Category Archives: Whatcom County Criminal Defense

New Car Tech May Stop DUI

Infrastructure law mandates new technology to prevent drunk driving — here's how it would work - MarketWatch

According to an article in US News, President Biden will sign legislation which has new cars monitor and stop intoxicated drivers. It’s an auto safety mandate aimed at stopping road fatalities included within the $1 trillion infrastructure package.

The technology would roll out in all new vehicles as early as 2026. The Transportation Department must assesses the best form of technology to install in vehicles and give automakers time to comply. For now, the legislation doesn’t specify the technology. It must merely “monitor the performance of a driver of a vehicle to accurately identify whether that driver is impaired.”

In all, about $17 billion is allotted to road safety programs, the biggest increase in such funding in decades.

“It’s monumental,” said Alex Otte, national president of Mothers Against Drunk Driving. Otte called the package the single most important legislation in the group’s history that marks the beginning of the end of drunk driving. “It will virtually eliminate the No. 1 killer on America’s roads,” she said.

Last month, the National Highway Traffic Safety Administration reported an estimated 20,160 people died in traffic collisions in the first half of 2021, the highest first-half total since 2006. The agency has pointed to speeding, impaired driving and not wearing seatbelts during the coronavirus pandemic as factors behind the spike. Each year, around 10,000 people are killed due to alcohol-related crashes in the U.S., making up nearly 30% of all traffic fatalities, according to NHTSA.

THE NEW TECHNOLOGY

According to the article,  the most likely system to prevent drunken driving is infrared cameras that monitor driver behavior. That technology is already being installed by automakers such as General Motors, BMW and Nissan to track driver attentiveness while using partially automated driver-assist systems.

The cameras make sure a driver is watching the road, and they look for signs of drowsiness, loss of consciousness or impairment. If signs are spotted, the cars will warn the driver.  If the behavior persists, the car would turn on its hazard lights, slow down and pull over.

The voluminous bill also requires automakers to install rear-seat reminders to alert parents if a child is left inadvertently in the back seat, a mandate that could begin by 2025 after NHTSA completes its rulemaking on the issue. Since 1990, about 1,000 children have died from vehicular heatstroke after the highest total in a single year was 54 in 2018, according to Kidsandcars.org.

My opinion? This is an interesting development. is the technology reliable? There’s certainly good argument  over whether the technology could backfire, or prove ineffective in detecting impairment. Is your car searching you by passively monitoring your physical condition? Clearly, there’s Fourth Amendment Search and Seizure issues, involved in this too.

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.

Thanksgiving DUI Patrols

Hosting Thanksgiving? Grocery bill could have you counting your pennies |  WNCT

Thanksgiving Weekend DUI Patrols

The Washington State Patrol (WSP)  issued a press release stating that DUI emphasis patrols are now happening in Pullman as WSU students travel this Thanksgiving holiday.

According to the press release, troopers in Spokane, Whitman, Adams, Grant and Kittitas counties will be focusing on speeding to include driving too fast for conditions, distracted/impaired driving and other collision-causing violations during the emphasis. Motorists traveling to and from WSU will see an increased WSP presence on State Routes 26 & 195 as well as Interstate 90 over Snoqualmie Pass.

“We encourage travelers to pay close attention to posted speed limits and to be prepared for changing road and weather/winter driving conditions,” said the press release. “You can find current road and weather conditions on all state highways by going to the website or mobile apps provided by the Washington State Department of Transportation (WSDOT).”

Thanksgiving Day Holiday Period Estimate for 2021

According to the National Safety Council (NSC), 515 people may die on U.S. roads this Thanksgiving holiday period. If this estimate holds true, Thanksgiving 2021 will experience the most deaths since 2007. Holidays are traditionally a time of travel for families across the United States. Many choose car travel, which has the highest fatality rate of any major form of transportation based on fatalities per passenger mile. Holidays are also often cause for celebrations involving alcohol consumption, a major contributing factor to motor-vehicle crashes. Because of the unprecedented impact COVID-19 is having on social activities, the uncertainty of this year’s estimate is increased. 

