Category Archives: Uncategorized

Marijuana Legalization is Making Mexican Drug Cartels Poorer.

Bellingham Defense Attorney, Drug Offenses, marijuana, Uncategorized, Whatcom County Criminal Defense, , ,

Image result for marijuana leglization hurts drug cartels

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.

Have Plea Bargains Superseded Jury Trials?

Bellingham Defense Attorney, Constitutional Rights, Due Process, Jury Trial, Race & Law, Sixth Amendment, Studies, Uncategorized, Whatcom County Criminal Defense, , ,

Lady Justice, law, court

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

~Thomas Jefferson

How did the Sixth Amendment’s guarantee of a public jury trial in all criminal prosecutions become useless and outdated?

Seattle criminal defense attorney Kelly Vomacka answered these questions during her presentation at  the 7th Annual Smoke Farm Symposium on Aug. 22, 2015. Smoke Farm is a program center and events venue run by the Seattle-based nonprofit organization Rubicon Foundation.

Titled, “Plea Nation: Dispelling the Illusion That the US Criminal Justice System Sorts the Guilty from the Innocent,” Vomacka spoke to the trend that today’s criminal defendants are waiving their right to jury trials and entering plea bargains.

Studies show that 97% of criminal cases in the U.S. result in plea bargains that do not determine guilt or innocence. Only 3 percent go to trial by jury.  Vomacka also discusses incarceration issues, the risks of trial verdicts, the numerous “gaps” (race, communication, socio-economic status, etc. – between defendants and their lawyers, pleading guilty to get out of jail, etc.

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.

“Drive Sober Or Get Pulled Over” DUI Campaign

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Drive Sober or Get Pulled Over' campaign begins today

Today, the National Highway Traffic Safety Commission (NHTSA) launched its annual “Drive Sober or Get Pulled Over” law enforcement crackdown on drunk driving. The crackdown involves more than 10,000 law enforcement agencies across the country that will be out in force through Labor Day zeroing in on drunk drivers, with zero tolerance for drivers caught with a BAC of .08 or higher – the legal limit.

The crackdown runs from August 21 to September 7, 2015, and is supported by $13.5 million in national advertising funds from NHTSA.

“Drunk driving is deadly, it’s against the law, and despite years of progress, it’s still a problem,” said U.S. Transportation Secretary Anthony Foxx. “With the help of law enforcement around the country, we’re getting the word out– if you’ve been drinking, don’t drive, because if you do, you will be stopped, you will be arrested and you will be prosecuted.”

While the number of drunk drivers on the road has been sharply reduced, motorists are still at risk for encountering someone driving drunk at any time of day. That risk rises exponentially between the hours of 6 p.m. and 5:59 a.m. During the Labor Day period in 2013, half of all the fatalities at night involved drunk drivers, as compared to 14 percent during the day.

“Targeted enforcement campaigns are an essential element in our strategy to save lives and reduce crashes, and they have helped sharply reduce the number of drunk drivers on our roads,” said NHTSA Administrator Mark Rosekind. “But too many drivers continue to risk their lives and the lives of others by getting behind the wheel drunk. Our message is clear: drive sober, or get pulled over.”

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

State v. Rhoden: Illegal 2-Step Confession Violates Miranda

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, felony, Interrogation, Jury Trial, law enforcement, Methamphetamine, Miranda, police, Self-Incrimination, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Police Engage in Illegal Interrogation Tactics and Conviction Gets Reversed — Jacksonville Criminal Lawyer Blog — April 13, 2018

In State v. Rhoden, the WA Court of Appeals Division II held that the trial court failed to suppress Mr. Rhoden’s statements made to police during an improper two- step interrogation procedure.

The facts were such that on February 26, 2013, the Pierce County Sheriff’ s Department served a search warrant on a residence in Puyallup. Five occupants of the residence, including Rhoden, were handcuffed.

Two interrogations happened. The first interview happened when Deputy Olesen questioned the handcuffed occupants in the living room of the home. Importantly, he failed to advise the suspects of their constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

For those who don’t know Miranda warnings (often abbreviated to “Miranda“, or “Mirandizing” a suspect) is the name of the formal warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial situation) before they are interrogated, in accordance with the Miranda ruling. Its purpose is to ensure the accused are aware of, and reminded of, various rights under the U.S. Constitution, and that they know they can invoke them at any time during the interview.

