Tag Archives: Skagit County Criminal Defense Attorney

Unlawful Arrest for Failure to Pay Court Fines.

Bellingham Defense Attorney, Bench Warrant, Constitutional Rights, Court Fines, Drug Offenses, Due Process, felony, Legal Financial Obligations, Methamphetamine, Search and Seizure, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Sleater, the WA Court of Appeals Div. III held an arrest warrant may not issue for a defendant who fails to schedule an appearance in court to explain why she had failed to pay her court fines.

The Defendant Ms. Sleater had prior convictions for various Drug Offenses. As of April 2014, she was making a combined monthly payment of$75 toward three cases. She was also entered into Benton County’s “pay or appear” program. It required her to make her legal financial obligation (LFO) payments every month or appear to schedule a hearing to explain why she could not make the payments. The program agreement also stated that if the defendant did not make a payment and failed to schedule a hearing, “a warrant will be issued for the Defendant’s arrest.”

For months, Ms. Sleater’s mother paid the monthly fines. Her mother made a $150 on-line payment on April 17, 2014. Unfortunately, the computer did not apportion the sum among the three accounts, but applied all of the money to only one case number identified with the payment. AS a result, The other two counts were four and seven months behind.

On April 22, 2014 the clerk’s office obtained arrest warrants for Ms. Sleater since she had not made payments on those two cases and had not scheduled a hearing to explain the lack of payments.

On May 16, 2014 officers arrested Ms. Sleater on the two warrants. She possessed methamphetamine at the time of her arrest. Consequently, the prosecutor filed one count of possession of a controlled substance. Her attorney moved to suppress the evidence under CrR 3.6 on the claim that the warrants were wrongly issued. However, the trial court denied the motion and found Ms. Sleater guilty at trial.  She appealed.

The WA Court of Appeals held that the arrest warrants were invalidly issued in violation of the Fourth Amendment to the United States Constitution.

The Court reasoned that the Fourth Amendment protects against unreasonable seizures, and that seizure is reasonable if it serves a governmental interest which is adequate to justify imposing on the liberty of the individual.” However, it violates due process to punish defendants for failing to pay fines if the defendant cannot pay simply because they are impoverished.

“Nor can a state impose a fine and convert it to jail time solely because a defendant has no ability to pay the fine. The State must afford the defendant a hearing before jailing him for failing to pay his obligations. While the court can put the burden to prove inability to pay on the defendant, it still has a duty to inquire into a defendant’s ability to pay fines prior to jailing him.”

Here, the Court reasoned that the effect of the arrest warrants was to require Ms. Sleater to go to jail for failing to pay her LFOs without first conducting an inquiry into her ability to pay them:

“The facts of this case demonstrate the need for such an inquiry. Ms. Sleater’s mother did make a payment toward her daughter’s LFOs, but through some type of error the payment was not reflected in all three files. A hearing before the warrants issued would have allowed the court to resolve the problem without the necessity of an arrest.”

Here, reasoned the Court, a warrant should not have issued for defendant’s failure to pay without first determining the willfulness of that violation. Accordingly, the Court of Appeals reversed Ms Sleater’s conviction for possessing methamphetamine.

Good 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.

When Sexting Becomes Criminal

ACLU, Bellingham Defense Attorney, Cell Phone, Constitutional Rights, felony, Juvenile, Sex Crimes, Technology, Text Messages, Whatcom County Criminal Defense, , ,

Image result for sexting

In State v. E.G., the WA Court of Appeals Division III held that a juvenile’s texting a picture of his erect penis to an adult female is punishable as a violation of Dealing in Depictions of a Minor Engaged in Sexually Explicit Activity in the Second Degree under RCW 9.68A.050(2)(a).

Defendant E.G. was 17-year-old juvenile with Asperger syndrome. He began sending harassing phone calls to T.R., a former employee of E.G.’s mother. T.R. at the time was a 22-year-old mother of an infant daughter. E.G. found T.R.’s telephone number by checking his mother’s business records. Beginning in mid-2012, a male using a restricted phone number would call T.R. at night and make sexual sounds or ask sexual questions. On the afternoon of June 2, 2013, T.R. received two text messages: one with a picture of an erect penis, and the other with explicit language.

T.R. reported the phone calls and text messages to the police, who tracked the telephone to E.G., then age 17. He was questioned by the police and told them that it was his penis in the photograph.Shortly before his 18th birthday, E.G. was charged in the juvenile division of the Spokane County Superior Court with one count of second degree dealing in depictions and one count of making harassing telephone calls.

