Tag Archives: Skagit County Criminal Defense Attorney

Extraction of Smartphone Data by U.S. Law Enforcement

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Mass Extraction | Upturn

A new report from upturn.org reveals that thousands of smartphones are searched by police every day across the US. Unfortunately, most searches are done without a warrant and in violation of the Fourth Amendment’s guarantee against unreasonable searches and seizures.

THE PROBLEM

Law enforcement agencies across the country search thousands of cellphones, typically incident to arrest. To search phones, law enforcement agencies use mobile device forensic tools (MDFTs). This powerful technology allows police to extract a full copy of data from a cellphone. This data includes all emails, texts, photos, location, app data, and more. The report documents more than 2,000 agencies that have purchased these tools, in all 50 states and the District of Columbia.

“We found that state and local law enforcement agencies have performed hundreds of thousands of cellphone extractions since 2015, often without a warrant. To our knowledge, this is the first time that such records have been widely disclosed.” ~Upturn.org

According to the report, every American is at risk of having their phone forensically searched by law enforcement. Police use these tools to investigate assault, prostitution, vandalism, theft, drug-related offenses, etc. Given how routine these searches are today, it’s more than likely that these technologies disparately affect and are used against communities of color.

The emergence of these tools represents a dangerous expansion in law enforcement’s investigatory powers. In 2011, only 35% of Americans owned a smartphone. Today, it’s at least 81% of Americans. Moreover, many Americans — especially people of color and people with lower incomes — rely solely on their cellphones to connect to the internet. For law enforcement, mobile phones remain the most frequently used and most important digital source for investigation.

THE SOLUTIONS

Upurn.org believes that MDFTs are simply too powerful in the hands of law enforcement and should not be used. But recognizing that MDFTs are already in widespread use across the country, they offer a set of preliminary recommendations that, in the short-term, help reduce the use of MDFTs. These include:

  • banning the use of consent searches of mobile devices,
  • abolishing the plain view exception for digital searches,
  • requiring easy-to-understand audit logs,
  • enacting robust data deletion and sealing requirements, and
  • requiring clear public logging of law enforcement use.

Of course, these recommendations are only the first steps in a broader effort to minimize the scope of policing, and to confront and reckon with the role of police in the United States.

“This report seeks to not only better inform the public regarding law enforcement access to mobile phone data, but also to recenter the conversation on how law enforcement’s use of these tools entrenches police power and exacerbates racial inequities in policing. ” ~Upturn.org

Special thanks to authors Logan Koepke, Emma Weil, Urmila Janardan, Tinuola Dada and Harlan Yu for providing this highly informative and educational material.

Please review my Search & Seizure Legal Guide and contact my office if you are charged with a crime involving a smartphone search. Hiring an effective and competent defense attorney is the first and best step toward justice.

2021 Crime Report: Violent Crime Up as Washington State Sees Decrease in Police Officers

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Despite Crime Rate Decrease, Majority of Americans Think It Is Increasing

Journalist Adel Toay for King5.com says that violent crime has increased in Washington. According to a crime report from the Washington Association of Sheriffs and Police Chiefs (WASPC), violent crimes and murders increased while the number of police officers available to respond to incidents decreased in 2021.

“This is just very specific data, about crime trends, about our staffing level, about a couple of things that sort of stand out. But the numbers are all there. We’re very transparent. We wanted to get this out to everybody so that they have that information within their communities,” ~Steven Strachan, executive director of WASPC

According to the report, violent crime overall, which includes murder, aggravated assault, robbery and rape, increased by 12.3% in 2021.

There were 325 murders in 2021, an increase of 5.9% over 2020, following a 47% increase the year before. Strachan said this is the highest number of murders recorded since WASPC began collecting this data in 1980.

Hate crimes like Malicious Harassment in the state increased by 26.5% in 2021 with the most frequent offenses being intimidation and destruction of property.

Total crime overall is statistically down slightly, including a 78.8% decrease in identity theft and fraud from 2020, largely due to the huge spike in unemployment fraud during the pandemic. Other factors contributing to the statistical downward trend include a 60.9% decrease in drug offenses and a 73.6% decrease in drug arrests, due to a change in state laws.

“This is predominantly due to the Blake decision in 2021, which completely changed the ability to charge a criminal offense for personal possession of any drug,” said Strachan. In February 2021, the Washington State Supreme Court ruled the state’s simple drug possession crime statute was unconstitutional and voided it.

