Tag Archives: Mt. Vernon Criminal Defense

State Courts Lack Authority to Euthanize Your “Dangerous Dog”

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

migrated image

In State v. Richards, the WA Supreme Court held that state district courts have no authority to force citizens to have their pets euthanized.

FACTUAL BACKGROUND

Ms. Richards’ dog, Thor, serves as an emotional support animal to Richards’s daughter, who suffers from health complications. In June 2018, Thor was declared a “potentially dangerous dog” after biting Richards’s neighbor’s dog. Thor bit the same dog again in April 2019 and was declared a “dangerous dog” under Wahkiakum County Code. Both the state and county codes require certain actions of the owner of a dangerous dog, such as registering the dog and having the dog restrained at all times, on a leash or in a fenced yard.

In September 2020, Richards left Thor on her porch while she ran to the pharmacy to get medication for her daughter. Thor was not enclosed and was not leashed, but he did not leave Richards’s property. Police were called to check on a loose dangerous dog. Thor barked at the officer who attempted to secure the animal but did not bite. The first officer called for backup, and they monitored Thor until Richards returned home and secured the dog. The officers informed Richards that the incident would be forwarded to the prosecutor’s office. Wahkiakum County (County) charged Richards with one count of having a dangerous dog at large.

The district court convicted Richards of a gross misdemeanor after a stipulated bench trial. At sentencing, the County recommended that Richards receive the maximum sentence and fine, but that the sentence be suspended once Thor was euthanized by the Humane Society. The parties have agreed that surrendering the dog would result in Thor’s death.

The judge also ordered that if Richards did not surrender the dog by the following day, she would remain in custody until she provided proof that the dog had been surrendered. Richards appealed to the superior court, which affirmed her conviction and sentence. Richards then appealed the conviction and sentence to the Court of Appeals, Division Two.

The Court of Appeals affirmed Richards’s gross misdemeanor conviction based on the county ordinance. However, the court remanded for resentencing, determining that the district court had gone beyond its authority. Specifically, the court found that the prerequisites for destruction of a dog provided in both the state law and county ordinance were not met, and thus Thor was not subject to destruction. The WA Supreme Court granted review and took the issue up on appeal.

LEGAL ISSUE

Did the district court act within its sentencing authority when it conditioned the suspension of Richards’s misdemeanor sentence on turning her dog over to the county animal control authority?

WA SUPREME COURT’S ANALYSIS & CONCLUSIONS

Justice Charles Johnson wrote the majority opinion in this case. The Court began by saying a dog is nonfungible personal property, and the owner has a valid legal ownership interest unless some procedure disrupts that interest. Although the parties’ briefing addresses the sentence using terms like “surrender,” to forcibly deprive an owner of specific property generally constitutes a forfeiture.

Hence, reasoned Justice Johnson, Ms. Richards sentence requiring forfeiture of Thor constitutes criminal forfeiture. That is because the sentence deprived Richards of specific, nonfungible personal property. Consequently, criminal forfeiture such as this requires statutory authority. Justice Johnson described why statutory authority in this case was lacking:

“The county ordinance at issue has no plain language authorizing criminal forfeiture.  Also, the county ordinance does address civil or administrative forfeiture of a dangerous dog. Under the ordinance, civil forfeiture is a separate procedure from criminal forfeiture imposed on a defendant during sentencing, so this county ordinance does not apply to the criminal forfeiture order that occurred here.

Even assuming the civil forfeiture ordinance applies in this context, the County did not meet the required prerequisites provided . . . In short, we agree with the Court of Appeals that a district court cannot impose forfeiture absent statutory authorization, and the State is unable to point to such authorization here.” ~Justice Charles Johnson, WA Supreme Court

With that, the WA Supreme held that while a district court may order a defendant to take certain actions, and may even be creative in its orders, it may not go beyond the scope of the statutory authority granted to it.

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.

Substance Use: Health Issue Or Crime?