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.

Give Them An Inch . . .

GIVE AN INCH THEY'LL TAKE A MILE - GOSPELDADS

In State v. Boman, the WA Supreme Court held that a cell phone owner who gave consent for police to search text messages also gave police the authority to use his phone to set up a “ruse” drug bust sting. The subsequent police ruse using lawfully obtained information does not constitute a privacy invasion or trespass in violation of either our state constitution or the United States Constitution.

BACKGROUND FACTS

A Department of Homeland Security (DHS) agent sent a series of text messages to Mr. Bowman. The DHS agent claimed to be someone named Mike Schabell, a person to whom Bowman had sold methamphetamine earlier that day, and indicated he wanted to buy more drugs. The ruse led to charges of possession of methamphetamine with intent to deliver.

The trial court denied his motion to suppress the drugs and drug paraphernalia on his person and in his vehicle. At trial, Mr. Bowman was found guilty.

On Appeal, the WA Court of Appeals reversed Bowman’s conviction. The Court reasoned that the DHS Agent (1) disrupted Mr. Bowman’s private affairs and (2) was not acting under authority of law. With that, the Court of Appeals reversed Mr. Bowman’s conviction.

WA SUPREME COURT’S ANALYSIS & CONCLUSIONS

However, the WA Supreme Court found that police did not violate Mr. Bowman’s constitutional rights. The Court reasoned that under State v. Hinton, Bowman did indeed have a privacy interest in the text messages he sent to a third party’s device. That said, Schabell’s consent to search his phone gave police the necessary authority of law to view the text message conversation. Furthermore, police did not commit an unconstitutional trespass by sending text messages to Bowman’s cell phone as part of a ruse.

“Consistent with long-standing precedent, we hold that a cell phone owner’s voluntary consent to search text messages on their phone provides law enforcement with the authority of law necessary to justify intruding on an otherwise private affair. We also hold that a subsequent police ruse using lawfully obtained information does not constitute a privacy invasion or trespass in violation of either our state constitution or the United States Constitution.” ~WA Supreme Court

“That he misunderstood the identity of the person he was texting does not transform the
unsolicited incoming message into an unconstitutional trespass,” said the WA Supreme Court. “The risk of being betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society.”

With that, the WA Supreme Court reversed the Court of Appeals and reinstated Bowman’s conviction.

My opinion? This issue, and many other related issues, will likely require further consideration if such investigatory tactics continue to be used in Washington. Please review my Search and Seizure guide 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.

Mapped: Countries by Alcohol Consumption Per Capita

Beautiful Maps on Twitter: "This fascinating map reveals exactly how much # alcohol is consumed in each #country around the #world  https://t.co/5Htqs5p6H4 @TheSun https://t.co/VnABzAmZ6s" / Twitter

Great article in Visual Capitalist by Omri Wallach describes the phenomenon of world-wide alcohol consumption. Alcohol might be one of the oldest and most frequently used recreational substances in the world, but examining countries by alcohol consumption shows that usage is not equal.

Consumption levels, and types of alcohol consumed, vary widely based on location. Furthermore, the availability of fruits and grains used in alcohol production impacts which drinks are more commonly consumed, as does the predominant culture. Some cultures see alcohol consumption as a pleasurable experience, while others see intoxication as a sin.

There’s also the question of economics and availability. It’s strange, but in some regions of the world, industrially mass-produced alcohol can flood markets and become cheaper than other beverages, including water.

When we map alcohol consumption by capita, and by different types of alcohol, these local and cultural stories come to light. The above maps use recorded consumption data from WHO for 2019, in liters of pure alcohol.

EUROPE LEADS IN PER CAPITA ALCOHOL CONSUMPTION

The top 10 countries by alcohol consumption highlight the prominence of alcoholic beverages in European culture.

Eight of the 10 countries with the top alcohol consumption per capita were in Europe. Primarily, they were Eastern and Central European countries, including #2 Latvia, #3 Czech Republic, #4 Lithuania, and #5 Austria.

