Category Archives: Washington Court of Appeals

State v. Pearson: DUI Blood Draw Held Unlawful

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

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

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

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

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

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

TRIAL

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

ISSUES ON APPEAL

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

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

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

2. Trial Court Mistakenly Admitted Testimony From Toxicologist.

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

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

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

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

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

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

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

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

State v. Feely: Endangering Other Officers During Pursuit Brings Enhanced Penalties

Bellingham Defense Attorney, DUI, Eluding, felony, law enforcement, police, Sentencing, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Here’s an interesting case out of Whatcom County.

In State v. Feely, the WA Court of Appeals held that a defendant convicted of Attempting to Elude a Police Vehicle also faces sentencing enhancements under RCW 9.94A.834 when an officer who deploys spike strips is endangered.

Shortly after midnight, Trooper Travis Lipton was parked in an unmarked vehicle on the shoulder of the northbound on ramp to Interstate 5. A pickup truck driven by defendant Thomas Feely passed very close to Trooper Lipton’s car while merging onto the freeway. Trooper Lipton saw the truck drift into the left lane before returning to the right lane. He followed Feely.

Once Trooper Lipton caught up to Feely, he started his car’s audio and video recording system. He observed Feely drift “back and forth within the right lane continuously,” and cross the fog line and the “center skip line” dividing the two lanes. After Feely failed to signal a lane change, Trooper Lipton activated his siren and emergency lights.

Feely continued northbound. Trooper Lipton advised dispatch of Feely’s failure to stop. Feely took the next exit and ran the stop sign at the top of the exit ramp. Feely continued on the two-lane road, greatly exceeding the speed limit and drifting “over onto the oncoming lane frequently.” He bypassed two cars that slowed or stopped as a result. Trooper Lipton requested dispatch contact other troopers to deploy spike strips.

Police set up a spike strip, but Feely went around it. Sergeant Larry Flynn set up another spike strip. Feely attempted to drive around it but “immediately locked up” his brakes. He “slid almost the whole way” towards Sergeant Flynn and stopped just short of where Sergeant Flynn was standing. Feely then “started to jerk forward” towards Sergeant Flynn by the side of the road. Sergeant Flynn released some slack on the spike strips so he could get farther off the road. Feely ran over one of the spike strips with his front left tire and sped away. Trooper Lipton maintained his pursuit.

After turning down a private driveway, Feely drove his truck into a swamp. He ran into the woods, leaving one shoe behind in the mud. More police officers shortly arrived, and after searching with two police dogs, they found Feely hiding in a tree. He had no shoes on and his clothes were wet. The officers took Feely into custody and smelled alcohol on his breath.

Trooper Lipton took Feely to a hospital. About an hour later, Trooper Lipton collected Feely’s blood, which registered a blood alcohol level of 0.13.

The State initially charged Feely with one count of Felony Driving Under the Influence (DUI) and one count of Attempting to Elude a Pursuing Police Vehicle with an endangerment sentencing enhancement. The State later amended the information to allege an aggravating circumstance under RCW 9.94A.535(2)(c) because Feely had committed multiple current offenses and his high offender score results in some of the current offenses going unpunished.

At trial, Feely stipulated that he had four prior qualifying convictions, elevating the DUI to a felony. The jury found Feely guilty as charged. In a special verdict, the jury also found that a “person, other than [Feely] or a pursuing law enforcement officer, was endangered by Feely’s actions during his commission of the crime of Attempting to Elude a Police Vehicle.”

The trial court sentenced Feely to 60 months for the felony DUI. The court sentenced him to 29 months for attempting to elude, plus 12 months and one day for the endangerment enhancement. The court ordered “all counts shall be served consecutively, including the portion of those counts for which there is an enhancement.” The court imposed this upward exceptional sentence after expressly finding that Mr. Feely committed multiple current offenses and the defendant’s high offender score resulted in some of the current offenses going unpunished.

Feely appealed. One of his arguments was that the prosecutor misstated the law when he argued the jury “could find Feely endangered someone other than himself or a pursuing police officer if it found he endangered the officers who deployed the spike strips.”

However, the Court of Appeals disagreed. It reasoned that the prosecutor did not misstate the law in arguing that the jury could consider Feely’s endangerment of the spike strip officers for the sentencing enhancement.