Bellingham Defense Attorney, Drug Offenses, Mount Vernon Criminal Defense Attorney, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

open pill bottle

New polling data from the Legal Action Center shows that more Americans than ever think substance use should be treated as a health issue, rather than a criminal justice issue. But many state and federal laws continue to criminalize substance use – more than half of states still treat drug possession as a felony.

THE POLL DATA

The Legal Action Center poll revealed that in 2024, 75% of Americans thought that substance use disorders (SUD) “should be treated more as a health problem than a criminal problem”, compared with 67% in 2019. The poll also showed rising support for increased spending and access for SUD treatment, including in jails and prisons.

ARE FEDERAL, STATE AND LOCAL DRUG POLICIES WORKING?

The Biden administration dramatically expanded access to naloxone, an overdose-reversal medication, including by making it available over the counter. Some jurisdictions, including Chicago, have made naloxone and fentanyl test strips free to the public. And several states decriminalized drug-checking equipment, including fentanyl test strips in 2023, but some still forbid drug checking.

Some State and local drug policies intended to increase SUD treatment access have been around for a long time, but local and federal governments often fail to provide sufficient funding and attention to make the most of those policies. Even outside of SUD treatment, there is a shortage of behavioral health workers in the US.

HOW DO DRUG CRIMES GET INVESTIGATED AND PROSECUTED?

Drug crimes and charges generally come out of a warrant, a search, a seizure, an informant, a plain view or a tip.  This means that the “how and why” a was searching and seizing something, or, why and how they were engaging an informant or tipster, will raise constitutional issues.  State and Federal Agents must act within Washington State and Federal law.

Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Numerous affirmative defenses exist, including Unwitting Possession and Entrapment. In general, criminal drug cases can be guided towards a favorable resolution. Hiring an effective and competent defense attorney is the first and best step toward justice.

“Warrant Quash Day” Hosted At Whatcom District Court

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Warrant Resolution Day Offers Chance To Quash Warrants Without Arrest

Whatcom County District Court will hold a Warrant Quash Day on Wednesday, December 4. The purpose of this action is to allow defendants to quash outstanding warrants for their arrest for failure to appear for a District Court hearing in Whatcom County. This is a voluntary event, and individuals are encouraged to take advantage of this opportunity to resolve their outstanding warrants.

Having an outstanding warrant means that a person could be arrested at any time they come in contact with law enforcement. The quash event offers two benefits: one to the person with the warrant and the other to the community at large.

A warrant quash day is an opportunity to for defendants with outstanding warrants for their arrest for failure to appear for a District Court hearing in Whatcom County and remove their warrant. Having an outstanding warrant means that person can be arrested at any time.

On the Warrant Quash Day, the defendant’s case will be called, the warrant will be quashed and a next court date to return will be given. By quashing a warrant, a defendant’s case can get back on track. They will not need to worry about further incarceration for the same warrant.

Those looking to quash their warrants should arrive at District Court Clerk’s Office on the fourth floor of the County Courthouse at 311 Grand Ave. between 10 a.m. and noon Wednesday, Dec. 4.

The quash day is only for warrants issued by the Whatcom County District Court. There has been one other warrant quash day this year. The amount of quash days in 2025 will depend on how many people get their warrants quashed this week.

Eligible warrants include misdemeanor and/or gross misdemeanor offenses. People with warrants connected to charges such as DUIs, trespassing and protection order violations can have the warrant quashed. The individual will be arraigned and have new court dates set. Ineligible offenses include felonies, which are typically charged from Whatcom Superior Court.

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

State v Blake Does Not Open The Door To Untimely Challenges On Voluntary Guilty Pleas

Bellingham Defense Attorney, Drug Offenses, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

florida courtroom motion to withdraw plea

In State v. Olsen, the WA Supreme Court held that a defendant’s knowing and validly entered guilty plea to a 2003 drug possession charge did not become unknowing and involuntary simply because the State v. Blake decision in 2021 declared Washington State’s drug possession statute unconstitutional.