At any rate, Mr. Rhoden told Deputy Olesen there were drugs and a gun in the bedroom.  At that point, Deputy Olesen then escorted Rhoden to the kitchen and questioned him a second time and after finally advising Rhoden of his Miranda rights.

During the post –Miranda second interview, Deputy Olesen asked Rhoden the same questions that he had asked Rhoden in the living room before giving the Miranda warnings.

Mr. Rhoden said there was about a gram of methamphetamine located in the dresser on the left side of his bed and that he had been smoking methamphetamine for approximately the last two to three months. During a search, officers found several items in a dresser, including ( 1) small baggies containing a substance later tested and confirmed to contain methamphetamine, (2) an electronic scale, ( 3) glass smoking devices, and (4) documents containing Rhoden’ s name and the address of the residence being searched.

Rhoden was charged with one count of Unlawful Possession of a Controlled Substance (Methamphetamine) under RCW 69.50.401. Before trial, the trial court conducted a CrR 3. 5 hearing to determine the admissibility of Rhoden’ s statements to police.

The trial court held that Rhoden’ s pre-Miranda statements to police were not admissible at trial and that his post -Miranda statements to police were admissible at trial. At trial, the jury found Rhoden guilty of the charges. Mr. Rhoden appealed his conviction.

The Legal Issue

On appeal, the legal issue was whether the Miranda warnings given to Rhoden during the second interrogation were effective to inform Mr. Rhoden of his Fifth Amendment right to keep silent when he had just provided the same incriminating information in the first interrogation for which he was not given Miranda warnings.

The Rule: Missouri v. Seibert

The court looked to Missouri v. Seibert, 542 U.S. 600, 604- 06, 124 S. Ct. 2601, 159 L. Ed. 2d 643 ( 2004) for guidance. In that case, the United States Supreme Court held that Miranda warnings were ineffective to inform the defendant of their right against self-incrimination in circumstances similar to these. As here, the warnings in Seibert were given only after the suspect had confessed during a custodial interrogation without Miranda warnings.

The Seibert Test

After reviewing Missouri v. Seibert, the court discussed the Seibert est. First, if a court determines that the use of the two- step interrogation procedure was deliberate, it then must ” determine, based on objective evidence, whether the midstream warning adequately and effectively apprised the suspect that he had a “genuine choice whether to follow up on his earlier admission.”

In making this determination, courts may consider whether any curative measures were taken to insure the suspect’ s understanding of his or her Miranda rights. Such curative measures may include a significant break in time and place between the pre- and post –Miranda questioning or an additional warning that the suspect’ s pre –Miranda statements could not be used against the suspect in a subsequent criminal prosecution.

The court compared the Missouri v. Seibert case to Mr. Rhoden’s facts. It reasoned that similar to Rhoden’s situation, the interrogating officers in Seibert questioned the defendant without Miranda warnings yet later gave Miranda warnings in a second interview before obtaining the suspect’ s confession without a significant break in time or place and without measures to assure the suspect that her non-Mirandized statements could not be used against her in a subsequent criminal prosecution.

Applying Seibert to the Facts

The Court then applied the two-part Seibert test the facts at hand. It reasoned that here, the police deliberately used the two- step interrogation procedure. During the initial interrogation in the living room before giving Miranda rights, Olesen asked the five handcuffed suspects whether there were any drugs in the home, and Rhoden admitted that he had a small quantity of methamphetamine in his bedroom. After completing his questioning of the group in the living room, Olesen escorted Rhoden to the kitchen, read Rhoden his Miranda rights, and repeated the same questions he had asked in the living room, to which Rhoden answered consistently with his responses given before receiving the Miranda warnings.

Thus, reasoned the court, the objective evidence of “the timing, setting and completeness of the pre-warning interrogation, the continuity of police personnel and the overlapping content of the pre and post-warning statements” all support the conclusion that the two- step interrogation procedure used here was deliberate.

The court applied the second inquiry, which examined the effectiveness of the midstream Miranda warnings. In this inquiry, the question was whether any curative measures were present, such as a significant break in time and place between the pre- and post -Miranda questioning or an additional warning that the suspect’ s pre –Miranda statements could not be used against the suspect in a subsequent criminal prosecution.