But the crown of alcohol consumption per capita goes to the Cook Islands, which leads the world with an annual per capita consumption of 13L (3.4 gallons) of alcohol.

Per capita consumption of alcohol also highlights clear regional preferences in amount and type, or a lack of interest.

The biggest consumers of alcohol are countries in Central Europe, the South Pacific, and parts of the Caribbean. In Europe, beer and wine are kings, with most of the top consumers also being top producers such as France and Germany.

Spirits like rum, meanwhile, are dominant in the Cook Islands and much of the Caribbean, which has four of the 12 top spirit consumers. The others are mainly in Eastern Europe and Russia, which get most of their alcohol consumption from vodka.

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

Washington Rated 8th Worst State for Auto Theft

Whatcom law enforcement seeing increase in vehicle thefts | Bellingham Herald

Informative article from King 5 News says auto theft increased by nearly 10% in 2020 compared to 2019.

According to the latest National Insurance Crime Bureau’s (NICB) Hot Spots Report, auto thefts increased from 34,172 vehicles in 2019 to 37,465 in 2020, the report found. NICB said, “The auto theft rate, which measures the number of vehicles stolen per 100,000 residents, also increased in Washington in 2020, from 331.06 to 368.46 – the nation’s 8th highest theft rate.”

According to the article, the annual report showed an increase in auto thefts across the entire country. NICB said that vehicle theft is fairly widespread, and the crime increased significantly during the COVID-19 pandemic. In the U.S., a car is stolen every 36 seconds. That makes it the most common property crime, according to the FBI, costing citizens about $6 billion in 2019.

The Washington Association of Sheriffs and Police Chiefs (WASPC) says that property crime is the most common type of crime reported in the state, representing 73.7% of all reported offenses.

Some easy ways to prevent someone from stealing your vehicle in addition to locking your car include parking in a well-lit area, getting an audible alarm, using a smart key and getting a GPS tracker in your car.

According to the article, Vehicle Theft wasn’t the only crime Washington saw go up in 2020. Murder increased 50% and property crimes increased by 13.8%, according to a crime report by the WASPC. Washington, D.C. took the top spot for worst vehicle theft rate with near 563 thefts per 100,000 residents, an increase of 40% from 2019 to 2020. The nation’s capital was followed by Colorado, California, Missouri and New Mexico.

Vehicle Theft crimes are serious. Penalties will depend on the nature of the theft. It could range from a lesser crime, or misdemeanor, to a felony. Felonies have varying degrees of seriousness, with accordingly varying degrees of punishment. Felonies are generally punished by incarceration, and so may be more serious misdemeanors. Fines are likely also involved for someone convicted of vehicle theft.

The amount of both the fine and jail time are based on a number of factors, including:

  • How much the car was worth;
  • Whether someone occupied the vehicle at the time of the theft;
  • Whether the thief used a weapon in committing the crime;
  • Whether anyone was hurt during the act of the theft of vehicle; and
  • Whether the accused thief has been convicted of previous crimes.

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

Ban Low-Level Traffic Stops

Inside 100 million police traffic stops: New evidence of racial bias

Great article in NPR by Jonaki Mehta says Philadelphia’s new Driving Equity Act bars police officers from pulling over drivers for minor traffic violations. This is done to close racial disparities in traffic stops.

Last Wednesday, Mayor Jim Kenney signed the Driving Equity Act, making Philadelphia the first major city in the U.S. to ban low-level traffic stops. The law, which also requires city police to gather and publicly release data on traffic stops, goes into effect early next year.

A bevy of studies show that Black drivers get pulled over for low-level infractions more often than other drivers in the United States. Civil rights groups often decry such stops as “pretextual” — as cover for racial profiling or fishing for more serious crimes.

The 2016 police killing of Philando Castile, a Black man pulled over in the Minneapolis-St. Paul area for a missing taillight, drew national attention to the enforcement of low-level traffic stops.

