Category Archives: Washington Court of Appeals

No Interpreter is Court Mismanagement

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In State v. Jieta, the WA Court of Appeals held that a trial court judge may dismiss a criminal prosecution due to the court’s failure to arrange for an interpreter for all scheduled court hearings.

BACKGROUND FACTS

On May 19, 2015, Mr. Jieta was first arraigned on charges of fourth degree assault and third degree malicious mischief in Snohomish County District Court. The court continued the arraignment after ordering that Jieta be provided a Marshallese interpreter. Over the next 15 months, the court held 14 more pretrial hearings, and the interpreter repeatedly failed to appear telephonically or personally.

On August 26, 2016, Jieta moved under CrRLJ 8.3(b) to dismiss all charges. On September 12, — another hearing where the interpreter failed to appear — the court dismissed all charges with prejudice and found the interpreter’s absences “seriously interfered with Mr. Jieta’s right to representation by counsel.” In short, out of 14 pretrial hearings conducted after the court directed the appointment of a interpreter, the interpreter failed to appear 10 times, appeared by phone – ineffectively – two times, and appeared in person two times. The superior court affirmed the dismissal on the State’s appeal.

The State sought discretionary review in this court, which was granted on the narrow question whether CrRLJ 8.3(b) can apply when court administration mismanages a case.

COURT’S ANALYSIS & CONCLUSIONS

Furthermore, the Court of Appeals explained that CrRLJ 8.3(b) gives courts discretion to dismiss “any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.” To satisfy the rule, the alleged misconduct “need not be of an evil or dishonest nature; simple mismanagement is sufficient.”

The Court also reasoned that the judiciary has a statutory duty of appointing an interpreter to assist the defendant throughout the proceedings:

“Reliable interpreter services are necessary to secure a non-English speaking defendant’s fair trial rights. Thus, to assist a defendant throughout the proceedings, the interpreter must actually deliver translation services throughout the proceedings.”

The purpose of CrR 8.3(b) is to ensure fairness to defendants by protecting their right to a fair trial. Thus, when mismanagement by court personnel prevents a defendant from receiving reliable interpreter services and effective assistance of counsel for more than one year, the defendant has a viable claim of “governmental misconduct” consistent with the text and purpose of CrRLJ 8.3(b).

Here, the Court of Appeals reasoned that “governmental misconduct” can extend to mismanagement by court administration.

“We need not decide the exact types of court mismanagement that could warrant relief or when dismissal is an appropriate remedy for such mismanagement,” said the Court. “On the record before us, the State does not establish that the trial court erred in its conclusion that CrRLJ 8.3(b) may extend to a court’s administrative mismanagement of its statutory obligation to provide translator services.”

With that, the COurt of Appeals affirmed the dismissal of all charges.

My opinion? Good decision.

Court interpreters are important in legal proceedings, especially when criminal charges are involved. Interpreters ensure that defendants fully understand the charges and the proceedings. Indeed, the constitutional right to simply understand the charges and their maximum consequences is captured under the 6th Amendment.

Please contact my office if you, a friend or family member are charged with a crime and they need an interpreter to move forward in their defense. Hiring a competent, experienced attorney is the first and best step toward achieving justice.

Imprisoned At 7-11

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In  State v. Dillon, the WA Court of Appeals held that in Unlawful Imprisonment charges, the State must prove that the defendant knowingly restrained another person, not that the defendant knowingly acted without legal authority.

BACKGROUND FACTS

On December 21 2017, the soon-to-be victim Mr. Favors entered a 7-Eleven after he got off his bus. Favors encountered the soon-to-be defendant Mr. Dillon standing near the entrance to 7-Eleven. Favors noticed that Dillon had scratches on his face, was bleeding, and intoxicated. Favors thought that Dillon was panhandling and told him he did not have change. Favors continued into the 7-Eleven.

Dillon entered the 7-Eleven 10 to 15 seconds after Favors. Favors finished making his purchase and started walking towards the exit. Dillon was standing three feet in front of the exit. Dillon told Favors in a slurred voice to “get your ass back over there” and threatened to cut and shoot him. Favors feared that the situation would escalate and went to the back of the store. Favors tried to leave a second time and Dillon said “I told you one time; get your ass back over there.” Favors, who is African-American, recalled hearing a racial slur. Favors discreetly called 911.