Here, the evidence at the CrR 3. 5 hearing showed that there was not a significant break in time or place between the pre- and post -Miranda interrogation. Perhaps more importantly, the evidence also showed that Olesen did not take any additional measures to insure that Rhoden understood his Miranda rights, such as advising him that his pre –Miranda statements could not be used against him. Accordingly, the Court of Appeals held that the trial court erred by failing to suppress Rhoden’ s post –Miranda statements.

Failure to Suppress Rhoden’s Statements Was Not Harmless Error

Finally, the Court of Appeals decided that the trial court’s decision to not suppress Rhoden’s statements was not harmless error. It reasoned that constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. Here,  and under the circumstances, the Court of Appeals reasoned that it could not conclude beyond a reasonable doubt that any reasonable jury would have reached the same guilty finding absent evidence of Rhoden’ s challenged admissions.

My opinion? Excellent decision. The Court of Appeals acknowledged the subtle – and unlawful – “2-Part Inquiry” of the arresting officer in this case. This technique is commonly used by law enforcement to unlawfully obtain statements from defendants and simultaneously circumvent Miranda. Good work, Court of Appeals!

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. I.B.: Shaking Your Head Means “No” Under Miranda.

Bellingham Defense Attorney, Burglary, Constitutional Rights, Dismissal, Due Process, felony, Interrogation, Juvenile, law enforcement, Miranda, police, Property Crimes, Self-Incrimination, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. I.B., the WA Court of Appeals decided a juvenile suspect’s shaking of his head in the negative after police asked him, post Miranda, if he was willing to talk was an unequivocal assertion of his Fifth Amendment rights.

Here, 15-year-old defendant I.B. was taken into custody as a suspect in a Residential Burglary crime. While being interrogated, I.B. shook his head in the negative after police asked him if he was willing to talk. Nevertheless, police continued their questioning and I.B. made inculpatory statements against his best interests. The trial court suppressed I.B.’s statements at his 3.5 Hearing and concluded that I.B’s shake of the head signaled an assertion of his right to remain silent. Later, I’B’s case was dismissed. The State appealed the trial court’s suppression.

The issue before the Court of Appeals was whether I.B.’s shaking his head in the negative after being asked if he was willing to talk was an unequivocal assertion of the right to remain silent. The court decided it was.

The court reasoned that the Fifth Amendment to the United States Constitution provides that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” To counteract the inherent compulsion of custodial interrogation, police must administer Miranda warnings. Miranda, 384 U.S. at 479. Miranda requires that the defendant “be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Once a suspect invokes his right to remain silent, police may not continue the interrogation or make repeated efforts to wear down the suspect.

Furthermore, the court reasoned a suspect need not verbally invoke his right to remain silent. In fact, Miranda sets a low bar for invocation of the right: “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74 (emphasis added). However, suspects must “unambiguously” express their desire to be silent. The test as to whether a suspect’s invocation of his right to remain silent was unequivocal is an objective one, asking whether'” a reasonable police officer in the circumstances would understand the statement'” to be an invocation of Miranda rights. Once a suspect has clearly invoked the right to remain silent, police questioning must immediately cease.

Here, I.B. unequivocally invoked his right to remain silent. Nothing in the circumstances leading up to I.B.’s invocation rendered his head movement ambiguous. The police officers read I.B. his Miranda rights and I.B. understood his rights. Both officers testified they understand shaking the head side to side to communicate the word ‘No.’ This affirmative conduct unambiguously signaled LB.’s desire for the questioning to cease. Consequently, the trial court properly suppressed LB.’s custodial statements.

My opinion? Good decision. In the context of interrogations, shaking one’s head side to side means no. There’s no other reasonable interpretation.

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.

Rodriguez v. United States: Nonconsensual Dog Sniff of Car Held Unconstitutional

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Terry Stop, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , ,

In State v. Rodriguez, the United States Supreme Court held that absent reasonable suspicion, police extending a traffic stop to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures.

In summary, the Supreme Court ruled that (1) the 4th Amendment does Fourth Amendment does not tolerate a dog sniff conducted after completion of a traffic stop, (2) a police stop exceeding the time needed to handle the matter for which the stop was made violated the Constitution’s shield against unreasonable seizures, (3) a seizure justified only by a police-observed traffic violation becomes unlawful if it is prolonged beyond the time reasonably required to complete the issuing of a ticket for the violation, and (4) a stop may, however, be prolonged for a dog sniff when there is independent information giving rise to an individualized suspicion that the occupants of the car are involved in a drug offense.

