Tag Archives: Skagit County Criminal Defense Attorney

Lower Legal Alcohol Limit?

Bellingham Defense Attorney, Boating Under the Influence, Deferred Prosecution, Department of Licensing, Drug Offenses, Drug Recognition Expert, Due Process, DUI, Evidence, Ignition Interlock Device, marijuana, misdemeanor, Studies, Terry Stop, Washington State Patrol, Whatcom County Criminal Defense, , ,

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The National Transportation Safety Board wants the nationwide legal limit of .08 cut almost in half to .05, in an effort to save more lives.

Oddly, Mothers Against Drunk Driving (MADD), the nation’s most prominent advocacy group against drunk driving, does not support the legislation. MADD says there’s not enough data to show it would make much of a difference.

“Until we know that and can compare that and have an intellectual conversation on that, we want to focus on what we know is effective,” said Jason Derscheid, the Executive Director of MADD North Texas.

The organization most recently helped pass an interlock ignition law in Texas, allowing DWI offenders to have a device installed on their car. MADD has found that the alternative, suspending an offender’s license, doesn’t prevent them from continuing to drink and drive.

It’s advocating for similar laws to be passed in all 50 states.

Despite its lack of support for lowering the legal limit, MADD says it does not condone any level of drinking of driving.

“The only safe way to get home is to have a non-drinking, designated driver,” said Derscheid.

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

 

State v. Evans: A Knife is Not a Gun

Bellingham Defense Attorney, Due Process, Jury Trial, law enforcement, misdemeanor, Search and Seizure, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In City of Seattle v. Evans, the WA Supreme Court ruled that Article I, section 24 of the Washington Constitution and the Second Amendment to the United States Constitution’s protection of the right to bear “arms” does not extend to a paring knife.

Seattle Police Officer Michael Conners stopped a vehicle driven by Wayne Anthony Evans for speeding in the Central District of Seattle. As Conners approached Evans’s vehicle, he observed furtive movements from Evans and his passenger, and he smelled marijuana. Conners directed Evans to exit the vehicle and asked him whether he had any weapons. Evans responded that there was a knife in his pocket. Conners instructed Evans not to reach for the knife; Conners then reached into Evans’s front right pocket, retrieved a fixed-blade knife with a black handle, and placed Evans under arrest for possession of a fixed-blade knife.

The City of Seattle (City) charged Evans with the unlawful use of weapons in violation of SMC 12A.14.080, which reads, “It is unlawful for a person knowingly to . . . carry concealed or unconcealed on his or her person any dangerous knife, or carry concealed on his or her person any deadly weapon other than a firearm.”

The case proceeded to trial. The City’s Prosecutor introduced the knife into evidence and presented testimony from Officer Conners. Conners identified the knife that he recovered from Evans at trial and the State entered that knife into evidence. When asked, Officer Conners described the knife as having a “black handle with a metal colored blade” that was “about-about this long,” apparently gesturing with his hands. Officer Conners admitted that he was concerned that the knife had a fixed blade-that is, it had a blade that would not fold into the handle-and alternately described the blade as resembling a “kitchen knife” or a “paring knife.”

The jury returned a general verdict of guilty, and Evans’s conviction was affirmed by the King County Superior Court and the Court of Appeals.

The WA Supreme Court reviewed the case on the specific issue of whether Mr. Evans’ fixed-blade knife is a protected arm under the Washington or federal constitution. Apparently, ruled the court, a knife is NOT protected as an “Arm” under the Constitution(s):

 . . . we hold that not all knives are constitutionally protected arms and that Evans does not demonstrate that his paring knife is an “arm” as defined under our state or federal constitution. Therefore, Evans cannot establish that SMC 12A.14.080(B) is unconstitutional as applied to him and we reject his as-applied challenge.

The court reasoned that although it is true that some weapons may be used for culinary purposes, as it is also true that many culinary utensils may be used when necessary for self-defense; but it does not follow that all weapons are culinary utensils or that all culinary utensils are weapons:

Were we to adopt Evans’s analysis and hold that a kitchen knife was a protected arm because it could be used for self-defense, there would be no end to the extent of utensils arguably constitutionally protected as arms. If a kitchen knife is a protected arm, what about a rolling pin, which might be effectively wielded for protection or attack? Or a frying pan? Or a heavy candlestick? “Admittedly, any hard object can be used as a weapon, but it would be absurd to give every knife, pitchfork, rake, brick or other object conceivably employable for personal defense constitutional protection as ‘arms.’