Police arrived and arrested Dillon. At one point he  “reared his head back” and hit a police officer on his forehead and the bridge of his nose. The officer recalled that Dillon was
intoxicated, his balance was poor, and was making incoherent statements.

The State initially charged Dillon with Third Degree Assault of the police officer and Harassment of Favors, but amended the information to include Unlawful Imprisonment of Favors.

The defense requested a jury instruction on Voluntary Intoxication and the State did not object. The jury acquitted Dillon of felony harassment, but convicted him of third degree assault and unlawful imprisonment.

Dillon appealed on the issue of whether State must prove beyond a reasonable doubt that Dillon knowingly acted without legal authority.

COURT’S ANALYSIS & CONCLUSIONS

The State presented sufficient evidence that a reasonable juror could find beyond a reasonable doubt that Dillon knew he was acting without legal authority when he committed the crime of Harassment.

“The threats that Dillon made had no lawful purpose. Depending on the level of intoxication, a person under the influence can still form the requisite intent to know that their actions are unlawful.”

Dillon made threats to “cut” and “shoot” Favors, both of which demonstrate that Dillon knew he was acting without legal authority. Dillon “jumped” at Favors to prevent him from exiting the 7-Eleven, further supporting a finding that Dillon knew his actions were unlawfully restraining Favors.

Regarding the Unlawful Imprisonment conviction, the WA Court of Appeals ruled that Dillon did not say anything that indicated he thought he had legal authority to restrain Favors. Also, the Court denied the argument denied the defense of Escape and held that that Mr. Favors could not have safely departed 7-11 due to Mr. Dillon’s actions:

“Viewed in the light most favorable to the State, Favor’s testimony is sufficient to find, beyond a reasonable doubt, that Dillon restrained Favors’s movement, in a manner that substantially interfered with his liberty through intimidation, threats of violence, and by blocking the 7-Eleven exit.”

With that, the Court of Appeals upheld Dillon’s convictions.

Please contact my office if you, a friend or family member face criminal charges like Assault, Harassment or Unlawful Imprisonment. It’s imperative to hire an experienced and effective criminal defense attorney who knows the law.

Unlawful Jury Selection

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In State v. Guevara Diaz the WA Court of Appeals held that seating a juror without questioning from either defense counsel or the court into her ability to be fair can never be harmless and requires a new trial without a showing of prejudice.

BACKGROUND FACTS

The State charged Mr. Diaz with one count of second degree rape and one count of third degree rape. At the beginning of trial, the judge explained to the jury that he and the attorneys would be asking them questions, first with a questionnaire and then orally. The judge told the potential jurors that counsel had prepared a questionnaire and pointed out that each juror had “the opportunity to be questioned outside the presence of the other jurors in the event that certain questions are answered yes.”

Thirteen jurors stated that they wished to be questioned outside the presence of other jurors. Seven of them had answered they could not “be fair.” Six others, including juror 23, who also answered that they “could not be fair” did not ask to be questioned outside the presence of other potential jurors.

At the conclusion of jury selection, the court seated two jurors who said that they could not be fair. One of those jurors included juror 23. The jury found Mr. Diaz guilty of one count of second degree rape and one count of third degree rape (this conviction was later overturned on double jeopardy grounds).

On appeal, Mr. Diaz argued that the trial court violated his constitutional right to a fair and impartial jury by allowing a biased juror to serve.

COURT’S ANALYSIS & CONCLUSIONS

First, the WA Court of Appeals held that the trial court should not have allowed juror 23 to serve because she expressed actual bias without further inquiry.

“A criminal defendant has a federal and state constitutional right to a fair and impartial jury. Seating a biased juror violates this right. Because the presence of a biased juror cannot be harmless, seating an actually biased juror requires a new trial without a showing of actual prejudice.”

Second, the Court held that juror 23 demonstrated actual bias when she answered “No” to the fairness question.

The Court explained that the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution both guarantee a criminal defendant the right to trial by an impartial jury. To protect this right, a party may challenge a juror for cause. Actual bias provides a basis to challenge a juror for cause.