The 6-3 ruling is indeed a big win for the 4th Amendment.

In this case, Officer Struble, a K-9 officer, stopped the defendant Rodriguez for driving on a highway shoulder. After issuing a warning for the traffic offense Officer Strubble asked Rodriguez for permission to walk his dog around the vehicle. Rodriguez refused. Struble detained him until another police officer arrived. Struble’s dog performed a search and alerted to the presence of drugs in the vehicle. The dog found methamphetamine.

Seven or eight minutes elapsed between the time Struble issued the warning and the dog alerting to the presence of contraband.

Rodriguez faced several federal drug charges. Although he moved to suppress evidence seized from the vehicle on the basis that Officer Struble prolonged the traffic stop without reasonable suspicion in order to conduct the dog sniff search, the lower court denied Rodriguez’s motion. Eventually, the United States Supreme Court weighed in on the search and seizure issues.

The Court reasoned that a routine traffic stop is more like a brief stop under Terry v. Ohio than an arrest. Its duration is determined by the seizure’s “mission,” which is to address the traffic violation that warranted the stop and attend to related safety concerns.

Beyond determining whether to issue a traffic ticket, an officer’s investigation during a traffic stop typically includes checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.

The court further reasoned that a dog sniff is not fairly characterized as part of the officer’s traffic mission. Also, the Court was concerned that seizing citizens for traffic stops and holding them to conduct a more intrusive search with no evidence of criminal activity beyond the mere traffic stop is unlawful: “The critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop.

My opinion? Great ruling! It’s rare that the Supreme Court upholds the 4th Amendment these days. Fortunately, this favorable outcome happened because the suspect asserted his rights by refusing the dog sniff. Past rulings from the U.S. Supreme Court limit 4th Amendment protections where suspects DID NOT assert their rights. See Florida v. Bostick.

Yet here’s a case where the suspect did flex their rights. Look at the outcome! It’s a testament – a reminder, if you will – that asserting your rights makes a difference. Great case.

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.

WA Legislature Considers Banning “Palcohol”

Drug Offenses, Drug Recognition Expert, DUI, Legislation, Uncategorized, , ,
Palcohol

According to the Bellingham Herald, Washington is one of a growing number of states to try banning a new powdered alcohol product before it reaches liquor-store shelves.

Palcohol is a new powdered version of alcohol. Palcohol will be made in two different formulations, a Beverage Formulation and an Industrial Formulation. Like other powdered beverages, it must be first dissolved in water prior to consumption. One package weighs about an ounce. Powdered alcohol, it claims, could lighten the loads of hikers and airlines, as well as other consumers and sellers for whom the bulk and weight of booze are burdensome, such as refreshment-sellers who operate on islands.

Several Washington legislators, however, say Palcohol is a dangerously sneaky mechanism for getting drunk and have proposed legislation to ban it before it arrives. The House Committee on Commerce and Gaming unanimously endorsed amendments to turn SB 5292, a regulatory measure that passed the Senate unopposed, into a ban on powdered alcohol for all purposes except research.

“This is not a crafted bourbon, or a scotch, or a tequila or something that’s special,” said Rep. Jeff Holy, R-Cheney, at a public hearing this week. “Powdered alcohol is simply for the purpose of intoxication, period. You’re not crafting the finer liquors.”

If the bill becomes law, Washington would join at least six other states that have prohibited powdered alcohol, including the announcement this week by Maryland officials that alcohol distributors there have agreed to a voluntary ban on the substance. More than two dozen other states have introduced bills this year to ban powdered alcohol, which was first patented in 1972 by General Foods but has not seen widespread retail sales in the U.S.

My opinion? It seems inappropriate to speculate that snorting alcohol is going to become a raging epidemic. There’s no evidence. It also seems hypocritical to ban powdered alcohol without banning alcohol itself. Remember how Prohibition worked? Was that a great success?

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.

Marijuana / THC Breathalyzer Available Soon.

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Marijuana breathalyzer technology is here, and it's coming for drivers | fox43.com

Technology appears to be catching up.

Since Colorado and Washington legalized the recreational use of marijuana in 2014, and the growing trend to legalize pot in some capacity across the nation, there is an increased interest in addressing drugged driving.