Unfortunately, E.G. had prior criminal behavior of a similar nature. At the time of his arrest, E.G. was currently serving a Special Sex Offender Dispositional Alternative (SSODA) as the result of an earlier juvenile adjudication for communicating with a minor for immoral purposes.

The defense moved to dismiss the charges under the argument that the statute could not be applied to a minor who was also the “victim” of the offense. The trial court denied the motion, concluded E.G. had committed the offense and required E.G. to register as a sex offender.

E.G. timely appealed. The Court of Appeals accepted an amicus brief jointly filed by the American Civil Liberties Union of Washington and the Juvenile Law Center. The only issue on appeal was whether the dealing in depictions statute properly could be applied to E.G.’s conduct.

Ultimately, the Court of Appeals upheld the juvenile court’s findings of guilt.

First, the Court of Appeals reasoned that E.G.’s conduct was not protected by the First Amendment because minors have no superior right to distribute sexually explicit materials involving minors than adults do.

Second, the Court rejected arguments that the criminal statute was vague because it does not provide notice that sending self-produced images of one’s own genitalia to others is included within the scope of the statute. The Court reasoned that while the statute’s reach may be broad, it is not vague.

Third, the Court rejected arguments that it was absurd for E.G. to be both victim and perpetrator. The Court’s response was perfunctory and direct:

“We disagree. First, nothing in the statute requires proof of any specific “victim” status as an element of the offense. Rather, child pornography per se victimizes children, which is the reason the legislature is seeking to eradicate it, whether or not the child willingly takes part. The legislature can rationally decide that it needs to protect children from themselves by eliminating all child pornography, including self-produced images that were not created for commercial reasons.”

Finally, the Court of Appeals rejected arguments that E.G.’s actions were an innocent sharing of sexual images between teenagers: “It appears, instead, to be the latest step in a campaign of anonymous harassment of T.R. for reasons best known to E.G., but even if it was an effort to entice or impress her, this was not an innocent activity.” With that, the Court of Appeals affirm the juvenile court’s adjudication and disposition of this case.

My opinion?

I understand it was a terrifying experience for the victim to undergo this terrible experience. Nevertheless, its difficult to justify where, under these facts,  a 17-year-old juvenile with Asperger syndrome should be found guilty of a heinous Class A sex offense felony and register as a sex offender for a number of years.

Although there are many possible symptoms of Asperger’s syndrome, the main symptom is significant trouble with social situations. Other symptoms include the following:

  • Inability to pick up on social cues;
  • Lack of inborn social skills, such as being able to read others’ body language, start or maintain a conversation, and take turns talking;
  • Lack of empathy;
  • Inability to recognize subtle differences in speech tone, pitch, and accent that alter the meaning of others’ speech;

. . . and the list goes on.

Again, my condolences to the victim. Still, when Asperger’s syndrome is coupled with adolescence and immaturity, it’s difficult to imagine a juvenile defendant truly understanding the repercussions of his actions under these facts.

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.

Criminal Defense Attorney Alexander Ransom Joins Skagit Bar Association

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

I’m proud to announce my new membership into the Skagit County Bar Association.

The organization is a voluntary professional association of lawyers who live and practice in Skagit County, Washington. Among other things, the organization gives pro bono legal help to low-income residents in need of legal services via their Volunteer Lawyer Program. Members also enjoy access to networking opportunities and a profile in the Association’s online directory. Finally, young lawyers benefit from lower-cost membership and fun social events that are both educational and great networking opportunities.

Skagit County is a county in Washington with a population of 116,901 as of 2010. Its largest city is Mount Vernon. The county was formed in 1883 from Whatcom County and is named for the Skagit Indian tribe, which has been indigenous to the area prior to European-American settlement.

Being directly south of Whatcom County, I routinely assisted clients who reside in Skagit County and its various municipalities. I’m very pleased to finally and officially joining the Skagit County Bar Association, network with other attorneys and participate in the organization’s community service activities.

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 Cash Bail Effective?

Bail, Bellingham Defense Attorney, Constitutional Rights, Court Fines, Due Process, felony, Jail, misdemeanor, Race & Law, Studies, Whatcom County Criminal Defense, , ,

Image result for cash bail

Three research studies released this month further confirm the ineffective, discriminatory, and unsafe influence of money bail in U.S. criminal justice systems.

