Tag Archives: Mount Vernon Criminal Defense Attorney

DUI For Left-Lane Travel

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, DUI, marijuana, misdemeanor, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Wrong Way Accidents: Why They Happen & How To Avoid Them

In State v. Thibert, the WA Court of Appeals upheld the DUI conviction of a motorist who was pulled over for the traffic infraction of travelling in the far-left lane of the freeway.

BACKGROUND FACTS

Deputy Justin Gerry was on routine patrol one morning in July 2013 on westbound Interstate 82 in Benton County. He observed a silver Chevrolet Impala in the left lane pass a vehicle in the right lane, traveling faster than the posted 70 miles per hour speed limit. The Impala continued to travel in the left lane long after passing the vehicle in the right lane, even though no other vehicles were traveling in the unobstructed right lane. The deputy initiated a traffic stop not for the car’s speed, but for a violation of RCW 46.61.100(2), captioned “Keep right except when passing, etc.”

On approaching the vehicle, which was being driven by Mr. Thibert, Deputy Gerry smelled the odor of fresh marijuana. What looked like a smoking device was hanging from Mr. Thibert’s neck. Mr. Thibert told the deputy he was a medical marijuana patient and used the smoking device to smoke marijuana oil. Deputy Gerry noted that Mr. Thibert had difficulty finishing his sentences and that he “would sometimes stop speaking and just giggle.”

Mr. Thibert agreed to perform field sobriety tests. Based on Mr. Thibert’s performance, Deputy Gerry concluded he was under the influence of marijuana and could not safely operate a motor vehicle. He placed Mr. Thibert under arrest and transported him to the hospital for a blood draw. THC was present in Mr. Thibert’s blood at 55 nanograms. He was charged with driving a motor vehicle while under the influence of marijuana.

Mr. Thibert moved on multiple grounds to suppress evidence obtained as a result of the traffic stop and events that followed. The district court denied the motion. It found among other facts that Mr. Thibert’s “remaining in the left lane, when one could lawfully and safely return to the right lane, is an infraction and provided Deputy Gerry probable cause to stop.” The parties agreed to submit the case to the court for a determination of guilt on stipulated facts. The district court found Mr. Thibert guilty.

Mr. Thibert appealed to the Benton County Superior Court, which affirmed the judgment, dismissed the appeal, and remanded the matter to the district court for sentencing.

Afterward, Mr. Thibert appealed his case to the WA Court of Appeals on the issue of whether Mr. Thibert was stopped unlawfully because the fact that he drove in the left lane, without impeding traffic, did not establish reasonable suspicion for the stop.

COURT’S ANALYSIS & CONCLUSIONS

“At issue is whether RCW 46.61.100(2), on which Deputy Gerry relied in stopping Mr. Thibert, creates a traffic infraction,” said the Court of Appeals.

The WA Court of Appeals said that a reasonable articulable suspicion of a traffic infraction, like a reasonable articulable suspicion of criminal activity, will support a warrantless traffic stop under article I, section 7 of the Washington Constitution. Subsection (2) of RCW 46.61.100, which Mr. Williams contends addresses only the “primary use” of the left lane of a multi-lane highway, states:

“Upon all roadways having two or more lanes for traffic moving in the same direction, all vehicles shall be driven in the right-hand lane then available for traffic, except (a) when overtaking and passing another vehicle proceeding in the same direction, (b) when traveling at a speed greater than the traffic flow, (c) when moving left to allow traffic to merge, or (d) when preparing for a left turn at an intersection, exit, or into a private road or driveway when such left turn is legally permitted.”

Plainly read, RCW 46.63.020 and 46.61.100 make it a traffic infraction to travel in the left lane in the four circumstances identified by RCW 46.61.100(2). The word “shall” in subsection (2) (“all vehicles shall be driven in the right-hand lane then available for traffic, except . . .”) “is presumptively imperative and operates to create a duty.”

Subsection (4), which he contends identifies the only infraction arising from
driving in the left lane, provides: “It is a traffic infraction to drive continuously in the left lane of a multi-lane roadway when it impedes the flow of other traffic.”

The Court further reasoned that, plainly read, RCW 46.63.020 and 46.61.100 make it a traffic infraction to travel in the left lane in the four circumstances identified by RCW 46.61.100(2). The word “shall” in subsection (2) (“all vehicles shall be driven in the right-hand lane then available for traffic, except . . .”) “is presumptively imperative and operates to create a duty.”

The Court disagreed with Mr. Thibert’s contention that if each of subsections (2) and (4) of RCW 46.61.100 identify traffic infractions, then they are irreconcilable or cancel each other out.

“The subsections are reconcilable,” said the Court. “An individual is permitted to drive in the left lane when one of the transient exceptions identified in subsection (2) applies, unless the transient exceptions arise so frequently that the individual’s continuing travel in the left lane is impeding traffic.” Also, because the conduct that was forbidden by the statute can be understood by ordinary people, the Court of Appeals rejected Mr. Thibert’s passing argument that the statute is void for vagueness.

With that, the Court of Appeals upheld Mr. Thibert’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.

Warrantless Search & “Community Caretaking”

Bellingham Defense Attorney, Community Caretaking, Constitutional Rights, felony, Firearm, Fourth Amendment, Homicide & Manslaughter, law enforcement, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Know Your Rights: Can You Be Searched Without a Warrant? | legalzoom.com

In State v. Boisselle, the WA Court of Appeals held that the officers’ warrantless entry into a duplex was lawful as the officers were worried that someone might be injured or dead inside, the officers were unable to locate the individuals who were believed to being living in the duplex, the officers did not intend to conduct a criminal investigation inside the duplex, and from the time the officers arrived at the duplex, until entry, the officers individually and collectively worked to ascertain the situation.