However, today’s standardized testing marijuana intoxication is not as simple as detecting alcohol. More science and research are required. It the meantime, technology will be coming to market, such as the marijuana breathalyzer being developed by Cannabix Technologies, Inc. to give police officers an on-site tool to enhance detection of THC, the psychotropic metabolite in marijuana.

In the future, devices of this type will likely be dialed in by the forensic community and become an integral element in identifying marijuana-intoxicated drivers and in other settings, including workplaces and general consumer use, just as the alcohol breathalyzer is today.

My opinion? We saw this coming. It’s almost humorous. Typically, the law lags behind technological advances. Here, technology appears to be lagging behind the evolution of marijuana legalization! Interesting development, no? This device is another tool in the hands of law enforcement – along with Drug Recognition Experts, and search warrants for the testing of blood – for investigating DUI charges.

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

State v. Walker: WA Supreme Court Decides Prosecutor’s Powerpoint Presentation Violates Defendant’s Right to Fair Trial

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7 Tips In Making Your Business PowerPoint Presentation Presentable | The Marketing Scope

EXCELLENT opinion. In State v. Walker, the Washington Supreme Court decided the Prosecutor improperly used a PowerPoint presentation during closing argument to convey egrigious misstatements which violated the defendant’s right to a fair trial.

At his jury trial, defendant Odies Delandus Walker was convicted as an accomplice to Murder in the First Degree, Assault in the First Degree, Robbery in the First Degree Solicitation and Conspiracy. The WA Supreme Court addressed the issue as whether those convictions must be reversed in light of the Power Point presentation the prosecuting attorney used during closing argument.

The Prosecutor’s presentation repeatedly expressed the prosecutor’s personal opinion on guilt-over 100 of its approximately 250 slides were headed with the words “DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER,” and one slide showed Walker’s booking photograph altered with the words “GUILTY BEYOND A REASONABLE DOUBT,” which were superimposed over his face in bold red letters. The prosecutor also appealed to passion and prejudice by juxtaposing photographs of the victim with photographs of Walker and his family, some altered with the addition of inflammatory captions and superimposed text (please click the above link to the Walker opinion for a look at the specific Powerpoint slides and images).

In reaching its decision, the court reasoned that while the prosecutor is entitled to draw the jury’s attention to admitted evidence, those slides, as presented, served no legitimate purpose. Their prejudicial effect could not have been cured by a timely objection, and we cannot conclude with any confidence that Walker’s convictions were the result of a fair trial. Consistent with both long-standing precedent and our recent holding in In re Personal Restraint of Glasmann, 175 Wn.2d 696, 286 P.3d 673 (2012), the court reversed Walker’s convictions and remanded for a new trial.

The Court also gave some powerful language regarding how the prosecution committed serious misconduct in the portions of the PowerPoint presentation discussed above:

“We have no difficulty in holding the prosecutor’s conduct in this case was improper. Closing argument provides an opportunity to draw the jury’s attention to the evidence presented, but it does not give a prosecutor the right to present altered version of admitted evidence to support the State’s theory of the case, to present derogatory depictions of the defendant, or to express personal opinions on the defendant’s guilt. Furthermore, RPC3.4(e) expressly prohibits a lawyer from vouching for any witness’s credibility or stating a personal opinion ‘on the guilt or innocence of the accused.’”

My opinion? Good decision. It’s very encouraging for trial attorneys to learn from these opinions. For example, we can argue Motions in Limine asking that the State’s PowerPoint presentations are disclosed in advance of closing arguments. The Walker opinion expressly endorses this approach.

Furthermore, this is the second opinion this month handed down by the WA Supremes regarding Prosecutorial Misconduct during closing arguments (please read my blog on State v. Allen). It appears the WA Supremes are on a roll.

Good opinion!

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. Huffman: Crossing the Centerline = DUI Arrest

Constitutional Rights, Due Process, DUI, law enforcement, misdemeanor, police, Terry Stop, Traffic Infractions, Uncategorized, Washington Court of Appeals, Washington State Patrol, , ,

Crossing A Double Yellow Line - i am traffic

Division I of the WA Court of Appeals decided that a single crossing of the centerline is sufficient to justify a traffic stop for a violation of RCW 46.61.100 Keep Right Except When Passing.

In State v. Huffman, defendant Sarah Huffman was arrested for driving under the influence of alcohol (DUI) after being pulled over for weaving in her lane, jerking back from the centerline and crossing the centerline on State Route 9. The two-mile section of the roadway is relatively straight, with a painted yellow line in the center that is at times a double solid line.