In The Heavy Costs of High Bail: Evidence from Judge Randomization, a Columbia Law and Economics Working Paper by Arpit Gupta, Christopher Hansman, and Ethan Frenchman, describes how assigning money bail to people accused of crime in Philadelphia and Pittsburgh increases the likelihood of conviction by 12% and increases recidivism by 4%. Ultimately, the authors found that the use of money bail is not effective – it “does not seem to increase the probability that a defendant appears at trial,” and actually makes us all less safe.

In her University of Pennsylvania Law School Working Paper, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, Megan Stevenson reports that people arrested for crimes in Philadelphia and detained due to their inability to pay money bail face up to a 30% increase in convictions—driven by increased guilty pleas—and an additional 18 months of incarceration compared to those who are able to afford bail.

Finally, the Prison Policy Initiative (PPI) released an analysis of national data that gives context to the Columbia and University of Pennsylvania papers. In Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time, PPI found that “most of the people who are unable to meet bail fall into the poorest third of society.” Their median income – only $15,109 prior to incarceration – was less than half of the income of non-incarcerated people, and yet the median bail amount nationally is almost a full year’s income for the typical person unable to post a bail bond. Money bail, PPI concludes, results in the unnecessary and excessive detention of poor people, essentially jailing people for their poverty.

This research highlights what legislators, practitioners, and taxpayers are increasingly recognizing: money bail doesn’t work, is discriminatory, and makes communities less safe.

Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute released this statement about the research:

“With these recent research findings, there should no longer be any doubt, anywhere, that money bail unfairly punishes the poor while also making everyone less safe. Our 3DaysCount campaign calls for replacing the broken money bail system with commonsense and proven solutions to support people being successful on pretrial release.”

Congressman Ted Lieu, sponsor of the No Money Bail Act of 2016, said the following:

“Our nation must stop criminalizing poverty, and these new studies provide crucial data proving that being poor increases your chance of jail time and conviction.  This kind of research is crucial to supporting the No Money Bail Act of 2016, which would eliminate the use of money bail at the federal level and incentivize states to end the use of bail through the withholding of federal grants. We can no longer stand by in good conscience while Americans, presumed innocent, are deprived of their liberty because they can’t afford bail. Justice in America should not be bought and paid for.”

Additionally, judicial leaders across the nation joined together to call attention to these findings.Chief Justice W. Scott Bales, Arizona Supreme Court; Chief Justice Patricia Breckenridge, Missouri Supreme Court; Chief Justice E. James Burke, Wyoming Supreme Court; Chief Justice Tani Cantil-Sakauye California Supreme Court;  Justice Charles W. Daniels, New Mexico Supreme Court; Chief Justice Matthew B. Durrant,Utah Supreme Court; Chief Judge Nan G. Nash, Second Judicial District, New Mexico;Chief Justice Mark E. Recktenwald, Supreme Court of Hawaii; and Chief Justice Robert J. Torres, Jr., Supreme Court of Guam issued the following statement:

“People should not be held in jail pending the disposition of charges merely because they are poor and cannot afford bail.  Recent research suggests that we can identify better ways to make release decisions that will treat people fairly, protect the public, and ensure court appearances.”

My opinion? This national effort is gratifying. Few people understand how incarceration negatively affects job opportunities, families and ability mental/emotional wellness. In my Legal Guide titled, “Making Bail,” I discuss how one of the greatest services a competent defense attorney can do for their clients is assist in getting them released from jail as soon as possible on either a reduced bail amount which is lower than the Prosecutor’s recommendations or that the defendant be released without bail altogether.

One opportunity to lower/rescind bail is at the defendant’s first appearance or arraignment. Another opportunity exists through a Bail Review Hearing.

Under CrR 3.2, judges must review the nature of the pending criminal charges, a defendant’s prior criminal history, their history of failing to appear at past court hearings, and their ties to the community (property ownership, employment, family, school, etc). Factoring all of this, the judge decides whether to lower bail or release the defendant altogether.

Also, CrR 3.2 allows release of defendants to the care of willing and responsible members of the community, including family members. Also, judges may be persuaded to impose other pretrial release conditions such as mandatory curfews, staying away from businesses serving alcohol. Almost everything is negotiable.

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.

