Category Archives: Washington Supreme Court

WA Supreme Court: When Taking DUI Breathalyzer Tests, Tobacco Strands Are Not “Foreign Substances” In a Person’s Mouth

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In State v. Sliger, No. 103563-2 (Aug. 13, 2026), the WA Supreme Court held that tobacco strands are not a “foreign substance” in a person’s mouth and therefore do not invalidate a breath test if seen and not removed.

The court reasoned that in cases involving the debatable presence of a foreign substance in the defendant’s mouth within 15-minutes before or during the breath test, the State must rely on expert testimony to make a prima facie showing that the defendant’s mouth was free of foreign substances.  Here, the State met its burden when it presented expert testimony that the tiny strands of tobacco between the defendant’s teeth would not affect the reliability of the Draeger Breath Test results.  The other admissibility requirements for breath tests were also met.  Thus, the breath test was admissible.

FACTUAL BACKGROUND

Mr. Sliger was charged with Vehicular Homicide after being involved in a fatal collision with a dirt bike. At the scene, Sliger admitted to drinking a few hours before the crash. He voluntarily took a portable breath test. Prior to taking the test, Sliger was instructed to spit out a lump of chewing tobacco from his mouth.

Sliger was arrested and taken to jail. At jail, Sliger agreed to take a Draeger breath test. Prior to administering the test, Deputy Kahns asked Sliger if he had any foreign substances in his mouth, and Sliger denied having any. In his DUI arrest report, the officer checked off the box indicating that Sliger denied having any foreign substances in his mouth. He also checked off the box indicating that he visually examined Sliger’s mouth. Next, he checked the box indicating that foreign substances were found and explained that there were “tiny tobacco strands stuck in teeth.” The tiny strands of tobacco were not removed prior to administering the test. The breath test results indicated an alcohol level over the legal limit.

The State charged Sliger with vehicular homicide. Sliger filed a motion to suppress the breath test results. He argued that the test results were inadmissible because the tiny strands of tobacco in his teeth constituted a foreign substance that should have been removed before conducting the breath test. An evidentiary hearing was held during which the court heard testimony from the arresting officer and the State’s expert, Trooper Axtman, a breath test technician. While testifying, Trooper Axtman made a distinction between a lump of chewing tobacco and tiny strands of tobacco for purposes of determining admissibility of a breath test.

After hearing testimony, the trial court denied Sliger’s motion to suppress the breath test results. The court concluded that the State met the burden of providing prima facie evidence that Sliger did not have any foreign substances in his mouth at the beginning of the 15-minute observation period. Notably, the trial court’s rulings were based solely on Sliger’s verbal denial of having foreign substances present in his mouth. Sliger appealed the trial court’s rulings. On appeal, the Court of Appeals concluded that the trial court did not err in determining that Sliger’s denial alone constituted prima facie evidence that no foreign substances were present in his mouth.

Sliger again appealed on the legal issue of whether the State provided prima facie evidence that Sliger did not have any foreign substances in his mouth at the beginning of the 15-minute observation period prior to administering the test.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the WA Supreme Court upheld the Court of Appeals and the trial court’s rulings. We hold that the State produced prima facie evidence that Sliger did not have any foreign substances in his mouth when it provided expert testimony that the tiny strands of

The WA Supreme Court began with a review of former RCW 46.61.506(4)(a). This statute, which was in effect at the time, governed the admissibility of breath tests. To determine whether a person has a foreign substance in their mouth before administering a breath test, WAC 448-16-040 requires officers to either examine the individual’s mouth or have the person deny that there are any foreign substances in their mouth.

Next the WA Supreme Court addressed Sliger’s arguments that the prosecution cannot meet its burden for admissibility here because the statutory term “any foreign substance” includes tiny strands of tobacco.  Sliger emphasized that “any” before the term “foreign substance” means that any quantity of a foreign substance, regardless of its size, results in an invalid test.