With that, the WA Supreme Court affirmed the Court of Appeals and held that Evans’s paring knife was not an arm entitled to constitutional protection. Therefore, Evans cannot establish that SMC 12A.14.080 is unconstitutional as applied to him.

My opinion? I hate to say, but I somewhat agree. There’s a huge difference between a gun and a knife. The right to bear arms was made to protect guns, not knives. 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.

State v. Rich: Evidence of DUI Also Shows Reckless Driving

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In State v. Rich, the WA Supreme Court ruled that although proof of DUI alone does not necessarily establish proof of Reckless Endangerment, here, proof that a driver whose breath alcohol level was more than twice the legal limit and who showed awareness that she had done something wrong once stopped, and who sped past a police car in traffic with a young child in the front seat, was sufficient to allow a reasonable juror to conclude beyond a reasonable doubt that the driver created a substantial risk of death or injury to her passenger; which meets the definition of Reckless Endangerment.

A jury convicted defendant Andrea Rich of driving under the influence (DUI) and Reckless Endangerment. The evidence showed that Rich was speeding in traffic while highly intoxicated and with a young child in the front passenger seat. But the officer who arrested Rich followed her car because he believed that the car was stolen. Rich’s manner of driving posed no observable danger.

The WA Court of Appeals reversed the Reckless Endangerment conviction, holding that the evidence was insufficient to establish that Rich’s driving created an actual, substantial risk of death or serious physical injury to another person. It reasoned that proof of a DUI does not necessarily establish proof of Reckless Endangerment.

In response, the State Prosecutor appealed to the WA Supreme Court on the issue of whether there was sufficient to support Rich’s Reckless Endangerment conviction.

The WA Supreme Court agreed with the Court of Appeals that proof of DUI alone does not necessarily establish proof of Reckless Endangerment. The WA Supreme Court also reasoned, however, that the State proved more than just DUI in this case:

It also proved speeding, past a police car, in traffic, by a driver whose breath alcohol level was more than twice the legal limit, who showed awareness that she had done something wrong once stopped, and who had a young child in the front passenger seat. Construing the evidence in the light most favorable to the State, a reasonable juror could conclude beyond a reasonable doubt that Rich created a substantial risk of death or injury to her passenger, that Rich knew of the substantial risk, and that Rich disregarded that risk in gross deviation from the way a reasonable person would act in her situation.

With that, the WA Supreme Court reversed the Court of Appeals and affirmed the conviction.

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

Marijuana Legalization is Making Mexican Drug Cartels Poorer.

Bellingham Defense Attorney, Drug Offenses, marijuana, Uncategorized, Whatcom County Criminal Defense, , ,

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a report from Deborah Bonello for the Los Angeles Times shows one way that legalization for recreational and medical purposes is working:

The loosening of marijuana laws across much of the United States has increased competition from growers north of the border, apparently enough to drive down prices paid to Mexican farmers. Small-scale growers here in the state of Sinaloa, one of the country’s biggest production areas, said that over the last four years the amount they receive per kilogram has fallen from $100 to $30.

The price decline appears to have led to reduced marijuana production in Mexico and a drop in trafficking to the U.S., according to officials on both sides of the border and available data.

This was welcome news. One of the major arguments for legal pot is that it will weaken drug cartels, cutting off a major source of revenue and inhibiting their ability to carry out violent acts — from mass murders to beheadings to extortion — around the world. And cannabis used to make up a significant chunk of cartels’ drug export revenue: as much as 20 to 30 percent, according to previous estimates from the Mexican Institute of Competitiveness (2012) and the RAND Corporation (2010).

Will this be enough to completely eliminate drug cartels? Certainly not. These groups deal in far more than pot, including extortion and other drugs like cocaine and heroin.

Still, it will hurt. As the numbers above suggest, marijuana used to be a big source of drug cartels’ revenue, and that’s slowly but surely going away. It’s still possible that legalization in America could produce downsides in the U.S., such as more cannabis abuse. But it’s a potentially huge win for Mexico and other Latin American countries.

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

Ignition Interlock Devices Are Cash Cows for States.

Bellingham Defense Attorney, DUI, Ignition Interlock Device, marijuana, misdemeanor, Technology, Whatcom County Criminal Defense, , ,

According to news released from the Blow & Drive Interlock Corporation (BDIC) The Alcohol Ignition Interlock Industry is experiencing tremendous growth as more and more states continue to pass laws requiring Ignition Interlock Devices for DUI/DWI offenders.