AAA Questions Marijuana DUI Laws

Bellingham Defense Attorney, Blood Test, Boating Under the Influence, Department of Licensing, Drug Offenses, Drug Recognition Expert, Due Process, DUI, law enforcement, marijuana, Search and Seizure, Search Warrant, Studies, Technology, Whatcom County Criminal Defense, , ,

Image result for AAA Questions Marijuana DUI Laws

According to a news article from the Chicago Tribune, recent studies conducted by car insurer AAA find that blood tests given to drivers suspected of Marijuana DUI have no scientific basis.

A handful of studies released by the AAA Foundation for Traffic Safety found that drivers can have a low level of THC, the active ingredient in marijuana, in their blood and be unsafe behind the wheel, while others with relatively high levels may not be a hazard. Below are the individual studies accompanied by capsule summaries comprising the effort:

“If you’ve had marijuana whether it’s medicinal or otherwise, don’t drive,” said AAA Chicago spokeswoman Beth Mosher, “It’s really that simple.”

The studies examined the results of more than 5,300 people nationwide who were arrested for driving under the influence of marijuana, 600 of whom tested positive for THC only, while the others had THC and other substances. This is because marijuana isn’t metabolized by the body in the same way as alcohol. The researchers compared the Drug Recognition Expert (DRE) exam results of 602 drivers that only had THC present in their blood at the time of arrest to those of 349 volunteers that took the test drug-free and sober. Ultimately, the degree to which a driver is impaired by marijuana use depends a lot on the individual, the foundation said.

The data appears confusing because AAA also looked at Washington – one of the first states to legalize marijuana – and found fatal crashes involving drivers who recently used marijuana doubled.

“ In most recent data 1 in 6 drivers who are involved in a fatal crash there had marijuana in there system,” Mosher  said.  “And as more and more states look at legalizing marijuana we see this as a concerning trend.”

Nevertheless, AAA is sending the message that the legal limits established for marijuana are arbitrary. A handful of states have moved to specify the maximum amount of active THC — the main chemical in marijuana — that drivers can have in their system. But AAA says that doesn’t work.

“We think those are meaningless,” said Mosher. “They are not backed by any science. One person can have one limit of THC in their blood and be significantly impaired and others can have that same limit and not be impaired at all,” Mosher said.

Many in law enforcement and AAA say that officer recognition of impaired drivers is really the only what to determine whether someone is too high to drive.  Of course all of this a public safety concerns as pot becomes legal across the country.

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.

Youth as Mitigating Factor

Assault, Bellingham Defense Attorney, Constitutional Rights, Due Process, Eighth Amendment, Exceptional Sentencing, felony, Firearm, Jail, Sentencing, Violent Crime, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Image result for Youth and crime

In State v. Solis-Diaz, the WA Court of Appeals Division II held that a juvenile defendant who was tried as an adult for numerous violent felony crimes involving firearms is entitled to a sentencing at which the judge must conduct a meaningful, individualized inquiry into whether the defendant’s youth should mitigate his sentence.

Solis-Diaz was 16 years old in 2007, when he participated in a gang related drive-by shooting in Centralia. He was charged with six counts of Assault in the First Degree, each with a firearm sentencing enhancement; one count of Drive-by Shooting; and one count of Unlawful Possession of a Firearm in the Second Degree. He was tried as an adult. The jury found him guilty on all counts, and the trial court imposed a sentence of 1,111 months in prison.

Solis-Diaz requested an exceptional downward sentence on grounds that the multiple offense policy of the Sentencing Reform Act of 1981 (SRA) operated to impose a clearly excessive sentence and that Solis-Diaz’s age indicated diminished capacity to understand the wrongfulness and consequences of his actions. The judge denied the request and again imposed a standard-range sentence of 1,111 months in prison. Solis Diaz appealed.

The Court of Appeals held that under the SRA, a sentencing court must generally sentence a defendant within the standard range. Pursuant to the SRA’s multiple offense policy, standard range sentences for multiple serious violent offenses are to be served consecutively and not concurrently.

This is important. For those who don’t know, a consecutive sentence is when a defendant has been convicted of more than one crime, usually at the same trial, and the sentences for each crime are “tacked” together, so that sentences are served one after the other. In contrast, a concurrent sentence is when sentences on more than one crime “run” or are served at the same time, rather than one after the other. For instance, if a defendant’s three crimes carry sentences of five, three, and two years, the maximum time he’ll spend in jail is five years.

The Court of Appeals further reasoned that a court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence. One such mitigating circumstance exists if the operation of the multiple offense policy results in a presumptive sentence that is clearly excessive.  When the resulting set of consecutive sentences is so clearly excessive under the circumstances that it provides “‘substantial and compelling reasons’” for an exceptional sentence below the standard range, the sentencing court may grant that exceptional downward sentence.