FACTUAL BACKGROUND

In 2003, Olsen pled guilty to Forgery and Unlawful Possession of Controlled Substance in two separate matters at the same time. In 2005, Olsen pled guilty to unlawful possession of firearm second degree and unlawful possession of controlled substance from the same incident. He completed his sentences on both matters.

In 2021, Olsen filed CrR 7.8 motions to withdraw his guilty pleas as being involuntary pleas to nonexistent crimes and that the pleas were part of indivisible agreements, pursuant to State v. Blake. The superior court denied the motions and only vacated the drug possession convictions.

COURT’S ANALYSIS & CONCLUSIONS

The Supreme Court held that while Blake invalidated Olsen’s simple drug possession convictions, it did not open the door to untimely challenges to the voluntariness of guilty pleas.

“A motion to withdraw a plea after judgment has been entered is a collateral attack,” said the Court.  “Criminal defendants seeking to collaterally attack their judgment and sentence must do so within one year of the judgment and sentence becoming final.”

The Court acknowledged that RCW 10.73.100(7) provides an exception to the one-year time bar when there has been a significant, retroactively applicable change in the law that is material to the defendant’s conviction or sentence. However, the defendant must show the law changed in a way that entitles him to relief, such as by changing the process or result of their case. Here, Blake is not material to Olsen’s due process claim challenging the voluntariness of his drug possession pleas.

Olsen’s guilty pleas, knowingly and validly entered, did not become unknowing and involuntary simply because Blake declared the drug possession statute unconstitutional. The validity of the pleas turns on whether Olsen was inadequately informed of the law and the consequences at the time he pleaded. State v. Lamb, 175 Wn.2d 121, 129, 285 P.3d 27 (2012). Blake does not provide new legal grounds for determining whether he voluntarily and knowingly pleaded guilty to drug possession, a valid crime in 2003 and 2005. Olsen cannot use Blake to circumvent the time bar under RCW 10.73.100(6) and belatedly challenge his guilty pleas.

With that, the WA Supreme Court affirmed the Superior Court’s rulings denial of Olsen’s motions to withdraw guilty pleas and upheld Olsen’s drug conviction.

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.

Can Police Use Deception To Extract Confessions?

Bellingham Defense Attorney, Interrogation, Mount Vernon Criminal Defense Attorney, police, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , ,

Apparently, the answer is “Yes.”

There’s an excellent article in NPR from journalist Meg Anderson saying that advocates are pushing for laws that effectively ban police from lying to suspects during interrogations. In every state, police officers are allowed to lie to adults during an interrogation. The hope, in many cases, is that they’ll get a person to confess to committing a crime.

BACKGROUND

When it comes to laws enforced by the justice system, we have an expectation of honesty, integrity, and transparency. However, police officers are legally empowered to use deception and other types of lies during interrogations.

This ability originates from the 1969 Supreme Court case Frazier v. Cupp, which ruled specific police lies were permissible. The case involved officers falsely telling the suspect that his associate had already confessed, leading the suspect to also confess. The Court said this lie alone was not enough to make the confession involuntary or violate his Constitutional rights.

Since then, no laws have established clear boundaries around what interrogation lies are appropriate versus unethical. Generally, police are legally empowered to:

  • Verbally make false statements about evidence
  • Momentarily lie about offense seriousness or punishment
  • Make unfulfillable promises of leniency for waiving rights
  • Lie about what others told them or what evidence reveals
  • Threaten charges against or harsher punishment for family members

Defense lawyers and civil rights advocates have raised increasing concerns about the prevalence of deception. The argument is that lying puts innocent people at risk of false confessions. However, prominent judges have argued that only coerced confessions through abuse or misconduct can be thrown out – not those involving lies alone. The ethics remain hotly debated.