BACKGROUND FACTS

In July 2014, Michael Boisselle encountered Brandon Zomalt, an old acquaintance. Zomalt told Boisselle that he was homeless, had nowhere to sleep, and that he needed assistance obtaining a food handler’s permit in order to secure a job. Boisselle offered to let Zomalt stay with him in his duplex unit. With Boisselle’s assistance, Zomalt received his food handler’s permit and began working at a nearby restaurant. However, Zomalt was fired after one week for fighting at work.

Zomalt was addicted to alcohol and methamphetamine. He also had a history of violence. Several people, including Zomalt’s mother and two of his former girlfriends, had been granted protection orders against him. After losing his job, Zomalt drank throughout the day. Boisselle did not feel safe around Zomalt and avoided him when possible.

The tension in the house culminated into a confrontation. Apparently, Zomalt began to behave strangely. He also drank heavily. One night, Boiselle and Zomalt were home. According to Boiselle, Zomalt held him hostage in their home and threatened Boiselle with a firearm. Later that night, Boiselle managed to reach the gun. He fired the weapon at Boiselle, apparently in self-defense. No witnesses summoned police or heard the firearm.

On September 1, 2014, South Sound 911 dispatch received an anonymous telephone call from an individual who reported that “somebody by the name of Mike” stated that he shot someone at the duplex. Shortly thereafter, the Puyallup Police Department anonymous tip line received a telephone call from an individual who reported that “Mike” had “shot someone” and “possibly killed him, and it was in self-defense.” Deputies Ryan Olivarez and Fredrick Wiggins were dispatched to the scene.

Olivarez and Wiggins knocked on the door of the duplex but received no response. There was, however, a dog inside that was barking aggressively. The deputies walked around the outside of the duplex and attempted to look inside, but all of the windows were closed and covered with blinds. There was a light on in the upstairs western bedroom. The deputies smelled a foul odor coming from the house and the garage. Olivarez thought that “something about it just seemed off’ and was concerned with “trying to figure out if someone needed help.” Olivarez and Wiggins then contacted the neighbors in order to gather more information. Two neighbors informed the deputies that they had not seen anyone coming or going from the duplex for about “four or five days.”

With no person apparently able to consent to a police entry of the unit and believing that they did not have a sufficient basis to obtain a search warrant, Adamson and Clarkson made a joint decision to force entry into the duplex. Clarkson broke through the front door. An animal control officer secured the dog. The officers then performed a security sweep of the duplex, looking for anyone who was hurt. Adamson and Clarkson searched the second floor of the duplex while Wiggins and Olivarez searched the first floor. The officers checked all of the rooms, looking in closets and other large spaces for a person or a body but ignoring drawers and other areas where a person could not fit.

Sergeant Clarkson believed that the smell was coming from inside of the garage and was consistent with a dead body. Once all of the rooms inside the duplex had been checked, deputies Wiggins and Olivarez forced entry into the garage from inside of the duplex. Once inside the garage, all four officers could see a large, rolled up carpet with a shoe sticking out and maggots pouring out of the bottom. Sergeant Clarkson opened the garage door using the automatic door opener and all four officers went around to the outside of the garage for a clear view of the carpet. From outside of the house, the officers saw an arm hanging out of the front end of the carpet. Clarkson told the other officers that “this is a crime scene now,” and that “it’s time we have to seal this off.” None of the officers collected evidence or touched the carpet.

Boisselle was charged with second degree murder and unlawful possession of a firearm. Before trial, he argued a CrR 3.6 motion to suppress. The judge denied the motion. At trial he was convicted of both charges.

On appeal, and among other issues Boisselle contends that the trial court erred by denying his motion to suppress the search of his home.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the United States Constitution prohibits unreasonable searches and seizures. “The Fourth Amendment does not prohibit ‘reasonable’ warrantless searches and seizures,” said the Court. Furthermore, the Court said the analysis under the Fourth Amendment focuses on whether the police have acted reasonably under the circumstances.

Additionally, the Court explained that Article 1, section 7 of the Washington Constitution is more protective than the Fourth Amendment, particularly where warrantless searches are concerned. “Article 1, section 7 provides that ‘no person shall be disturbed in his private affairs, or his home invaded, without authority of law,'” said the Court.  The WA Constitution also prohibits any disturbance of an individual’s private affairs without authority of law. The Court said this language prohibits unreasonable searches.

However, the Court also explained that a search conducted pursuant to a police officer’s community caretaking function is one exception to the warrant requirement; and the community caretaking function was first announced by the United States Supreme Court in Cady v. Dombrowski. From there, subsequent Washington cases have expanded the community caretaking function exception to encompass not only the search and seizure of automobiles, but also situations involving either emergency aid or routine checks on health and safety.

Here, the court reasoned the police officers rightfully conducted a community caretaking search under the circumstances:

“In any event, the record establishes that the officers acted promptly given the circumstances. From the moment they arrived at the duplex, until entry, the officers individually and collectively began to ascertain the situation at hand. This included checking doors and windows to determine whether anyone was inside the duplex, contacting both the owner of the duplex and the individual listed on the lease in attempts to obtain consent to enter, questioning neighbors, and contacting animal control.”

The Court emphasized that, ultimately, the officers reached a point where two things were clear: (1) obtaining consent to enter was not possible as no person entitled to consent could be identified, and (2) there was nothing further the officers could do to discern the welfare of any person inside the unit absent entry. “At this point, the officers reasonably concluded that forcible entry was necessary to determine the need for and to render assistance. Given the circumstances, this was an immediate response to a likely emergency,” said the Court.

Finally, the Court reasoned the officers’ warrantless search of the duplex was justified pursuant to the community caretaking function exception as considered by a majority of the Supreme Court in State v. Smith.

“Accordingly, the trial court did not err by denying Boisselle’s motion to suppress,” said the Court of Appeals. With that – and following discussion of other issues – the Court of Appeals affirmed Mr. Boisselle’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.