Police reports indicate the Trooper Eberle saw Huffman’s vehicle touch the centerline three times, each time immediately jerking back to the right side of the road. On the fourth occasion, the vehicle crossed the centerline by approximately one full tire width. Trooper Eberle did not recall any oncoming traffic at the time the vehicle crossed over the centerline. He stopped the vehicle and subsequently arrested the driver, appellant Sarah Huffman, for driving under the influence.

Huffman claimed the stop was unlawful because her single crossing of the centerline did not give rise to reasonable, articulable suspicion that she committed a traffic infraction under RCW 46.61.100. The district court agreed and granted her motion to suppress all evidence obtained after the stop. On appeal, the superior court reversed, concluding the stop was valid because Huffman committed a traffic infraction by crossing the centerline in violation of RCW 46.61.100.

Huffman appealed her case to Division I of the WA Court of Appeals. She argued that under State v. Prado, and its interpretation of RCW 46.61.140 Driving on Roadways Laned For Traffic, her momentary crossing of the centerline was not a traffic infraction and thus, there was no lawful basis for the stop.

Some background on RCW 46.61.140 and State v. Prado is necessary. In Prado, a law enforcement officer witnessed Mr. Tonelli-Prado’s vehicle cross an eight-inch white dividing the exit lane from the adjacent lane by two tire widths for one second. The Trooper pulled over Prado’s vehicle for violating RCW 46.61.140. This traffic statute addresses the safe changing of lanes (right or left or turn) and the use of a center lane, but does not mention a centerline. RCW 46.61.140(1) states:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply: (1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

The trial court found that that Prado’s motion to suppress was not appropriate because the vehicle actually crossed the lane line, rather than merely touching the lane line. Upon review, however, the Superior Court found that under a totality of the circumstances argument, that a brief incursion not resulting in a “safety problem” was not sufficient grounds to pull over the vehicle. The Prosecutor appealed the ruling of the Superior Court to Division I Court of Appeals. On appeal, Division I upheld the Superior Court and ruled that a vehicle crossing over the line for one second by two tire widths on an exit lane does not justify a belief that the vehicle was operated unlawfully under RCW 46.61.140(1).

In light of this background, Division I granted Huffman’s appeal to decide whether (1) State v. Prado applies and (2) whether the “as nearly as practicable” language of RCW 46.61.140 also applies to RCW 46.61.100.

The Court decided “No,” and “No.” The plain reading of the two statutes and their different objectives leads one to believe that the “nearly as practicable” qualifying language from RCW 46.61.140(1) does NOT apply to RCW 46.61.100. “Our decision in Prado is limited to its facts which involved only a violation of RCW 46.61.140, not RCW 46.61.100. Because it is undisputed that Huffman crossed the centerline, the officer was justified in stopping her to investigate a violation of RCW 46.61.100.” Based on that, the Court of Appeals vacated and reversed the trial court’s orders suppressing all evidence and dismissing the prosecution. The Court also reinstated the charges against Huffman and remanded this matter back to the district court for trial.

My opinion? The Huffman opinion is an attempt to limit the scope and applicability of Prado’s reasoning to RCW 46.61.140. Ever since Prado was decided 7 years ago, the Prosecutors and Judges in district courts have rallied against it. Prado took too much discretionary power out of the hands of police officers who follow and pull over motorists suspected of DUI. Here, the Court of Appeals “stopped the insanity” of Prado and limit its reasoning to violations of RCW 46.61.140 only.

Unfortunately, a pendular swing in one direction often gives momentum to a pendular swing in the opposite direction. More specifically, I fear that the reasoning of Huffman might be applicable to violations of RCW 46.61.670 Driving With Wheels Off Roadway. The statute says the following:

It shall be unlawful to operate or drive any vehicle or combination of vehicles over or along any pavement or gravel or crushed rock surface on a public highway with one wheel or all of the wheels off the roadway thereof, except as permitted by RCW 46.61.428 or for the purpose of stopping off such roadway, or having stopped thereat, for proceeding back onto the pavement, gravel or crushed rock surface thereof.

Therefore – and worst-case scenario – under Huffman, a motorist who briefly/unlawfully drives on a road with one or more wheels off the roadway can be pulled over and investigated for DUI.

Is this fair?

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.