“Police are trained around the country in all 50 states to use deception during interrogation, to lie both about the evidence against a suspect and to lie about the consequences of confessing in order to make it seem not so bad if you just say that you did these things.” ~Attorney Laura Niridier

Unfortunately, deceptive tactics can also draw false confessions. According to the Innocence Project, nearly a third of DNA exonerations from 1989 to 2020 involved a false confession. Legal experts say the deception bans passed in recent years fail to protect other vulnerable groups: young adults, people with intellectual disabilities, even just people who are naturally compliant.

A GROWING NUMBER OF STATES ARE PASSING LAWS THAT STOP DECEPTIVE TACTICS AT  POLICE INTERROGATIONS

Ten states have passed laws in recent years effectively banning police from lying to juveniles during interrogations, starting with Illinois in 2021. And some legal advocates are pushing for a deception ban that would apply to everyone, not just kids. Deception is a powerful law enforcement tool in eliciting confessions, says wrongful convictions attorney Laura Nirider.

WASHINGTON PROPOSED LEGISLATION TO STOP DECEPTIVE INTERROGATIONS

In Washington state, Democratic lawmakers want to set a higher bar: A bill that would make incriminating statements made in police custody – by adults or children – largely inadmissible in court if obtained using deception. State Rep. Strom Peterson has introduced the bill twice. However, the legislation hasn’t gone anywhere.

The Washington Association of Sheriffs and Police Chiefs said in a statement that it opposes such a measure, because banning deception would take away a tactic that yields “many more true confessions” than false ones.

“Criminals often conduct elaborate stories to conceal their crimes . . . Sometimes the use of deception is required to locate the truth both to convict and to exonerate people. Such deceptions include telling a person that abuse was discovered during a routine medical exam rather than reported by a family member.” ~James McMahan, Director of the Washington Association of Sheriffs and Police Chiefs

GIVING POLICE NEW TOOLS

Those against deception bans see them as an attack on police, says Mark Fallon, a consultant on interrogation practices and former federal agent. In fact, he says, it’s the opposite. There’s another way for police to question people, Fallon says, that relies on building rapport and asking open-ended questions, and where the primary goal is information, rather than a confession.

That technique is used in other countries, including much of Europe. In England, France, Germany, Australia, Japan and elsewhere, for instance, the police are generally not allowed to deceive suspects.

My opinion? Honestly, I’ve never seen a circumstance where a police officer intentionally lied or deceived a suspect during an interrogation in order to illicit a confession. I simply don’t see this technique happening in the police agencies I work with.

Nevertheless, it appears other law enforcement agencies outside of Whatcom and Skagit County use this questionable technique. Clearly, the problem with deceptive interrogation techniques is that it creates more deception. If discovered, the defendant’s confession is clearly corrupted by the lies used to bring it. Studies show that telling little fibs leads down a slippery slope to bigger lies. Our brains adapt to escalating dishonesty, which makes deceit easier. In those cases, a Motion to Suppress the corrupted/false interrogation may be appropriate.

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.

Can Artificial Intelligence Lead to Wrongful Convictions?

Artificial Intelligence, Bellingham Defense Attorney, Evidence, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Technology, Uncategorized, Whatcom County Criminal Defense, , , , ,

Image: (Kathleen Crosby/Innocence Project)

Photo Courtesy of Kathleen Crosby & The Innocence Project

The Innocence Project published a very insightful article describing how AI-based surveillance systems lack independent verification, empirical testing, and error rate data. These shortcomings lead to wrongful arrests and potentially wrongful convictions. More worrisome, there’s a disturbing readiness among some system actors, especially prosecutors, to accept AI-based evidence at face value. As a result, the eager acceptance of AI-based evidence mirrors the same flawed embrace of misapplied forensic science, which has contributed to numerous wrongful convictions.

BACKGROUND

The use of unreliable forensic science has been identified as a contributing factor in nearly 30% of all 3,500+ exonerations nationwide. Take bite mark analysis, for example. The practice was widely used in criminal trials in the 1970s and 1980s but is poorly validated, does not adhere to scientific standards, lacks established standards for analysis and known error rates, and relies on presumptive tests. It has since been discredited as unreliable and inadmissible in criminal trials due to its shortcomings. Still, there have been at least 24 known wrongful convictions based on this unvalidated science in the modern era.