“The trial court should have addressed this actual bias by questioning juror 23 or allowing defense counsel to question her outside the hearing of other jurors,” said the Court. “Under the circumstances of this case, any court questioning also should have occurred outside the hearing of other jurors because of defense counsel’s viable concern over questioning potentially biased jurors in front of the jury pool.”

With that, the Court of Appeals reversed Mr. Diaz’s conviction and remanded his case for a new trial.

Sexsomnia

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In State v. Pratt, the WA Court of Appeals held that Sexsomnia is an abnormal activity, similar to sleepwalking, that involves people engaging in sexual acts during sleep.  However, the trial court’s exclusion of expert testimony regarding sexsomnia did not violate the defendant’s Sixth Amendment right to present a defense because no psychological evaluation could determine whether the defendant suffered from sexsomnia at the time of the offense or that the defendant had the disorder.

BACKGROUND FACTS

The State charged Mr. Pratt with child molestation in the first degree based on an allegation by the juvenile victim MB that Pratt had sexually assaulted her while they were both sleeping in a tent for her cousin’s birthday sleepover party. The party occurred at the home of Pratt’s aunt and uncle. MB is the daughter of Pratt’s aunt’s stepsister.

Before trial, Dr. C. Kirk Johnson, a psychologist, evaluated Pratt to determine if he suffered from a sleep disorder called sexsomnia. Sexsomnia is an abnormal activity, similar to sleepwalking, that involves people engaging in sexual acts during sleep. Johnson concluded that a possible explanation for Pratt’s actions included sexsomnia, but he could not confirm it happened.

At a pretrial evidentiary hearing, Pratt indicated he wanted Johnson to testify as an expert at trial about sexsomnia. Although Johnson could not conclude that Pratt had the disorder, he would testify that sexsomnia exists. Pratt wanted to use this testimony to support his general denial defense. Pratt wanted to argue at trial that if a person is asleep, they cannot be guilty because any touching would not have been done for the purpose of sexual gratification. Pratt viewed being asleep as a general denial.

The State moved to exclude the testimony on grounds of relevance. The judge was concerned that calling an expert to testify about sexsomnia could amount to “a back door diminished capacity.” The judge granted the State’s motion to exclude.

Pratt waived a jury. At a bench trial, court found Pratt guilty as charged. Over the State’s and the victim’s objections, the court imposed a SSOSA disposition. The State appealed the sentence. Pratt cross-appealed the exclusion of Dr. Johnson’s testimony.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals reasoned that in order to be eligible for a SSOSA sentence, a defendant must have a connection with the victim which is independent of the crime. Here, Pratt was not eligible for a SSOSA sentence because it is clear that Pratt did not have an “established connection” with MB. Other than the sexual molestation, their only connections involved Pratt giving MB a skewer with marshmallows and asking MB her name.

Second, regarding the defense of Sexomnia, the Court of Appeals reasoned that under State v. Utter, Washington courts have recognized a defense of involuntary action due to sleepwalking where, at the time of the crime, the offender was clearly unconscious.

Furthermore, the defense of involuntary action as a result of being asleep, therefore, should not be treated as one of diminished capacity. Instead, involuntariness due to sleep is an affirmative defense that must be proved by the defendant by a preponderance of the evidence.

In this case, however, the Court of Appeals reasoned that Dr. Johnson could not testify that Pratt suffered from sexsomnia either on the night of the sexual molestation or ever.

“The fact that this disorder exists is irrelevant without some tendency to make the existence of sexsomnia of consequence to the determination of the action more probable than it would without the evidence. No nexus existed between Pratt, sexsomnia, and his actions on the night of the molestation.”

Therefore, the Court of Appeals held that the trial court properly excluded Johnson’s testimony because it was irrelevant to both the general denial defense and to a defense of lack of volition. With that, the Court of Appeals affirmed Pratt’s conviction.

Please contact my office if you, a friend or family member are charged with a crime and the defense involves being unconscious due to sleepwalking, and/or experiencing a medical condition called “slow wave sleep.” I’ve successfully obtained dismissal of criminal charges for prior clients who were asleep and/or unconscious during the commission of crimes. Expert testimony might be necessary to educate the jury of a possible Diminished Capacity defense.