The Centers for Disease Control and Prevention (CDC) reports that requiring or highly incentivizing interlocks for all convicted drunken drivers reduces drunken driving recidivism by 67 percent. The CDC recommends ignition interlocks for everyone convicted of DWI, even for first offenders.

Mothers Against Drunk Driving (MADD) Continues to Push for Tougher DUI Laws. In 2006, there were only 100,000 interlocks installed in the United States. As of July 2013, there were nearly 305,000 interlocks in use.

NEW 2016 IGNITION INTERLOCK LAWS

Texas: Gov. Greg Abbott signed House Bill 2246 into law in June 2015, allowing those convicted of DWI with blood alcohol content less than 0.15 percent to be able to drive as long as they have an ignition interlock system installed in their car.

New Hampshire: After Jan. 1st 2016, anyone convicted in New Hampshire for a first offense of driving while intoxicated can petition a judge for a limited driver’s license that will allow them to drive to work, school or medical appointments, while their license is suspended, the new law comes with a host of restrictions – including installation of an alcohol-detecting automotive interlock device.

Illinois: New Ignition Interlock Law goes into effect January 1st, 2016, requiring anyone convicted of two or more DUIs to install a Breath Alcohol Ignition Interlock Device on their vehicles for 5 years.

South Carolina: Governor signed Emma’s Law, which requires all offenders, including first-time offenders, with a blood alcohol concentration (BAC) of .15 or greater mandated installation of an ignition interlock device.

Hawaii: New Law Requires Ignition Interlock Users to drive with a Hawaii ID Card. The new law, Act 40, goes into effect on Jan. 1, 2016

PENDING IGNITION INTERLOCK LEGISLATION

Federal: Legislation, called “Alisa’s Law”, would require all first time DUI offenders in all 50 states to have an ignition interlock device installed in their vehicle for up to 2 years

Pennsylvania: Senate unanimously approved Senate Bill 290, which would require all repeat convicted drunk drivers as well as first-time offenders with a blood-alcohol concentration of .10 or above to use the alcohol ignition interlock devices.

Oregon: House Bill 2660 Provides court discretion to order person participating in driving while under influence of intoxicants a diversion agreement to install an ignition interlock device if person submitted to chemical test of person’s breath, blood or urine and test disclosed blood alcohol content below 0.08 percent by weight.

Washington: House Bill 1276 includes many provisions to deal with impaired driving.

Ohio: Lawmakers introduced a bill, called Annie’s Law, calling for ignition interlocks to be installed on vehicles if the driver has been convicted two or more times for drunk driving.

Indiana: Lawmakers plan to discuss the problem of repeat drunk drivers this legislative session, including a bill that would improve the ignition interlock system in Indiana.

Wisconsin: Lawmakers have proposed closing a loophole in state law so people who are required to have an ignition interlock device in their vehicle would face criminal punishment if they get caught driving a vehicle without such a device

Massachusetts: State Senate proposed a bill that would give drunk drivers a chance to avoid a license suspension, requiring them instead to install an ignition interlock

Maryland: Governor Larry Hogan is trying to push through one of his latest initiatives, which would require drivers arrested on drunk-driving charges to install an ignition interlock device inside their vehicle.

MADD will continue to push for stricter DUI Laws, and they will continue to Ask More States to pass All-Offender Ignition Interlock Legislation in an effort to keep the roads safe for sober motorists. From only one state requiring interlocks in 2006 today twenty‐six states require or highly incentivize the use of ignition interlocks for every convicted offender and as a result they have reduced drunk driving deaths by 24% overall.

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. Meza: Freezing Funds Without a Warrant Is Unlawful

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Freezing Bank Accounts, Probable Cause, Search and Seizure, Search Warrant, Theft, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Meza, the WA Court of Appeals Division II held that a trial court’s order to freeze the defendant’s bank account was not a search warrant, and therefore did not satisfy the warrant requirement for the seizure of funds.

In June 2014, John Armstrong spoke with the Lewis County sheriff’s office and alleged that Rafael Meza had swindled money from him. Deputy Justin Rogers investigated Armstrong’s allegations. Rogers contacted the Twin Star Credit Union and verified that Meza held an account that had received large wire transfers recently. Rogers also learned from Mansfield that Meza recently had informed him that he was planning to go to Mexico.