However, the WA Supreme Court disagreed with Mr. Sliger. It said the statute at issue here does not speak to quantity of substance in a person’s mouth. Furthermore, the Court emphasized that interpreting ‘any’ to mean any quantity of a foreign substance is not a reasonable interpretation of the statute. :

“Interpreting ‘any’ to mean any quantity of a foreign substance would lead to absurd results. This interpretation would mean that the presence of microscopic amounts of a foreign substance would prevent the admissibility of breath test results regardless of whether it has any impact on the reliability of the test. Officers are not equipped to conduct a thorough inspection of an individual’s mouth for any strand or speck of a foreign substance. In accordance with Fernandez, a more reasonable interpretation is that “any foreign substance” refers to any kind of foreign substance capable of impacting the reliability of the test results.” ~WA Supreme Court

With that the WA Supreme Court held that the State met its burden of establishing prima facie evidence that Sliger’s mouth was free of any foreign substances when it presented expert testimony that the tiny strands of tobacco would not affect the reliability of the breath test results.

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.

Admitting Evidence of “Common Scheme or Plan” Under Evidence Rule 404(b)

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In  State v. Stearns, No. 103908-5 (Mar. 26, 2026), the WA Supreme Court held that evidence of a defendant’s prior bad acts may be admissible under ER 404(b) to show “common scheme or plan” if the prior bad acts were markedly similar to the charged crimes.  Also, the victims in the prior bad acts do not need to be markedly similar to each other for the prior bad acts to be admissible to show common scheme or plan.

FACTUAL BACKGROUND

In 1998, Crystal Williams, a 33-year-old Black woman, was found dead in Lavizzo Park in Seattle’s Central District. Ms. Williams worked as a sex worker. Six years later, the Defendant Mr. Stearns’ DNA matched the DNA in the semen found at the crime scene. Police interviewed Mr. Stearns, who was then serving time in prison for another crime. The prosecutor determined there was probable cause to charge Mr. Stearns with Ms. Williams’ murder but failed to bring charges until 12 years later.

The State charged Mr. Stearns with felony murder in the first degree, based on first- and second-degree rape, with sexual motivation. At trial, the State offered, and the court admitted over Mr. Stearns’ objection, evidence of two of Mr. Stearns’ prior rape convictions. The State sought to admit these prior acts under the common scheme or plan exception to ER 404(b) to establish forcible compulsion and to rebut the defense of consent. Defense counsel objected, arguing that the other wrongful acts were not part of a common scheme or plan and that the evidence was unfairly prejudicial.

The trial court overruled the objection, concluding that the probative value of the evidence outweighed any prejudice and that the court would give a limiting instruction to the jury about the purpose of the admitted evidence. The trial court stated that the ER 404(b) evidence’s relevance to prove forcible compulsion and rebut Mr. Stearns’ claim of consent was “critical” to its ruling.  The trial resulted in a hung jury. After numerous appeals and reversals, the WA Supreme Court granted certiori to decide the isue of The trial court did not abuse its discretion in admitting evidence of the prior rapes under ER 404(b) to establish forcible compulsion and to rebut the defense of consent.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court discussed the parameters of Evidence Rule (ER) 404(b). Under this evidence rule, a trial court may admit the defendant’s other wrongful acts to show a common plan or scheme if the other wrongful acts are (1) proved by a preponderance of the evidence, (2) admitted for the purpose of proving a common plan or scheme, (3) relevant to prove an element of the crime charged or to rebut a defense, and (4) more probative than prejudicial. However, the WA Supreme Court also said a court may not admit evidence of a defendant’s other wrongful acts to show that the defendant has a propensity for criminal behavior. ER 404(b). The reason for this prohibition is the risk that the jury will simply punish a defendant for their other wrongful acts or will assume they committed the current alleged criminal act.

Next, the WA Supreme Court reasoned that when analyzing a defendant’s “common scheme or plan,” courts must consider the acts, the victims and the circumstances of the crimes. On this, the Court reasoned that evidence may be admitted under this exception when a person uses one plan to repeatedly commit separate but very similar crimes. The separate crimes do not have to be identical, but they must be markedly similar acts of misconduct against similar victims under similar circumstances. Further, the acts must have such a concurrence of common features that they are naturally explained as being part of a common plan.