The new legislation bans stops for:

  • Driving with a single broken brake light
  • Driving with a single headlight
  • Having a registration plate that’s not clearly displayed, fastened, or visible
  • Driving without an inspection or emissions sticker
  • Bumper issues
  • Minor obstructions (like something hanging from a rearview mirror)
  • Driving without vehicle registration within 60 days of the observed infraction

While these low-level offenses will no longer lead to interactions between police and drivers, such infractions will still result in a ticket that is either left on the driver’s windshield or mailed.

According to the article, other state and local governments have introduced similar legislation. The state of Virginia enacted a law in March which includes a ban on stopping and searching drivers for reasons including defective taillights, loud exhaust or the smell of marijuana.

The city of Minneapolis, near where Philando Castile was stopped and killed, has implemented a policy change to scale back on such police stops.

My opinion? Philadelphia’s new Driving Equity Act is courageous legislation. Studies show that black and Latino drivers are more likely to be pulled over and have their vehicles searched by police. Fortunately, any evidence derived from unlawful searches can be suppressed. For more information, please review my Legal Guide on Search and Seizure. 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.

Crowded Jail Cells

Coronavirus spreads in California prisons: Latest cases | The Sacramento Bee

Great article by senior reporter for Newsweek reports that crowded cells in jails across the U.S. could help the rapid spread of Coronavirus. Top Democratic senators have accordingly asked prison authorities to reveal what contingency plans there are to tackle any outbreak.

According to the article, The Sentencing Project has called on public officials to release people in jail who do not pose a public safety risk. This jail population includes those housed in pre-trial detention or rehabilitated people.

“Existing unsanitary and overcrowded prison and jail conditions will exacerbate the spread of the new coronavirus . . . Elderly incarcerated people often pose little public safety risk but disproportionately suffer from chronic medical conditions and thus are at the highest risk of dying from COVID-19.” ~The Sentencing Project senior research analyst Nazgol Ghandnoosh

Ghandnoosh emphasized that time is of the essence to avert a public health catastrophe in the United States’ prisons and jails.

The sentiment echoes concerns voiced by other prisoners’ rights advocates, who fear the implications the virus will have for the 2.2 million people living in the U.S. penal system.

Last week, National Association of Criminal Defense Lawyers president Nina Ginsberg said in a statement that, given the spread of the virus: “There is every reason to question whether American detention facilities, as a whole, are up to this challenge.”

Meanwhile, Maria Morris of the American Civil Liberties Union (ACLU) National Prison Project wrote in an op-ed this week that jails were not closed environments, and had staff and visitors coming into the facilities and returning home, posing a considerable risk.

Also, top Democrats signed a letter asking the Federal Bureau of Prisons about its coronavirus plans. presidential contender Senator Bernie Sanders, and former primary candidates Senators Kamala Harris and Elizabeth Warren were among the signees. The letter, which was also addressed to prison operators GEO Group, CoreCivic, and Management and Training Corporation, asked if staff and inmates who may be vulnerable have been identified, how they will be treated if they test positive and how staff shortages caused by the virus will be dealt with.

My opinion? Kudos to those involved in these efforts. Protecting incarcerated people during a contagious health crisis by expediting releases would reduce the burden on prison staff. It would also reduce demand for limited hospital resources which are shared with the broader public.

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

Attorney-Client Communications During COVID

Defendant in credit union robbery makes initial appearance | News, Sports, Jobs - Messenger News

This is an interesting case that arose in the early days of the COVID-19 Pandemic.

In State v. Anderson, the WA Court of Appeals held that courts must try to ensure that criminal defendants are able to confidentially communicate with counsel throughout court proceedings. Failure to provide a confidential means to communicate may be grounds for reversal on appeal.

FACTUAL BACKGROUND

In 2016, a Franklin County jury convicted Mr. Anderson of multiple felonies including murder, assault, and unlawful possession of a firearm. Mr. Anderson received a sentence of 1,126 months’ imprisonment with 36 months’ community custody, and was assessed $75,430.49 in restitution. A portion of the restitution was imposed jointly and severally with two codefendants.