The Court also reasoned that multiple, corroborating facts identified Feely as the driver of the truck, consequently, compelling evidence supports his convictions:

Moreover, Feely’s crime was captured on Trooper Lipton’s vehicle’s video recording system and admitted at trial. This video showed one driver driving a truck registered to Feely’s parents. The officers testified that they followed Feely down the private driveway, where they found his truck stuck in a swamp with the driver side window partially rolled down and the driver side door ajar. The passenger side door was closed and an expired Washington State identification card belonging to Feely was in the center console. The officers also testified that they heard what “sounded like one person” “making his way through the brush and the sticks,” and that they did not hear any sounds coming from any other direction. Moreover, police dogs, who arrived within five minutes of finding Feely’s truck, were able to locate him hiding nearby in a tree. These dogs led the officers to the same tree. Feely smelled of alcohol, and several hours after the incident, had a blood alcohol level of 0.13.

Additionally, the Court of Appeals rejected Feely’s argument that the Prosecutor’s minimization of the State’s burden of proof here was improper. It reasoned that the prosecutor here never implied the jury had a duty to convict without a reason to do so or ever suggested that the burden of proof shifted to Feely. “In context of the total closing argument, we conclude the prosecutor did not trivialize the State’s burden.” Consequently, and because Feely did not object at trial and fails to establish any resulting prejudice, the Court decided Feely’s claim fails.

Finally, the Court of Appeals concluded the trial court properly imposed an exceptional sentence based on Feely’s high offender score: “Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, the sentencing range increases based on the defendant’s offender score, up to a score of 9.59. Based on Feely’s offender score of 14 for each count, he faced a 60–month sentence for the felony DUI conviction alone.”

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

State v. Robison: Implied Consent & Pot DUI

Bellingham Defense Attorney, Blood Test, Drug Offenses, Due Process, DUI, Evidence, Implied Consent, Legislation, marijuana, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

State v. Kohonen: No Proof of Cyberstalking

Bellingham Defense Attorney, Constitutional Rights, Cyberstalking, Due Process, Evidence, Juvenile, misdemeanor, Social Media, Technology, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Kohonen, Division I of the WA Court of Appeals decided the State failed to prove that a defendant’s tweets constituted “true threats” sufficient to support a conviction for Cyberstalking.

When the defendant J.K. was in eighth grade, a classmate, S.G., informed a teacher that another student was behaving oddly. As a result, the other student and J.K. were both suspended from school. J.K. and S.G. had no other interaction until the incident at the center of this case.

Two years later, when J.K. and S.G. were sophomores in high school, they shared a first period class. One morning, J.K. saw S.G. in class and was reminded of the incident two years before. She quickly posted two short messages, known as tweets, via the web site Twitter. The first read, “Tbh (to be honest), I still want to punch you in the throat even tho it was 2 years ago.” The second read, “#[S.G.]mustdie.”

Eventually, J.K. was taken from class to the school administration office, where she was confronted her with the tweets. J.K. immediately admitted that she had written and posted the tweets but stated that she had not intended for her actions to harm S.G. Later, J.K. also explained that she posted tweets frequently. She used Twitter as a “virtual diary,” posting her thoughts, reactions, feelings, and more. She testified that she sent the messages quickly and without thinking, as a fleeting expression of her agitation at the memory from middle school. Although she was aware that the posts were public, and that she had approximately 100 people who followed her, she testified that she did not consider the potential impact her tweets might have on S.G.

J.K. was charged with one count of Cyberstalking. After trial, the juvenile commissioner adjudicated J.K. guilty as charged, finding that J.K. had acted with the intent to embarrass, harass, and torment S.G. and that she was not credible on the question of whether she had considered the effect the tweets could have before posting them. The court also concluded that the tweets constituted a true threat. J.K. was sentenced to six months of probation and 30 hours of community service. The superior court denied J.K.’s motion to revise. Division I accepted her appeal.

The Court of Appeals held there was insufficient evidence that the tweets in question constituted “true threats,” as required by the federal and state constitutions.

The Court reasoned that due process clauses of the United States Constitution and WA Constitution require that the government prove every element of a crime beyond a reasonable doubt. The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be to determine whether the evidence could reasonably support a finding of guilt beyond a reasonable doubt.  The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The Court further reasoned that in order to convict J.K. of Cyberstalking, the State was required to prove each of the following elements beyond a reasonable doubt: (1) that J.K. made an electronic communication to another person, (2) that, at the time J.K. made the electronic communication, she specifically intended to harass, intimidate, torment, or embarrass another person, and (3) that J.K. threatened to inflict injury on the person to whom the electronic communication was made.