Jail Mail

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Jail, Prison, Search and Seizure, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Amazon.com: Jail Mail: Appstore for Android

In State v. Irby, the WA Court of Appeals held that an inmate’s 6th Amendment rights were violated and has case was prejudiced when jail guards opened and read his confidential “jail mail” letters written to his defense attorney.

BACKGROUND FACTS

In April 2005, Irby was charged with one count of burglary in the second degree, alleged to have occurred on March 6, 2005, and the following counts alleged to have occurred on March 8, 2005: one count of aggravated murder in the first degree with an alternative allegation of first degree felony murder, one count of burglary in the first degree, one count of robbery in the first degree, three counts of unlawful possession of a firearm in the first degree, and one count of attempting to elude a police vehicle. The latter charges arose out of a robbery and bludgeoning death.

In January 2007, a jury found Irby guilty of murder in the first degree with aggravating circumstances, felony murder in the first degree, and burglary in the first degree. Four years later, the Washington Supreme Court reversed the judgment of conviction and remanded the cause for a new trial in light of the court’s determination that Irby’s due process rights had been violated during jury selection. See State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011).

Irby’s retrial was held in 2013. The State prosecuted the same charges that were brought during the first trial and Irby was convicted as charged. Notably, at the retrial, Irby was allowed to proceed pro se. He also voluntarily absented himself from the trial. We subsequently reversed the judgment of conviction and remanded the cause for yet another new trial because the trial judge had erroneously seated a juror who had demonstrated actual bias against Irby during voir dire.

In March 2016, pretrial proceedings began for Irby’s third trial. He was represented by a public defender. In mid-March, the State filed an amended information charging Irby with one count of premeditated murder in the first degree and one count of burglary in the first degree. Two days later, Irby appeared in court and was arraigned on the charges. He entered pleas of not guilty.

In mid-March and again in late March, Irby requested to represent himself. Following a colloquy with the trial court in mid-April, Irby’s request was granted. Four months later, Irby filed a pro se motion to dismiss the charges against him. In his motion, Irby alleged misconduct by jail guards, claiming that (during the period of time during which his public defender represented him) they had improperly opened outgoing mail containing privileged legal communication intended for his attorney.

The trial court denied Irby’s motion. The trial court did determine that the jail guards had violated Irby’s right to counsel by opening and reading privileged attorney-client communications. Although Irby argued that the trial court’s determination mandated that a presumption of prejudice be imposed, the trial court placed on Irby the burden of proving prejudice and concluded that he did not do so.

One month later, Irby informed the trial court that he had decided not to attend the trial and waived his right to be present at trial.

After a jury was selected without Irby’s participation, the evidentiary stage of Irby’s third trial began. Irby did not attend the trial. The State presented its case in chief and gave closing argument. No defense or closing argument were presented on Irby’s behalf.

The jury returned verdicts finding Irby guilty as charged. Irby was sentenced to concurrent terms of incarceration of 388 months for the murder in the first degree conviction and 54 months for the burglary in the first degree conviction.

ISSUES

1. Did a State actor participate in the infringing conduct alleged by the defendant?

2. If so, did the State actor(s) infringe upon a Sixth Amendment right of the defendant?

3. If so, was there prejudice to the defendant? That is, did the State fail to overcome the presumption of prejudice arising from the infringement by not proving the absence of prejudice beyond a reasonable doubt?

4. If so, what is the appropriate remedy to select and apply, considering the totality of the circumstances present, including the degree of prejudice to the defendant’s right to a fair trial and the degree of nefariousness of the conduct by the State actor(s)?

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals decided  the “State actors” engaged in misconduct.

“Irby’s motion to dismiss alleged that the confrontation between himself and the State involved conduct by jail guards employed by the county jail in which he was being housed,” said the Court of Appeals. “Thus, Irby established that the conduct underlying his claim involved State actors.”

Second, the Court decided  that the jail guards’ conduct infringed upon his Sixth Amendment right.

“Plainly, a defendant’s Sixth Amendment right to assistance of counsel is violated when the State intrudes into a privileged attorney-client communication,” said the Court of Appeals.

The court reasoned that here, Irby’s motion to dismiss—and accompanying exhibits and addendum—alleged that he had sent 14 pieces of confidential correspondence containing privileged information to his attorney that, he argued, had been improperly opened and read by jail guards in the Skagit County Jail. The correspondence constituted Irby’s handwritten statements on both a “Public Defender Request Form” and jail kites—multi-purpose request forms available to inmates in the Skagit County Jail.

Prior to sending the correspondence, Irby folded each piece of paper in half, sealed each piece of paper with tape, and written on the outward facing side, “CONFIDENTIAL,” and “ATTORNEY BOX.” Consequently, the Court of Appeals said the folded and taped pieces of paper were intended to be confidential and included privileged attorney-client information. “Thus, the aforementioned correspondence from Irby to his counsel contained privileged attorney-client information protected by the Sixth Amendment.”

Third, the Court of Appeals held that the  jail guards’ opening and reading of Irby’s privileged attorney-client correspondence infringed upon his Sixth Amendment right to counsel. The parties do not dispute the trial court’s finding that jail guards had opened and read Irby’s privileged attorney-client communications. “Thus, the jail guards—and therefore the State—infringed on Irby’s Sixth Amendment right to counsel. This constitutes misconduct, within the meaning of CrR 8.3.”

Finally, the Court of Appeals decided Irby was prejudiced by the misconduct:

“More than half a century ago, our Supreme Court ruled that, when State actors pry into a defendant’s privileged attorney-client communications, prejudice to the defendant must be presumed . . . We must assume that information gained by the sheriff was transmitted to the prosecutor and therefore there is no way to isolate the prejudice resulting from an eavesdropping activity, such as this.”