THE LOSS OF POLICE OFFICERS

Washington state lost nearly 500 police officers statewide in 2021 as the state’s population grew more than the population of Everett, according to the report. The number of commissioned law enforcement officers decreased 4.4%. The per capita rate of law enforcement officers fell to 1.38 per 1,000 statewide.

“When the staffing is down, the numbers are up,” said Strachan.

Strachan said it is the lowest per capita rate of officers the state has seen since WASPC began tracking this data in 1980, and it’s the lowest in the nation. The national average per capita rate for officers is 2.33 officers per 1,000, according to the FBI.

“Right now, a lot of agencies are treading water. Not every single one. Not every single agency is in a staffing crisis. Many are. These things are problems with solutions, and that is to support good policing and to recognize that public safety is important.”~Steven Strachan, executive director of WASPC

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.

Pandemic Crisis Created a Blueprint to Courts in the Future

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As Courts Restore Operations, COVID-19 Creates a New Normal | United States Courts

According to a press release, Washington courts proved during the pandemic they can adapt quickly to new technologies and methods when the need is urgent. In doing so, they also opened a door to building a more accessible and responsive court system.

That is a key conclusion of the Board for Judicial Administration’s Court Recovery Task Force. The Task Force issued its final report after two years of work coordinating emergency actions to keep courts operating safely. The report, “Re-Imagining Our Courts: Pandemic Response and Recovery Lead Courts Into the Future,” compiles the information gathered, the lessons learned, and the task force’s recommendations to the judicial branch on how to maintain the responsiveness and expanded access it forged out of necessity.

“We commit to not going back to business as usual, but instead to incorporate the important lessons we learned together,” wrote Washington Supreme Court Chief Justice Steven González in the report. Justice González served as co-chair of the Task Force with King County Superior Court Judge Judith Ramseyer and Olympia Municipal Court Judge Scott Ahlf.

Some common adaptations adopted during the pandemic included expanded electronic filing and use of electronic signatures, extensive use of remote video technology to conduct proceedings rather than requiring participants to appear in person, adjusting procedures to allow attorneys to take more actions for their clients, providing access to technology for those who lacked it, and much more. Many court rules permitting temporary measures are set to expire, but “a number of these emergency rules proved so effective they were recommended for permanent implementation,” according to the report.

The Task Force was convened in May 2020 by then-Chief Justice Debra Stephens to “share experiences and coordinate responses to the fluid and devastating situation we faced,” according to the report. Shortly after this, a racial justice movement surged nationwide in response to the killing of George Floyd, and Task Force members agreed that a racial justice lens should be used in considering responses and innovations. The Task Force also established Guiding Principles to guide their work and their recommendations.

Experts from throughout the courts, system partners, and community members were recruited to provide insight into needs and potential responses. These experts divided into 11 committees that created such tools as templates for virtual dependency proceedings, facility checklists for off-site safety, best practices for virtual discovery, alternative dispute resolution and pre-trial processes, a virtual court directory with online links to remote hearings, technology principles for the courts, best practices for court websites that are intuitive for users, and more.

In working together to transform court operations and services during the pandemic, “we used our experiences to overcome the daunting challenges we faced,” wrote the Task Force co-chairs in their introduction to the report. “Thankfully, this process also informed a blueprint for our courts to keep evolving into the most efficient, respectful, and just legal system we can become. As usual, from crisis comes opportunity.”

After sharing experiences, actions, and findings of the past two years, the Task Force recommended that courts of the future will:

  • Embrace positive change;
  • Communicate and collaborate with justice partners and local leaders, using the expanded input that led to many effective solutions during the pandemic;
  • Use technology to promote access and efficiency – “Unquestionably, technological advancements offer access to courts and efficiencies never imagined when many Washington courthouses were constructed.”
  • Gather feedback from court users, share findings, and use the information to adapt;
  • Implement new practices and procedures through a racial justice lens;
  • Prioritize the health, safety, and morale of the court work force;
  • Plan for emergencies;
  • Actively work with local and state governments to guarantee stable funding.

The Task Force also listed unfinished work that should be actively pursued such as addressing case backlogs, uniform access to technology for courts, universal broadband for court users, confronting and dismantling institutional racism, and gathering and disseminating meaningful data on use of essential court services.

