Tag Archives: Mt. Vernon Criminal Defense Attorney

Jail Mail

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, First Amendment, Jail, Search and Seizure, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , ,

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In Mangiaracina v. Penzone, the Ninth Circuit Court of Appeals held that prisoners have a Sixth Amendment right to be present when legal mail related to a criminal matter is inspected.

BACKGROUND FACTS

Nick Mangiaracina was jailed as a pre-trial detainee in Maricopa County’s Fourth Avenue Jail in Phoenix, Arizona. The jail’s stated policy is to open legal mail addressed to a prisoner only in the presence of that prisoner. Mangiaracina alleged, however, that his mail was repeatedly opened outside his presence in contravention of this policy. His complaint included descriptions of nine specific instances of the jail improperly opening his mail to/from his attorney.

In describing his injury resulting from the improper opening of his legal mail, Mangiaracina alleged that he and his two attorneys “are afraid to communicate by mail which is hard as I have so many cases and so much paperwork to go back and forth.” He further explained that his “right to confidentiality and privacy was violated” and that his “defense strategy and his rights in general were just shredded.”

PROCEDURAL HISTORY

Mangiaracina initially filed suit in Arizona superior court pursuant to 28 U.S.C. § 1983, alleging violations of his First and Sixth Amendment rights by a number of jail employees and John Doe defendants. The case was moved to federal court. Unfortunately, the U.S. district court ultimately dismissed Mangiaracina’s complaint with prejudice. it noted that Mangiaracina had failed to specifically allege that the pieces of mail were marked as “legal mail” and that, for most of the instances, he failed to explain how he knew the mail was opened outside his presence. He appealed to the Ninth Circuit.

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit reasoned that under the U.S. Supreme Court’s Wolff v. McDonnell  and the Ninth Circuit’s Nordstrom v. Ryan, that prisoners have a Sixth Amendment right to confer privately with counsel and that the practice of opening legal mail in the prisoner’s presence is specifically designed to protect that right.

Furthermore, other circuit courts have similarly recognized the importance of this practice. In Jones v. Brown, the Third Circuit recognized, in the context of a First Amendment challenge, that opening legal mail outside the addressee’s presence was unlawful.

The Ninth Circuit further reasoned that the jail failed to identify any legitimate penological interest that would be served by opening legal mail outside Mangiaracina’s presence: “As we have emphasized in the past, a criminal defendant’s ability to communicate candidly and confidentially with his lawyer is essential to his defense.”  By necessity, reasoned the court, prisoners and pre-trial detainees rely heavily on the mail for communication with their attorneys. Unfortunately, the Maricopa County jail system does not allow incoming phone calls or provide access to e-mail, and outgoing phone calls can only be placed as collect calls.

With that, the Ninth Circuit reversed the lower court’s dismissal of Mangiaracina’s Sixth Amendment and First Amendment claims with respect to some mail-opening incidents and affirmed the lower court’s dismissal of the remaining counts of alleged improper mail opening.

My opinion? Excellent decision. It’s extremely difficult to communicate with jailed clients. Some jails offer limited hours of visitation and/or phone calls. Reading a defendant’s jail mail deprives the expression of confidentiality and chills the inmates’ protected expression. This is wrong, and violates a defendant’s First Amendment rights.

With respect to phone calls, I don’t discuss important details over the jail phones because the conversations are recorded. Although recorded phone calls with my clients are inadmissible at trial, these conversations are still surveillance which can “tip off” prosecutors to the strategies and tactics I develop with my clients.

Kudos to the Ninth Circuit for a very well-reasoned and substantial decision.

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.

No Motion to Suppress?

9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Firearm, Ineffective Assistance, Search and Seizure, Sixth Amendment, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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In Mahrt v. Beard, the 9th Circuit Court of Appeals held that a defendant may bring a pre-plea ineffective assistance of counsel claim when counsel’s failure to argue a motion to suppress the fruits of a search prevents the defendant from making an informed choice whether to plead guilty.