The Court of Appeals further reasoned that recently, our Supreme Court in Pena Fuentes reaffirmed this ruling and, in light of a State actor’s eavesdropping on privileged attorney-client communications, imposed a presumption of prejudice.

Furthermore, because the State actors here at issue—jail guards—infringed upon Irby’s Sixth Amendment right, prejudice must be presumed. Thus, the trial court erred by not imposing a presumption of prejudice after it determined that the jail guards had opened and read Irby’s communications containing privileged attorney-client information.

With that, the Court of Appeals reversed the order denying Irby’s motion to dismiss and remanded this matter for an evidentiary hearing with instructions to the trial court.

My opinion? Excellent decision by the Court of Appeals. It most certainly violates a defendant’s constitutional rights for state actors like jailers, law enforcement and Prosecutors to read mail from an inmate intended for an attorney.

Please read my Legal Guide titled Making Bail and contact my office if you, a friend or family member face criminal charges and are incarcerated awaiting trial. Being in jail is never wise if it can be avoided. Chances are, a qualified and competent attorney can argue for personal release, lowered bail or convince the judge to release the defendant to a family member who is willing to supervise the defendant’s whereabouts.

DV & Cohabitating Parties

Assault, Bellingham Defense Attorney, Child Abuse, Domestic Violence, Evidence, felony, Harassment, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Image result for dv and parents with kids

In State v. Shelley, the WA Court of Appeals reversed the the defendant’s domestic violence convictions and held that a man, who is cohabitating with a woman and her child, does not necessarily have a “family or household” relationship to the child.

BACKGROUND FACTS

From late 2013 until April 2015, Defendant Aaron Shelley, his girlfriend Cheri Burgess, and her son from another relationship, A.S., lived with Shelley’s aunt and uncle.

On the evening of April 29, 2015, Shelley became angry and wanted Burgess to leave the house. After attempting to force Burgess out of the house, Shelley placed a knife against Burgess’s throat and stated he was going to kill her because she was not leaving. Shelley’s uncle, Mr. Sovey, intervened and convinced Shelley to give him the knife.

While Burgess and Sovey were talking in the kitchen, Shelley took A.S. out to the car. When Burgess confronted Shelley, Shelley grabbed A.S. by the throat. A.S. made a choking noise, “like he couldn’t breathe.” And when Burgess tried to grab A.S., Shelley said, “If you don’t leave or get away, I’m just gonna squeeze him, keep squeezing him. Get away from me. Leave, leave. Just effing leave. Leave my boy.” After Sovey came outside, Burgess walked away and called the police.

The State charged Shelley with, among other things, two counts of second degree assault as to Burgess, one count of second degree assault of a child as to A.S., and one count of felony harassment for threatening to kill A.S. The State alleged each crime was one of domestic violence.

The jury convicted Shelley of one count of assault as to Burgess. The jury found this was a crime of domestic violence because Shelley and Burgess were members of the same family or household. The jury also convicted Shelley of one count of assault as to A.S. and one count of felony harassment.

Shelley appealed on the issue of whether he was properly convicted of domestic violence acts against A.S.

COURT’S ANALYSIS AND CONCLUSIONS

The WA Court of Appeals reasoned that under RCW 10.99.020(3) and RCW 26.50.010(6), “family or household members” includes the following:

“Spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.”

“The State had the burden of establishing Shelley and A.S. had a biological or
legal parent-child relationship,” said the Court. “It is undisputed that Shelley is not A.S.’s biological father because Shelley and Burgess did not meet until she was six months
pregnant.”

The Court also raised and dismissed the State’s arguments that Shelley’s presumption of parentage was proven under RCW 26.26.116 of the Uniform Parentage Act. “The State did not present the trial court with any evidence of such a judicial determination,” said the Court of Appeals. “On this record, the State’s presumptive parent and de facto parent
theories fail.”

The Court concluded that because A.S. and Shelley are not family or household members, the domestic violence special verdicts on count 3, second-degree assault of a child, and count 4, felony harassment, were invalid as a matter of law.

Please contact my office if you, a friend or family member are charged with DV crimes involving the children of unmarried boyfriends/girlfriends or domestic partners.  Like this case shows, the Prosecution may be unlawfully charging defendants with DV crimes when it lacks the authority to do so.

Evidence of Forgery

Bellingham Defense Attorney, felony, Forgery, Rule of Lenity, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for forgery

In State v. Bradshaw, the WA Court of Appeals held that sufficient evidence existed to convict the defendant, an escrow agent, of forgery.

BACKGROUND FACTS

In 2014, Defendant/Appellant Stacy Bradshaw was a licensed escrow agent and the owner of North Sound Escrow. By law, an escrow agent must maintain several types of liability insurance. Bradshaw had coverage for crime as well as for errors and omissions through the insurance firm USI Kibble & Prentice. The limits were $1 million per claim.

In February 2014, Bradshaw was retained as the escrow agent for the sale of commercial property for the price of approximately $1.4 million. Umpqua Bank was the lender for one of the parties. Umpqua asked Bradshaw for a copy of her insurance information. Bradshaw obtained a “Certificate of Liability Insurance” from Kibble & Prentice showing her limits of $1 million.

She gave Umpqua a copy of the certificate that was altered to represent that Bradehaw had coverage limits of $2 million. Umpqua noticed the alterations and contacted both Kibble & Prentice and the Department of Financial Institutions, the agency that regulates escrow agents. This led to the prosecution of Bradshaw on one count of forgery.

Bradshaw waived her right to a jury trial and opted instead for a bench trial. The court convicted Bradshaw  as charged and sentenced her to 40 hours of community service, $3,600 in financial restitution, and 6 months of community supervision. Bradshaw’s appeal challenges the sufficiency of the evidence.

LEGAL ISSUE

Whether sufficient evidence exists to uphold the defendant’s forgery conviction.