ADMITTING SCIENCE-BASED EVIDENCE 

The 1923 Frye v. United States decision introduced the “general acceptance” standard for admissibility at trial. In short, the scientific technique must have expert recognition, reliability, and relevance in the scientific community to be “generally accepted” as evidence in court. Some state courts still apply this standard today. Also, the Daubert v. Merrell Dow Pharmaceuticals Inc. decision shifted the focus to evaluating the relevance and reliability of expert testimony to determine whether it is admissible in court.

In applying the Daubert standard, a court considers five factors to determine whether the expert’s methodology is valid:

  • Whether the technique or theory in question can be, and has been, tested;
  • Whether it has been subjected to publication and peer review;
  • Its known or potential error rate;
  • The existence and maintenance of standards controlling its operation; and
  • Whether it has attracted widespread acceptance within a relevant scientific community.

Under Daubert and Frye, much AI technology, as currently deployed, doesn’t meet the standard for admissibility. ShotSpotter, for example, is known to alert for non-gunfire sounds and often sends police to locations where they find no evidence that gunfire even occurred. It can also “significantly” mislocate incidents by as much as one mile. It, therefore, should not be admissible in court.

Similarly,  facial recognition technology’s susceptibility to subjective human decisions raises serious concerns about the technology’s admissibility in court. Such decisions, which empirical testing doesn’t account for, can compromise the technology’s accuracy and reliability. Research has already shown, for instance, that many facial recognition algorithms are less accurate for women and people of color, because they were developed using photo databases that disproportionately include white men.

My opinion? If we are to prevent a repeat of the injustices we’ve seen in the past from the use of flawed and untested forensic science, we must tighten up the system. Too many investigative and surveillance technologies remain unregulated in the United States.

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.

Federal Judge Upholds Washington’s Ban on Selling and Distributing At-Home Sexual Assault Kits

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Sex Crimes, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

Concerns over "Me Too" kits

In a press release, the WA Attorney General Office (AGO) reported a federal judge upheld Washington’s ban on selling and distributing at-home sexual assault kits under House Bill 1564. The federal court’s ruling dismisses a lawsuit brought by Leda Health, a Pennsylvania company that sells the self-administered kits for profit.

Washington State’s Law Banning “At-Home” Sexual Assault Kits.

House Bill 1564 went into effect in July 2023, after garnering overwhelming, bipartisan support from the state Legislature. The law prohibits the sale and distribution of sexual assault kits that are marketed or presented to collect “evidence” at-home or over-the-counter by anyone other than law enforcement or a health care provider.

Self-administered kits have multiple important differences from an exam conducted by a Sexual Assault Nurse Examiner. These professionals receive specialized training including:

  • Providing comprehensive care to sexual assault survivors, including prevention treatment for STIs and follow-up care,
  • Collecting evidence in a way that avoids cross-contamination,
  • Storing evidence to avoid contamination or spoliation, and
  • Maintaining a chain of custody for the evidence.

Leda Health’s “MeToo Kits.”

Formerly known as MeToo Kits, Leda Health says the company’s kits offer survivors an alternative if they feel unsafe or uncomfortable going to the police or a hospital. In its lawsuit, Leda argued that the state’s 2023 ban targets sexual assault survivors and violates First Amendment rights related to free speech and advertising.

However, U.S. District Court Chief Judge David G. Estudillo disagreed, ruling that the statute is “an economic regulation of the sale of a particular product,” not a regulation of speech.