BACKGROUND FACTS

On September 3, 2012, Sonoma County Sheriff’s deputies were dispatched to a residence in Petaluma, California. A neighbor had reported that a male and female subject were arguing over a gun. The Defendant Gregory Mahrt was living in a garage on the property that had been converted into a room. As the deputies approached the property, Mahrt walked out and met them at the front gate. The deputies detained Mahrt and asked about the argument, the gun and whether anyone else was inside the residence.

Mr. Mahrt was “uncooperative.” The deputies conducted a “protective sweep” of Mahrt’s room in the garage. As the deputies approached the garage, Mahrt began yelling that he did not want the officers to enter his room. According to the report, the deputies observed ammunition cans, ammunition, and what appeared to be an AR-15 Rifle (later determined to be a replica).

The deputies subsequently learned that Mahrt had a prior felony conviction and arrested him for being a felon in possession of ammunition. The deputies then asked Mahrt for permission to search his room.

This is where the facts differ: according to police reports, Mr. Mahrt consented. The deputies conducted a second search of the room. They found additional ammunition, rifle magazines, and two firearms. According to Mahrt, however, he did not consent to the search.

On September 5, 2012, the State of California charged Mahrt with having been a felon in possession of a firearm and ammunition in violation of California Penal Code § 29800(a)(1) and § 30305(a)(1). Mahrt believed that the warrantless search (or searches) of the garage was (or were) illegal. However, neither of the two public defenders who represented him at the trial court level moved to suppress the firearms and ammunition recovered from his room.

Nevertheless, despite his defense counsel’s failure to move to suppress, Mahrt pleaded guilty to both charges and received a six-year sentence. He appealed. On appeal, Mahrt’s appointed counsel did not raise any issues. Instead, his counsel filed a Wende brief, the California analogue to an Anders brief. A Wende brief is filed when a California appellate attorney concludes that an appeal would be frivolous.  On November 27, 2013, the California Court of Appeal affirmed Mahrt’s conviction.

On April 11, 2014, Mahrt filed a federal habeas petition pursuant to 28 U.S.C. § 2254(d). The petition alleged that Mahrt’s Sixth Amendment right to effective assistance of counsel was violated by his trial counsels’ failure to move to suppress the firearms and ammunition found in his room. A magistrate judge, sitting by consent, granted Mahrt’s petition. The State timely appealed.

ANALYSIS & CONCLUSION

  1. The Defendant May Proceed With a Pre-Plea Ineffective Assistance of Counsel Claim.

The 9th Circuit  reasoned that Mahrt’s ineffective assistance of counsel claim, premised upon a failure to file a motion to suppress, is squarely within this line of case discussing pre-plea ineffective assistance of counsel by failing to file a motion to suppress:

“The State’s entire case against Mahrt depended on its ability to introduce into evidence the firearms and ammunition found in his room. If the deputies unconstitutionally searched Mahrt’s home, counsel’s failure to move to suppress the fruits of that search prevented Mahrt from making the informed choice to which he was entitled.”

    2. Mahrt’s Counsel Was Ineffective.

The Court held that Mahrt’s counsel was ineffective in failing to move to suppress the firearms and ammunition. It reasoned that there was at least a chance that such a motion would have succeeded. First, there was a clear conflict in the available evidence. Second, a police officer’s report mischaracterized the first search as a “protective sweep.”

The Court reasoned that a warrantless protective search is permitted under Maryland v. Buie, based on the “interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack.” Here, Mahrt was being detained by the deputies, and they had no reason to suspect that there was some other person inside the residence who could pose a danger to themselves or to others. Consequently, the Court reasoned that defense counsel should have filed and argued a motion to suppress the search of Maert’s premises.

My opinion? It’s very importnant to retain qualified defense counsel in search and seizure cases such as this. Here, the defendant accepted a plea bargain on the advice of defense counsel who, according to the court, failed to argue motions to suppress. Pretrial motions are essential. It’s imperative to hire defense counsel who know the law and argue it effectively.

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.