Additionally, the Court of Appeals relied on the WA Supreme Court’s recent decision in State v. O’Dell. In that decision, and similar to the defendant here, O’Dell was a juvenile who was also tried and sentenced as an adult to a very serious felony crime (rape, in O’Dell’s case). At O’Dell’s sentencing, the trial court ruled that it could not consider O’Dell’s age as a mitigating circumstance and imposed a standard range sentence of 95 months.  The Supreme Court disagreed with O’Dell’s trial court: “[I]n light of what we know today about adolescents’ cognitive and emotional development, we conclude that youth may, in fact, “relate to a defendant’s crime.”

The Court of Appeals followed O’Dell and said the following:

“The same logic and policy that led the Supreme Court to require the consideration of the youth of a young adult offender would apply with magnified force to require the same of Solis-Diaz, who committed his crimes while a juvenile. As did the trial court in O’Dell, the trial court here decided that under Ha’mim it could not consider the defendant’s youth as a mitigating factor in sentencing. As did the trial court in O’Dell, the trial court here abused its discretion in refusing that consideration. Our Supreme Court’s analysis in O’Dell compels the same result: reversal of Solis-Diaz’s sentence and remand for a new sentencing hearing to meaningfully consider whether youth diminished his culpability.”

The WA Court of Appeals even offered a litmus test in making these determinations:

“In short, a sentencing court must take into account the observations underlying Miller, Graham, Roper, and O’Dell that generally show among juveniles a reduced sense of responsibility, increased impetuousness, increased susceptibility to outside pressures, including peer pressure, and a greater claim to forgiveness and time for amendment of life. Against this background, the sentencing court must consider whether youth diminished Soliz-Diaz’s culpability and make an individualized determination whether his “capacity to appreciate the wrongfulness of his conduct or to conform that conduct to the requirements of the law” was meaningfully impaired.”

The WA Court of Appeals concluded that the sentencing court erred in failing to consider whether the operation of the SRA and Solis-Diaz’s youth at the time he committed the crimes should mitigate his standard range sentence and warrant an exceptional downward sentence.

Consequently, the Court of Appeals vacated Solis-Diaz’s sentence and remanded for re-sentencing back to the trial court. The Court of Appeals also noted that Solis-Diaz may move to disqualify the prior sentencing judge.

My opinion? I’m very pleased Division II is embracing O’Dell, an opinion which I’ve discussed in my blog titled, “State v. O’Dell: Court May Consider Defendant’s Youth at Sentencing.” Furthermore, I’m pleased that Division II also offered a workable litmus test in determining these issues juvenile sentencing for adult crimes. Very good. It not only shows the Courts are following O’Dell, they are also supporting it and offering guidelines for future decisions involving juvenile justice.

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. Budd: WA Supreme Court Acknowledges Unlawful Search of Home.

Bellingham Defense Attorney, Constitutional Rights, Due Process, Evidence, felony, Knock & Talk, law enforcement, Search and Seizure, Sex Crimes, Technology, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Image result for unlawful search of house

In State v. Budd, the WA Supreme Court decided law enforcement officers must properly give Ferrier warnings before entering a residence.

Good decision. Last year, I discussed how the WA Court of Appeals decided this matter in my blog titled, State v. Budd: Ferrier Warnings Improperly Given. Fortunately, the WA Supreme Court upheld the Court of Appeals’ decision.

Police arrived at his door on a “cybertip” that Mr. Budd was talking to underage girls through online chatting and that he possessed child pornography on his computer. Officers arrived at Budd’s home and performed a “knock & talk“, however, they lacked probable cause for a search warrant.  Also,  the detectives did not properly discuss Ferrier warnings with Mr. Holmes before he allowed them entry. They seized his computer, found child porn and charged him with Possession of Depictions of Minors Engaged in Sexually Explicit Conduct under RCW 9.68A.070. He was convicted.

Some background on Ferrier warnings is necessary in order to understand this “search & seizure of a home” case. In State v. Ferrier, the WA Supreme Court held that, before entering a citizen’s home without a warrant, a law enforcement officer must (1) ask the citizen for consent, (2) inform the citizen that he can revoke consent at any time and (3) notify the citizen that he can limit the scope of the entry into the home. If an officer fails to provide these Ferrier rights/warnings, then any evidence obtained from the search is “fruits of the poisonous search” and can be suppressed.