Against that backdrop, the WA Supreme Court ruled that because Mr. stearns’ other acts of sexual assault were sufficiently similar to the present case, it was within the trial court’s discretion to admit that evidence under ER 404(b). First, the other wrongful acts committed by Mr. Stearns were markedly similar to the acts here: he hit each victim on the head, strangled them, and sexually assaulted them, and there is evidence that all three victims were robbed. This factor weighs strongly toward showing a common plan, said the Court.

Second, the dissimilarities between the victims do not weigh heavily in this case. Each woman was a victim of a seemingly random act of violence, who was attacked in Seattle’s Central District in a similar manner. These similarities between the victims are sufficient. Finally, the circumstances of the crimes in this case were similar in that Mr. Stearns was able to attack each victim by tricking them:

“Mr. Stearns entered BG’s home around midnight with a ruse, telling her someone was chasing him. Mr. Stearns attacked DH from behind after appearing to be passed out and lying in the gutter. While many details of Crystal Williams’ death are unknown, based on the circumstances it is likely the killer approached Ms. Williams under the guise of offering drugs or money for sex.” ~Justice Salvador A. Mungia, WA Supreme Court

With that, the WA Supreme Court reversed the Court of Appeals and reinstated Mr. Stearns’ 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.

Washington Supreme Court Issues Interim Order on Public Defense Standards & Caseloads

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The Washington Supreme Court issued an Order on caseload standards the Court has adopted for indigent criminal defense services. Justices unanimously agreed to set the new statewide standards, which call for public defenders to handle a maximum of 47 felony cases or 120 misdemeanor cases in a year, depending on one’s primary area of practice. The current thresholds are 150 felonies and 400 misdemeanors.

The Order is a summary explanation of the new caseload standards, which permit full implementation to be achieved over a period of time. The revised caseload standards will be integrated into court rules once the Court’s review of all of the proposed standards is complete.

The Order includes three key provisions:

  1. Specific caseload standards for different types of cases, which should be accomplished as soon as “reasonably possible,” and allowing for a phased approach to implementation;
  2. Declining to mandate a method for case counting and weighting, however, encouraging the use of case weighting; and
  3. Requiring evaluation of the progress and impacts of implementation three years after the effective date of the new caseload standards.

WHY DID THE WA SUPREME COURT MAKE RULINGS ON PUBLIC DEFENSE CASELOADS?

In 2024, Revisions to Washington public defense standards were recommended by the Washington State Bar Association (WSBA) and its Council on Public Defense (CPD). This happened after two years of intense study of the growing crisis involving steep declines in the number of public defense attorneys due to heavy caseloads and other factors, both in Washington and nationally.

WHAT DID THE WA SUPREME COURT DECIDE?

The Supreme Court’s adopted standards for indigent defense included lowering the maximum caseloads for public defense attorneys, revising some qualification requirements for public defense attorneys, and setting minimum support staffing requirements for public defense attorneys and offices.

While the Court has not completed its full review of recommended changes to public defense standards, “in advance of a full decision on all parts of the CPD’s proposal, we provide this summary communication of the Court’s conclusions on caseloads,” according to the Order. “The reality is that many aspects of indigent criminal defense services vary by structure and location, so the Court is adopting an approach which accommodates that diversity while fostering real and meaningful reductions in caseloads as soon as possible, where necessary.”

My opinion? Good decision. Studies show Public Defenders Are dangerously overworked.  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.

Crime Lab Supervisors Cannot Testify About Test Results Reached By Non-testifying Subordinates

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In State v. Hall-Haught, No. 102405-3 (May 29, 2025), the WA Supreme Court reversed the defendant’s conviction for Vehicular Assault and held the Confrontation Clause prohibits crime laboratory supervisors from testifying about test results reached by a nontestifying subordinate.  In short, if the analysis hinges upon whether a statement from a lab analyst is true, that analyst must personally testify for their opinion to be admissible at trial.

FACTUAL BACKGROUND

Mrs. Hall-Haught was involved in a head-on collision with another. The collision caused the trunk of her vehicle to pop open, spewing drug paraphernalia across the roadway. Law enforcement responded to the scene of the accident. Both individuals were transported to the hospital, so the officer did not perform any field sobriety tests on Hall-Haught. Washington State Trooper Williams, upon arrival at the hospital, observed that Hall-Haught had bloodshot and watery eyes, and dilated pupils. Trooper Williams was granted a search warrant to test Hall-Haught’s blood. Hall-Haught’s lab results showed 1.5±0.40 nanograms per milliliter of tetrahydrocannabinol (THC) in her blood, but no alcohol was detected.