Another Study Finds Few Consequences For Prosecutor Misconduct

Bellingham Defense Attorney, Constitutional Rights, Prosecutorial Misconduct, Qualified Immunity, Sixth Amendment, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , ,

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Blogger Radley Balko of the Washington Post describes how a large-scale study from the New England Center for Investigative Reporting discovered that systemic prosecutor misconduct in Massachusetts dated back to 1985.

The report found more than 1,000 cases in which misconduct was alleged by criminal defendants and 120 in which a state appeals court reversed conviction due to misconduct. The group found an additional 134 verdicts reversed or thrown out due to misconduct after reviewing data from the state bar.

Balko says it’s difficult to draw conclusions from the raw number of incidents because most prosecutor misconduct goes unreported. He says the failure to turn over exculpatory evidence often becomes apparent only once a defendant has exhausted their appeals, after which the defense gets access to the prosecutor’s files. But by this point, many defendants no longer have legal counsel.

Additionally, Balko poignantly describes why defense attorneys intentionally do not report prosecutorial misconduct:

“When defense attorneys do find misconduct by prosecutors, there are also some strong incentives against reporting it. Most criminal defense attorneys will also have several other clients being prosecuted by the same office, perhaps even the same prosecutor. Reporting misconduct could jeopardize the attorney’s ability to bargain for those clients. Often, the more enticing option is to use the discovery of misconduct as a bargaining chip to get a better deal for the defendant in that case and perhaps earn favor from the prosecutor in others.”

The topic is not new to Mr. Balko. He summarized a handful of similar studies in a piece for the Huffington Post a few years ago.

“There are a handful of ways to keep wayward public officials honest,” says Balko.  He believes in the success of electoral accountability as a viable option. Still, relying on voters to keep prosecutors honest is a risky proposition. “The groups more likely to be victimized by excessive prosecutors are also the groups with the least amount of political power.”

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.

State v. Froehrich: Unlawful Inventory Search

Bellingham Defense Attorney, Community Caretaking, Constitutional Rights, Dismissal, Drug Offenses, Evidence, felony, Inventory Searches, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Washington State Patrol, Whatcom County Criminal Defense, , ,

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In State v. Froehlich, the WA Court of Appeals Division II upheld the suppression of methampetamine found in a vehicle because the defendant’s car was unlawfully searched.

BACKGROUND

Ms. Froehlich was driving her car. She collided with a pickup truck waiting at a stop sign. After the collision, the car came to rest on the right shoulder of the highway. It was not obstructing traffic. A Washington State Patrol Trooper arrived at the scene. By this time, Froehlich was seated in the pickup truck that she had hit.

Ms. Froehlich eventually left the scene in an ambulance after talking with police at the scene. One trooper followed her to the hospital to do sobriety testing, and she was not arrested. However, the trooper at the scene of the accident decided to impound her car. At the scene, he performed an inventory search of the vehicle which also included the search of Froerich’s purse which she left inside the car. He found methamphetamine.

Ms. Froehrich was charged with Unlawful Possession of a Controlled Substance With Intent to Manufacture or Deliver. Froehlich filed a motion to suppress the methamphetamine, arguing in part that the Trooper had no reason to impound the car and failed to consider reasonable alternatives to impoundment. The trial court granted the motion, suppressed the evidence and ultimately dismissed the charges. The State appealed.

ANALYSIS

Ultimately, the Court of Appeals agreed with the lower court that the impoundment was not lawful and therefore the search was not lawful because (1) under the community caretaking exception, the State did not prove that the impounding officer considered whether Froehlich, her spouse, or her friends were available to remove the vehicle; and (2) even though there was statutory authority for impoundment, the State failed to prove that the impounding officer considered all reasonable alternatives.

The Court reasoned that both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit warrantless searches unless an exceptions to the warrant requirement applies. One exception to the warrant requirement is a non-investigatory, good faith inventory search of an impounded vehicle. Law enforcement may lawfully impound a vehicle for three reasons: (1) as evidence of a crime, (2) under the community caretaking function, or (3) when the driver has committed a traffic offense for which the legislature has expressly authorized impoundment. Even if one of these reasons exists, however, an officer may impound a vehicle only if there are no reasonable alternatives.

