Category Archives: Whatcom County Criminal Defense

Unwitting Possession

I am sorry I didn't know you did that! – TheWealthySon : Success Toolbox

In State v. Blake , the WA Supreme Court held that Washington’s Drug Possession Statute exceeds the state’s police power by imposing harsh felony consequences on innocent non-conduct.

FACTUAL BACKGROUND

In 2016, police executed a search warrant in Spokane, Washington, seeking evidence of stolen vehicles. They arrested three people on the property, including the Defendant Ms. Blake.  At the jail, a corrections officer discovered a small baggy containing methamphetamine in the coin pocket of Ms. Blake’s jeans.

The State charged Blake with Possession of a Controlled Substance.  At her bench trial, Blake relied on the judicially created affirmative defense of Unwitting Possession. She testified that a friend had bought the jeans secondhand and given them to Blake two days before Blake’s arrest.

Blake also said she had never used methamphetamine and did not know the jeans had
drugs in the pocket. She acknowledged that the drugs had been “on her” on the day of her arrest. Blake’s boyfriend also testified that Blake did not use drugs and that she had received the jeans from a friend. Despite her defense, the trial court found that Blake had possessed methamphetamine on the day in question and found Blake guilty.

On appeal, Blake argues that requiring her to prove unwitting possession to the charged offense violates due process.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court held that Washington’s  felony drug possession statute – which is a essentially a strict liability statute – exceeds the state’s police power by imposing harsh felony consequences on innocent non-conduct with no mental state to commit the crime.

“The basic drug possession statute at issue in this case states, ‘It is unlawful for any person to possess a controlled substance'”, wrote Justice McCloud. “The State need not prove any mens rea (mental state) element to secure a conviction for this crime.”

The Court reasoned that the Due Process Clause protections limit the Legislature’s police power to criminalize wholly innocent and passive non-conduct. Stated differently, a defendant’s passive and innocent non-conduct falls outside the State’s power to criminalize:

“Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature’s police power? The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the state’s police power.”  ~Justice Gordon McCloud, WA Supreme Court.

The Court further reasoned that the State’s police power is not infinite. “If it were, the result would be a police state, and the legislative branch of the government would be omnipotent,” said Justice McCloud. Finally, the Court reasoned that  the statute criminalizes innocent and passive possession, even by a defendant who does not know, and has no reason to know, that drugs lay hidden within something that they possess. “The legislature’s police power goes far, but not that far,” said the Court.

Accordingly, the Court held that RCW 69.50.4013(1)—the portion of the simple drug possession statute creating this crime—violates the due process clauses of the state and federal constitutions and is void.

With that, the WA Supreme Court vacated Ms. Blake’s conviction.

My opinion? Excellent decision, Finally, the courts are giving teeth to the Unwitting Possession Defense. In this defense, a person is not guilty of possession of a controlled substance if the possession is unwitting. Possession of a controlled substance is unwitting if (1) a person did not know that the substance was in their possession or (2) did not know the nature of the substance.

The burden is on the defendant to prove by a preponderance of the evidence that the substance was possessed unwittingly. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true.

Up until now, Washington’s felony drug possession statute essentially circumvented the Unwitting Possession defense.  Thankfully, the WA Supreme Court put a stop to that.
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.

NCO’s & Double Jeopardy

Brett Kavanaugh, Double Jeopardy, And Presidential Pardons

In State v. Madden, the WA Court of Appeals held that a defendant who contacted a person with three separate No-Contact Orders (NCO’s) against him may only be punished for a single count of Violation of a No-Contact Order.

BACKGROUND FACTS 

Mr. Madden Jr. contacted a person with three separate no-contact orders against him. For this single act, the State charged Madden with three counts of Violating a No-Contact Order (DV). The jury found him guilty as charged. Madden appealed on arguments that his three convictions for violation of a no-contact order violated Double Jeopardy principles

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began with the background that Article I, section 9 of the WA State Constitution and the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protect against multiple punishments for the same offense.

“When a person is charged with multiple counts of the same offense, each count must be based on a separate and distinct criminal act,” said the Court, quoting State v. Mutch.  “It must be manifestly apparent from the record, testimony, and argument that identical charges are based on separate acts.”

Furthermore – and importantly – the Court of defined what a “Unit of Prosecution” was. “Unless the legislature clearly and unambiguously intends to turn a single transaction into multiple offenses, the Rule of Lenity requires a court to resolve ambiguity in favor of one offenses,” said the Court.