Three specific issues were identified for resentencing: a vague community custody
condition, two scrivener’s errors, and imposition of discretionary legal financial
obligations in light of Mr. Anderson’s indigence.

A re-sentencing hearing was scheduled to address some concerns Mr. Anderson raised. His resentencing took place in the early days of the COVID-19 pandemic. Washington’s governor declared a state of emergency on February 29, 2020. Shortly thereafter, our Supreme Court began issuing a series of emergency orders addressing court operations during the pandemic. On April 29, 2020, the Supreme Court
issued an order that specified as follows:

Courts must allow telephonic or video appearances for all scheduled criminal and juvenile offender hearings whenever possible. For all hearings that involve a critical stage of the proceedings, courts shall provide a means for defendants and respondents to have the opportunity for private and continual discussion with their attorney.

Mr. Anderson attended the May 12 resentencing hearing via video. His attorney appeared telephonically. The hearing was very brief, generating only seven substantive pages of a report of proceeding. During the hearing, there was no discussion regarding whether Mr. Anderson had consented to appear via video.

Nor was there any clarification about whether Mr. Anderson and his attorney were able to communicate throughout the hearing. The parties agreed to modify the judgment and sentence according to the three issues identified in our prior decision. When addressed by the court, Mr. Anderson confirmed he agreed with the modifications.

At the hearing’s close, the court asked Mr. Anderson if he had been able to hear and understand the proceedings. Mr. Anderson responded affirmatively, but also asked how he was supposed to pay the outstanding restitution. The court instructed Mr. Anderson to confer with his attorney. Mr. Anderson subsequently asked the court how long he had to appeal the decision. The court told him that he had 30 days to make a direct appeal, and that he should speak to his attorney regarding the process. The hearing then adjourned.

Mr. Anderson filed a timely notice of appeal. He argues the videoconference resentencing hearing deprived him of his right to be present and to confer with counsel.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying the right to counsel applies to all critical stages of criminal proceedings, including resentencing.

“The constitutional right to counsel demands more than just access to a warm body with a bar card,” said the Court. “Among other things, it requires individuals charged with crimes to be able to confer privately with their attorneys at all critical stages of the proceedings.” It further reasoned that the ability for attorneys and clients to consult privately need not be seamless, but it must be meaningful. “It is the role of the judge make sure that attorneys and clients have the opportunity to engage in private consultation.”

The Court relied on State v. Gonzalez-Morales, a WA Supreme Court case with similar issues. In Gonzalez-Morales, the defendant’s rights were violated when the trial court failed to give him an interpreter to communicate with his attorney.

“Mr. Anderson argues his case fails to meet the constitutional standard recognized
in Gonzales-Morales,” said the Court of Appeals. “We agree.”

“Unlike what happened in Gonzales-Morales, the trial court here never set any ground rules for how Mr. Anderson and his attorney could confidentially communicate during the hearing. Nor were Mr. Anderson and his attorney physically located in the same room, where they might have been able to at least engage in nonverbal communication.

Given Mr. Anderson participated by video from the jail and his attorney was appearing by telephone from a separate location, it is not apparent how private attorney-client communication could have taken place during the remote hearing. It is unrealistic to expect Mr. Anderson to assume he had permission to interrupt the judge and court proceedings if he wished to speak with his attorney.” ~WA Court of Appeals

Despite the communication obstacles, the Court nevertheless held Mr. Anderson was not entitled to relief because of harmless error. It also said that although Mr. Anderson was not entitled to relief, this case is a cautionary tale for trial judges administering remote criminal proceedings:

“The COVID-19 pandemic has complicated the administration of justice in innumerable ways. Videoconferencing has been an essential component of continued court operations. But courts must ensure videoconferencing occurs in a way that allows for private attorney client consultation. The best method is to arrange for attorneys and clients to be located in a shared physical space, with access to additional communication technologies (such as text messaging devices) if necessary to maintain physical distancing.”