The State charged Hall-Haught with Vehicular Assault, alleging that she had driven or operated a vehicle either (i) in a reckless manner, and/or (ii) while under the influence of intoxicating liquor or any drug, and/or (iii) with disregard for the safety of others.

At her jury trial, the State called Ms. Harris, a supervisor with the Washington State Patrol Toxicology Laboratory. Harris testified that she was not the technician who tested the blood samples, but that she reviewed and signed off on the lab report of Hall-Haught’s blood samples testing. Harris testified to her experience and training, to include working as a prior bench scientist at the laboratory, and about her knowledge about the Washington State Patrol (WSP) standard operating procedures. Harris testified that as a supervisor, she no longer examined and tested blood samples, but she reviewed the work of the bench scientists.

Ms. Krantz was the forensic analyst that performed the toxicology examination and produced the report on Hall-Haught’s blood samples. The State called Harris instead of Krantz to testify about the toxicology results. Hall-Haught objected to Harris’ testimony and argued that introducing the test results without the testimony of Krantz, the technician who performed the blood test, violated her right to confront and cross-examine the witnesses against her. The trial court admitted the lab test results over Hall-Haught’s objection.

Hall-Haught was convicted of vehicular assault. She timely appealed. Eventually, the WA Supreme Court granted review to address the issue of whether the Confrontation Clause is violated when forensic test results are admitted into evidence without testimony from the lab analyst who conducted the testing.

COURT’S ANALYSIS & CONCLUSIONS

The Court began by saying the Sixth Amendment Confrontation Clause and the Washington Constitution provide that a defendant in a criminal prosecution shall have the right to confront or meet the witnesses against them. The Confrontation Clause bars admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify, and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

A statement is testimonial if the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). It is nontestimonial if the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Testimonial statements are barred at trial unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant.

Here, the WA Supreme Court held the lab toxicology report in this case was testimonial and therefore inadmissible.

“The record before us shows that Hall-Haught’s blood was seized as evidence to further establish the cause of the collision,” said the Court. It reasoned that WSP Trooper Williams testified that Hall-Haught was the “causing driver,” but she was not cited at the scene because the investigation was still in process.  He applied for a search warrant to obtain Hall-Haught’s blood sample based on the totality of the circumstances which included (i) a cannabis pipe and paraphernalia at the scene, (ii) Hall-Haught’s admission of regular cannabis use, (iii) the mechanism of the collision, and (iv) Hall-Haught’s bloodshot and watery eyes, and dilated pupils. Hall-Haught’s blood was sent to the WSP toxicology laboratory that is specifically used for law enforcement DUI drug testing cases.

Next, the Court held the WSP toxicology lab report was admitted to prove Hearsay. A court analyzing a confrontation clause claim must identify the role that a given out-of-court statement served at trial. If the expert witness communicates an absent witness’ out-of-court statement in support of their own opinion, and the statement provides that support only if true, then the out-of-court statement is admitted for its truth.

The Hearsay in this case was Hall-Haught’s lab reports. They were introduced to show the truth of what they asserted: that Hall-Haught had cannabis in her system and that it was a contributing factor to the collision. Importantly, however, the Court pointed out the glaring fact that Ms. Krantz was an absent witness:

“The record provides no information as to Krantz’s unavailability to testify or that Hall-Haught had a prior opportunity to cross-examine her. Therefore, under the confrontation clause, Krantz was a “witness” Hall-Haught was entitled to confront at her trial.” ~WA Supreme Court

With that, the WA Supreme Court held that Ms. Hall-Haught’s Confrontation Clause rights were violated by Ms. Krantz’s absence at trial. “Ms. Krantz, the analyst who performed the testing and wrote the report, was the real witness against Hall-Haught and not Ms. Harris,” said the Court.