Here, the Trooper’s impoundment of Froehlich’s car was not lawful under the community caretaking function because there were reasonable alternatives to impoundment. Here, the Trooper never asked Froehlich about arranging to have someone else remove the car as an alternative to impoundment, and the State presented no evidence that the Trooper considered Froehlich’s ability to arrange for the car’s removal.

CONCLUSION

Because Richardson unlawfully impounded the vehicle, his seizure of methamphetamine from Froehlich’s purse was unlawful.

My opinion? Good decision. Very simple, straightforward and correct analysis. As usual, I’m extremely impressed with Division II’s handling of search and seizure issues, especially when it comes to vehicle searches. Here, it’s clear that police officers cannot go about impounding people’s vehicles and searching through belongings when reasonable legal alternatives exist.

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.

The “Drug House” Statute

Bellingham Defense Attorney, DEA, Drug House, Drug Offenses, Evidence, felony, Knapstad Motion, Methamphetamine, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Menard, the WA Court of Appeals Division II reversed the lower court dismissal of charges of  Maintaining a Drug Dwelling under RCW 69.50.402.

BACKGROUND

The defendant Rodney Menard owned and lived at his home in Yakima. Menard lived at the home since he was 5 years old. He rented rooms to five individuals, occasionally received methamphetamine from tenants as rent payment, consumed twenty dollars’ worth of methamphetamine per day, and possessed drug pipes. Menard knew his tenants used methamphetamine, but denied knowledge of the use of his home for methamphetamine sales.

The Drug Enforcement Agency (DEA) received complaints of drug traffic from Menard’s home. On July 15, 2015, a DEA confidential informant purchased approximately a gram of methamphetamine at Menard’s home. On July 23, 2015, the DEA Task Force conducted a narcotics search. The front door was unlocked. Rodney Menard and thirteen other individuals were present when law enforcement officers entered the residence. In a basement bedroom, a lady rested on a small couch with a bag of methamphetamine next to her pillow.

Law enforcement officers spoke with Rodney Menard and other residents of the home. When asked if people who visit take drugs, Menard answered: “most people do.” Two renters informed the officers that 10 to 15 different people came daily to the house to use drugs. Menard claimed he unsuccessfully tried to end the heavy traffic at the house. Officers confiscated drug paraphernalia and 25.5 grams of drugs inside the home.

MOTION TO DISMISS

Menard was charged with Maintaining a Drug Dwelling under RCW 69.50.402. He filed a Knapstad motion under arguments that (1) his conduct is unlawful only if the drug activity constituted the residence’s major purpose, and (2) selling drugs was not the primary purpose of the residence. The trial court granted Menard’s motion to dismiss. The State appealed.

LAW & ANALYSIS

The Court of Appeals reasoned that under Washington law, a defendant may present a pretrial motion to dismiss a charge when the State lacks ability to prove all of the elements of the crime. RCW 69.50.402(1), known colloquially as the “Drug House” Statute, declares:

It is unlawful for any person: ( f) Knowingly to keep or maintain any … dwelling, building … or other structure or place, which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.

Here, Menard argued that he may be found guilty of maintaining a drug dwelling only if he maintains the home for the principal purpose of facilitating the use of controlled substances. However, the Court of Appeals disagreed.

The court reasoned that to convict under the “Drug House” Statute, the evidence must demonstrate more than a single isolated incident of illegal drug activity in order to prove that the defendant “maintains” the premises for keeping or selling a controlled substance.

The Court further reasoned that sporadic or isolated incidents of drug use are not enough to prove criminal conduct. Here, however, there was substantial evidence that people other than Menard used drugs in the house. Apparently, 10 to 15 people each day entered the home to use drugs. When police searched the house, fourteen people, some of whom admitted to use of methamphetamine, occupied the premises. One resident rested methamphetamine near her pillow. Officers found drug devices scattered throughout the home. When asked if people who visit take drugs, Menard answered: “most people do.”