Rogers served Twin Star Credit Union with a valid search warrant for Meza’s account information. Meza’s bank statements showed a check and four wire transfers from Mansfield totaling $105,000, with the last transfer on June 18. They also showed a single wire transfer from Armstrong in the amount of $15,000 on April 11. Meza’s checking account showed that between October 2013 and June 2014, he withdrew approximately $89,000 in cash in 41 transactions involving between $3,000 and $5,000 each.

On June 27, 2014, the State charged Meza with one count of Theft in the First Degree. On the same day, the State presented an ex parte “Motion for an Order Freezing and Holding Funds” to the judge. The State asserted that the funds in Meza’s credit union accounts were “evidence in a felony offense.” The State’s motion was based on the probable cause affidavit filed with the information and asserted that there was “a high likelihood, based on the affidavit regarding probable cause, that Meza will remove said funds and leave the country.”

Importantly, the State did not request a search warrant for the credit union funds or reference CrR 2.3 in its motion.

Nevertheless, the trial court signed an order directing Twin Star Credit Union to “freeze and hold all accounts in the name of . . . Meza . . . as evidence in a criminal proceeding, until further order of this Court.” Also, neither the motion nor the order cited any legal authority for freezing Meza’s accounts.

In January 2015, Meza filed a motion to vacate the trial court’s order. Meza argued that there was no legal authority for the order. The trial court denied Meza’s motion to vacate the order, saying there was probable cause to believe that Meza’s account was related to the charged crime. The court concluded that it had the authority to freeze Meza’s funds under CrR 2.3. In addition, the trial court ruled that Meza’s account qualified as both evidence of a crime and the proceeds of a crime. Meza filed a motion for discretionary review. The WA Court of Appeals accepted the case.

The WA Court of Appeals reasoned that The Fourth Amendment to the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Similarly, article I, section 7 of the Washington Constitution provides that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” These provisions generally prohibit warrantless searches and seizures unless one of the narrow exceptions to the warrant requirement applies.

Consequently, reasoned the court, a person’s banking records fall within the constitutional protection of private affairs. Although no Washington case has addressed whether funds in a bank account can be seized without a warrant it defies reason to extend constitutional protection to bank account records but not to the funds reflected in those records. The Court emphasized that the seizure of funds is as much a threat to security in a person’s effects and a disturbance of a person’s private affairs as the seizure of the records regarding those funds:

“Here, the State cites no statute, court rule, or other authority allowing the seizure of a defendant’s bank account in these circumstances. Therefore, the seizure was not authorized by law.”

Finally, the Court rejected the State’s argument that under State v. Garcia-Salgado the trial court’s order is the functional equivalent of a search warrant.

“We hold that the Garcia-Salgado holding is limited to cases where the trial court’s order is authorized by law. Allowing a court order to function as a warrant when there is no independent authority for a seizure would render CrR 2.3 meaningless. Limiting the scope of Garcia-Salgado preserves the integrity of CrR 2.3. We hold that Garcia-Salgado is inapplicable and that the trial court’s order cannot be treated as the functional equivalent of a warrant.”

Based on these decision the Court of Appeals held that the trial court erred in ordering the seizure of Meza’s credit union account.

My opinion? GOOD opinion. Very sensible and reasonable. It’s refreshing that the Court of Appeals followed the law and made the right 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.

Court Reverses Pot Conviction

Bellingham Defense Attorney, Constitutional Rights, Deferred Prosecution, Drug Offenses, I-502, Legislation, marijuana, misdemeanor, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

 

In State v. Rose, the WA Court of Appeals Division III decided to reverse Mr. Rose’s conviction for Possession of Marijuana because Washington’s general criminal prosecution saving statute does NOT permit a prosecution for less than 1 ounce of marijuana that was pending when Initiative 502 became effective.

On June 26, 2012, defendant Justin Rose was fishing on the Yakima River below the Roza Dam when he and his companions were approached by a Washington Fish and Wildlife agent interested in checking for their fishing licenses. The Fish and Wildlife agent noticed that Mr. Rose was smoking. Based on the agent’s training and experience, he believed Mr. Rose was smoking marijuana from a bong. When the agent told Mr. Rose what he had seen, Mr. Rose admitted he had been smoking marijuana and handed over the bong, which contained some marijuana, to the agent. Mr. Rose was over age 21 at the time. He was charged with one violation of RCW 69.50.4014 (possession of less than 40 grams of marijuana) and one violation of former RCW 69.50.412(1) (2002) (use of drug paraphernalia).