My opinion? Excellent decision. Criminal defendants must be empowered to rigorously test the State’s evidence. Scrutinizing the results generated by the toxicology laboratory is an effective means of subjecting the State’s awesome prosecutorial powers to such scrutiny.

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 Supreme Court Upholds Ban on Large-Capacity Magazines for Firearms

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In Washington v. Gator’s Custom Guns the WA Supreme Court upheld Washington state’s ban on selling or manufacturing large-capacity magazines. The majority concluded that large-capacity magazines are not “arms” within the scope of the state or federal constitutional right to bear arms. Moreover, the ability to purchase them is “not necessary to the core right to possess a firearm in self-defense.”

BACKGROUND FACTS

In 2022, the Washington State Legislature enacted ESSB 5078. The legislation prohibits the manufacture, import, distribution, or sale of any “large capacity magazine” (LCM) in Washington. LCMs are defined as “ammunition feeding devices with the capacity capable to accept more than 10 rounds of ammunition.”

Gator’s Custom Guns, a Kelso-based gun store, allegedly continued to sell prohibited LCMs after ESSB 5078 went into effect. In July 2023, the Washington attorney general issued a civil investigative demand. In August, Gator’s filed a petition to set aside the demand as invalid and unenforceable. Gator’s alleged that ESSB 5078 violates the right to bear arms as protected by article I, section 24 of the Washington Constitution. In September, the State separately filed a CPA enforcement action against Gator’s and its owner. Gator’s answer raised the unconstitutionality of ESSB 5078 under both constitutions as an affirmative defense. The Cowlitz County Superior Court ordered the two cases consolidated. After some legal wrangling, the WA Supreme Court granted direct review to decide the case.

COURT’S ANALYSIS & CONCLUSIONS

Washington Supreme Court justices ruled 7-2 that the new state law doesn’t violate Americans’ right to bear arms because “large capacity magazines are not ‘arms.’”

“We conclude that LCMs are not protected by article I, section 24 because (1) LCMs are not instruments designed as weapons, (2) LCMs are not traditionally or commonly used for self-defense, and (3) the right to purchase LCMs is not among the ancillary rights necessary to the realization of the core right to bear arms in self-defense.” ~WA Supreme Court

The Court reasoned that first, LCMs are not weapons—they are attachments to weapons, or accessories. Further, it is not factually accurate to say that LCMs are “integral components” of firearms. Thus, LCMs are not required for a firearm to function. Moreover, LCM’s are not necessary for self-defense. Here, the Court mentioned it was presented with no credible and persuasive evidence or argument that LCMs are commonly used for such a purpose.

The WA Supreme Court further reasoned that the right to purchase LCMs was not an ancillary right necessary to the realization of the core right to possess a firearm in self-defense:

“In contrast, without an LCM, a semiautomatic firearm is still capable of firing (up to 10 rounds, if it is equipped with a magazine falling outside ESSB 5078’s restriction, or 1 round at a time, if it is equipped with none at all) until the operator must simply reload to continue operating the firearm as desired. This fulfills the firearm’s purpose as a tool for realizing the core right of self-defense.” ~WA Supreme Court

For the aforementioned reasons, the WA Supreme Court found that ESSB 5078 complies with the constitutional safeguards of the Second Amendment as well as article I, section 24 of the Washington Constitution.

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

WA Supreme Court Reverses Kitsap County DUI Case Decision Challenging Breathalyzers

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Recently, the Washington State Supreme Court decided State v. Keller. The Court’s decision reversed a 2022 Kitsap County District Court decision that ruled breathalyzers inadmissible in court. This high-profile case is discussed in a prior blog post due to its potential to affect on hundreds of DUI cases in Washington State.

In 2022, the Kitsap County District Court ruled breathalyzers inadmissible in court after it said it found state regulations surrounding the machine used by the Washington State Patrol were not followed.

The decision was a result of a case where in 2020 a Washington state man crashed his vehicle and failed a breath alcohol test. The man challenged the admission of the results and argued state regulations had not been followed.

The breath test machine, the Dräger Alcotest 9510, was approved by the Washington State Patrol toxicologist in 2010 and has been in common use since 2015.

The Drager machine determines someone’s blood alcohol level by calculating the average of four samples. Under state law, the calculations are rounded to four decimal places, however, the machine truncates rather than rounds to four decimal points.