My opinion? I’m proud that our Washington court systems pivoted so effectively. Still our access to justice is only as good as the means of access possessed by the people it serves. Zoom hearings were an excellent way to conduct court.  Most courts pivoted to conducting motion and evidentiary hearings via Zoom. This platform allowed attorneys to teleconference for meetings, mediations and depositions.

However,  actual court hearings via Zoom presented unique challenges. An estimated 42 million Americans live beyond the reach of broadband service. Also, older people may be unable or unwilling to master videoconferencing technology.  Many criminal defendants are impoverished. They don’t have access to the internet. And many other defendants are illiterate or non-English speakers and cannot navigate these platforms.

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.

Washington Supreme Court Will Address How to Reduce Racial Disparities & Reform Juvenile Justice

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Bias in Criminal Justice - Common Reading Research Guide 2020-21 - LibGuides at Elon University

According to a press release, on July 13, 2022, a task force will present recommendations to the Washington Supreme Court on reducing and, where possible, eliminating racial disparities in Washington’s criminal and juvenile justice systems. The public presentation is scheduled for 10:30  AM – 12:00 PM, and will be livestreamed and recorded by TVW.

The recommendations come from a work group of Task Force 2.0: Race and Washington’s Criminal Justice System, a project coordinated by the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law. Presenters will include Korematsu Center Executive Director Professor Bob Chang, Assistant Directors Jessica Levin and Melissa Lee, public defense attorneys, child welfare experts, Pierce County Superior Court Judge André M. Peñalver, and more.

Task Force 2.0 last year presented extensive research to the Supreme Court detailing racially disproportionate treatment and outcomes in the state’s criminal justice system, outcomes significantly impacted by historically racist laws and practices. The follow-up presentation provides recommendations in 14 areas – such as policing and traffic stops, prosecutorial decision-making, pre-trial release, sentencing and prison, community supervision, legal financial obligations and more – as well as recommendations for reforming the juvenile justice system from a special sub-committee.

The Task Force was launched in mid-2020 by the deans of Washington’s three law schools following the death of George Floyd, nationwide protests for racial justice, and the June 4, 2020 Open Letter of the justices of the Washington Supreme Court challenging members of the state judiciary and legal community to recognize racial injustice and take steps to eliminate it.

The Task Force is dubbed “2.0” because it is a re-launch of the Race and Justice Task Force established in 2010 following comments made by two then-sitting Washington Supreme Court justices about criminality and race. That first task force produced a report in 2011 with data that has guided a number of efforts since then, including an annual symposium presented by the Washington State Minority and Justice Commission focusing on specific issues of racial disparity.

My opinion? We’ve GOT to be proud of our WA Supreme Court for being so proactive in resolving racial disparities in the justice system.

The rise of mass incarceration may seem like a recent phenomenon, but it is a repeating pattern throughout this country’s history. From America’s founding to the present, there are stories of crime waves or criminal behavior followed by patterns of disproportionate imprisonment of those forced to the margins of society: Black people, immigrants, Native Americans, refugees, and others.

The result has been the persistent and disproportionate impact of incarceration on people of color, immigrants, and people experiencing poverty. From 1850 to 1940, racial and ethnic minorities—including foreign-born and non-English speaking European immigrants—made up 40 to 50 percent of the prison population. In 2015, about 55 percent of people imprisoned in federal or state prisons were Black or Latino.

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.

Low-Level Robbery Won’t Get A Reduced Sentence

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Why Grocery Stores are adding Supplemental Security during the Coronavirus Outbreak | CITIGUARD

In State v. Thomason, the WA Supreme Court held that the low-level, de minimis nature of some crimes can allow for an exceptional downward sentence. However, the minimal level of force used to prove Robbery makes it inappropriate to allow a downward sentence.

FACTUAL BACKGROUND

On September 5, 2018, Thomason entered Yoke’s Fresh Market grocery store in Spokane.  A plainclothes security guard, Mr. Swartz, followed Thomason around the store. Swartz watched Thomason pick up about $15 worth of meat and cheese. Thomason proceeded to another part of the store and tucked the food down his pants. Thomason then left the store without paying.

Swartz followed Thomason out and confronted him. Swartz grabbed Thomason’s arm, displayed his badge, and asked Thomason to go back inside the store. Thomason tried to pull free, and Swartz warned him that he was only making the situation worse. The two pulled at each other back and forth as Swartz tried to detain Thomason and Thomason tried to break free.