RULE

A person is guilty of Forgery if, with intent to injure or defraud: (a) He or she falsely makes, completes, or alters a written instrument or; (b) He or she possesses, utters, offers, disposes of, or puts off as true a written instrument which he or she knows to be forged.

ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the trial court correctly determined that the Certificate of Liability Insurance has legal efficacy as a written instrument and a public record. The court reasoned that a written instrument is broadly defined in the current statute as “Any paper, document, or other instrument containing written or printed matter or its equivalent; or (b) any access device, token, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege, or identification.”

The Court reasoned that the certificate holder named on Bradshaw’s certificate of liability insurance is the Washington State Department of Financial Institutions. The Certificate was filed with the department as evidence that Bradshaw was in compliance with coverage requirements. Finally, the certificate had material significance to the Washington State Department of Financial Institutions.

“As part of the licensing process, and under statute, an escrow agent must submit proof of financial responsibility to the department, including a fidelity bond providing coverage in the aggregate amount of one million dollars,” said the Court. Furthermore, under the Washington Administrative Code, to demonstrate compliance with the requirement for a fidelity bond, the applicant is required to provide the department with a certificate of insurance that includes the aggregate amount of coverage. By statute, maintaining such insurance is “a condition precedent to the escrow agent’s authority to transact escrow business in this state.”

The Court raised and dismissed Bradshaw’s arguments that the evidence is insufficient to prove her certificate of insurance is a public record because the State did not establish that anyone in the department scrutinized it during the process of renewing her license.

“Bradshaw cites no authority for this proposition, and we have found none,” said the Court.

“In short, the record shows that Bradshaw’s certificate of insurance was a type of document required by law to be filed and necessary or convenient to the discharge of the duties of the department. In view of the regulatory scheme, the trial court reasonably found that a certificate of insurance coverage for an escrow agent is a written instrument, the alteration of which supports a forgery charge because it is a public record with legal efficacy.”

With that, the Court held that sufficient evidence supports the trial court’s determination that Bradshaw’s certificate of insurance had legal efficacy as a foundation for legal
liability.

Finally, the Court raised and dismissed arguments that the Rule of Lenity supports the reversal of her conviction.  “The rule of lenity operates to resolve statutory ambiguities in favor of criminal defendant,” said the Court. “It ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.” The Court reasoned that here, because Bradshaw’s conduct is clearly covered by the statute, the rule of lenity is not applicable.

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.

5 Types of Alcoholics

Bellingham, Drug Recognition Expert, DUI, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

Alcoholism, Alcohol Misuse, and Alcohol Dependence

Apparently, there are several types of alcoholics.

Scientists at the National Institute on Alcohol Abuse and Alcoholism (NIAAA) conducted a survey of 43,093 individuals, screening them for alcohol dependence as well as a wide range of other factors. The NIAAA researchers found that there were five distinct patterns of alcohol dependence.

YOUNG ADULT SUBTYPE

This is the most prevalent subtype, making up 31.5 percent of people who are alcohol dependent. The average age of dependent young adults is 25 years, and they first became dependent at an average of age 20. They tend to drink less frequently than people of other types (an average of 143 days a year). However, most of their drinking is binge drinking – they drink five or more drinks on an average of 104 (73 percent) of those days. On drinking days, the average maximum number of drinks is 14. This pattern of alcohol use is more likely to be hazardous than non-binging patterns.

Young adult alcohol dependents are 2.5 times more likely to be male than female. About 75 percent have never been married, 36.5 percent are still in school, and 54 percent work full time. Approximately 22 percent have a first- or second-degree family member who is also dependent on alcohol. Compared to other types of alcoholics, young adults are less likely to have psychiatric disorders or legal problems. Fewer than 1 percent of them have antisocial personality disorder. About 32 percent also smoke cigarettes, and 25 percent also use cannabis.

Only 8.7 percent of young adult alcohol dependents have ever sought treatment for their drinking problem. If they do choose to seek help, they tend to prefer 12-step programs over specialty treatment clinics or private professional practices.

The NIAAA reports that four out of five college students drink alcohol and half of those who do binge drink. They also note that each year, among college students between the ages of 18 and 24:

  • At least 1,825 students die from alcohol-related accidental injuries.
  • Over 690,000 students are assaulted by another student who has been drinking.
  • More than 97,000 students are victims of alcohol-related date rape or sexual assault.
  • About 599,000 students are unintentionally injured while they are under the influence of alcohol.
  • Over 150,000 students develop alcohol-related health problems.
  • About 25 percent of students experience school-related consequences from their alcohol consumption, such as being late to or missing classes, falling behind on coursework, doing poorly on homework, exams or papers, and receiving overall lower grades.

YOUNG ANTISOCIAL SUBTYPE

Young antisocial alcohol dependents make up 21.1 percent of alcoholics – 54 percent of them have antisocial personality disorder (ASPD). ASPD is characterized by at least three of the following:

  • Recurring criminal activities
  • Regular fights or assaults
  • Lack of regard for the safety of others
  • Lack of remorse
  • Impulsiveness
  • Deceitfulness
  • Irresponsibility

They are also young (average age 26 years), and they have the earliest age of onset of drinking (average 16 years) and the earliest age of alcohol dependence (average 18 years). Young antisocial alcoholics drank an average of 201 days in the last year, binge drinking (consuming five or more drinks) on an average of 161 (80 percent) of those days. When they drink, their maximum number of drinks is 17, the highest of any subtype of alcoholic.

About 76 percent of this type of alcoholic are male. Only 7.6 percent have received a college degree, although another 13.4 percent are still in school. Approximately 47 percent are employed full time. Family incomes average around $32,000, the lowest among the subtypes (alongside the chronic severe subtype).