With that, the Court of Appeals reversed the trial court’s dismissal of 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.

DUI: Men vs. Women

Bellingham Defense Attorney, Blood Test, Deferred Prosecution, Department of Licensing, Driving While License Suspended/Revoked, Drug Offenses, Drug Recognition Expert, DUI, Implied Consent, law enforcement, marijuana, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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Great news article from the Bellingham Herald discusses the physiological differences in alcohol impairment levels experienced between men and women.

In Who Gets Arrested More for DUI: Men or Women?,  author Doug Dahl states that over the past couple decades, alcohol-impaired driving has steadily been decreasing, however, the reduction in impaired driving doesn’t apply to women. Dahl is the Target Zero Manager for the Whatcom County Traffic Safety Task Force.

Apparently, in a recent 10-year period, DUI arrests for men decreased by 7.5 percent while DUI arrests for women increased by 28.8 percent.

“According to the CDC, the average weight of an American man is 196 pounds, while the average American woman weighs 166 pounds,” said Dahl.  “Also, because of differences in enzymes, hormones and body fat percentages between men and women, women generally metabolize alcohol at a slower rate.” Simply put, says Dahl, women get drunk faster and stay drunk longer than men:

“To be clear, both of our imaginary people in this example shouldn’t drive. A BAC of .06 will cause impairment. It’s a big enough concern that legislators in some states, including Washington, have proposed reducing the legal limit to .05.”

Mr. Dahl further states that the level of impairment between a BAC of .06 and .09 is significant. According to a study of impaired driving crashes, a driver with a BAC of .06 is about 1.6 times more likely to cause a crash than a sober driver. For a driver with a BAC of .09, that jumps up to 3.5 times more likely. “Don’t judge your own impairment based on how someone else handles the same amount of alcohol, and always have a plan for a safe ride home before going out for drinks,” says Dahl.

Regardless of your gender, please contact my office if you, a friend or relative faces charges of DUI. These charges are serious, threaten careers and can significantly limit one’s driving privileges.

The Most Charged Crime

ACLU, Bellingham Defense Attorney, Driving While License Suspended/Revoked, Due Process, misdemeanor, Race & Law, Search and Seizure, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , ,

Driven To Fail Report Cover

Apparently, the most commonly charged crime in Washington State – Driving While License Suspended in the Third Degree (DWLS III)- shouldn’t be a crime at all, the state chapter of the American Civil Liberties Union argues in a new report.

In “Driven to Fail: The High Cost of Washington’s Most Ineffective Crime – DWLS III” the report describes the costs of enforcing this law, explores how it burdens individuals and communities, and calls for policies that address the harm of driving with a suspended license without criminalizing it. According to the ACLU, taxpayers spend more than $40 million a year to prosecute cases of DWLS III.

“Not every social problem needs to be treated as a crime,” said Mark Cooke, the ACLU of Washington’s Campaign for Smart Justice Policy Director. “DWLS III enforcement costs taxpayers millions of dollars, yet does little to improve public safety. The crime is largely punishing people for being poor, not because they are scofflaws or dangerous drivers,” said Cooke.

Typically, a DWLS III charge comes about this way: A driver receives a ticket for a moving violation (such as speeding or rolling through a stop sign) and for various reasons does not follow through by paying the ticket or showing up in court to contest it. Hundreds of thousands of people in Washington have had their license suspended for not responding to a ticket for a moving violation. Those who continue to drive once their license is suspended may be arrested and charged with DWLS III.

The report estimates that Washington taxpayers have spent more than $1.3 billion enforcing this crime between 1994 and 2015. These costs stem from the filing of nearly 1.5 million DWLS III criminal charges, resulting in nearly 900,000 convictions. In 2015, there were nearly 40,000 DWLS III charges filed, costing taxpayers $42,199,270. The report also shows that the law is applied unequally across the state and disproportionately impacts people of color, the young, and the poor.