Under the circumstances, the Tweets were not true threats:

“J.K.’s tweets bear the signs of—admittedly mean-spirited—hyperbolic expressions of frustration, and that is precisely how they were received. A reasonable person in J.K.’s position would not have anticipated a different reception. Therefore, insufficient evidence was presented that the tweets constituted true threats.”

On that, the Court of Appeals reversed the conviction and dismissed the 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.

State v. Keodara: Overbroad Search Warrant for Cell Phone

Bellingham Defense Attorney, Constitutional Rights, Cruel & Unusual Punishment, Due Process, Eighth Amendment, Evidence, felony, Homicide & Manslaughter, Ineffective Assistance, Probable Cause, Search and Seizure, Search Warrant, Sentencing, Technology, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Keodara, the WA Court of Appeals ruled that a search warrant was overbroad in violation of the particularity requirement because it allowed police to search a cell phone “for items that had no association with any criminal activity and for which there was no probable cause whatsoever.”

In 2011, the defendant Say Keodara was involved in a shooting at a bus stop.  Several weeks later, police arrested him for an unrelated incident. They searched his backpack and found his cell phone. Outside the backpack police found drugs, drug packaging and drug paraphernalia.  An officer submitted an affidavit in support of a search warrant for the contents of the cell phone.

The affidavit made several generalizations about drug dealers and gang members in support of the officer’s conclusion that there was evidence of crime on the cell phone. The judge issue the warrant pursuant to the affidavit, which ultimately allowed police to search Keodara’s entire phone without any limitations.  Police searched the phone and found evidence that the State used when trying Mr. Keodara for the shooting at the bus stop.

Keodara was charged with Murder in the First Degree, three counts of Assault in the First Degree (each with a separate firearm enhancement), and Unlawful Possession of a Firearm in the First Degree. He was convicted on all counts and sentenced to 831 months of prison (69.25 years).

On appeal, Keodara argued that the evidence from his phone should have been suppressed because the search warrant violated the Fourth Amendment to the United States Constitution and art. I, §7 of the Washington State Constitution. He also argued that his substantial prison sentence violated the Eighth Amendment.

Ultimately, the court held that although the search of Keodara’s phone violated the federal
constitution, the failure to suppress the evidence was harmless. It also held that Keodara’s sentence violated the 8th Amendment because the court failed to Keodara’s youth and other age-related factors into account. Accordingly, the court affirmed Keodara’s conviction but remanded for a new sentencing hearing.

In reaching its decision, the court reasoned that a warrant is overbroad if it fails to describe with particularity items for which probable cause exists to search. In this case, the affidavit for the warrant for Keodara’s phone contained blanket statements about what certain groups of offenders tend to do and what information they tend to store in particular places. Furthermore, the warrant’s language also allowed Keodara’s phone to be searched for items that had no association with any criminal activity and for which there was no probable cause whatsoever. The court also said the following:

Here, no evidence was seized that would have linked Keodara’s phone to the crimes listed in the warrant-unlawful possession of firearms, possession with intent to deliver or sell narcotics, or assault. Nothing in the record suggests that anyone saw Keodara use the phone to make calls or take photos. In addition, the phone was found in a backpack, separate from the drug paraphernalia or the pistol. There was no indication that evidence of firearms or drugs were found with the phone. We conclude that the warrant was overbroad and failed to satisfy the Fourth Amendment’s particularity requirement.

Nevertheless, the Court of Appeals also held that the trial court committed harmless error in admitting evidence police found on the phone:

Here, the untainted evidence of Keodara’s guilt was strong. Cellular phone tower records placed him near the location of the shooting, two eyewitnesses identified him, and another witness testified that Keodara contacted him and told him about the shooting. We find that the trial court’s denial of Keodara’s motion to suppress does not warrant reversal and, accordingly, we affirm his convictions.

The Court of Appeals also addressed the issue of whether Keodara’s sentence violated the Eighth Amendment. In short, the court said, “Yes.” It reasoned that the trial court did not take into account that Keodara was a juvenile at the time he committed the crimes or consider other age related factors that weigh on culpability or his capacity for rehabilitation. Based on that, the Court concluded that the sentence imposed in this case violated Keodar’s constitutional rights under the Eighth Amendment. Accordingly, the Court of Appeals vacated the sentence and remanded for a new sentencing hearing.

My opinion? Good decision. It appears that, more and more, our courts are rightfully acknowledging a Defendant’s youth at sentencing.

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.

Wire Cutters Are NOT Theft Tools.