On appeal, Budd argued that the trial court wrongfully denied his motion to suppress evidence because the Ferrier warnings given by police were insufficient. The Court of Appeals agreed with Mr. Budd and suppressed the evidence. In response, the State took the issue up on appeal to the WA Supreme Court. In this new opinion, however, the WA Supremes ultimately decided the Court of Appeals correctly ruled that Budd’s consent was invalid.

The WA Supreme Court reasoned that since Ferrier, the Court has consistently limited the Ferrier warnings to knock and talk procedures. “In this case, the officers conducted a knock and talk because they sought Budd’s consent to enter his home to search for and seize suspected contraband. Therefore, the officers were required to give Budd the Ferrier warnings before entering his home.”

Furthermore, the Court discussed the similarities between Mr. Budd’s case at hand and the defendant in Ferrier:

“Indeed, the officers’ conduct in this case paralleled the conduct of the officers in Ferrier. In both cases, the officers arrived without announcement, surprising the resident. In both cases, the resident was not given time to reflect on the officers’ presence before being asked to give his or her consent for the officers to enter the home and search for evidence of a crime. In both cases, the resident reacted to the knock and talk procedure as expected by being polite and cooperative, and allowing the officers inside the residence.”

Finally, the WA Supreme Court affirmed the trial court’s finding that the officers did not give Budd the Ferrier warnings before entering his home and hold that Budd’s consent was therefore involuntary. And with that ,the WA Supreme Court affirmed the Court of Appeals and dismissed the charges against Mr. Budd.

Again, good decision. Although Mr. Budd’s actions leading up to his charges were certainly concerning, the WA Supremes got it right in deciding that our individual rights trump unlawful government searches of our homes. I’m glad they didn’t decide differently and chip away at the Ferrier decision. In Ferrier, the WA Supreme Court specifically highlighted the fact that when confronted with a surprise show of government force and authority, most residents believe they have no choice but to consent to the search. This is absolutely true. The Ferrier court also noted that it was not surprised by an officer’s testimony that virtually everyone confronted by a knock and talk accedes to the request to permit a search of their home.

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

Prosecutors Must Reveal Toxicologist Identities in DUI Trials.

Bellingham Defense Attorney, Blood Test, Constitutional Rights, Discovery, Drug Offenses, Due Process, DUI, Evidence, Jury Trial, misdemeanor, Pretrial Investigations, Prosecutorial Misconduct, Sixth Amendment, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Salgado-Mendoza, the WA Court of Appeals Division II reversed a defendant’s DUI conviction because the Prosecutor failed to give Defense Counsel the name of their Toxicologist expert witness before trial.

On the evening of August 11, 2012, a Washington State Patrol trooper observed Mr. Salgado-Mendoza driving his vehicle and struggling to stay in his lane of travel. The trooper stopped the vehicle. Salgado-Mendoza was investigated and arrested for DUI. His BAC test showed a blood alcohol concentration of 0.103 and 0.104; which is over the .o8 limit.

Several months before his trial date on the DUI charge, Salgado-Mendoza requested that the Prosecutor disclose information about any and all expert witnesses the Prosecutor intended to call at trial. This regularly happens when defense attorneys argue motions to compel. The Prosecutor attempted to contact the toxicology lab by phone to narrow the list of possible toxicology witnesses, but was unsuccessful.

Three days before trial, Salgado-Mendoza filed a motion requesting that the court dismiss the case or exclude the toxicologist’s evidence based on governmental misconduct.

On the afternoon before trial, the State received a list of three toxicologists, one of whom might testify the next day. The State provided this list to Salgado-Mendoza.

When the parties appeared for trial on May 9, Salgado-Mendoza re-argued his motion to exclude the toxicologist’s testimony or to dismiss the DUI charge because the State had still not disclosed which toxicologist would testify. The Court denied the motion. Salgado-Mendoza was found guilty at trial.

Salgado-Mendoza appealed his conviction to the superior court. Finding that the district court had abused its discretion by (1) not excluding the toxicologist’s testimony due to the State’s violation of the discovery rules and mismanagement of the case in failing to disclose its witness prior to trial, and (2) excluding the defense expert’s testimony about the breath-alcohol testing machine, the superior court reversed the DUI conviction and remanded the matter for a new trial. The State appealed to the WA Court of Appeals.