“This is a legal victory for sexual assault survivors . . . By an overwhelming bipartisan vote, the Legislature adopted this state law that prevents companies from exploiting sexual assault survivors. Survivors should know that they are not alone — critical services to help them seek justice are available from trained medical professionals, at no cost.” ~WA Attorney General Bob Ferguson

Washington also sent a cease-and-desist order to Leda Health in 2022 that said the company’s advertising included “patently false” claims, including marketing that may lead survivors to believe the company’s kits are comparable to free state kits. Leda Health ended sales in Washington in response and hasn’t sold in the state since.

Why Are At-Home Sexual Assault Kits Are Inadmissible in Court?

Self-administered kits face numerous barriers to admission as evidence. These barriers include  concerns about cross-contamination, spoliation, validity, and chain of custody.

Importantly, self-administered kits are not eligible for submission to the Crime Lab. Therefore, any DNA collected would not be entered into CODIS, a national DNA profile database that national, state and local law enforcement use to identify repeat offenders, build leads, and track evidence.

In its press release, the AGO’s office said survivors have the right to have an advocate or personal representative with them during an exam. Survivors do not have to make a decision about talking to law enforcement or reporting a crime in order to obtain a SANE exam. State law requires unreported sexual assault kits be transported to local law enforcement and stored for 20 years from the date of collection.

“Timely forensic examinations by a trained provider represent the best chance to preserve evidence if a survivor chooses to move forward with reporting the assault and criminal investigation.” ~Press Release, AGO’s Office.

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.

Leave Your Neighbor’s Campaign Sign ALONE

Bellingham Defense Attorney, Malicious Mischief, Mount Vernon Criminal Defense Attorney, Political Signs, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Tis the season: Vandalism and theft of political signs back again | Local News | latrobebulletinnews.com

The 2024 general election is less than a month away.  By now, you’ve probably seen at least a few yard signs endorsing someone’s preferred candidate, and even more will likely pop up as the election approaches. Political polarization is peaking online and in our communities.

But what if someone sees a yard sign they disagree with and takes it down? Is that protected political expression or destruction of someone else’s property?

While some might view taking down or defacing yard signs as an act of civil discourse or political activism, the law is clear on the issue: Theft or vandalism of political signs is a crime in all 50 states. Trespassing on private property is also a punishable offense in every state.

WASHINGTON’S LAW REGARDING THE THEFT OR DEFACING OF POLITICAL YARD SIGNS

State law addresses the exact topic in RCW 29A.84.040. It is a misdemeanor to “[remove] or [defaces] lawfully placed political advertising” without permission. In Washington, misdemeanors can be punished by up to 90 days in prison or a fine of up to $1,000, and in some cases can carry both a sentence and a fine. The statute includes yard signs – the law mentions them specifically – and each yard sign taken down is considered a separate violation.

Additionally, violators face Criminal Trespass and/or Malicious Mischief charges, which are also misdemeanors. Criminal Trespass refers to intentionally entering someone else’s private property without their permission. Malicious Mischief refers to Knowingly and maliciously causing physical damage to the property of another.

POLITICAL YARD SIGNS ARE FIRST AMENDMENT FREE SPEECH

The right of a property owner to post signs representing their political beliefs is one that is rooted in the First Amendment, which protects every citizen’s right to freedom of expression. Generally, yard signs have proven to be an easy and inexpensive way to participate in public debate, and the courts have recognized the protected form of expression as such.

It is believed that the first political yard sign in American politics dates back to John Quincy Adams’ presidential run in 1824. The current wire-framed version of political lawn signs originated in the 1960s. However, the concept of political signage can be traced all the way back to Ancient Rome.

Increased theft and vandalism of political signs has prompted some property owners to attempt to catch trespassers by installing cameras such as security cameras, smart video doorbells, or trail cams. The footage is being used to shame people online and also helps law enforcement track down offenders.

Stealing or defacing political lawn signs is a terribly embarassing criminal conviction. Please contact my office if you, a friend or family member are charged.  Hiring an effective and competent defense attorney is the first and best step toward justice.

“If I am a suspect, then I want an attorney.” Clear Or Unclear Request For Counsel?