The court agreed with the man’s arguments that regulations had not been followed and excluded the test results. The court ruled that statutes and regulations require the breathalyzer machine to perform the calculations itself.

Furthermore, court documents said the toxicologist knew about the calculation error and didn’t disclose the information until 2021.

The Kitsap case bypassed the typical appellate process and went straight to the state Supreme Court because of the extraordinary circumstances surrounding the case. The case could have had major implications for thousands of DUI cases due to law enforcement agencies statewide using the breathalyzer machine at the center of the case.

In the decision to hear the case, the Supreme Court Commissioner said, “This decision has the potential to affect a great number of Washington prosecutions for driving under the influence; this case involves significant public interest questions.”

THE COURT’S ANALYSIS AND CONCLUSIONS

In its decision, the Supreme Court said current statutes and regulations don’t require the breathalyzer machine to calculate the average of the tests itself at the time of the test for it to be admissible in court. The Court said no source of law requires the calculation required by former WAC 448-16-060 to be performed by the breath test instrument. Also, the breath test results can be calculated in a different manner, as long as the different manners meet all other rules on admission of evidence in a criminal trial. Finally, the State can lay foundation for admitting the breath test by performing the required calculation at a later time.

With that, the Court reversed the district court’s evidentiary rulings and suppression order.

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.

Protect Yourself Against Jury Duty Scams

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According to a press release, Washington courts and residents are victimized by scams involving false claims from court officials or law enforcement officers.

“Please be advised about the following court-related scams and take appropriate precautions to protect yourself from identity and financial threats. Washington court personnel may contact you by phone, but they will never ask you to provide your personal information such as social security number or bank or credit card information.” ~ Washington Courts Press Release

“SPOOFED” CALLS FROM THE WASHINGTON SUPREME COURT

The Washington Supreme Court has become aware some state residents are receiving “spoofed” calls using fake caller ID information displaying the number of the Supreme Court Clerk’s Office. It is unknown what the falsified callers are asking of recipients, but phone and email scams in recent years have included scam artists pretending to be with courts, police and prosecutor offices.

In its press release, the Washington Supreme Court denies making calls to residents. It is advised that if you receive such a phone call, do not give any information. Please hang up and contact law enforcement immediately. If you receive a call from someone claiming to be from the state Supreme Court, please contact us at 360-357-2074.

JURY DUTY PHONE SCAM

Washington residents have received phone calls from individuals claiming to be law enforcement officers (such as a Deputy Sheriff) or court personnel saying they’ve missed jury duty — and must pay. These callers request immediate payment to avoid issuance of a warrant related to Jury Duty. These payments have ranged from a few hundred to thousands of dollars. Typically, the payments are requested to be made via some type of pre-paid card such as “Green Dot.”

If you receive such a phone call, do not give any personal, credit card, or banking information. You should hang up and contact law enforcement immediately.

COURT APPEARANCE CYBER SCAM

A fraudulent email is being widely distributed around the U.S. with the subject line “Urgent court notice NR#73230” (or another random number) that claims the receiver is scheduled to appear in “the court of Washington” on a particular date. The receiver is then instructed to open the attached court notice and read it thoroughly and is warned about not appearing.

This is a “malware” email and will download a virus to your computer if you open the attachment. Please delete the email immediately without opening it. This email did not originate with the Administrative Office of the Courts or any Washington courts.

Jury service is as wonderful a responsibility as it is weighty. You help fulfill the right of defendants to a trial by their peers – a cornerstone of democracy. But it can be onerous, too, particularly for people who can’t afford the time off from their jobs or businesses or from caring for their children or sick loved ones. And nowadays, jury duty is subject to scams and spoofs. Be careful!

And 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.

Deploying Tear Gas In Jails & Prisons

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In Snaza v. State, the WA Supreme Court narrowly held in a 5-4 decision that a state statute wrongfully granted a public official outside a county sheriff’s office authority over when police can use tear gas to quell a riot.

FACTUAL BACKGROUND

Justice Charles Johnson wrote the majority opinion. He started by saying that following waves of protests across the state and country, calling for racial justice and reform of police practices, the Washington Legislature enacted several statutes in 2021 establishing requirements for tactics and equipment used by peace officers.