Rape By Forcible Compulsion or Consent?

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In State v. Knapp, the WA Court of Appeals held a defendant charged with rape by forcible compulsion is not entitled to a jury instruction that requires the State to prove the absence of consent beyond a reasonable doubt.

BACKGROUND FACTS

Mr. Knapp and Ms. Spaulding met in high school and were friends for more than a decade. On February 7, 2016, Ms. Spaulding was preparing to watch the Super Bowl when Knapp came to her home. Ms. Spaulding let him in. The events following this were disputed.

According to Ms. Spaulding, Knapp began to make sexual comments toward her and expressed an interest in having sex. Ms. Spaulding denied his advances. Knapp then left, but soon returned to the home, claiming he forgot his bandana. Ms. Spaulding let him in again and while she was sitting on the couch, Knapp threw her to the ground and pulled down her pants.

Ms. Spaulding screamed for her neighbors, but they did not hear her. Knapp then used his bandana to gag her. The struggle continued until Knapp pinned her against a wall and raped her. Ms. Spaulding continued to say, “No,” “Stop,” and “Don’t do this.” Knapp left, and Ms. Spaulding called her mother and then the police. Ms. Spaulding was taken to the hospital where she underwent a sexual assault examination.

According to Knapp, he and Ms. Spaulding were “friends with benefits” for years and engaged in sex together on and off. After Ms. Spaulding let him in the first time, Ms. Spaulding realized Knapp was high on methamphetamine and she hinted that she wanted some. Knapp refused to give her any. Ms. Spaulding became upset, and Knapp decided to leave.

After he left, Knapp realized he forgot his bandana and returned to retrieve it. Ms. Spaulding let him in again, and she pressed Knapp to get her high. Eventually, Ms. Spaulding offered sex for drugs. At that point, Knapp “gave in” and they had sex. Afterward, Knapp could not find the methamphetamine to give to her. Ms. Spaulding became upset and threatened to call the police and falsely accuse him of rape. Knapp left and was later arrested. The State charged Knapp with rape in the second degree by forcible compulsion.

THE TRIAL

At trial, Knapp requested a jury instruction that told the jury the State had the burden of proving an absence of consent beyond a reasonable doubt. The State opposed this instruction, arguing it was not a correct statement of the law. The State instead proposed Washington pattern jury instruction 18.25, which reads, “Evidence of consent may be taken into consideration in determining whether the defendant used forcible compulsion to have sexual intercourse.”

The trial court declined to give Knapp’s proposed instruction and instead gave the State’s. The jury found Knapp guilty of second degree rape. The trial court sentenced Knapp to a midrange sentence—110 months to life.

Knapp appealed on the issue of whether the jury was properly instructed on the issue of consent.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that at trial, each party is entitled to have the jury instructed on its theory of the case when there is sufficient evidence to support that theory.

“Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law,” said the Court. “Read as a whole, the jury instructions must make the legal standard apparent to the average juror.”

Here, both parties relied heavily on State v. W.R., a case which apparently offers confusing interpretations of which party in a criminal sex case has the burden of proving consent.

The Court acknowledged that Knapp argued that W.R. stands for the proposition that the burden to prove consent has now shifted to the State, and the State must prove a lack of consent beyond a reasonable doubt. Knapp’s proposed jury instruction read: Consent means that at the time of the act of sexual intercourse there are actual words or conduct indicating a freely given agreement to have sexual intercourse. The Defendant has no burden to prove that sexual intercourse was consensual. It is the State’s burden to prove the absence of consent beyond a reasonable doubt.”

However, the Court of Appeals disagreed with Knapp:

“The court in W.R. focused on whether the burden to prove consent was correctly placed on the defendant. It did not hold that the State must prove the absence of consent.”

The Court ruled that the trial court did not commit legal error when it denied Knapp’s proposed instruction. “Knapp’s proposed instruction was an incorrect statement of the law,” it said. “W.R. did not hold that the burden to prove an absence of consent shifted to the State. Instead, it held that the burden to prove consent cannot be placed on the defendant.”

