Tag Archives: Skagit County Criminal Defense Attorney

State v. Cayetano-James: Prohibiting Phone Call Testimony

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Notaries Earn Extra Income Serving As A Remote Testimony Witness | NNA

In State v. Cayetano-James, the WA Court of Appeals Division I decided the trial court mistakenly denied the defendant’s motion to have a witness testify telephonically from Mexico.

The defendant was charged with Rape of a Child in the First Degree. While the case was pending, he filed a notice of the defense of alibi. The Prosecutor changed the trial dates and amended the charges. In response, Defense Counsel filed and argued a motion to dismiss under CR 8.3(b). Because of this, Defense Counsel argued a potential witness in Mexico will most likely need to be contacted to refute the amendment to the charges.

On March 27, 2013, the trial court heard a defense motion to permit the telephonic testimony of witness Ms. Camacho. Defense counsel argued that because of Camacho’s immigration status, the court should allow her to testify by telephone or, alternatively, order her telephonic deposition. Although Defense Counsel argued that Camacho’s testimony was material, the court denied the motion for telephonic testimony. The court also denied Defense Counsel’s motion for a continuance. Finally, at trial, the court excluded Camacho’s Skype testimony and phone call testimony of other witnesses. Not surprisingly, the jury returned a verdict of guilty.

On appeal, the WA Court of Appeals held the trial court abused its discretion by excluding the telephonic testimony of this defense witness.

First, the court reasoned that the Fifth Amendment to the United States Constitution and article I, section 3 of the Washington Constitution guarantee that “no person shall be deprived of life, liberty, or property, without due process of law.” This right to due process includes the right to be heard and to offer testimony. The accused’s right to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.

Second, said the court, the right to call witnesses in one’s own behalf has long been recognized as essential to due process. “Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.” Additionally, Washington courts have broad authority under ER 611 to control trial proceedings and also have discretion to permit telephonic testimony under CR 43(a)(1).

Finally, the trial court abused its discretion when it excluded “essential facts of high probative value whose exclusion effectively barred [the defendant] from presenting his defense” without a showing by the State that allowing Camacho to testify by telephone would disrupt the fairness of the fact-finding process. This deprived the Defendant’s witness of the opportunity to present testimony that would have been relevant, material and vital to the defense; and violated his constitutional right to present a complete defense.

The court reversed the conviction and remanded for a new trial.

My opinion? Good decision. Obstructing a defendant from presenting witnesses for their defense violates the 6th Amendment. 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.

Drugged Driving: A Growing Trend

Bellingham Defense Attorney, Drug Offenses, DUI, marijuana, Studies, Whatcom County Criminal Defense, , ,

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According to a report released by the Governors Highway Safety Association, the U.S. is facing a dangerous new highway trend: drugged driving. Loosening state marijuana laws and the recent rise in prescription drug abuse may have contributed to a growing number of traffic accidents and fatalities involving drivers found with drugs in their system.

Authorities found evidence of drug use in about 40 percent of tested drivers who died in 2013. This shows an increase of about 12% from 2005. That’s nearly the same level as fatally-injured drivers who tested positive for alcohol.

In similar fashion, USA Today reported that one third of the 2013 traffic casualties involved marijuana use. With pot now legalized for some purpose in 23 states, the report’s authors warned that officials need to create better policies, studies and education programs on the issue of drugged driving.

“Every state must take steps to reduce drug-impaired driving, regardless of the legal status of marijuana,” Jonathan Adkins, the association’s executive director. “This is the first report to provide states and other stakeholders with the information they need. And we encourage the National Highway Traffic Safety Administration to issue guidance on best practices to prevent marijuana-impaired driving. We look to the federal government to take a leadership role in this issue similar to that of drunk driving and seat belt use.”