Assault, Bellingham Defense Attorney, Firearm, Harassment, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Photo Courtesy of CCSNLUJ

In State v. Gardner, the WA Court of Appeals held that if a suspect makes an unequivocal request for an attorney predicated on a condition (here, “if I am a suspect, then I want an attorney”) it is a conditional invocation which the police must respect and the interrogation must cease pursuant to Miranda.

FACTUAL BACKGROUND

Mr. Gardner was a suspect in a homicide. He was contacted by police. They handcuffed Gardner, placed in the back of a patrol vehicle, and read his Miranda rights.  Gardner told a detective that if he was a suspect, he wanted an attorney. Although police admitted that Gardner was a suspect at the time he made this statement, they did not end the interrogation or provide Gardner with an attorney.

At trial, the judge denied Gardner’s motion to suppress evidence from the subsequent interrogation and concluded that Gardner’s request for an attorney was equivocal. As a result, Gardner’s recorded interview was admitted as evidence. He was found guilty of first degree murder, second degree assault, first degree unlawful possession of a firearm, and felony harassment.

On appeal, Mr. Gardner argues that the trial court violated his Fifth Amendment rights when it denied his motion to suppress his interview because detectives continued questioning him after he unequivocally requested counsel.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the WA Court of Appeals (COA) agreed with Mr. Gardner:

“Gardner’s request for an attorney was conditional, not equivocal. Since law enforcement knew that the condition was met, they should have ceased the interrogation until Gardner was provided an attorney or reinitiated contact.” ~WA Court of Appeals

The Court reasoned that the Fifth Amendment protects against self-incrimination. Accordingly, law enforcement officers are required to give Miranda warnings where an individual is subjected to custodial interrogation. Prior to being subjected to custodial interrogation, Miranda requires that an individual must be informed of their right to remain silent and their right to an attorney. If a suspect requests an attorney, law enforcement must stop all questioning until an attorney has been provided or the suspect reinitiates talking on their own.

However, once a suspect waives his Miranda rights, only an unequivocal request for an attorney requires law enforcement to cease questioning. The request for counsel must be sufficiently clear that a reasonable officer would know that Miranda has been invoked.  Conversely, a request that is ambiguous or equivocal, such that a reasonable officer under the circumstances would understand that the suspect might be interested in obtaining an attorney, does not require the officer to cease questioning.

Under that analysis, the COA issued its ruling:

“Here, Gardner told law enforcement that if he was a suspect, he wanted an attorney when he was taken in for questioning on June 13. Gardner was in fact a suspect at that point. This was a conditional request—if this, then that. There was nothing ambiguous about this request. Gardner was unsure whether he was a suspect, but if he was, he wanted an attorney. Law enforcement knew that the condition had been met because they knew that Gardner was a suspect. Because law enforcement knew that the condition had been met, Gardner’s statement was a clear invocation of his right to counsel.” ~WA Court of Appeals

The COA further conclude that the State failed to meet its burden of showing that the constitutional error was harmless beyond a reasonable doubt. Thus, the COA reversed Mr. Gardner’s guilty convictions and remanded his case for a new trial.

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.

Is The Test Tube Vial Containing Your DUI Blood Test Expired? Doesn’t Matter. Still Admissible.

Bellingham Defense Attorney, Blood Test, DUI, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

EXPIRED BLOOD TUBES! Are expired... - Awanui Veterinary | Facebook

In Kanta v. Dept. of Licensing, the WA Court of Appeals decided an important case regarding blood test evidence preserved in test tube vials. Specifically, it addressed the issue of whether blood draw evidence is admissible even if (1) blood is drawn prior to a test tube vial’s expiration date, and (2) the blood test analysis occurred after the vial’s expiration date.

Some background is necessary. Blood collection tubes used in DWI cases are glass tubes/vials which are partially evacuated of air. These tubes/vials contain a preservative and anticoagulant (blood thinner).  The vacuum of the tube allows for the blood sample to be drawn into the tube. If there was no vacuum, the tube would not be able to draw the blood sample.  Thus, an expiration date is placed on the tube label.