Furthermore, when read as a whole, the trial court’s instructions allowed Knapp to argue his theory of the case. “Knapp claimed the sexual intercourse was consensual,” said the Court of Appeals. “The court’s instructions on the elements of the offense and consent allowed Knapp to argue his theory of the case—that Ms. Spaulding consented to sexual intercourse and the State failed to prove forcible compulsion beyond a reasonable doubt.”

With that, the Court of appeals affirmed Knapp’s conviction.

Please contact my office if you, a friend or family member face criminal sex charges. Consent is a viable defense, and evidence of consent may be considered by the jury. Therefore, it’s imperative to hire a defense attorney knowledgeable of the law surrounding these issues.

Body Camera Evidence Admissible

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In State v. Clayton, the WA Court of Appeals held that police body camera evidence does not violate Washington’s Privacy Act because police interactions with a suspect and witnesses or victims of the crime are not private conversations.

BACKGROUND FACTS

The charges arose from a visit by law enforcement to a Spokane home. On the evening in question, multiple officers responded to the residence following a report of shots being fired. Mr. Clayton let officers in the residence and consented to a search. There were six people in the residence in addition to the officers who entered. Three officers had active body cameras recording the investigation, but none of the residents were advised of that fact.

An officer discovered two revolvers in a dresser and also observed bullet holes in a couch, wall, and the floor. Upon learning that Mr. Clayton was ineligible to possess the revolvers, officers arrested him for unlawful possession of the weapons. The prosecutor charged two counts of unlawful possession of a firearm based on the October arrest. Clayton’s girlfriend told officers that one month earlier, Clayton had fired a shot in the apartment that struck the couch on which she was sitting.

Ultimately, the prosecutor charged Clayton with one count of second degree assault and one count of unlawful possession of a firearm for the September incident, as well as two counts of unlawful possession of a firearm for the two weapons recovered in October.

After conducting a CrR 3.6 hearing on a defense motion to suppress the recordings, the court permitted the video evidence only to the point where the officer discovered the guns and arrested Clayton. Body camera footage from one of the officers was played for the jury at trial. The jury acquitted Clayton on the assault charge, but convicted him of all three
unlawful possession charges.

COURT’S ANALYSIS

On appeal, Mr. Clayton argues that the police body camera recording was made in violation of the “Privacy Act,” rendering the evidence inadmissible.

The Court of Appeals  ultimately ruled, however, that because the police interaction with Mr. Clayton and his family was not a private conversation, there was no error.

The Court described how the Privacy Act prohibits recording a private communication unless all parties to the communication consent. Consequently, any information obtained from unknown recordings is inadmissible in court.

More specifically, a communication is private under the act when (1) the parties have a subjective expectation that it is private, and (2) that expectation is objectively reasonable.  Among other things, the subject matter of the calls, the location of the participants, the potential presence of third parties, and the roles of the participants are relevant to whether the call is private.

When it comes to body-worn cameras, law enforcement may record people who have been arrested upon (i) informing the person that a recording is being made, (ii) stating the time of the beginning and ending of the recording in the recording, and (iii) advising the person at the commencement of the recording of his or her constitutional rights. In addition, (iv) the recording may be used only for valid police or court activities. Finally, the person must be told that he or she is being recorded. However, there is no requirement that the individual consent to the recording.

In short, the Court reasoned that conversations with uniformed, on-duty law enforcement officers are typically not private conversations.

“People understand that information they provide to officers conducting an investigation is going to turn up in written police reports and may be reported in court along with the observations made by the officers . . . The conversations took place in his apartment, a place where he had some subjective expectation of privacy, but they also occurred in the presence of five others. The subject matter of the visit—a report of a gun being fired and subsequent search for the weapon—was not a private one.”

Consequently, the trial court did not err in denying the defendant’s motion to suppress and upheld his convictions.

Please contact my office if you, a friend or family member face criminal charges and the evidence involves recordings from police body-worn cameras.

Search Incident to Arrest

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In State v. Richards, the WA Court of Appeals held that a search of an arrestee’s person, purses or handbags extends to closed, but not locked containers found on their person at the time of arrest.

