance that prohibited begging near highways and intersections of major highways violated the First Amendment.
Mr. Willis was standing near an exit ramp from I-5 in Lakewood and holding a sign saying he was disabled and needed help.  An officer cited Mr. Willis for “Aggressive Begging,” a crime under Lakewood Municipal Code (LMC) 9A.04.020A.
At trial, the jury found Mr. Willis guilty. The municipal court sentenced him to 90 days in jail and a fine of $1,000, with 90 days and $750 suspended. The court also assessed $125 in costs. Mr. Willis appealed, raising several constitutional challenges to the statute.
On appeal, the WA Supreme Court reasoned that although the government can impose certain restrictions on speech in a public forum, such as reasonable time, place, and manner restrictions; it cannot impose restrictions based on content. Consequently, Willis may challenge the ordinance as facially overbroad regardless of his conduct. “Because both provisions impose a content-based speech restriction in a substantial number of traditional public forums, Willis’ facial challenge succeeds. Thus, his conviction must be reversed.”
My opinion? This is a great decision, and should be helpful to defense attorneys in other municipalities with ordinances that limit and outlaw panhandling.  Sure, aggressive panhandling from the homeless is annoying. However, it should not be criminalized. It wastes taxpayer money to incarcerate the homeless on these charges. Next thing you know, the Girl Scouts of America will be jailed for selling cookies at your grocery store.
Big congratulations to attorney David Ionnotti, who represented Mr. Willis.  The ACLU and Washington Defender Association filed one amicus brief in the case, and the Seattle/King County Coalition on Homelessness filed another.

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.

Is Cash Bail Effective?

Bail, Bellingham Defense Attorney, Constitutional Rights, Court Fines, Due Process, felony, Jail, misdemeanor, Race & Law, Studies, Whatcom County Criminal Defense, , ,

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Three research studies released this month further confirm the ineffective, discriminatory, and unsafe influence of money bail in U.S. criminal justice systems.

In The Heavy Costs of High Bail: Evidence from Judge Randomization, a Columbia Law and Economics Working Paper by Arpit Gupta, Christopher Hansman, and Ethan Frenchman, describes how assigning money bail to people accused of crime in Philadelphia and Pittsburgh increases the likelihood of conviction by 12% and increases recidivism by 4%. Ultimately, the authors found that the use of money bail is not effective – it “does not seem to increase the probability that a defendant appears at trial,” and actually makes us all less safe.

In her University of Pennsylvania Law School Working Paper, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, Megan Stevenson reports that people arrested for crimes in Philadelphia and detained due to their inability to pay money bail face up to a 30% increase in convictions—driven by increased guilty pleas—and an additional 18 months of incarceration compared to those who are able to afford bail.

Finally, the Prison Policy Initiative (PPI) released an analysis of national data that gives context to the Columbia and University of Pennsylvania papers. In Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time, PPI found that “most of the people who are unable to meet bail fall into the poorest third of society.” Their median income – only $15,109 prior to incarceration – was less than half of the income of non-incarcerated people, and yet the median bail amount nationally is almost a full year’s income for the typical person unable to post a bail bond. Money bail, PPI concludes, results in the unnecessary and excessive detention of poor people, essentially jailing people for their poverty.

This research highlights what legislators, practitioners, and taxpayers are increasingly recognizing: money bail doesn’t work, is discriminatory, and makes communities less safe.

Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute released this statement about the research:

“With these recent research findings, there should no longer be any doubt, anywhere, that money bail unfairly punishes the poor while also making everyone less safe. Our 3DaysCount campaign calls for replacing the broken money bail system with commonsense and proven solutions to support people being successful on pretrial release.”

Congressman Ted Lieu, sponsor of the No Money Bail Act of 2016, said the following:

“Our nation must stop criminalizing poverty, and these new studies provide crucial data proving that being poor increases your chance of jail time and conviction.  This kind of research is crucial to supporting the No Money Bail Act of 2016, which would eliminate the use of money bail at the federal level and incentivize states to end the use of bail through the withholding of federal grants. We can no longer stand by in good conscience while Americans, presumed innocent, are deprived of their liberty because they can’t afford bail. Justice in America should not be bought and paid for.”

Additionally, judicial leaders across the nation joined together to call attention to these findings.Chief Justice W. Scott Bales, Arizona Supreme Court; Chief Justice Patricia Breckenridge, Missouri Supreme Court; Chief Justice E. James Burke, Wyoming Supreme Court; Chief Justice Tani Cantil-Sakauye California Supreme Court;  Justice Charles W. Daniels, New Mexico Supreme Court; Chief Justice Matthew B. Durrant,Utah Supreme Court; Chief Judge Nan G. Nash, Second Judicial District, New Mexico;Chief Justice Mark E. Recktenwald, Supreme Court of Hawaii; and Chief Justice Robert J. Torres, Jr., Supreme Court of Guam issued the following statement:

“People should not be held in jail pending the disposition of charges merely because they are poor and cannot afford bail.  Recent research suggests that we can identify better ways to make release decisions that will treat people fairly, protect the public, and ensure court appearances.”