Over half of young antisocial alcoholics (52.5 percent) have a close family member who is also alcohol dependent. In addition, they also have high rates of psychiatric disorders:

They also have high rates of substance abuse:

Almost 35 percent of young antisocial alcoholics have sought help for their alcohol-dependence problems. They tend to go to self-help groups, detoxification programs, and specialty treatment programs, and they have high rates of participation in treatments offered by individual private health care providers.

The NIAAA reports that alcohol and ASPD make for a dangerous combination. People with ASPD are 21 times more likely to develop alcohol dependence in their lifetimes. Meanwhile, alcohol is more likely to increase aggressive behaviors in people with ASPD than in people without. This may be because alcohol interferes with executive functioning in the brain, which regulates and inhibits aggressive behavior. People with ASPD also show impaired executive functioning, which may make them particularly vulnerable to this effect.

FUNCTIONAL SUBTYPE

Functional alcoholics make up 19.4 percent of alcohol-dependent individuals. This group tends to be older (average age 41 years), has a later age of first drinking (average 19 years), and a later onset of alcohol dependence (average age of 37 years). They tend to drink alcohol every other day (an average of 181 days per year), and they consume five or more drinks on an average of 98 (54 percent) of those days. On drinking days, they tend to consume a maximum of 10 drinks.

About 62 percent of functional alcoholics work fulltime, 3.6 percent are in school fulltime, and 5 percent are retired. Nearly 26 percent have a college degree or higher, and average household income is almost $60,000, the highest among any of the subtypes. Approximately 40 percent are female, and nearly 50 percent are married.

About 31 percent of functional alcoholics have a close family member who also has alcohol dependence. They have moderate rates of major depression(24 percent) and smoking cigarettes (43 percent), and low rates of anxiety disorders, other substance use disorders, and the lowest rates of having legal problems (fewer than 1 percent). Fewer than 1 percent of these individuals have antisocial personality disorder.

Only 17 percent of functional alcoholics have ever sought help for their alcohol dependence. Those who do tend to make use of 12-step programs and private health care professionals. Functional alcoholics make up 19.4 percent of alcohol-dependent individuals. This group tends to be older (average age 41 years), has a later age of first drinking (average 19 years), and a later onset of alcohol dependence (average age of 37 years). They tend to drink alcohol every other day (an average of 181 days per year), and they consume five or more drinks on an average of 98 (54 percent) of those days. On drinking days, they tend to consume a maximum of 10 drinks.

INTERMEDIATE FAMILIAL ALCOHOLICS

Intermediate familial alcoholics make up 18.8 percent of all alcoholics. Nearly half (47 percent) of them have a close family member who is also an alcoholic. They have an average age of 38 years, began drinking at almost age 17, and developed alcohol dependence at an average age of 32 years. Intermediate familial alcoholics drink on an average of 172 days a year, consuming five or more drinks on 93 (54 percent) of those days, with a maximum of 10 drinks.

They have the highest rates of employment among alcoholics, with 68 percent working full time and with an average family income of nearly $50,000 a year. Nearly 20 percent have a college degree. About 64 percent are male, while about 38 percent are married and 21 percent are divorced.

Intermediate familial alcoholics have elevated rates of mental illness:

They also have higher rates of substance use/abuse:

  • 57 percent smoke cigarettes
  • 25 percent have cannabis use disorder
  • 20 percent have cocaine use disorder

Almost 27 percent of intermediate familial alcohol dependents have sought help for their drinking problem. They tend to prefer self-help groups, detoxification programs, specialty treatment programs, and individual private health care providers.

CHRONIC SEVERE SUBTYPE

This is the rarest and most dangerous type of alcoholism, making up 9.2 percent of alcoholics. Chronic severe alcoholics average 38 years of age. They begin drinking early (at 16 years) and develop alcohol dependence later (around 29 years of age). This group has the highest rates of drinking, consuming alcohol on an average of 247.5 days a year and binge drinking on 172 (69 percent) of them, with a maximum of 15 drinks.

The majority of chronic severe alcoholics are male (65 percent). They also have the highest divorce rates, with 25.1 percent divorced and 8.6 percent separated, and only 28.7 percent married. Only 9 percent have a college degree, and they also have the lowest employment rate, with only 43 percent of chronic severe alcoholics employed full time and 7.6 percent both unemployed and permanently disabled.

Chronic severe alcoholics have the highest rate of family members who also experience alcohol dependence, at 77 percent. They are most likely to have mental illnesses:

  • 55 percent have depression
  • 47 percent have antisocial personality disorder (the second-highest rate, after young antisocial alcoholics)
  • 34 percent have bipolar disorder
  • 26 percent have social phobia
  • 25 percent have dysthymia
  • 24 percent have generalized anxiety disorder
  • 17 percent have panic disorder

Substance abuse is also common:

  • 75 percent smoke cigarettes
  • 58 percent have cannabis use disorder
  • 39 percent have cocaine use disorder
  • 24 percent have opioid use disorder

Chronic severe alcoholics experience the most pervasive symptoms:

  • Highest rate of emergency room visits related to drinking of any subtype
  • 94 percent drink larger/longer amounts than intended
  • 92 percent drink despite experiencing problems from drinking, such as at work, school, in relationships, or while driving
  • 88 percent experience withdrawal symptoms
  • 83 percent have repeatedly tried to reduce their drinking
  • 64 percent spend significant time recovering from drinking
  • 48 percent reduced meaningful activities, like hobbies or family time, because of alcohol

Almost 66 percent of chronic severe alcoholics have sought help for their alcoholism. They have the highest rates of attendance at self-help groups, detoxification programs, and specialty rehabilitation programs, and the highest rates of treatment in inpatient programs. When seeking treatment, they tend to turn to social workers, psychologists, psychiatrists, and private physicians.