During this exchange, Thomason swung at Swartz two times. Thomason used a closed fist, aimed at Swartz’s face both times, and hit Swartz the second time with a glancing blow. Swartz yelled at his partner, a guard in training, to help. Thomason punched Swartz a third time. Swartz testified that the third punch “hurt” and caused a minor injury. His face was sore and slightly red for a day or two. Thomason escaped by pulling out of his sweatshirt and running. He was seen getting into a passenger car and was eventually apprehended.

The State charged Thomason with second degree robbery just before trial. A jury convicted him as charged.

THE SENTENCING

At sentencing, the parties agreed that Thomason’s offender score was 10. That made his standard sentencing range 63-84 months. Thomason requested a 12-month sentence. This was a exceptional downward departure from his sentencing range.

The trial court judge considered an exceptional sentence below the standard range. The judge said that the crime was no more than a “glorified shoplifting charge” that should have been treated as a misdemeanor. Nevetheless, the judge determined that the law barred him from imposing an exceptional downward sentence. The judge imposed 63 months, the bottom of the standard range, instead.

Thomason appealed on several grounds. However, the Court of Appeals affirmed his conviction. The WA Supreme Court granted appellate review solely on the exceptional sentence issue.

COURT’S ANALYSIS & CONCLUSIONS

The Court reasoned that Washington’s Sentencing Reform Act lists mitigating circumstances that can support an exceptional sentence below the standard range. It explained that in appropriate cases, the de minimis nature of a crime can support an exceptional sentence below the standard range. An appropriate case is one in which (1) the legislature did not consider the mitigating factor already when it listed the elements of the crime or set the standard sentence range and (2) the factor constitutes a substantial and compelling reason to depart below the range.”

The Court acknowledged Thomason’s argument that his crime was de minimis. The value of the items taken was low and no force was used to accomplish the taking. Although force was used to retain the property, it was “minor” force. However, the court disagreed with Thomasan’s argument that he was allowed an exceptional downward sentence.

The Court reasoned that the plain language of the robbery statute shows that the legislature did consider a defendant’s minimal use of force when it defined the crime of second degree robbery.

“As the emphasized language shows, the legislature clearly considered whether the crime of second degree robbery should punish a taking combined with a minimal showing of force. It criminalized a taking in which either ‘force’ ‘or’ no force at all—just ‘fear’—is used to accomplish the taking . . . The legislature even said that where, as here, such force or fear is used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking, the degree of force is immaterial.”~WA Supreme Court

With that, the WA Supreme Court affirmed Mr. Thomason’s conviction.

My opinion? I agree with Chief Justice Steven Gonzalez’s concurring opinion. He wrote separately because he was increasingly troubled by our controlling, unchallenged precedents and the sentencing laws they interpret.

“Washington’s sentencing guidelines suggest, among other things, that unconstrained discretion in sentencing operates to favor whites and disfavor members of minority groups,” said Justice Gonzalez. As part of the concurrence, he references an article about prosecutorial discretion and sentencing guidelines. He ended his opinion with choice parting words:

“We must find a way to live justly with one another. We must not steal from each other or strike each other. But when it happens, the State must not respond with a disproportionate punishment. I am increasingly concerned that sentences like this for what amounts to glorified shoplifting are simply not just and speak to deep problems with our sentencing systems.” ~Chief Justice Steven C. Gonzalez, WA Supreme Court.

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

Criminal Conviction Reversed on Prosecutor’s Race-Based Misconduct & Voir Dire.

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Survey: Trump's immigration rhetoric is negatively impacting Latinos' health

In State v. Zamora, the WA Supreme Court held that a Prosecutor committed misconduct when, during jury selection, he repeatedly asked the potential jurors about their views on unlawful immigration, border security, undocumented immigrants, and crimes committed by undocumented immigrants.

BACKGROUND FACTS

This case arises from a violent police confrontation that escalated far beyond what should have happened. On Super Bowl Sunday, February 5, 2017, Joseph Zamora was walking to his niece’s house. A neighbor called the police to report a possible vehicle prowler. When Zamora reached the driveway of his niece’s home, he was contacted by responding officer Kevin Hake. Hake quickly became nervous because of Zamora’s demeanor. Fearing Zamora had a weapon, Hake grabbed Zamora and attempted to restrain him.