Ultimately, the WA Court of Appeals held that the Prosecutor violated the discovery rules under CrRLJ 4.7(d) by failing to take reasonable steps to obtain the name of its witness in a timely manner. It reasoned that the Prosecutor had an obligation to attempt to acquire and then disclose that information from the toxicology lab. Consequently, the Prosecutor’s failure to provide the defense with a specific witness’s name before trial is not reasonable. This, in turn, amounted to governmental misconduct under CrRLJ 8.3(b).

Furthermore, the Court held that Prosecutor’s misconduct was prejudicial and that the exclusion of the toxicologist’s testimony was the proper remedy. The Court emphasized this remedy was necessary because the issue was an issue of public importance:

“On retrial, the State should ensure that it provides the name and address of the person or persons it intends to call at trial or comply with CrRLJ 4.7(d) when preparing for the new trial.”

My opinion? Good decision. It is extremely difficult to provide a competent and adequate defense when Prosecutors do not follow the rules of discovery.

For those who don’t know, a Prosecutor must follow many procedures when trying cases. The following procedures expedite a fair trial and protect the constitutional rights of the defendant: (i) promote a fair and expeditious disposition of the charges, whether by diversion, plea, or trial; (ii) provide the defendant with sufficient information to make an informed plea; (iii) permit thorough preparation for trial and minimize surprise at trial; (iv) reduce interruptions and complications during trial and avoid unnecessary and repetitious trials by identifying and resolving prior to trial any procedural, collateral, or constitutional issues; (v) minimize the procedural and substantive inequities among similarly situated defendants; (vi) effect economies in time, money, judicial resources, and professional skills by minimizing paperwork, avoiding repetitious assertions of issues, and reducing the number of separate hearing; and (vii) minimize the burden upon victims and witnesses.

Here, knowing the names of the Prosecutor’s witnesses before trial is simply fair. Period.

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.

High Court Strikes Racism in Jury Selection

42 U.S.C. § 1983, Bellingham Defense Attorney, Constitutional Rights, Death Penalty, Discovery, Due Process, Evidence, felony, Jury Selection, Jury Trial, Prison, Prosecutorial Misconduct, Race & Law, Sentencing, United States Supreme Court, Violent Crime, Whatcom County Criminal Defense, , ,

Image result for racist jury selection

The U.S. Supreme Court just sent a strong message about racism in the justice system.

In Foster v. Chatman, the Court reversed a defendant’s murder conviction after discovering that the Prosecutor systematically eliminated African American jurors from serving on Mr. Foster’s jury because of their race.

Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State used peremptory challenges to strike all four black prospective jurors qualified to serve on the jury.

Foster argued that the State’s use of those strikes was racially motivated, in violation of Batson v. Kentucky. The trial court rejected that claim, and the Georgia Supreme Court affirmed. Foster then renewed his Batson claim in a state habeas corpus proceeding.

While that proceeding was pending, Mr. Foster’s defense attorneys used the Georgia Open Records Act to obtained the Prosecutor’s file used during trial. In notes, prosecutors had highlighted the African Americans on several different lists of potential jurors. On one list, under the heading “Definite NOs,” prosecutors listed six potential jurors, all but one of whom were black.

Eventually, the U.S. Supreme Court granted review of the case on the issue of whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case.

The Court reasoned that the Georgia Supreme Court’s decision that Foster failed to show purposeful discrimination was clearly erroneous. They started with Batson’s three-step process for adjudicating claims such as Foster’s. First, a defendant must make a prima facie showing that a preemptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, the trial court must determine whether the defendant has shown purposeful discrimination.”

Here, and in sum, the Court reasoned that Foster established purposeful discrimination in the State’s strikes of two black prospective jurors:

” . . . along with the prosecution’s shifting explanations, misrepresentations of the record, and persistent focus on race, leads to the conclusion that the striking of those prospective jurors was motivated in substantial part by discriminatory intent . . . the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”

My opinion? Good decision. The decision is a forceful blow against racism in the courts. Although the Foster decision won’t end racial discrimination in jury selection, it is certainly vindication for the potential jurors who weren’t allowed to fulfill their civic duty all those years ago because of their race. As for Foster, his future is still in limbo. The Supreme Court’s decision entitles him to a new trial before a jury of his peers that hasn’t been tainted by racial discrimination. Still, that mere fact doesn’t guarantee a different outcome. The new jury may come to the same conclusion as the old one. But if nothing else, Mr. Foster’s death penalty has likely been put off for many years to come. And in the world of death penalty litigation, that counts as a win.