My opinion? The COVID-19 Pandemic has certainly increased the difficulty of practicing law. Courtroom proceedings went virtual or were put on hold, causing delays in justice. Law schools and bar exams were upended. The shift was dramatic. We’ve had to learn new technologies and skills. We’ve had to revolve our practice to adhere and comply with new Executive Orders from our courts. And In the face of change and challenge, we do what American lawyers have done since lawyers helped found this country: we choose to get to work to help to solve the problems before us.

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.

Blake Case & Bail Jumping

HOW PROSECUTORS USE BAIL JUMPING CHARGES TO COERCE GUILTY PLEAS

Ever since the WA Supreme Court decided State v. Blake – which held Unlawful Possession  of Controlled Substance charges and convictions unconstitutional – I’m inundated with questions from defendants on what that means. Can other charges filed alongside the drug charge get dismissed? Are Bail Jumping charges dismissible, too?

Fortunately,  the WA Court of Appeals decided the issue and answered these questions. In State v. Stacy, the Court of APpeals found that the invalidation of the defendant’s  conviction for a Drug Possession charge does not affect the validity of his Bail Jumping convictions.

BACKGROUND FACTS

Here, Mr. Stacy seeks relief from personal restraint imposed following his 2019 plea of guilty to one count of Unlawful Possession of Controlled Substances (UPCS) and two counts of Bail Jumping, committed while charged with UPCS. He argues that under State v. Blake, which held UPCS charges and convictions unconstitutional, he is entitled to have all convictions vacated.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals’ decision is captured in two sentences below:

“The State concedes that under Blake, Stacy is entitled to have his conviction for unlawful possession of controlled substances vacated. But the invalidation of his conviction for unlawful possession of controlled substances does not affect the validity of the bail jumping convictions. State v. Downing, 122 Wn. App. 185, 193, 93 P.2d 900 (2004).” ~WA Court of Appeals

In other words, Mr. Stacy’s Bail Jumping conviction was upheld despite the fact his UPCS – were later found unconstitutional. The Court’s usage of State v. Downing was notable.

In Downing, the WA Court of Appeals upheld the defendant’s Bail Jumping charges even though his underlying Unlawful Issuance of Bank Check charges were dismissed. It reasoned that although no Washington cases addressed whether the charge underlying an allegation of Bail Jumping must be valid, the State is not required to prove that a defendant was detained under a constitutionally valid conviction.

With that, the Court of Appeals in Mr. Stacy’s case dismissed his UPCS convictions and upheld his Bail Jump convictions.

Please read my guide on 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.

Needle-Spiking

Needle spiking: Everything we know after women targeted in nightclubs |  Metro News

According to an article in the New York Times by reporters Megan Specia and , Britain has witnessed a disturbing spate of violence against women.

Apparently, women are being injected with drug-filled syringes at crowded pubs and nightclubs.  This is a variation of “spiking,” in which drugs are dropped into someone’s drink, a crime that often targets women. This phenomenon, called “needle spiking,” includes 12 incidents in Nottinghamshire. Police in Scotland are looking into similar reports.

Some who reported being spiked had effects “consistent with a substance being administered,” the police said in a statement.

According to the article, female students have made the majority of reports. However, some young men say they also have been victimized. The Nottinghamshire police say no other offenses, including sexual assault, have been linked to the reports of being injected. Also, there have been no known arrests for injecting someone. Regardless, authorities say they are stepping up patrols and working with local universities and hospitals to investigate.

But as these stories — and the fears surrounding them — have spread, young women have called for a boycott of clubs and also launched a petition calling for clubs to be required to search people on entering. To many women, the idea that they could be victimized by someone wielding a syringe at a nightclub is horrifying.

In England, concerns about drinks being covertly laced with drugs have long been an issue. A 2019 BBC investigation revealed more than 2,600 cases of drink spiking in England and Wales since 2015.

In Washington State, spiking someone else’s drink with drugs is illegal. It’s considered such a serious crime that it’s categorized as a Class B felony. In a 2016 study, researchers found that nearly 8% of 6,064 university students surveyed said their drinks had been spiked. Also, 1.4% said they’ve been the one spiking drinks or knew someone who did so.

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.