In October 2012, Mr. Rose entered into a deferred prosecution agreement with the State, staying the prosecution. For those who don’t know, a deferred prosecution is an agreement between someone who is charged with a crime and the State Attorney’s Office. This agreement will require that within a specified period of time, the person charged with a crime will complete all requirements in the agreement. The State agreed that if Mr. Rose complied with the conditions. identified in the agreement for one year, it would move to dismiss both charges. The conditions imposed on Mr. Rose included performing community service, paying a fee and costs, obtaining an alcohol and drug evaluation, and fully complying with any recommendation of alcohol or drug treatment or other services resulting from the evaluation.

Initiative 502 came into effect while Mr. Rose’s case was pending. The law unconditionally decriminalized possession of less than one ounce of marijuana by persons 21 and over, and did remove marijuana paraphernalia from the unlawful categories of paraphernalia.

Unfortunately, Mr. Rose  violated the conditions of his deferral agreement by failing to enter into an intensive outpatient treatment program. The district court revoked the agreement, proceeded to a bench trial, and found Mr. Rose guilty of both counts.

Before sentencing, Mr. Rose moved to dismiss the charges based on the decriminalization of his offenses by I-502. The district court denied Mr. Rose’s motion. It recognized that RCW 10.01.040 – which provides that offenders are prosecuted under the laws in effect at the time of their offenses – does not apply if intervening legislation conveys a contrary intent. It sentenced Mr. Rose to 180 days confinement. Mr. Rose appealed to the Superior Court, which upheld his convictions. In response, he successfully appealed his case to the WA Court of Appeals.

The WA Court of Appeals reversed Mr. Rose’s convictions. It acknowledged that  although the common law provides that pending cases be decided according to the law in effect at the time of the decision, the Washington legislature adopted a criminal prosecution saving statute, now codified at RCW 10.01.040, whose saving clause “presumptively ‘save[s]’ all offenses already committed and all penalties or forfeitures already incurred from the effects of amendment or repeal,” requiring that they be prosecuted under the law in effect at the time they were committed “unless,” as the statute provides, “a contrary intention is expressly declared in the amendatory or repealing act.”

Here, the WA Court of Appeals sought to reconcile these countervailing laws.

The Court reasoned that in this case – and unlike actual laws written legislatures – we are dealing with an initiative to the legislature:

“While standard rules of statutory construction apply, our concern is with the intent of the voters. The issue is whether an intent by the voters to apply its decriminalization provisions to stop pending prosecutions is fairly conveyed by the initiative.”

The Court further reasoned that we look at the language of 1-502 from the perspective of the average informed lay voter rather than from the perspective of the legislature. It acknowledged that average lay voters presented with an initiative that they are told will stop treating adult marijuana use as a crime are more likely to make the assumption that prosecution will be stopped on the effective date. Consequently, and in these rare cases where legislation includes additional language that conveys disapproval or concern about continued prosecution, the Court felt compelled to respect the intent of the voters.

My opinion? Good decision. Washington General Criminal Prosecution Saving Statute should not allow prosecutors to enforce archaic laws which were ultimately killed by the will of the voters. Period. Kudos to Division III.

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.

Cruel & Unusual Punishment?

Bellingham Defense Attorney, Constitutional Rights, Cruel & Unusual Punishment, Drug Offenses, Due Process, Eighth Amendment, felony, Methamphetamine, Search and Seizure, Strict Liability, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Schmeling, the WA Court of Appeals Division II decided that Felony Possession of a Controlled Substance is constitutional as applied under the Eighth Amendment and under the Fourteenth Amendment’s due process clause even though the statute makes possession of very small amounts of a controlled substance a felony without knowledge of possession or intent to possess.

Here, as part of a theft investigation, law enforcement officers searched Richard Schmeling’s car and uncovered two small baggies that contained white residue. The residue was tested and turned out to be methamphetamine. The State charged Schmeling with Felony Possession of a Controlled Substance. Schmeling’s first trial ended in a mistrial because of a hung jury. On retrial, the jury convicted Schmeling. He appealed his conviction on the argument that RCW 69.50.4013 violates the Eighth Amendment prohibition of cruel and unusual punishment and the Fourteenth Amendment’s guarantee of due process because it makes possession of drug residue a felony without requiring any culpable mental state.