A struggle ensued and escalated to include what may be described as extreme acts of violence. Ultimately, eight officers were involved in subduing Zamora. When responding paramedics arrived, Zamora was handcuffed, hog-tied, and lying face down in the snow with two officers restraining him. He had no heartbeat or pulse. It took the paramedics seven minutes to revive him. Zamora was taken to the hospital and remained in intensive care for approximately four weeks.

Zamora was charged with two counts of Assault Third Degree on the officers who “restrained” him. Officer Hake’s injuries included some small scratches around his hand and wrist and some bruising. Officer Welsh sustained an injury to his hand from punching Zamora in the back of the head multiple times. Zamora’s case proceeded to trial.

The Grant County Prosecutor began voir dire. He introduced the topics of border security, illegal immigration, and crimes committed by undocumented immigrants. The prosecutor repeatedly elicited potential jurors’ comments and views on these topics. At one point, he referred to “100,000 people illegally” crossing the border each month. He asked jurors whether “we have or we don’t have enough border security.” He also asked jurors if they had “heard about the recent drug bust down at Nogales, Arizona where they picked up enough Fentanyl to killed 65 million Americans.” Defense counsel did not object to the prosecutor’s questions and remarks on border security, illegal immigration, undocumented immigrants, and drug smuggling.

A jury found Zamora guilty as charged.

Zamora appealed. He argued his right to an impartial jury was violated when the Prosecutor appealed to jurors’ potential racial bias during voir dire. Division Three of the Court of Appeals affirmed Zamora’s convictions, concluding that his constitutional rights were not violated. Zamora appealed to the WA Supreme Court. They accepted review.

LEGAL ISSUE

Whether the prosecutor committed misconduct when, during jury selection, he repeatedly asked the potential jurors about their views on unlawful immigration, border security, undocumented immigrants, and crimes committed by undocumented immigrants.

COURT’S ANALYSIS & CONCLUSIONS

The Court concluded that the prosecutor intentionally appealed to the jurors’ potential racial bias in a way that undermined Zamora’s presumption of innocence. Therefore, Zamora was denied his constitutional right to an impartial jury because of the prosecutor’s race-based misconduct.

Justice Charled W. Johnson authored the Court’s opinion. He began by explaining that the Sixth and Fourteenth Amendments to the United States Constitution and the Washington State Constitution guarantee a criminal defendant the right to an impartial jury. Justice Johnson said the Court has long recognized that the constitutional right to a jury trial includes the right to an unbiased and unprejudiced jury. He also upheld the right to fair trial in the face of prosecutorial misconduct:

“As a quasi-judicial officer and a representative of the State, a prosecutor owes a duty to a defendant to see that their rights to a constitutionally fair trial are not violated. Thus, a claim of prosecutorial misconduct directly implicates the constitutional right to a fair trial.” ~Justice Johnson, WA Supreme Court.

Justice Johnson also explained that in order to prevail on a prosecutorial misconduct claim, a defendant who timely objects must prove that the prosecutor’s conduct was both improper and prejudicial in the context of the entire trial. If the defendant does not object, on appeal the defendant must show the improper conduct resulted in incurable prejudice.

However, when the misconduct implicates racial bias, “flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence,” courts will vacate the conviction unless the State proves beyond a reasonable doubt that the race-based misconduct did not affect the jury’s verdict.

“To determine whether the prosecutor’s conduct in this case flagrantly or apparently intentionally appealed to jurors’ potential racial bias, we ask whether an objective observer could view the prosecutor’s questions and comments during voir dire as an appeal to the jury panel’s potential prejudice, bias, or stereotypes about Latinxs. The objective observer is a person who is aware of the history of race and ethnic discrimination in the United States and aware of implicit, institutional, and unconscious biases, in addition to purposeful discrimination.” ~Justice Johnson, WA Supreme Court

Here, the Court reasoned that the prosecutor’s questions and remarks implicated the defendant’s ethnicity. The prosecutor’s conduct appealed to the jurors’ potential racial or ethnic bias, stereotypes, or prejudice. The Court said we must be vigilant of conduct that appeals to racial or ethnic bias even when not expressly referencing race or ethnicity:

“The state-sanctioned invocation of racial or ethnic bias in the justice system is unacceptable. Accordingly, we hold that the prosecutor in this case committed race-based misconduct during voir dire, and the resulting prejudice to the defendant is incurable and requires reversal. We reverse the Court of Appeals and reverse and vacate the convictions.” ~Justice Johnson, WA Supreme Court

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.