Alcoholism is a debilitating disease. Making matters worse, it can lead people to commit crimes they otherwise would not commit. DUI is the perfect example of a crime which necessarily involves alcohol or drug abuse. Fortunately, there are defenses. Voluntary Intoxication and/or Diminished Capacity might apply. Please contact my office if you, a friend or family member suffer from alcoholism and are charged with a crime. Perhaps good defenses combined with hard work and strong dedication to a alcohol treatment program might persuade the Prosecutor to reduce or dismiss the charges.

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.

Supreme Court Makes it Harder to Deport Legal Immigrants Who Commit Crimes.

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In this Feb. 7, 2017, photo released by U.S. Immigration and Customs Enforcement, foreign nationals are arrested during a targeted enforcement operation conducted by U.S. Immigration and Customs Enforcement (ICE) aimed at immigration fugitives, re-entrants and at-large criminal aliens in Los Angeles. (Charles Reed/U.S. Immigration and Customs Enforcement via AP, File)

In Sessions v. Dimaya, the United States Supreme Court held that 18 U. S. C. §16(b), which defines “violent felony” for purposes of the Immigration and Nationality Act’s removal provisions for non-citizens, was unconstitutionally vague.

BACKGROUND FACTS

Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California’s first-degree burglary is a “crime of violence” under §16(b). While Dimaya’s appeal was pending in the Ninth Circuit, the U.S. Supreme Court held that a similar residual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Relying on Johnson v. United States, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitutionally vague.

COURT’S ANALYSIS & CONCLUSIONS

Justice Kagan delivered the majority opinion of the Court and concluded that §16(b)’s “crime of violence” clause was unconstitutionally vague.

The Court’s opinion began by explaining that The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the United States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence for which the term of imprisonment is at least one year.

Justice Kagan explained that Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, §16(a), and the residual clause, §16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether the particular facts underlying a conviction created a substantial risk; but whether “the ordinary case” of an offense poses the requisite risk.

Justice Kagan reasoned that ACCA’s residual clause created grave uncertainty about how to estimate the risk posed by a crime because it tied the judicial assessment of risk to a speculative hypothesis about the crime’s ordinary case, but provided no guidance on how to figure out what that ordinary case was. Compounding that uncertainty, ACCA’s residual clause layered an imprecise “serious potential risk” standard on top of the requisite “ordinary case” inquiry. “The combination of indeterminacy about how to measure the risk posed by a crime and indeterminacy about how much risk it takes for the crime to qualify as a violent felony resulted in more unpredictability and arbitrariness than the Due Process Clause tolerates,” said Justice Kagan.

Justice Kagan further reasoned that Section 16(b) suffers from those same two flaws. He explained that similar to the ACCA’s residual clause, §16(b) calls for a court to identify a crime’s ordinary case in order to measure the crime’s risk but offers no reliable way to discern what the ordinary version of any offense looks like. Additionally, its “substantial risk” threshold is no more determinate than ACCA’s “serious potential risk” standard. “Thus, the same two features that conspired to make ACCA’s residual clause unconstitutionally vague also exist in §16(b), with the same result,” said Justice Kagan.

Next, Justice Kagan raised and dismissed numerous arguments from the Government that §16(b) is easier to apply and thus cure the constitutional infirmities. “None, however, relates to the pair of features that Johnson found to produce impermissible vagueness or otherwise makes the statutory inquiry more determinate,” said Justice Kagan.

With that, the majority Court concluded that §16(b)’s “crime of violence” clause was unconstitutionally vague.

The Court was deeply divided. Justice Kagan’s opinion was joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor. Justice Gorsuch filed an opinion concurring in
part and concurring in the judgment. Justice Roberts filed a dissenting
opinion, in which Justices Kennedy, Thomas, and Alito joined.

Interestingly, it was Justice Gorsuch — a Trump nominee who sided with the four liberal-leaning justices in the ruling — who was the swing vote in this case. Despite his surprise vote, he explicitly left the door open to Congress to act, saying it should be up to lawmakers and not the courts to be explicit about the crimes that deserve automatic deportation for even legal immigrants.

My opinion? This decision is very good for legal immigrants facing crimes which are questionably deportable as crimes of moral turpitude and/or crimes of violence under today’s immigration laws. It’s incredibly difficult to navigate the criminal justice system, and even more so for defendants who are not citizens. Therefore, it’s imperative for legal immigrants charged with crimes to hire competent defense counsel when charged with crimes which may essentially result in deportation.

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.

Marijuana Use & Your Job

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Can You Get Fired for Smoking Legal Weed?

Interesting article by Dr. Kelly Arps of abc news reports that a survey released by the Centers for Disease and Control Prevention (CDC) Thursday may help inform employers about marijuana use in their industry.

The Colorado Department of Public Health and Environment (CDPHE) analyzed data from the Behavioral Risk Factor Surveillance System (BRFSS) — a phone survey about health habits in general — and published a breakdown of marijuana use by industry and job.

Of the more than 10,000 workers surveyed, 14.6 percent answered yes to the question, “Did you use marijuana or hashish in the last 30 days?” They were not asked whether they used marijuana while on the job. Not surprisingly, use was more common in males and among young people, with nearly 30 percent of those in the 18- to 25-year-old age group reporting at least one use in 30 days.

Which profession smokes the most pot?

In the “accommodation and food services” industry, 30 percent of workers reported smoking pot at least once in the past month. Those in the job category “food preparation and serving” had the highest use at 32 percent of workers.

What other professions have a high proportion of marijuana users?

“Arts, design, entertainment, sports and media” came in second at 28 percent. Marijuana use was also reported by 19 to 21 percent of workers in “production,” “life, physical, and social science,” “sales and related,” and “installation, maintenance, and repair.”

What about people in high risk jobs?

While the study doesn’t reveal if anyone actually got high on the job, the researchers did take a special look at industries in “safety-sensitive occupations” in which workers are responsible for their own safety or the safety of others.