The Court of appeals reasoned that Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. The basic concept of the Eighth Amendment is that punishment for a crime must be proportionate to the offense. There are two types of Eighth Amendment analysis: (1) determining whether a sentence is disproportionate to the particular crime, and (2) using categorical rules to define constitutional standards for certain classes of crimes or offenders.

  1. WAS SCHMELING’S SENTENCE PROPORTIONATE TO HIS CRIME?

The Court gave historical background showing that many Eighth Amendment cases address whether a particular punishment is disproportionate to the crime. The Eighth Amendment does not require strict proportionality between crime and sentence and forbids only extreme sentences that are ‘grossly disproportionate’ to the crime. Most courts have shown a reluctance to review legislatively mandated sentences. As a result, successful challenges to the proportionality of sentences are exceedingly rare.

Here, Schmeling argues that classifying possession of small amounts of a controlled substance as a felony without a knowledge or intent constitutes cruel and unusual punishment. However, the Court of Appeals reasoned that the WA Supreme Court rejected a similar argument in State v. Smith. In that case, Smith was convicted of possession of more than 40 grams of marijuana, which was punished as a felony. He argued that the seriousness of the offense did not warrant classifying his crime as a felony. The court rejected Smith’s argument, noting that it was unaware of any authority supporting the proposition that classification alone could constitute cruel and unusual punishment. The court also held that Smith’s actual sentence was not grossly disproportionate to his offense. Consequently, under the traditional proportionality analysis, Smith controls. Therefore, classification of a crime as a felony despite the absence of a knowledge or intent requirement does not result in grossly disproportionate punishment.

2. WAS SCHMELING’S SENTENCE UNCONSTITUTIONAL GIVEN THE NATURE OF THE OFFENSE OR THE CHARACTERISTICS OF THE OFFENDER?

This analysis involves two steps. First, the reviewing court considers “objective indicia of society’s standards (categorical approach), as expressed in legislative enactments and state practice” to determine whether there is a national consensus against the sentencing practice at issue. Second, the reviewing court considers precedent and its own understanding and interpretation of the Eighth Amendment to determine in the exercise of its own independent judgment whether the punishment is unconstitutional.

The Court acknowledged that Schmeling wanted them to apply a categorical approach. However, the Court of Appeals declined to apply the categorical approach to punishment of adult drug offenders like Schmeling. It held that under State v. Smith, RCW 69.50.4013 does not violate the Eighth Amendment even though it punishes the possession of small amounts of controlled substances as a felony without imposing a knowledge or intent element.

3. DID SCHMELING’S SENTENCE VIOLATE DUE PROCESS?

In short, the Court held that RCW 69.50.4013 does NOT violate due process even though it makes possession of drug residue a crime without requiring any culpable mental state.

The court reasoned that Strict Liability Crimes – crimes with no knowledge or intent  requirement – do not necessarily violate due process. “We do not go with Blackstone in saying that ‘a vicious will’ is necessary to constitute a crime, for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.”

The Court of Appeals further reasoned that WA’s Supreme Court repeatedly has stated that the legislature has the authority to create strict liability crimes that do not include a culpable mental state. Also, our Supreme Court twice has directly addressed in two other cases whether the elements of possession of a controlled substance under prior versions of RCW 69.50.4013 contains a knowledge or intent element. Those cases were State v. Bradshaw and State v. Cleppe. In both cases, the court held that the legislature deliberately omitted knowledge and intent as elements of the crime and that it would not imply the existence of those elements.

Here, Schmeling cites two cases from other jurisdictions holding that a strict liability offense violated due process. However, given our Supreme Court’s repeated approval of the legislature’s authority to adopt strict liability crimes, the Court found Schmelling’s arguments unpersuasive.

In sum, the Court of Appeals held that RCW 69.50.4013 does NOT violate due process even though it does not require the State to prove intent or knowledge to convict an offender of possession of a small amount of a controlled substance. It affirmed Schmeling’s conviction and sentence.

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.

U.S. Supreme Court to Update DUI Procedures

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Drug Recognition Expert, Due Process, DUI, Evidence, law enforcement, marijuana, misdemeanor, police, Search and Seizure, Search Warrant, Whatcom County Criminal Defense, , ,


The US Supreme Court plans to update the rules for prosecuting individuals accused of drunk driving by reviewing a trio of cases dealing with “Refusal” statutes.