Consequently, the Court reasoned that while Mr. Madden violated multiple court orders, he committed only one act constituting a “violation.” The Court further reasoned that the State cites no case in which a court allowed multiple convictions under a single statute based on a single act. Finally, the court reasoned that when a person is charged with multiple counts of the same offense, each count must be based on a separate and distinct criminal act. “Any other interpretation would lead to an unconstitutional result.”

With that, the Court of Appeals reversed counts two and three of Madden’s No-Contact Order Violation convictions.

Please read my Legal Guide Defending Against Domestic Violence Charges and contact my office if you, a friend or family member are charged with Domestic Violence crimes, including Assault and/or No-Contact Order Violations. Hiring an effective and competent defense attorney is the first and best step toward justice.

Prison Inmates Retaliated Against for Getting COVID-19

Image result for jail inmates getting covid

Excellent article by Lilly Fowler of Crosscut reports that prisoners, attorneys and other advocates said the WA Department of Corrections has not only been careless with protocols meant to keep COVID-19 cases in check, but has also lashed out at those who become ill.

They accuse the department of stigmatizing those who become sick with the virus, even as cases skyrocket in prisons and work release facilities across the state. Critics blame the department’s lack of an organized response for the rapid spread of the virus.

Apparently, the Office of the Corrections Ombuds, the state’s watchdog, has already found fault with the Department of Corrections’ response to the COVID-19 outbreak at the Coyote Ridge Corrections Center in Central Washington. Two people there died in June, and more than 300 prisoners and 100 staff have been infected. Coyote Ridge houses approximately 2,500 inmates.

In a report about the COVID-19 outbreak at Coyote Ridge, investigators said that in addition to guards not wearing masks and failing to isolate symptomatic prisoners, inmates had delayed reporting symptoms because they feared harsh conditions in solitary confinement. The two prisoners who died had waited days to report difficulty breathing, according to the investigation.

That same summer, families of prisoners accused the Department of Corrections of retaliating against six men who contracted the virus and were housed at Reynolds Work Release in downtown Seattle. Similar to other inmates at the Bishop Lewis Work Release facility, the so-called Reynolds six were sent back to prison. Although they were eventually released, the men had been singled out in part because they are Black, Muslim or Indigenous, their families said.

According to reporter Lilly Fowler, critics say the situation at Bishop Lewis shows that the Department of Corrections’ response to the pandemic isn’t improving even nearly a year into the public health emergency. Instead, the same patterns are emerging. They argue it’s time for Gov. Jay Inslee to reconsider doing more to reduce the prison population, or at the very least ensure those who become ill and speak up aren’t retaliated against.

My opinion? The Coronavirus Pandemic has threatened to turn jail sentences into death sentences. Therefore, anyone involved in the criminal justice system should do their very best to avoid jails and prisons. Convicted defendants who are sentenced to jail should seek jail alternatives. And anyone who is in jail facing criminal charges who can make bail should make bail, or at least get bail lowered to an affordable amount.

Please review my Legal Guide titled 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.

Opioid Overdoses Spiked

Image result for drug overdose coronavirus

A new study indicates that the opioid crisis in the US is deepening.

In a large cross-sectional study published in JAMA Psychiatry on that analyzed nearly 190 million emergency department (ED) visits, researchers found significantly higher rates of visits to Emergency Departments for opioid overdoses during the months of March to October 2020 when compared against the same dates in 2019. The study found that, from mid-April onward, the weekly rates of ED visits for drug overdoses increased by up to 45% when compared against the same period in 2019.

The study is not an anomaly. In December, the Center For Disease Control said that the rate of overdose deaths was accelerating during the pandemic, driven by synthetic opioids, which rose 38.4% during the year leading up to June 2020.

This same JAMA Psychiatry study found that emergency department visits for mental health conditions, domestic violence, and child abuse and neglect increased during the same time period as did suicide attempts. The rates of family violence are rising fast, and women and children are disproportionately affected and vulnerable during this time.

My opinion? While many lives were saved with stay-at-home orders, these savings were not without cost. And while vaccines appear to have provided a light at the end of this COVID-19 tunnel, America will need to face its growing problem of anxiety, social isolation and mental illness. For some, stressors may be the fear of contracting COVID-19. For others, the stress of losing a job. And still others, the boredom of being trapped in your home with nothing to do.