FACTUAL BACKGROUND

Mrs. Kanta was arrested for DUI in July 2021. Shortly after her arrest, a phlebotomist drew a sample of Kanta’s blood which was sent to a laboratory for analysis. The laboratory tested Kanta’s blood for alcohol in May 2022. In September 2022, the lab issued a report stating that Kanta’s blood sample contained 0.18% alcohol. In November 2022, the Department of Licensing (DOL) suspended Kanta’s driving license. Kanta contested the suspension, arguing that because the vial used to store her blood expired in November 2021, the blood was not properly preserved and therefore did not comply with the Washington Administrative Code (WAC). A hearing examiner rejected Kanta’s argument and affirmed the suspension.

Kanta appealed to the superior court. The superior court found that substantial evidence supported the hearing examiner’s conclusion that the blood test complied with the necessary criteria, and was therefore properly admitted. Kanta appeals to the WA Court of Appeals, arguing that the hearing examiner erred in admitting the results of her blood test into evidence because the vials were expired at the time of testing. As such, Kanta argues, the superior court erred in affirming the suspension of her license.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the WA Court of Appeals agreed with the superior court and the DOL.

The Court reasoned that WAC 448-14-020(3) provides that blood samples must be placed in a “a chemically clean dry container consistent with the size of the sample with an inert leak-proof stopper,” and “must be preserved with an anticoagulant and an enzyme poison sufficient in amount to prevent clotting and stabilize the alcohol concentration.” Furthermore, the code explains that “suitable preservatives and anticoagulants include the combination of sodium fluoride and potassium oxalate.”

“Kanta does not take issue with the procedures involving the reporting or analysis of her blood,” said the Court of Appeals. “Rather, she confines her complaint to the manner in which her blood was stored prior to testing because although the tubes had not yet expired at the time her blood was collected and placed inside the tubes, they expired roughly four months after collection and her blood was not tested for another six months after that.”

Here, the DOL presented three exhibits to the hearing examiner: a certificate of compliance for the blood collection tube used, the report from law enforcement, and a credential verification from the Department of Health. The Court of Appeals gave much weight to the significance of the certificate of compliance:

“The certificate of compliance establishes that the tube used in Kanta’s blood sample met the necessary requirements for preservatives and anticoagulants. According to the certificate of compliance, the tube used in Kanta’s blood test contained 18 to 23 milligrams of potassium oxalate and 90 to 115 milligrams of sodium fluorite. The certificate also established that the tubes were certified to be sterile and complied with manufacturing regulations.” ~WA Court of Appeals

Furthermore, the arresting officer’s police report stated that “prior to providing this blood kit to the phlebotomist I checked to make sure that the tubes were in good condition, were not expired, and that the white preservative anticoagulant powder was present in the tubes.”

Next, the Court of Appeals bluntly addressed the issue of whether a person’s blood must be tested prior to the expiration of the test tubes holding the blood:

“Kanta focuses all of her arguments on the admissibility of her blood test. The WAC does not require that the blood in the test tubes be tested prior to the expiration of the tubes. As we note above, once the DOL satisfies its initial burden of producing prima facie evidence establishing that the test complied with the code, the test results are admissible.” ~WA Court of Appeals (emphasis supplied).

My opinion? The Court of Appeals issued a rather narrow, cut-and-dried opinion which was strictly conscripted to the WAC. Obviously, the WAC must be changed to require that blood be tested prior to the expiration of blood vials/tubes. Expired blood test vials can lead to inaccurate results, especially for coagulation testing. This is because expired tubes may have lost their sterility or vacuum, or contain an anticoagulant that is no longer effective. Additionally, if a tube is used past its expiration date, the vacuum may not be able to draw enough blood to fill the tube, which can lead to short-filled tubes that are not suitable for testing.

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.