BACKGROUND FACTS

On November 11, 2017, a loss protection officer at a retail store in Woodland, observed Richards placing store merchandise into her purse. The officer approached Richards after she left the store without paying for the items in her purse. Two police officers, who were waiting outside, detained Richards and escorted her to the loss protection office.  There, the officers arrested Richards and searched her purse.

During the search of the purse, the officers discovered the stolen merchandise and a closed, zippered pouch. They opened the pouch and searched it, looking for theft tools used for removing secure access devices. The pouch contained drug paraphernalia, foil residue, straws, and syringes.

The State charged Richards with unlawful possession of heroin. Richards filed a motion to suppress the contents of the pouch found in her purse. The trial court considered the evidence set out above and denied the motion. Richards subsequently was convicted of possession of heroin. She appeals her conviction.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Court of Appeals held that officers did not exceed the scope of a lawful search incident to arrest when they searched a closed pouch in Richards’s purse that she was carrying at the time of arrest. Accordingly, the Court of Appeals affirmed Richards’s conviction.

The Court reasoned that both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit warrantless searches unless one of the exceptions to the warrant requirement applies.

One exception to the warrant requirement is a search of a person incident to a lawful arrest of that person. Under this exception, an officer making a lawful custodial arrest has authority to search the person being arrested as well articles of the arrestee’s person such as clothing and personal effects.

“An article immediately associated with the arrestee’s person may be searched if the arrestee has actual possession of it at the time of a lawful custodial arrest,” reasoned the Court of Appeals. “This rule is referred to as the ‘time of arrest’ rule. Based on this rule, an officer may search a purse or a bag in the arrestee’s possession at the time of arrest.”

However, the Court of Appeals also reasoned that the search incident to arrest exception did not apply to the search of a locked box inside a backpack an arrestee was carrying at the time of the arrest. For example, in State v. VanNess, the court concluded that the locked box in the backpack could not be searched without a warrant because the arresting officer raised no concerns about his safety and there was no indication that the officer believed that the box would contain evidence relevant to the crime of arrest.

“The issue here is whether the same rule applies to a closed, unlocked container in Richards’s purse. We conclude that it does not.”

Ultimately, the Court of Appeals reasoned that the search of a closed, unlocked pouch in a purse in the arrestee’s possession simply does not implicate the type of significant privacy interests that would render the search of the pouch unlawful.

The Court concluded that officers searching a purse or bag incident to arrest may lawfully search closed, unlocked containers within that purse or bag. “Accordingly, we hold that the trial court did not err in denying Richards’s motion to suppress the evidence discovered in the search of the pouch in her purse.”

Please contact my office if you, a friend or family member face criminal charges involving a search of persons, vehicles or homes. It’s critically important to retain experienced defense counsel like myself who are knowledgeable of Washington’s search and seizure laws.

Exigent Circumstances Support Warrantless Blood Draw

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In State v. Anderson, the WA Court of Appeals held that exigent circumstances supported a warrantless blood draw at the scene from a driver arrested for vehicular homicide and vehicular assault.

BACKGROUND FACTS

In October 2014, Anderson was living with his high school friend, Mr. Powers. Powers would occasionally let Anderson drive his car. The evening of October 24, 2014, Anderson drank at home and then went to a bar to watch a hockey game. About 12:30 am., Powers heard Anderson’s voice and then heard his car start. Anderson took Powers’s car without his permission.

Around 2:00 a.m., Sergeant Jamie Douglas responded to a multivictim car crash in Auburn. At the scene, Douglas saw an “obliterated” car off the roadway, a path of debris, an uprooted tree with an 18-inch base, uprooted utility boxes, and guy wires that had been supporting a telephone pole torn out of the ground. The speed limit on the road was 35 m.p.h. but, based on the scene, Douglas estimated the car was traveling close to 100 mph. Deputy Jace Hoch had observed the car earlier traveling at about 90 mph. but could not catch it. He asked dispatch to let the Auburn Police Department know that the car was heading toward Auburn. Four of the five passengers in the car died.