My opinion? This national effort is gratifying. Few people understand how incarceration negatively affects job opportunities, families and ability mental/emotional wellness. In my Legal Guide titled, “Making Bail,” I discuss how one of the greatest services a competent defense attorney can do for their clients is assist in getting them released from jail as soon as possible on either a reduced bail amount which is lower than the Prosecutor’s recommendations or that the defendant be released without bail altogether.

One opportunity to lower/rescind bail is at the defendant’s first appearance or arraignment. Another opportunity exists through a Bail Review Hearing.

Under CrR 3.2, judges must review the nature of the pending criminal charges, a defendant’s prior criminal history, their history of failing to appear at past court hearings, and their ties to the community (property ownership, employment, family, school, etc). Factoring all of this, the judge decides whether to lower bail or release the defendant altogether.

Also, CrR 3.2 allows release of defendants to the care of willing and responsible members of the community, including family members. Also, judges may be persuaded to impose other pretrial release conditions such as mandatory curfews, staying away from businesses serving alcohol. Almost everything is negotiable.

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.

Prosecutors Must Reveal Toxicologist Identities in DUI Trials.

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In State v. Salgado-Mendoza, the WA Court of Appeals Division II reversed a defendant’s DUI conviction because the Prosecutor failed to give Defense Counsel the name of their Toxicologist expert witness before trial.

On the evening of August 11, 2012, a Washington State Patrol trooper observed Mr. Salgado-Mendoza driving his vehicle and struggling to stay in his lane of travel. The trooper stopped the vehicle. Salgado-Mendoza was investigated and arrested for DUI. His BAC test showed a blood alcohol concentration of 0.103 and 0.104; which is over the .o8 limit.

Several months before his trial date on the DUI charge, Salgado-Mendoza requested that the Prosecutor disclose information about any and all expert witnesses the Prosecutor intended to call at trial. This regularly happens when defense attorneys argue motions to compel. The Prosecutor attempted to contact the toxicology lab by phone to narrow the list of possible toxicology witnesses, but was unsuccessful.

Three days before trial, Salgado-Mendoza filed a motion requesting that the court dismiss the case or exclude the toxicologist’s evidence based on governmental misconduct.

On the afternoon before trial, the State received a list of three toxicologists, one of whom might testify the next day. The State provided this list to Salgado-Mendoza.

When the parties appeared for trial on May 9, Salgado-Mendoza re-argued his motion to exclude the toxicologist’s testimony or to dismiss the DUI charge because the State had still not disclosed which toxicologist would testify. The Court denied the motion. Salgado-Mendoza was found guilty at trial.

Salgado-Mendoza appealed his conviction to the superior court. Finding that the district court had abused its discretion by (1) not excluding the toxicologist’s testimony due to the State’s violation of the discovery rules and mismanagement of the case in failing to disclose its witness prior to trial, and (2) excluding the defense expert’s testimony about the breath-alcohol testing machine, the superior court reversed the DUI conviction and remanded the matter for a new trial. The State appealed to the WA Court of Appeals.

Ultimately, the WA Court of Appeals held that the Prosecutor violated the discovery rules under CrRLJ 4.7(d) by failing to take reasonable steps to obtain the name of its witness in a timely manner. It reasoned that the Prosecutor had an obligation to attempt to acquire and then disclose that information from the toxicology lab. Consequently, the Prosecutor’s failure to provide the defense with a specific witness’s name before trial is not reasonable. This, in turn, amounted to governmental misconduct under CrRLJ 8.3(b).

Furthermore, the Court held that Prosecutor’s misconduct was prejudicial and that the exclusion of the toxicologist’s testimony was the proper remedy. The Court emphasized this remedy was necessary because the issue was an issue of public importance:

“On retrial, the State should ensure that it provides the name and address of the person or persons it intends to call at trial or comply with CrRLJ 4.7(d) when preparing for the new trial.”

My opinion? Good decision. It is extremely difficult to provide a competent and adequate defense when Prosecutors do not follow the rules of discovery.

For those who don’t know, a Prosecutor must follow many procedures when trying cases. The following procedures expedite a fair trial and protect the constitutional rights of the defendant: (i) promote a fair and expeditious disposition of the charges, whether by diversion, plea, or trial; (ii) provide the defendant with sufficient information to make an informed plea; (iii) permit thorough preparation for trial and minimize surprise at trial; (iv) reduce interruptions and complications during trial and avoid unnecessary and repetitious trials by identifying and resolving prior to trial any procedural, collateral, or constitutional issues; (v) minimize the procedural and substantive inequities among similarly situated defendants; (vi) effect economies in time, money, judicial resources, and professional skills by minimizing paperwork, avoiding repetitious assertions of issues, and reducing the number of separate hearing; and (vii) minimize the burden upon victims and witnesses.

Here, knowing the names of the Prosecutor’s witnesses before trial is simply fair. 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 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.