Please contact my office if you, a friend or family member face Domestic Violence and/or Drug Charges. Hiring an effective and competent defense attorney is the first and best step toward justice.

Decriminalize Personal Use

Image result for decriminalize drugs

On Thursday, Washington lawmakers introduced House Bill 1499. This bill would work to decriminalize personal use of drug possession and expand treatment and support services. The bill is sponsored by State Rep. Lauren Davis, a 32nd District Democrat from Shoreline, who represents portions of Edmonds, Lynnwood and Mountlake Terrace.

According to the Washington State Department of Health, an average of two people die from an opioid overdose every day in the state.

HB 1499, called the Pathways to Recovery Act, was introduced by Davis and co-sponsor Rep. Kirsten Harris-Talley, D-Seattle, It’s supported by various medical advocacy and civil rights organizations like Treatment First Washington, Care First Washington and Washington Recovery Alliance.

“The opposite of addiction is not sobriety, it’s connection . . . In all my years of work in this field, I can say that what keeps people from seeking treatment boils down to two things: one, they don’t believe recovery is possible for them, and two, they don’t believe they’re worthy of recovery.” ~WA State Rep. Lauren Davis

In short, the bill itself decriminalizes personal-use amounts of drugs. The decriminalization part is based on the widening belief that jail time and legal consequences often present more problems than rehabilitative solutions for people suffering from addiction, creating a vicious cycle.

“The Legislature finds that substance use disorder is among the only health conditions for which a person can be arrested for displaying symptoms.” the bill reads. “People use drugs to escape the painful reality of their lives and circumstances, including trauma that’s never had a chance to heal.”

According to Davis, building this new continuum of care would be funded piecemeal from a federal substance abuse block grant, money obtained through opioid manufacturing lawsuits and state general funds saved from expected reductions in the Department of Corrections budget needs.

Please contact my office if you, a friend or family member face drug charges. Hiring an effective and competent defense attorney is the first and best step toward justice.

Domestic Violence: The Pandemic Within the Pandemic

Image result for coronavirus domestic violence

Excellent article by Jeffrey Kluger of Time discusses how growing evidence shows the Coronavirus Pandemic has made Domestic Violence more common—and often more severe.

Surveys around the world have shown domestic abuse spiking since January of 2020—jumping markedly year over year compared to the same period in 2019. According to the American Journal of Emergency Medicine and the United Nations group U.N. Women, when the pandemic began, incidents of domestic violence increased 300% in Hubei, China; 25% in Argentina, 30% in Cyprus, 33% in Singapore and 50% in Brazil. The U.K., where calls to domestic violence hotlines have soared since the pandemic hit, was particularly shaken in June by the death of Amy-Leanne Stringfellow, 26, a mother of one and a veteran of the war in Afghanistan, allegedly at the hands of her 45-year-old boyfriend.

In the U.S., the situation is equally troubling, with police departments reporting increases in cities around the country: for example, 18% in San Antonio, 22% in Portland, Ore.; and 10% in New York City, according to the American Journal of Emergency Medicine. One study in the journal Radiology reports that at Brigham and Women’s Hospital in Boston, radiology scans and superficial wounds consistent with domestic abuse from March 11 to May 3 of this year exceeded the totals for the same period in 2018 and 2019 combined.

And as the pandemic has dragged on, so too has the abuse. Just as the disease continues to claim more lives, quarantine-linked domestic violence is claiming more victims—and not just women in heterosexual relationships. Intimate partner violence occurs in same-sex couples at rates equal to or even higher than the rates in opposite sex partners.

What’s more, the economic challenges of the pandemic have hit same-sex couples especially hard, with members of the LGBTQ community likelier to be employed in highly affected industries like education, restaurants, hospitals and retail, according to the Human Rights Campaign Foundation. That means higher stress and, concomitantly, the higher risk that that stress will explode into violence.

Please read my Legal Guide titled Defending Against Domestic Violence Charges and  contact my office if you, a friend or family member are charged with a DV crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Banning Armed Protests

Michigan Cancels Legislative Session to Avoid Armed Protesters - Bloomberg

The Washington State Capitol has long been the site of armed and unarmed protests. Until recently, armed protests at the Capitol have taken place without violence, bloodshed or gunfire.

In December, however, shots were fired at two clashes between demonstrators who were pro-former President Donald Trump and counterdemonstrators near the Capitol grounds, injuring one person. Consequently, lawmakers are considering a bill that would ban the open carry of firearms on Capitol grounds and at other public demonstrations.