Multiple individuals who responded to the scene smelled alcohol on Anderson. Anderson told paramedic Paul Nordenger that he had had “a few drinks.” Nordenger drew Anderson’s blood at the scene without a warrant. Test results showed that his blood alcohol content (BAC) was 0.19 grams of alcohol per 100 milliliters of blood and that he had 2.0 nanograms of THC (tetrahydrocannabinol) per milliliter. Anderson was taken to Harborview Medical Center. Toxicologist Asa Louis testified that a second blood draw taken there showed a BAC of 0.18.

The State charged Anderson with four counts of vehicular homicide, one count of vehicular assault, one count of reckless driving, and an a sentencing aggravator for injury to the victim substantially exceeding the level of bodily harm necessary to satisfy the elements of vehicular assault. A jury convicted Anderson as charged.

Among other issues, Anderson claimed that exigent circumstances did not exist for officers to conduct a warrantless blood draw at the scene.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that as a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution. A blood test is a search and seizure. A recognized exception to the warrant requirement allows a warrantless search or seizure when exigent circumstances exist.

“A court examines the totality of the circumstances to determine whether they exist,” said the Court. “They exist where the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence.” Furthermore, the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, for example, when delay results from the warrant application process.”

Next, the Court of Appeals’ legal analysis focused on prior cases U.S. Supreme Court and WA Supreme Court cases. It observed that Missouri v. McNeely upheld the proposition that the presence of other officers weighs against the conclusion that exigent circumstances existed. Also, in State v. Inman, the WA Court of Appeals held that exigent circumstances for a blood draw existed when Mr.  Inman crashed his motorcycle on a rural road, injuring him and his passenger. In that case, Inman had facial trauma; including bleeding and abrasions on the face, and a deformed helmet. A bystander told police that Inman had been unconscious for five minutes before regaining consciousness. A paramedic administered emergency treatment. A responding officer spoke with lnman and smelled intoxicants on him. Finally, Inman admitted that he had been drinking before driving his motorcycle.

“The circumstances here are more like those in Inman,” said the Court of Appeals. “Similar to Inman, the trial court found that Anderson was in a high-impact collision resulting in serious injuries.  Here, Mr. Anderson sustained serious injuries that required treatment, multiple responders smelled alcohol on him, he told an officer at the scene that he had been drinking before driving, a paramedic told the first responding officer that the medics would be giving the driver medication and intubating him, the first responding officer knew from his experience in law enforcement and as a paramedic that this emergency treatment could impair the integrity of the blood sample, and that it would take 40 to 90 minutes to obtain a warrant for a blood draw.

“A warrant was not practical because the delay caused by obtaining a warrant would result in the destruction of evidence or postpone Anderson’s receipt of necessary medical care,” reasoned the Court of Appeals. “The totality of the circumstances establish that exigent circumstances existed to justify a warrantless blood draw.”

Please contact my office of you, a friend or family member are charged with an alcohol-related driving charge and police execute a warrantless blood draw. Retaining an experienced DUI attorney who is experienced with the legalities of blood draws is the first and best step toward obtaining justice.

Court Denies “Community Caretaking” Argument

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In State v. Beach, the WA Court of Appeals upheld the dismissal of a defendant’s Possession of Stolen Vehicle charges because the police failed to obtain a search warrant and the Community Custody Exception to the warrant requirement did not apply.

BACKGROUND FACTS

On November 27, 2017, a person called 911 to report a young child walking by himself. Officer Nixon responded to the 911 report, and took custody of the child. Officer Nixon decided to drive around the neighborhood to look for the child’s home.

Eventually, the officer saw a house with its front door open. He ran the license plate of the car in the driveway and learned that the car had been reported stolen. He called for backup. At that point, the officer’s interest in determining whether the child lived at the house was secondary to figuring out if this was a home invasion robbery.

Officers arrived. They surrounded the house, with one or two officers going to the back of the house in case someone tried to exit from the back door. Officers knocked loudly on the outside of the house and announced themselves for approximately 30 seconds. When there was no answer, they drew their guns and entered the house, yelling, “This is the Kent Police Department. Come out with your hands up!”

Mr. Beach and his girlfriend Ms. Hall emerged from a rear bedroom. They said that they were sleeping. The officers discovered the couple had outstanding warrants. The officers arrested Beach and Hall. While searching Beach upon arrest, the police found a key to the stolen car in the driveway.