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 Neurology of Risky Driving Behavior

Bellingham Defense Attorney, Boating Under the Influence, Cell Phone, Department of Licensing, Distracted Driving, Drug Offenses, Drug Recognition Expert, DUI, Eluding, felony, Ignition Interlock Device, Implied Consent, marijuana, Miranda, misdemeanor, National Highway Traffic Safety Administration, Reckless Driving, Studies, Traffic Infractions, Whatcom County Criminal Defense, , ,

Image result for risky driving behavior

A very interesting article from the Association for Psychological Science discusses how a team of Canadian psychological scientists is looking at the personality, cognitive, and neurobiological factors that contribute to reckless driving behavior. By better understanding the patterns of emotional processing and risk perception shown by repeat offenders, the researchers hope to design interventions that more effectively target these subgroups of dangerous drivers.

The evidence certainly exists. According to the article, drunk driving accounts for 35-40% of all driver fatalities in Canada and the United States, and drunk driving crashes kill more than 10,000 Americans every year. Amazingly, an estimated 30% of DUI offenders will continue to drink and drive, even after being arrested and punished.

“Surprisingly, these drivers usually don’t consider themselves as risk takers,” lead author Thomas G. Brown of McGill University said. “If drivers don’t believe they are risky, they will not accept the need to change. On the other hand, if we and they don’t understand their behavior, how can they be expected to change it effectively?”

The study began when Brown and his colleagues recruited four groups of male drivers who had different criminal histories: 36 men with at least two convictions for drunk driving (DUI group); 28 reckless drivers with at least three speeding violations in the past two years (speeders); 27 men with arrests for both DUI and speeding (DWI-speeders); and 47 low-risk drivers with no history of serious traffic offenses (control group).

According to the article, participants completed a battery of personality and impulsivity assessments, ranging from a Big Five personality measure to an executive control task that assessed their sensitivity to punishment and reward. Participants’ cortisol response, a hormonal reaction to stress, was measured by collecting saliva samples before and after they completed a timed mental arithmetic task previously shown to elicit stress.

Even more interesting, participants also completed a session of simulated driving that included driving on virtual highways, merging lanes, turning at intersections, and avoiding pedestrians.

The researchers found that different subgroups of risky drivers had distinctive neurobiological profiles. Compared to the low-risk control group, speeders were prone to making decisions based on thrill-seeking and a need for high levels of stimulation. Repeat DUI offenders, in contrast, had the lowest level of risk-taking behavior while sober.

“One possibility in line with the present results is that once heavy drinking has occurred, more impulsive drivers are more vulnerable to alcohol’s disruptive effects on the behavioral control mechanisms required to avoid DWI,” the researchers explain.

All of the dangerous driving groups exhibited significant blunting in their cortisol stress response compared with the control group. Cortisol, along with other stress hormones, influences cognitive processes that range from risk assessment to encoding emotional memories. These results suggest that dysregulation of the body’s cortisol response could act as a neurobiological marker for risky driving behavior.

“Relative to the other [risky driving] profiles considered here, the profile exhibited by group DUI may be the most amenable to interventions that aim to augment recall of the negative consequences of DUI behavior and pre-emptively decouple alcohol use from driving,” the researchers conclude.

Stated differently, interventions designed to improve drivers’ recall of the negative consequences of drinking and driving are effective for preventing drunk driving. This explains the findings why repeat DUI offenders had the lowest level of risk-taking behavior while sober.

My opinion? The study is interesting, for sure. Not surprisingly, the criminal justice system uses many of these these psychological deterrents to “decouple alcohol use from driving.” When it comes to DUI cases, gaining a worthwhile reduction of the charges often means the defendant obtaining an alcohol/drug evaluation, attending mandatory treatment, attending AA meetings and attending a Victim Impact Panel. Additionally, the financial costs of DUI fines and mandatory ignition interlock devices are constant reminders to DUI offenders that future risky behavior is simply not worth it.

That said, hiring a competent DUI attorney to fight DUI charges might be a worthy endeavor. The basic legal issues surrounding a DUI arrest are (1) whether the stop was lawful, (2) whether there was enough evidence to arrest, (3) whether the officer informed the defendant of Implied Consent Warnings, and (4) whether the defendant either (a) refused the BAC breathalyzer machine or (b) blew over .08 and/or had .05 nanograms of active THC in their blood when pulled over.

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.