RCW 10.116.030(1) provides tear gas may not be used “unless necessary to alleviate a present risk of serious harm posed by a: (a) Riot; (b) barricaded subject; or (c) hostage situation.” Subsection (2) imposes specific prerequisites to using tear gas as authorized under subsection (1). For instance, prior to deploying this tactic, law enforcement must exhaust alternatives to the use of tear gas, obtain authorization from a supervising officer, announce to the subjects the intent to use tear gas, and allow sufficient time and space for the subjects to comply with law enforcement’s directives.

In addition to these limits on the use of tear gas, law enforcement must comply with RCW 10.116.030(3), which restricts the use of tear gas as a tactic to suppress riots. This section of the statute says the following:

“In the case of a riot outside of a correctional, jail, or detention facility, the officer or employee may use tear gas only after: (a) Receiving authorization from the highest elected official of the jurisdiction in which the tear gas is to be used, and (b) meeting the requirements of subsection (2) of this section.” ~RCW 10.116.030(3)

Several sheriffs challenged RCW 10.116.030(3)(a), which limits when a sheriff can use tear gas to quell a riot.

MAJORITY COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court held that thelegislature may not interfere with the core functions of a county office. Quelling a riot is a core function of the sheriff’s office. By granting an official outside a sheriff’s office authority over a core function of the sheriff, RCW 10.116.030(3)(a) violated article XI, section 5 of the Washington Constitution.

“Consistent with the rule our cases establish, we conclude quelling riots is a core function of the sheriff’s office. We emphasize discretionary use of lawful force in riot suppression is a core function of the sheriff’s office. This conclusion necessarily follows and is consistent with how our cases determine the nature of an office’s authority.”

“As we have stated, the county sheriff has been responsible for quelling riots since before the ratification of our state constitution . . . This power and function has “belonged to the sheriff at the time our constitution was adopted, and from time immemorial.” ~WA Supreme Court

DISSENTING OPINION

Justice Gordon McCloud delivered the dissenting opinion. He said the sheriff’s office has never had unfettered discretion to use any means it chose to suppress riots:

“The historical record shows that the legislature limited sheriffs’ discretionary decisions about how to quell riots from the time of statehood. And, of course, the historical record shows that tear gas was not even available at the time of statehood. It necessarily follows that discretionary use of tear gas to suppress riots is not ‘fundamental’ to or ‘inherent’ in the office of sheriff.” ~Justice Gordon McCloud

Jails and prisons are terrible places. Please review Making Bail and 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 Courts Reimburse Defendants For Fines & Costs Associated With Drug Convictions

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In a press release, WA Courts will reimburse defendants for fines or costs paid in connection with drug possession convictions that were found unconstitutional by the Washington Supreme Court.

If you made payments towards legal financial obligations (LFOs) owed in cases vacated as a result of the State v. Blake decision, you may be eligible for a refund. Refunds of LFOs previously paid are ordered when the only conviction(s) in the case are for drug possession. If there are other charges in the case, refunds will be processed on any paid fines or fees specifically related to the possession of controlled substance charge.

Development of the Blake Refund Bureau, which will operate through an online portal, is led by the Administrative Office of the Courts (AOC) in collaboration with local courts and county clerks, public defenders, prosecutors, impacted individuals, advocacy groups and other stakeholders.

“The intent is to have a process that is easy to navigate and will provide for a timely response for individuals to receive their refunds . . . The public will be able to search for their cases by their name or case number.” ~AOC Blake Implementation Manager Sharon Swanson.

In the landmark State vs Blake decision issued on February 25, 2021, the Washington Supreme Court ruled that the state’s drug possession law was unconstitutional and void because it did not require individuals to have knowledge of the drug possession. As a result, those convicted of drug possession on or before February 25, 2021 became eligible to have their convictions vacated and removed from their criminal record, and their paid court-ordered fines and costs — called legal financial obligations (LFOs) — reimbursed.