WA State Cracks Down on Organized Retail Theft

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What is Organized Retail Crime

King5 News reports that the Organized Retail Crime Theft Task Force was recently formed. State Attorney General Bob Ferguson says the Task Force will focus on sophisticated, organized crime rings and work to stop them.

According to the Retail Industry Leaders Association, organized theft cost Washington’s retailers around $2.7 billion last year.

Given the magnitude of losses, State Attorney General Bob Ferguson says it’s vital that multiple agencies and retailers work together because organized retail theft is simply too big for one organization to take on alone.

“No one retail store, no one prosecutor, no one attorney general, no one US Attorney can solve the problem. It’s just way too big. I found in my experience, from working with other task forces and other contexts, that sharing of information helps with enforcement, helps with prevention, raises the profile of the issue, and gets folks in the room to make sure we go after the bad guys, hold them accountable, and the provide the resources we need to help retailers and small businesses who’re dealing with these challenges.” ~State Attorney General Bob Ferguson

Organized crime could look like three men coordinating an early morning break-in, or it could occur on a smaller scale, like at the downtown Seattle Target, where police arrested a man after he stole alcohol 22 times over the course of a few days.

However, one of the biggest concerns of the task force is stolen baby formula, which is then resold on secondary sites like Amazon and becomes a risk for parents.

“That means that parents who unwittingly buy stolen formula on the secondary market may be putting their babies at significant risk if the thieves, for example, fail to store the product at the appropriate temperatures, or if the thieves manipulated the packaging, such as exchanging the expiration date,” Ferguson said.

He said the task force hopes to have an immediate impact statewide.

“We’re all stepping up to address what really is a true crisis in our state (and) … has significant implications for businesses and for the people of our state,” said Ferguson.

In Washington, Organized Retail Theft is a Class C Felony. Please contact my office if you, a friend or family member are charged with Theft or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

“Operation Dry Water” Works to Reduce Boating Under the Influence

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Operation Dry Water Launches

According to Kiro 7, police are looking for alcohol and drug-impaired boaters this Fourth of July weekend.

Washington State Parks supports a nationally coordinated effort called Operation Dry Water.  This large-scale effort works to reduce boating-under-the-influence (BUI) accidents and fatalities. As part of the campaign, emphasis patrols are conducted annually around the Fourth of July. Independence Day is known for increased boating activities, use of alcohol, and an increase in the number of boating accidents and fatalities. Operation Dry Water includes the Coast Guard and local, state and federal law enforcement agencies. There will be an increase in patrols on Puget Sound waters.

Similar to DUI, a BUI outlaws the use any substance that impairs a person’s ability to operate a vessel in the state. A “vessel” includes kayaks, canoes, paddleboards and other watercraft. It is also illegal to operate a vessel with a blood alcohol content level of 0.08 or higher, the same as a vehicle.

Below are some things for boaters to know:

  • State law allows law enforcement officers to require boaters suspected of operating a boat while intoxicated to submit to a breath or blood test.
  • Refusing to submit to a test is a civil infraction with a maximum fine of $2,050.
  • The penalty for operating a boat under the influence is a gross misdemeanor punishable by a maximum fine of $5,000 and 364 days in jail.
  • Additionally, a BUI is considered a prior offense if there are later convictions for driving under the influence (DUI).

In 2021, more than 570 local, state and federal agencies participated in Operation Dry Water, which resulted in nearly 640 BUI arrests and more than 42,440 citations and warnings for safety violations that were issued.

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

Lawsuit: Washington State Patrol Misused Breathalyzer Tests, Misconstrued Readings

Bellingham Defense Attorney, Due Process, DUI, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , ,

Datto Lawsuit: Ex-Employee Took Trade Secrets to ConnectWise

A recently filed lawsuit claims that the Washington State Patrol official responsible for ensuring the consistency and reliability of breath-test machines violated the rights of drunk driving suspects who later had their licenses revoked.

I discussed this in an earlier blog where a panel of District Court judges had already found breath machine results inadmissible in all Kitsap County cases. The four District Court judges tossed the breath machine results in all drunken-driving cases before the court. The judges also found that Fiona Couper, the WA State Patrol Forensics Lab, “submitted false or misleading testimony by declaration in tens of thousands of cases.” About 81,000 people were tested over the past decade.