Those in construction, manufacturing, and agriculture industries all fell above the state average in percentage of workers reporting marijuana use. Notably, healthcare, utilities, or mining, oil, and gas all had less than 10 percent of their workers report marijuana use.

All three of these low-use industries are also those known to perform drug testing on employees.

Next steps: Workplace marijuana use policies

In states where marijuana use is legal, companies are currently left to their own judgment regarding workplace use.

Those with a policy that allows medicinal or recreational marijuana use during personal time will have difficulty interpreting a positive drug screen — was the employee high at work or does the result reflect his or her use last weekend?

Experts have suggested implementing standardized cognitive testing rather than drug screens for those approved to use marijuana while employed — or for those with a suspected marijuana-related workplace safety incident.

Marijuana use is frequently linked to mental health issues

Dr. Arps reports that if an employee is using marijuana, then employers should dig further.

“Is there anxiety, is there ADHD, is there depression?” said Dr. Scott Krakower. “If marijuana is there, what else are we missing? Are we meeting our employees’ needs?”

Dr. Arps also reports that federal law allows employers to prohibit employees from working under the influence of marijuana and may discipline employees who violate the prohibition without violating the Americans with Disabilities Act.

Several states have laws, however, which prohibit discrimination based on its use, citing evidence supporting the positive effects of marijuana on various health conditions.

“With widespread legalization, we will likely see publicized court cases surrounding these issues,” says Dr. Arps.

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.

Whatcom County Sues Opioid Drug Manufacturer

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Image result for sue opioid companies

Impressive article by Kie Relyea of the Bellingham Herald discusses how the Whatcom County Council voted to join a growing legal fight against makers and wholesalers of prescription opioids, saying they have contributed to a public health crisis.

On Tuesday, the County Council decided to retain law firm Keller Rohrback in Seattle, which is representing a number of municipalities including Skagit, Pierce and King counties in Washington state.

The vote was 7-0.

“Pretty broad consensus it was a good thing to do for the county.”

-Council member Todd Donovan.

Relyea reports that the law firm will sue the makers and distributors of opioid painkillers, including Purdue Pharma, Endo Pharmaceuticals, Janssen Pharmaceuticals and other entities.

The law firm has so far filed lawsuits on behalf of five counties in the state, as well as the City of Tacoma.

Whatcom County isn’t paying the law firm, which will be compensated if there’s a judgment against the companies, Donovan said.

The county wants help responding to a public health crisis caused by opioids, according to Donovan.

“They are partially liable for over-prescribing these things and marketing them as non-addictive,” he said. “They should help us in bearing the cost.”

In a separate lawsuit filed in 2017, the state of Washington sued Purdue Pharma, the maker of OxyContin, accusing it of “fueling the opioid epidemic in Washington state.”

My opinion? GOOD. Opioids have turned many law-abiding  and hardworking Americans into drug addicts. A substantial portion of my criminal defense practice is dedicated to helping clients who suffer from drug addictions which force them to commit crimes.  You’d be amazed.

Please contact my office if you, a friend or family member is addicted to opioids and charged with a crime. The defense of Diminished Capacity may apply. Under this defense, evidence of mental illness or disorder may be taken into consideration in determining whether the defendant had the capacity to form the intent to commit the crime. In some cases, drug addicts lack intent to commit crimes because they are acting under the compulsion of their addiction.

Marijuana vs. Alcohol

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Wonderful article by Matthew Martinez of the Miami Herald says that according to new research from Cowen and Company, seven of the nine states that allow adults to legally consume marijuana saw 13 percent fewer binge drinking episodes than non-cannabis states, and 9 percent fewer than the national average. In recreational use states, binge drinkers guzzled 6.6 drinks per binge, compared with 7.4 drinks in non-cannabis states.

“We have consistently argued that cannabis and alcohol are substitute social lubricants,” the report reads. “To be sure, we do not dispute that alcohol will continue to be quite popular in the U.S. (generating over $210 bn in annual retail sales today). We are, however, focused on the marginal alcohol unit, which given the cannabis category’s much smaller size, creates a sizable opportunity for the cannabis industry.”

Nevada and California, the two states to have most recently legalized recreational pot, still had higher rates of binge drinking intensity than Colorado, Washington, Oregon, Maine, Vermont, Massachusetts and the District of Columbia, but the report stated the company expects “mean reversion for these states, too, given the historical precedent.”

People’s decision to switch to marijuana, according to the report, include: outsized switching among younger consumers, shifting risk perceptions among 18- to 25-year-olds, less pressure to generate alcohol tax revenue in legal cannabis states, consumer survey work on alcohol consumption among cannabis consumers, and academic research that concludes medical cannabis weighs on alcohol purchases.

The Wall Street investment firm calls marijuana a viable “substitute social lubricant” for alcohol in the years to come, projecting even greater sales numbers for the industry than previously thought.

“Assuming federal legalization, we believe cannabis can generate gross sales of $75 billion by 2030 (and $17.5 billion in tax revenue),” the report reads. “As cannabis access expands, we expect further pressure on alcohol sales, given this notable divide in consumption patterns.”

A 2015 study published in the Journal of Health Economics and cited by The Washington Post, studying a drop-off in people’s marijuana use and a corresponding spike in their alcohol use once they reach age 21, the age to legally drink in the U.S., concluded that the two substances are indeed substitutes for each other among users.

What Cowen and Company’s more recent research finds is almost the exact inverse of that older study: that as recreational marijuana becomes legal in more and more states, some people are choosing the high from the plant over the the one from the bottle.

A study published in March in the journal Neuropsychopharmacology found that one of the non-psychoactive compounds in marijuana, cannabidiol (CBD), could also help drug addicts and alcoholics from relapsing.

Please contact my office if you, a friend or family member are charged with a crime involving drugs or alcohol. The substantive defenses of Voluntary Intoxication and Diminished Capacity might be applicable to the specific facts of the case.