Bellingham Defense Attorney, Evidence, Knapstad Motion, Retail Theft, Theft, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Larson, the WA Supreme Court overruled the WA Court of Appeals and decided that the crime of Retail Theft With Special Circumstances under RCW 9A.56.360(1)(b), which elevates theft to a more serious offense when the defendant is in possession of “an item, article, implement or device designed to overcome security systems,” only applies to an item that is created – whether by the manufacturer or the defendant – with the specific purpose of disabling or evading security systems.

Defendant Zachary Larson attempted to steal a $32 pair of shoes from a Marshall’s store in Bellingham, WA. The shoes were equipped with a security device that was attached to the shoes by wire. Yet, Larson, using wire cutters that he had brought into the store, severed the wire and removed the security device. When Larson tried to leave the store, he was stopped by security employees and, subsequently, was charged with one count of Retail Theft with Special circumstances, which criminalizes the commission of retail theft while in possession of a “device designed to overcome security systems.”

While the case was pending, Larson argued a Knapstad motion to dismiss. The trial court denied the motion and found Larson guilty as charged. He was sentenced to 60 days of confinement. Larson appealed. Ultimately, the Court of Appeals confirmed Larson’s conviction. Larson appealed again to the WA Supreme Court.

The WA Supreme Court addressed the specific issue of whether ordinary wire cutters are “designed to overcome security systems” within the context of retail theft.

The Court reasoned that whenever it must interpret the meaning and scope of a statute, “our fundamental objective is to determine and give effect to the intent of the legislature.” Furthermore,  lined bags and tag removers – of which the Defendant did not possess – are highly specialized tools with little to no utility outside of the commission of retail theft. “From this fact, it can be reasonably inferred that there is no reason a person would be in possession of these items except to facilitate retail theft.”

Furthermore, reasoned the court we must interpret statutes to avoid absurd results:

For example, where a person slips a stolen item into his pocket to hide it from a store’s security camera, the pocket has arguably become a “device designed to overcome security systems.” Similarly, a person who happens to have in her pocket a pair of nail clippers, a Leatherman multi tool, or any other tool that people commonly carry with them, at the time she shoplifts would be guilty of retail theft with extenuating circumstances. As these practical examples demonstrate, the State’s over-inclusive approach belies the statute’s primary purpose of capturing retail theft that occurs under certain aggravating circumstances.

The Court concluded that the plain language of the Retail Theft statute indicates that the legislature intended the statute to have a narrow scope:

We hold that “designed to overcome security systems” for the purposes of retail theft . . . is limited to those items, articles, implements, or devices created-whether by the defendant or manufacturer-with the specialized purpose of overcoming security systems. Ordinary tools, such as pliers or the wire cutters used by Larson, do not fall within the scope . . .  The evidence is insufficient to support Larson’s conviction for third degree retail theft with extenuating circumstances, and we reverse the Court of Appeals.

My opinion? Good decision. In interpreting the statute, the WA Supreme Court correctly applied a narrow scope because, quite frankly, any household tool found in the pockets of an alleged thief can be viewed as a tool “designed to overcome security systems.” This is unjust. Retail Theft With Special Circumstances is a Class C felony exposing defendants up to 5 years prison and a $10,000 fine. That’s quite serious. Do we want to punish thieves with Class C felonies for stealing shoes from Marshall’s store while carrying a Swiss Army knife in their pocket? Do these circumstances warrant sending people to prison? No. The WA Supreme Court got this one right.

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. Evans: A Knife is Not a Gun

Bellingham Defense Attorney, Due Process, Jury Trial, law enforcement, misdemeanor, Search and Seizure, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In City of Seattle v. Evans, the WA Supreme Court ruled that Article I, section 24 of the Washington Constitution and the Second Amendment to the United States Constitution’s protection of the right to bear “arms” does not extend to a paring knife.

Seattle Police Officer Michael Conners stopped a vehicle driven by Wayne Anthony Evans for speeding in the Central District of Seattle. As Conners approached Evans’s vehicle, he observed furtive movements from Evans and his passenger, and he smelled marijuana. Conners directed Evans to exit the vehicle and asked him whether he had any weapons. Evans responded that there was a knife in his pocket. Conners instructed Evans not to reach for the knife; Conners then reached into Evans’s front right pocket, retrieved a fixed-blade knife with a black handle, and placed Evans under arrest for possession of a fixed-blade knife.