It is estimated that over 200,000 felony drug possession charges dating back to the 1970s may be eligible to be vacated in superior courts. An estimated additional 150,000 misdemeanor marijuana charges may also be eligible for vacation. To help offset costs to courts, prosecutors, and defense attorneys, the Washington State legislature approved $47 million for the efforts of vacating hundreds of thousands of possession charges, and adjusting sentences for thousands of incarcerated or supervised persons.

An additional $50 million dollars was set aside to reimburse individuals who paid LFOs as a result of the Blake related convictions. AOC was appointed to lead the work, including establishing a Blake Refund Bureau to administer LFO refunds to impacted individuals.

The Blake Refund Bureau portal will be accessible to the public via a link on www.courts.wa.gov. The refund bureau will provide individuals who have had their Blake convictions vacated a self-navigable database to determine if they have refunds related to their convictions. Refund requests will be submitted through an online application. Once the application has been received and an amount of refund is confirmed by the court, a refund will be issued.

While the portal exclusively operates in the processing of LFO refunds, the site will include resources to guide individuals in clearing their convictions and seeking legal help.

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

Self-Harming Juror Removed From Deliberations

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In State v. Norman, the WA Supreme Court held that it was proper for a trial judge to dismiss a frustrated juror who engaged in self-harm during deliberations. The juror’s punching himself in the face raised legitimate concerns about his ability to deliberate.

FACTUAL BACKGROUND

Mr. Norman was tried before a jury on first degree burglary and second degree assault. The jury began deliberating at lunchtime. After only a few hours of deliberation, the jury pounded on the door and told court staff they were breaking for the evening. Over half of the jurors left the room before the court clerk arrived. The clerk discovered that during deliberations, juror 9 became overwhelmed and punched himself in the face. After several jurors expressed concern, the trial court questioned juror 9, who answered as follows:

“So yesterday, discussions became very heated, and . . . there were a number of people who had disagreements with me. This caused raising of voices, and I became . . . somewhat overwhelmed. I felt somewhat like—a little bit attacked, and I reacted with an emotional outburst of punching myself in the face. That has happened in the past when I get into high-stress situations. I have self-harmed in the past, but it hasn’t happened in a number of years. That being said, I still consider myself of sound mind and ability to continue going forward with this case.” ~Juror 9

The trial judge spoke to two other juros. They expressed concern over whether they could reach a verdict with juror 9. For example, juror 2 said she felt intimidated by juror 9’s actions. And according to juror 8, juror 9 was “in control of himself” for “80 percent of the day,.” Unfortunately, in the remaining time he “punched himself in the face a couple times and grabbed his hair” in reaction to contentious discussions.

The trial judge dismissed juror 9 for cause.

The reconstituted jury found Norman guilty of one of two counts. The Court of Appeals reversed Norman’s conviction, holding juror 9’s dismissal was improper under the heightened evidentiary standard set forth in State v. Elmore. On appeal, the WA Supreme Court decided the specific issue of whether the trial court abuse its discretion in dismissing juror 9.

COURT’S ANALYSIS & CONCLUSIONS

Justice Owens wrote the majority opinion. She began by saying trial judges have a continuous obligation to excuse a juror who has manifested unfitness. This can happen if a juror manifests bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service. This obligation implicates a defendant’s right to trial by an impartial jury and their right to a unanimous jury verdict.

Next, Justice Owens addressed how the Court of Appeals (COA) reversed Norman’s conviction.  In short, the COA held juror 9’s dismissal was improper under the evidentiary standard set forth in State v. Elmore. Justice Owens had some choice words:

“But the Elmore standard applies only where a juror is accused of nullification, refusing to follow the law, or refusing to deliberate. As there was no such accusation here, and the trial court found juror 9’s conduct likely affected the jury’s process of deliberating freely, it did not abuse its discretion in dismissing juror 9.” ~Justice Owens, WA Supreme Court

Consequently, the WA Supreme Court held that the trial court did not abuse its discretion in removing juror 9. His conduct could have impacted the jury’s ability to reach a unanimous verdict. The heightened evidentiary standard does not apply to juror 9’s dismissal because he was not accused of nullification, refusing to deliberate, or refusing to follow the law. With that, the WA Supreme Court reversed the Court of Appeals, and affirmed Norman’s 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.