The report recommends that the crime of DWLS III should be taken off the books. Short of that, law enforcement, prosecutors and courts can exercise their inherent discretion and treat DWLS III as a civil offense and offer relicensing programs. Civil remedies and relicensing can be more effective and use fewer criminal justice resources. The data in the report also shows that some jurisdictions, such as the cities of Yakima and Seattle, have started to treat DWLS III as a non-criminal offense.

My opinion? It’s no mystery that DWLS III allows police to arrest people with suspended licenses. However, most don’t know that it allows police to search people’s vehicles after arrest.  Therefore, any contraband, guns or other illegal items found in people’s cars can be lawfully seized.

Additionally, the defendant will face unlawful possession charges for whatever contraband found during the search. In my opinion, this is the essence of an unlawful pretextual search. And for that reason, DWLS III should be a civil infraction which circumvents the need for arrest and searches. It should not be a crime.

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.

Taping Cops is Free Speech

42 U.S.C. § 1983, Bellingham Defense Attorney, Cell Phone, Constitutional Rights, First Amendment, law enforcement, Qualified Immunity, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

McKinney police Cpl. Eric Casebolt is shown in a screen shot from video of an altercation in which he pulled his gun on a group of teenagers at a pool party. A witness, Brandon Brooks, uploaded this video of the incident to YouTube. In a recent 5th Circuit Court of Appeals ruling, Justice Jacques Wiener wrote: “Protecting the right to film the police promotes First Amendment principles.”

The federal 5th Circuit Court of Appeals held that videotaping or filming police activities is protected by the First Amendment.

BACKGROUND FACTS
Phillip Turner, a computer science major at Austin Community College, started collecting video of police activities after he said a Cedar Park police officer blocked his view when filming a DUI arrest several years ago. He filed a complaint and during an investigation learned that there wasn’t an established right to film the police.
Armed with his understanding of the law, Turner has since posted a series of videos on his website where he challenges police officers and police department policies on videotaping of their activities.

On the day of the incident, Mr. Turner was video recording a Fort Worth police station from a public sidewalk across the street when Officers Grinalds and Dyess approached him and asked him for identification. Turner refused to identify himself, and the officers ultimately handcuffed him and placed him in the back of a patrol car. The officers’ supervisor, Lieutenant Driver, arrived on scene. after Driver checked with Grinalds and Dyess and talked with Turner, the officers released Turner.

He filed suit against all three officers and the City of Fort Worth under 42 U.S.C. § 1983, alleging violations of his First and Fourth Amendment rights. Each officer filed a motion to dismiss, insisting that he was entitled to qualified immunity on Turner’s claims. The district court granted the officers’ motions, concluding that they were entitled to qualified immunity on all of Turner’s claims against them. Turner appealed.
THE COURT’S DECISION
Ultimately, the Court affirmed in part and reverse and remand in part.
“Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy,” Justice Jacques Wiener wrote in an opinion joined by Justice Stephen Higginson. “Protecting the right to film the police promotes First Amendment principles.”

The 5th Circuit made it clear that such activity to be protected, saying that “a First Amendment right to record the police does exist, subject only to reasonable time, place and manner restrictions,” Justice Wiener wrote.

“Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy . . . Protecting the right to film the police promotes First Amendment principles.”

The 5th Circuit sent the case back to the lower court to examine Turner’s claims that he was unlawfully arrested. The court cleared the officers on that point, determining the acted appropriately. In her dissent, Justice Edith Clements said Turner’s First Amendment rights were not violated and that the officers acted reasonably in detaining Turner.

Turner’s attorney Kervyn Altaffer called the 5th Circuit’s ruling a significant one in a complicated area of the law.

“I think any time one of the federal court of appeals says that something is protected by the Constitution, that is important for all people,” Altaffer said. “I definitely think they the police overstepped. … This is supposed to be a free country.”

My opinion? Cameras make everyone behave. And I’m extremely happy the 5th Circuit describes this behavior as protected free speech. Kudos to the 5th Circuit.

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.

Lower .08 to .05?