The State charged Beach with one count of possession of a stolen vehicle. Beach moved to suppress any evidence resulting from the warrantless search.

The State argued that the warrantless search was valid under the community caretaking exception because there was real and immediate danger of an ongoing home invasion. The trial court conducted a hearing pursuant to CrR 3.6. After hearing testimony by officers, the court found that the State had not established that the officers were acting within the scope of their community caretaking function, and suppressed the evidence.

Beach moved to dismiss and the court granted the motion. The State appealed.

COURT’S RATIONALE & CONCLUSIONS

The WA Court of Appeals explained that the United States Constitution prohibits unreasonable searches and seizures. Also, the WA constitution is often more protective than the Fourth Amendment, particularly where warrantless searches are concerned.

“Under our state constitution, warrantless searches are per se unreasonable unless one of the narrow exceptions to the warrant requirement applies,” said the Court. “The burden of proof is on the State to show that a warrantless search or seizure falls within one of the exceptions to the warrant requirement.”

A. Community Caretaking Exception to the Warrant Requirement.

The Court said the community caretaking function exception encompasses situations involving emergency aid, and also routine checks on health and safety. Compared with routine checks on health and safety, the emergency aid function involves circumstances of greater urgency and searches resulting in greater intrusion.

Under the health and safety check test, the State must show that (1) the officer subjectively believed someone needed health or safety assistance, (2) a reasonable person in the same situation would believe that there was a need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place searched.

Also, the State must also show that the encounter under this exception was reasonable, which depends on a balancing of the individual’s interest in freedom from police interference against the public’s interest in having the police perform a community caretaking function. Finally, the State must show that a reasonable person in the same situation would believe that there was a need for assistance.

The Court reasoned that here, there was a 911 report about a child wandering blocks away. When Nixon stopped his police car outside of the residence, the child did not indicate that he had any connection to the house. No connection between the child and the house was established until after the officers entered. “Any concern for the child was not an ongoing emergency that would merit the officers going into the home,” said the Court.

And here, the officers did not know of any requests for help from the house before they entered. They did not know anyone was unaccounted for and saw no evidence anyone had been injured. The officers did not see any broken windows, signs of forced entry, or other evidence of a break-in. Once in the doorway, Officer Nixon did not see anything in disarray inside the home that would indicate a struggle or ongoing emergency. When the officers went into the home, the house was in “fine condition.”

Consequently, the Court of Appeals upheld the trial court’s decision that the community caretaking exception to the warrant requirement did not apply and suppressed the evidence.

Please contact my office if you, a friend or family member are charged with a crime and police conducted their search under the “Community Caretaking” exception to the warrant requirement. Possibly, evidence obtained through the search could be suppressed and the charges dismissed.

Drunk Bicycling

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Great article by traffic reporter Doug Dahl of the Bellingham Herald reveals that it’s legal to text while riding bike on a public road. In short, Washington’s distracted driving law applies to any person that is driving a motor vehicle on a public highway.”

“Since a bike isn’t a motor vehicle, this law, as I understand it, doesn’t apply,” says Mr. Dahl. “When it comes to texting (arguably one of the more dangerous behaviors on the road) cyclists get a pass.”

Mr. Dahl is correct. While some states do have laws against cycling while impaired, Washington is not one of those states. In City of Montesano vs. Wells, the WA Court of Appeals reversed the conviction of a man charged with DUI while riding a bicycle and held the original intent of DUI laws did not include bicycles. The Court reasoned that because bicycles do not have the force and speed of cars, a drunk bicyclist is not capable of causing the tremendous “carnage and slaughter” associated with impaired driving.

My opinion? Although it’s not a wise decision to text while cycling, police cannot stop or arrest bicyclists for this traffic offense alone. In State v. Ladson, the WA Supreme Court held that our State Constitution forbid the use of pretext as a justification for a warrantless search or seizure. Applied here, in other words, police cannot pull you over to conduct an unlawful pretext search for weapons, drugs or any other contraband if they see you merely texting while riding a bicycle.

Please contact my office if you, a friend or family member are pulled over, searched and/or arrested for texting while riding a bicycle.