The City of Seattle (City) charged Evans with the unlawful use of weapons in violation of SMC 12A.14.080, which reads, “It is unlawful for a person knowingly to . . . carry concealed or unconcealed on his or her person any dangerous knife, or carry concealed on his or her person any deadly weapon other than a firearm.”

The case proceeded to trial. The City’s Prosecutor introduced the knife into evidence and presented testimony from Officer Conners. Conners identified the knife that he recovered from Evans at trial and the State entered that knife into evidence. When asked, Officer Conners described the knife as having a “black handle with a metal colored blade” that was “about-about this long,” apparently gesturing with his hands. Officer Conners admitted that he was concerned that the knife had a fixed blade-that is, it had a blade that would not fold into the handle-and alternately described the blade as resembling a “kitchen knife” or a “paring knife.”

The jury returned a general verdict of guilty, and Evans’s conviction was affirmed by the King County Superior Court and the Court of Appeals.

The WA Supreme Court reviewed the case on the specific issue of whether Mr. Evans’ fixed-blade knife is a protected arm under the Washington or federal constitution. Apparently, ruled the court, a knife is NOT protected as an “Arm” under the Constitution(s):

 . . . we hold that not all knives are constitutionally protected arms and that Evans does not demonstrate that his paring knife is an “arm” as defined under our state or federal constitution. Therefore, Evans cannot establish that SMC 12A.14.080(B) is unconstitutional as applied to him and we reject his as-applied challenge.

The court reasoned that although it is true that some weapons may be used for culinary purposes, as it is also true that many culinary utensils may be used when necessary for self-defense; but it does not follow that all weapons are culinary utensils or that all culinary utensils are weapons:

Were we to adopt Evans’s analysis and hold that a kitchen knife was a protected arm because it could be used for self-defense, there would be no end to the extent of utensils arguably constitutionally protected as arms. If a kitchen knife is a protected arm, what about a rolling pin, which might be effectively wielded for protection or attack? Or a frying pan? Or a heavy candlestick? “Admittedly, any hard object can be used as a weapon, but it would be absurd to give every knife, pitchfork, rake, brick or other object conceivably employable for personal defense constitutional protection as ‘arms.’

With that, the WA Supreme Court affirmed the Court of Appeals and held that Evans’s paring knife was not an arm entitled to constitutional protection. Therefore, Evans cannot establish that SMC 12A.14.080 is unconstitutional as applied to him.

My opinion? I hate to say, but I somewhat agree. There’s a huge difference between a gun and a knife. The right to bear arms was made to protect guns, not knives. 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.

State v. Rich: Evidence of DUI Also Shows Reckless Driving

Bellingham Defense Attorney, DUI, Reckless Endangerment, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In State v. Rich, the WA Supreme Court ruled that although proof of DUI alone does not necessarily establish proof of Reckless Endangerment, here, proof that a driver whose breath alcohol level was more than twice the legal limit and who showed awareness that she had done something wrong once stopped, and who sped past a police car in traffic with a young child in the front seat, was sufficient to allow a reasonable juror to conclude beyond a reasonable doubt that the driver created a substantial risk of death or injury to her passenger; which meets the definition of Reckless Endangerment.

A jury convicted defendant Andrea Rich of driving under the influence (DUI) and Reckless Endangerment. The evidence showed that Rich was speeding in traffic while highly intoxicated and with a young child in the front passenger seat. But the officer who arrested Rich followed her car because he believed that the car was stolen. Rich’s manner of driving posed no observable danger.

The WA Court of Appeals reversed the Reckless Endangerment conviction, holding that the evidence was insufficient to establish that Rich’s driving created an actual, substantial risk of death or serious physical injury to another person. It reasoned that proof of a DUI does not necessarily establish proof of Reckless Endangerment.

In response, the State Prosecutor appealed to the WA Supreme Court on the issue of whether there was sufficient to support Rich’s Reckless Endangerment conviction.

The WA Supreme Court agreed with the Court of Appeals that proof of DUI alone does not necessarily establish proof of Reckless Endangerment. The WA Supreme Court also reasoned, however, that the State proved more than just DUI in this case:

It also proved speeding, past a police car, in traffic, by a driver whose breath alcohol level was more than twice the legal limit, who showed awareness that she had done something wrong once stopped, and who had a young child in the front passenger seat. Construing the evidence in the light most favorable to the State, a reasonable juror could conclude beyond a reasonable doubt that Rich created a substantial risk of death or injury to her passenger, that Rich knew of the substantial risk, and that Rich disregarded that risk in gross deviation from the way a reasonable person would act in her situation.