Bellingham Defense Attorney, Blood Test, Boating Under the Influence, Department of Licensing, Drug Offenses, DUI, Implied Consent, Legislation, marijuana, National Highway Traffic Safety Administration, Skagit County Criminal Defense, Washington State Patrol, Whatcom County Criminal Defense, , ,

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Interesting article from Heather Bosch of KING 5 news reports that Washington state lawmakers are considering lowering the legal limit for driving under intoxication (DUI) from .08 to .05.

“The research shows impairment begins with the first drink,” said Representative John Lovick, D-44th District. “And I believe this after being a state trooper for 31 years.” Lovick said he based his legislation, House Bill 1874, on recommendations from the National Transportation Safety Board.

According to Bosche, however, the American Beverage Institute opposes the bill and similar legislation being proposed in Hawaii and Utah. The industry group claims only a small percentage of deadly car crashes are caused by drivers with a blood alcohol concentration between .05 and .08, and that a 120-pound woman could reach .05 with just little more than one drink. A 150-pound man could reach it after two.

“The move would target responsible and moderate social drinkers while ignoring the hardcore drunk drivers who pose the greatest threat to safety,” said American Beverage Institute Managing Director Sarah Longwell. In short, Longwell says what’s needed is better enforcement of current laws: “We have to focus on the real problem and not be distracted by feel-good legislation that criminalizes perfectly responsible behavior,” said Longwell.

Representative John Lovick agrees that current laws could be better enforced, but says lowering the alcohol limit to .05 would be “a great first step in letting the public know that we are serious about keeping people who drive drunk, off the streets.”

Bosche reports that a public hearing before the House Transportation Committee will be held Tuesday. The bill already cleared the House Public Safety committee, but not without controversy.

“There will be a few ‘no’ votes on this side of the aisle,” Representative Dave Hayes (R-10th District) said during a recent hearing. “My personal viewpoint on this is just the fact that I don’t believe it’s necessary to reduce the blood alcohol level, based on testimony and my own personal experience in processing DUIs.” Hayes is a sergeant with the Snohomish County Sheriff’s Office.  Lovick is the former Snohomish County Sheriff.

The National Transportation Safety Board has said that if every state lowered the legal blood alcohol limit to .05, it would save 1,000 lives every year.

Interestingly, Mothers Against Drunk Driving (MADD) does not support the measure, calling it a “waste of time” because most people who are under .08 can pass field sobriety tests.

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.

State Senate Passes Bill Making Fourth DUI a Felony.

Bellingham, Bellingham Defense Attorney, Blood Test, Boating Under the Influence, Department of Licensing, Diminished Capacity, Drug Court, Drug Offenses, Drug Recognition Expert, DUI, felony, First Time Offender Waiver, I-502, Ignition Interlock Device, Implied Consent, Jail, Legislation, marijuana, misdemeanor, Persistent Offender, Prison, Sentencing, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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The WA State Senate has unanimously passed a bill that would make driving under the influence (DUI) a felony if the driver has three or more prior offenses on their criminal record within 10 years.

Senate Bill 5037 passed Thursday and now heads to the House, where it has stalled in previous years. The bill’s sponsors are as follows: Padden, Frockt, O’Ban, Darneille, Miloscia, Kuderer, Zeiger, Carlyle, Pearson, Conway, Rolfes, Palumbo, Angel, and Wellman.

Under the measure, a person who is charged with a fourth DUI, and has no other criminal history, would be subject to a standard sentencing range of 13 to 17 months in jail.

However, this bill allows first-time felony offenders to spend up to six months in jail, instead of nine, and finish out the rest of their sentence under supervision, such as attending Alcoholics Anonymous meetings and other programs.

My opinion? We shouldn’t be surprised. Over the past 20 years, Americans have seen a significant increase in the harsh penalties for intoxicated drivers. Perhaps this is necessary move given the thousands of lives lost to drunk drivers. Speaking as a criminal defense attorney, there’s serious question as to whether people commit these violations purely out of willful disregard for the law and for the safety of others or because of an untreated mental illness or alcohol addiction. Nevertheless, public outcry has led to increased sentences.

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.