THE LAWSUIT

The lawsuit was filed by David LaCross on behalf of plaintiff Nicholas Kori Solis, 29, of Bremerton. The respondent is Ms. Couper. The lawsuit claims that Ms. Couper filed false statements vouching for the legality of the machines and “deprived the plaintiff of due process.”

The lawsuit specifically criticizes Washington’s procedures for revoking drunk driving suspects’ licenses. This process is administrative, not criminal, and the breath test results are admitted to prove the driver was impaired to allow the state to revoke their driver’s license. The lawsuit seeks an unspecified amount of money for damages, among other remedies.

BACKGROUND

Mr. Solis was arrested March 19 by a State Patrol trooper who observed him driving 88 mph on Highway 3. In addition to signs of impairment, the trooper tested Solis using the Dräger breath test machine. The machine found Solis had a blood alcohol content reading of about .10. Solis was charged with DUI in Kitsap County District Court. He pleaded not guilty and entered a diversion agreement with prosecutors.

LEGAL ISSUE

The legal issue is whether Washington’s BAC machine accurately processed the results of breath tests. The state limit for blood alcohol content is .08. As the machines perform the required calculations, however, they produce results that contain more than two digits.

State law says the numbers are to be “rounded” but instead the software had been “truncating” them, or cutting off the numbers at a certain decimal point, a fact the judges found Couper knew or should have known.

The practical results of truncation vs. rounding can actually benefit defendants – as rounding a number could result in it increasing and showing a person was perhaps more intoxicated, something that cannot happen when the numbers are simply cut off.

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.

U.S. Supreme Court Expands Gun Rights

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Gun Bans and Regulations: From a Second Amendment Advocate – The Wildezine

In New York State Rifle & Pistol Association v. Bruen, the U.S. Supreme Court held that Americans have a right to carry firearms in public for Self-Defense. Their ruling marks a major expansion of gun rights after a series of mass shootings. It’s also a ruling likely to lead to more people legally armed.

BACKGROUND FACTS

The state of New York passed a law requiring a person to show a special need for self-protection in order to to receive a license to carry a firearm outside their home. Robert Nash and Brandon Koch challenged the law after New York rejected their concealed-carry applications based on failure to show “proper cause.” A federal district court dismissed their claims, and the U.S. Court of Appeals for the Second Circuit affirmed. The U.S. Supreme Court took the issue up on appeal.

LEGAL ISSUE

Does New York’s law requiring that applicants for unrestricted concealed-carry licenses demonstrate a special need for self-defense violate the Second Amendment?

COURT’S ANALYSIS & CONCLUSIONS

Holding: New York’s proper-cause requirement for obtaining an unrestricted license to carry a concealed firearm violates the Fourteenth Amendment. It prevents law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms.

Justice Clarence Thomas wrote the majority opinion and said the following:

“The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees. The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self- defense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.” ~Justice Thomas, United States Supreme Court

With that, the Supreme Court reversed the lower federal court’s holding.

The Court’s split was 6-3 with the court’s conservatives in the majority and liberals in dissent. Justice Alito filed a concurring opinion. Justice Kavanaugh filed a concurring opinion, in which Chief Justice Roberts joined. Justice Barrett filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justices Sotomayor and Justice Kagan joined.

In a dissent joined by his liberal colleagues, Justice Stephen Breyer focused on the toll from gun violence. He wrote that since the beginning of this year, there have already been 277 reported mass shootings — an average of more than one per day. He accused his colleagues in the majority of acting “without considering the potentially deadly consequences” of their decision. He said the ruling would “severely” burden states’ efforts to pass laws “that limit, in various ways, who may purchase, carry, or use firearms of different kinds.”

Several other conservative justices who joined Thomas’ majority opinion also wrote separately to add their views.

Justice Samuel Alito criticized Breyer’s dissent, questioning the relevance of his discussion of mass shootings and other gun death statistics. Alito wrote that the court had decided “nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun” and nothing “about the kinds of weapons that people may possess.”

“Today, unfortunately, many Americans have good reason to fear they will be victimized if they are unable to protect themselves.” The Second Amendment, he said, “guarantees their right to do so.”

Justice Brett Kavanaugh, joined by Chief Justice John Roberts, noted the limits of the decision. States can still require people to get a license to carry a gun, Kavanaugh wrote, and condition that license on “fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements.”

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