With that, the WA Supreme Court reversed the Court of Appeals and affirmed the conviction.

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. Meza: Freezing Funds Without a Warrant Is Unlawful

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Freezing Bank Accounts, Probable Cause, Search and Seizure, Search Warrant, Theft, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Meza, the WA Court of Appeals Division II held that a trial court’s order to freeze the defendant’s bank account was not a search warrant, and therefore did not satisfy the warrant requirement for the seizure of funds.

In June 2014, John Armstrong spoke with the Lewis County sheriff’s office and alleged that Rafael Meza had swindled money from him. Deputy Justin Rogers investigated Armstrong’s allegations. Rogers contacted the Twin Star Credit Union and verified that Meza held an account that had received large wire transfers recently. Rogers also learned from Mansfield that Meza recently had informed him that he was planning to go to Mexico.

Rogers served Twin Star Credit Union with a valid search warrant for Meza’s account information. Meza’s bank statements showed a check and four wire transfers from Mansfield totaling $105,000, with the last transfer on June 18. They also showed a single wire transfer from Armstrong in the amount of $15,000 on April 11. Meza’s checking account showed that between October 2013 and June 2014, he withdrew approximately $89,000 in cash in 41 transactions involving between $3,000 and $5,000 each.

On June 27, 2014, the State charged Meza with one count of Theft in the First Degree. On the same day, the State presented an ex parte “Motion for an Order Freezing and Holding Funds” to the judge. The State asserted that the funds in Meza’s credit union accounts were “evidence in a felony offense.” The State’s motion was based on the probable cause affidavit filed with the information and asserted that there was “a high likelihood, based on the affidavit regarding probable cause, that Meza will remove said funds and leave the country.”

Importantly, the State did not request a search warrant for the credit union funds or reference CrR 2.3 in its motion.

Nevertheless, the trial court signed an order directing Twin Star Credit Union to “freeze and hold all accounts in the name of . . . Meza . . . as evidence in a criminal proceeding, until further order of this Court.” Also, neither the motion nor the order cited any legal authority for freezing Meza’s accounts.

In January 2015, Meza filed a motion to vacate the trial court’s order. Meza argued that there was no legal authority for the order. The trial court denied Meza’s motion to vacate the order, saying there was probable cause to believe that Meza’s account was related to the charged crime. The court concluded that it had the authority to freeze Meza’s funds under CrR 2.3. In addition, the trial court ruled that Meza’s account qualified as both evidence of a crime and the proceeds of a crime. Meza filed a motion for discretionary review. The WA Court of Appeals accepted the case.

The WA Court of Appeals reasoned that The Fourth Amendment to the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Similarly, article I, section 7 of the Washington Constitution provides that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” These provisions generally prohibit warrantless searches and seizures unless one of the narrow exceptions to the warrant requirement applies.

Consequently, reasoned the court, a person’s banking records fall within the constitutional protection of private affairs. Although no Washington case has addressed whether funds in a bank account can be seized without a warrant it defies reason to extend constitutional protection to bank account records but not to the funds reflected in those records. The Court emphasized that the seizure of funds is as much a threat to security in a person’s effects and a disturbance of a person’s private affairs as the seizure of the records regarding those funds:

“Here, the State cites no statute, court rule, or other authority allowing the seizure of a defendant’s bank account in these circumstances. Therefore, the seizure was not authorized by law.”

Finally, the Court rejected the State’s argument that under State v. Garcia-Salgado the trial court’s order is the functional equivalent of a search warrant.

“We hold that the Garcia-Salgado holding is limited to cases where the trial court’s order is authorized by law. Allowing a court order to function as a warrant when there is no independent authority for a seizure would render CrR 2.3 meaningless. Limiting the scope of Garcia-Salgado preserves the integrity of CrR 2.3. We hold that Garcia-Salgado is inapplicable and that the trial court’s order cannot be treated as the functional equivalent of a warrant.”

Based on these decision the Court of Appeals held that the trial court erred in ordering the seizure of Meza’s credit union account.

My opinion? GOOD opinion. Very sensible and reasonable. It’s refreshing that the Court of Appeals followed the law and made the right 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.

Court Reverses Pot Conviction

Bellingham Defense Attorney, Constitutional Rights, Deferred Prosecution, Drug Offenses, I-502, Legislation, marijuana, misdemeanor, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

 

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

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

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

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

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

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

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

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

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

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

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

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

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