Senate Bill 5038 would make it a gross misdemeanor to open carry firearms and other weapons at the state Capitol campus, legislative meetings and within 1,000 feet of a public demonstration. The bill’s prime sponsor, Sen. Patty Kuderer, D-Bellevue, said that an increase in armed vigilantism is becoming an alarming trend.

Kuderer argues that her bill would ensure that weapons are not used to intimidate peaceful demonstrators, and would decrease the potential for lethal violence.

“The purpose of open carrying a weapon at a protest is to intimidate people . . . It only serves to increase the risk of violence or death. And we’ve seen over the past several years armed groups engage with peaceful protestors, and sometimes with deadly consequences.” ~Sen. Patty Kuderer

According to Washington State Patrol spokesperson Chris Loftis, there have been 149 unpermitted demonstrations or events at the Capitol since COVID-19 restrictions went into effect in the spring.

Washington is an open-carry state, but the Capitol would be added to a list of places where firearms are already banned, including jails, courtrooms, airports, schools and mental health facilities.

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

No More Police Chokeholds

emi koyama (@emikoyama) | Twitter

Excellent article by Melissa Luck of the yaktrinews.com reports that House Bill 1054 would limit law enforcement officers from using controversial police tactics like chokeholds and tear gas.

Ending Money Bond

VICTORY: Illinois Just Passed the Pretrial Fairness Act and Ended Money Bail  – Chicago Council of Lawyers

Illinois is poised to become the first state in the country to end the use of wealth-based pre-trial detention. The change has been a long time in the making – so long that one of the first organizers working to change the Illinois bail system six years ago got elected to the state senate and became a co-sponsor of the Pre-trial Fairness Act.

In courtrooms across the US, pre-trial release payments, called bond or bail, create dual systems of justice – one for the wealthy who can pay their way out of pre-trial incarceration and another for those who can’t afford it. Studies have also shown that hundreds of thousands of Americans like Mayes end up pleading guilty or receiving harsher sentences because of unaffordable bonds, whether or not they are guilty.

My opinion? Let’s see what happens. Numerous studies have shown that bail does little to achieve its intended purpose of ensuring court attendance – people released on their own recognizance were just as likely to come back to court for their trials as people who posted money bond and no more likely to reoffend awaiting trial.

Wealth-based detention is at its core, a racial justice issue. Across the country, Black, Latino and indigenous people are detained pre-trial at far higher rates than people of other ethnicities. If given a money bail, Black people receive significantly higher bail than all other ethnic and racial groups and are less likely to be able to post the bail amount. Bail is usually set by judges in less than a minute and people with almost identical charges are often assigned bails that differ by tens of thousands of dollars.

Please read my Legal Guide titled 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: Bad State to Drive

New Jersey - We Live In The 8th Worst State To Drive In

Apparently, Washington is one of the nation’s worst states to drive in, according to a new study released Tuesday.

The study, by personal finance website WalletHub, found that Washington ranks as the third-worst state for drivers, thanks mainly to steep gas prices, high rates of car theft, poor overall road quality, traffic congestion and other factors.

The only states with a worse rating than Washington are California and Hawaii, the report found. The best state for drivers is Texas, followed by Indiana at No. 2 and North Carolina at No. 3, according to the analysis.

The study arrived at the rankings by comparing all 50 states across 31 key metrics, such as traffic congestion, gas prices, auto maintenance costs, car theft rate and number of days with precipitation.

Specifically, the analysis found that Washington has the third-highest gas prices in the nation, the eighth-worst roads and ninth-highest car theft rate.

The only categories in which Washington was rated above average were its overall safety ranking, the number of car dealerships per capita and the number of auto repair shops per capita. The study also found that traffic congestion costs U.S. drivers $88 billion per year and wastes 99 hours of their time.

It’s also heartening to officials with Washington State Patrol and the Washington Traffic Safety Commission, which are among the agencies working toward Target Zero, a statewide effort to eliminate all fatal and serious injury traffic incidents by 2030. Critics of strict enforcement of speed limits charge that the link between speed and safety is exaggerated because of biases embedded in data collection and inaccuracies found in some police reporting on accidents.

Please contact my office if you, a friend or family member are charged with a driving-related crime like Distracted Driving, Reckless Driving, Vehicular Assault, DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.