In North Dakota, a state law makes it a crime for a motorist to refuse to take “any” type of test — blood, alcohol or urine — used to prosecute driving under the influence (DUI) cases. The court will decide the constitutionality of this provision in the context of two cases, Birchfield v. North Dakota and Beylund v. North Dakota, each of which presents the same question from a slightly different angle.

In Beylund, motorist Steve Michael Beylund agreed to take a blood test after being threatened with criminal penalties if he refused. In Birchfield, motorist Danny Birchfield refused to take a breath test. The highest court in North Dakota reviewed the existing legal precedent and found no reason to overturn the refusal law.

The drunk-driving cases provide the Court with something of a sequel to its ruling in 2013 in Missouri v. McNeely, which left the clear impression that, if police have enough time, they should get a warrant before taking a test of a suspected drunk driver.  The Court ruled that the natural dissipation of alcohol in the bloodstream does not always amount to an emergency situation that permits a DUI test without a warrant.

The North Dakota justices wrote, “Birchfield has not drawn our attention to any appellate court decisions striking down criminal refusal statutes, and we have found that since the U.S. Supreme Court’s ruling in McNeely, criminal refusal statutes have continued to withstand Fourth Amendment challenges, particularly in Minnesota.”

Last month, however, in Hawaii v. Won, the Hawaii Supreme Court cited the US Supreme Court’s reasoning in finding refusal statutes as unconstitutional. In light of McNeely, Hawaii’s justices decided the US Supreme Court had clearly ordered law enforcement to obtain a warrant before compelling a “search” of a person’s blood, as the Fourth Amendment requires.

The US Supreme Court will tackle the different rulings from these States in the context of a third case, Bernard v. Minnesota, which deals with that state’s law treating a breath test as a “search incident to arrest.” Here, William Robert Bernard Jr used his truck to pull a boat out of the water. Officers believed he was DUI. After Bernard was arrested, he refused a breath test.

At any rate, the U.S. Supreme Court will soon decide whether criminalized refusal statutes represent a DUI exception to the Constitution.

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.

Fewer Teens Driving After Drinking & Smoking Pot

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Good news. New research from the Morbidity and Mortality Weekly Report shows that fewer teens and young adults are driving under the influence of alcohol or a combination of alcohol and marijuana. The publication is affiliated with the U.S. Centers for Disease Control and Prevention.

From 2002 to 2014, self-reported driving under the influence of alcohol alone dropped by 59 percent among those aged 16 to 20 and by 38 percent among those aged 21 to 25, the study found.

 “The decline in driving under the influence of alcohol is probably due to a combination of factors,” said lead researcher Dr. Alejandro Azofeifa, an epidemiologist at the U.S. Substance Abuse and Mental Health Services Administration.

He also mentioned the decline in binge drinking and the enforcement of underage drinking laws have dropped the numbers significantly.

Also, driving under the influence of alcohol and marijuana combined declined by 39 percent across both age groups.

However, driving drunk did increase with age, Azofeifa said. Among 16-year-olds, only 1.5 percent drove under the influence of alcohol, but 18 percent of 21-year-olds did, according to the report.

And although there were significant drops in the prevalence of driving under the influence of alcohol and alcohol and marijuana combined, there was little decrease in the number of young adults driving under the influence of marijuana alone, Azofeifa said.

Though driving under the influence of marijuana alone declined 18 percent, from 3.8 percent in 2002 to 3.1 percent in 2014, this drop was seen only among those aged 16 to 20, researchers found.

The reasons why driving under the influence of marijuana alone hasn’t declined among other drivers aren’t clear, Azofeifa said.

“Driving under the influence of alcohol and marijuana is a risky behavior, and can result in a fatal car accident,” he said. “Regardless of the encouraging numbers we are seeing in this report, there are still too many people driving under the influence and too many people dying in car accidents.”

Car crashes are the leading cause of death among American teens and young people, he noted.

J.T. Griffin, chief government affairs officer at Mothers Against Drunk Driving, called it “good news that the prevalence of drunk driving is down among young people. It’s proof that things like the 21 minimum drinking age are working.”

But, he added, “alcohol remains the number one drug that is killing people on the road. There are still too many people dying at every age. We are making good progress, but until we get to a place where there are no more fatalities we still have a lot of work to do.”

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