Though driving while stoned and high is illegal across the country, it’s unclear what impact marijuana actually has on car crashes, if any. The National Institute on Drug Abuse wrote on its website that the drug can hurt judgment, decision-making, reaction time and coordination, but some drivers dispute that. Enforcement is complicated by the fact that traces of marijuana can persist for weeks after use.

The report noted that some drivers said they thought it was safer to get in the car after ingesting marijuana than after drinking alcohol. Joanne Thomka, director of the National Traffic Law Center, told Autoblog it was unfair to equate the two substances without better data. “Marijuana, we don’t know what that level should be,” she said. “We cannot and should not try to compare marijuana and alcohol. They are two distinct drugs.”

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

New App Tries Reducing Drunk Driving Deaths

Bellingham Defense Attorney, Cell Phone, Drug Offenses, DUI, law enforcement, marijuana, National Highway Traffic Safety Administration, police, Studies, Technology, Whatcom County Criminal Defense, , ,

 

A news article from NR Today, an Oregon newspaper, reported the Oregon Department of Transportation is pushing a new smartphone application that hopes to help impaired drivers get home safely. Read more here.

In short, the app, titled SaferRide, is a mobile phone program developed by the NHTSA and allows users to call a taxi or a friend. It shows the app users their location so they can easily be picked up.

New data from NHTSA shows that drunk driving deaths declined by 2.5 percent in 2013. Yet, even with this decrease from the previous year, 10,076 people died in crashes involving a drunk driver in 2013 — one death every 52 minutes. December 2013 was the month with the lowest number of drunk driving fatalities, 733 lives lost.

“This app easily and simply helps someone who is impaired get a ride or summon friends and do what it takes to get home safely,” said Dan Estes, DUII program manager for ODOT, in a release. “This app can accomplish a lot, and people need to know it’s available.”

Impaired driving can come from alcohol, over the counter or prescription drugs, illegal or recreational drugs, or other substances.

Representatives from ODOT, Clackamas County, Washington County, Oregon Impact, the City of Portland, OLCC, TriMet, OHSU ThinkFirst, AAA, Oregon Health Authority and Trauma Nurses Talk Tough came up with the idea while brainstorming ideas to tackle Oregon’s rise in crashes.

The app is available for Android devices on Google Play and Apple devices on the iTunes store.

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.

Stingray “Spy” Devices

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This undated handout photo provided by the U.S. Patent and Trademark Office shows the StingRay II, manufactured by Harris Corporation, of Melbourne, Fla., a cellular site simulator used for surveillance purposes. (AP Photo/U.S. Patent and Trademark Office)

Intimidating, no?

This suitcase-sized device, called Hailstorm or Stingray, is a controversial cellular phone surveillance device manufactured by the Harris Corporation. It is designed to sweep up basic cellphone data from a neighborhood and identify unique subscriber numbers. That data is then transmitted to the police, allowing them to locate a phone without the user even making a call or sending a text message. It’s the newest, most advanced technology in spyware which essentially allows police to observe, record and otherwise pinpoint your cell phone activity. And, of course, a growing number of police departments are purchasing these devices.

Stingrays cost as much as $400,000 and acts as a fake cell tower. The system, typically installed in a vehicle so it can be moved into any neighborhood, tricks all nearby phones into connecting to it and feeding data to police. In some states, the devices are available to any local police department via state surveillance units. The federal government funds most of the purchases, via anti-terror grants.

These devices are used to spy on people’s words, locations and associations. Stingrays can capture everything from metadata (who called whom, when, and sometimes from where) to the content of calls.

A news article from USA Today titled, Cellphone Data Spying: It’s Not Just the NSA describes how numerous police agencies across the country refuse to admit whether they’ve used Stingrays in surveillance. According to the article, most police agencies deny public records requests, arguing that criminals or terrorists could use the information to thwart important crime-fighting and surveillance techniques. Police maintain that cellphone data can help solve crimes, track fugitives or abducted children or even foil a terror attack.

The American Civil Liberties Union (ACLU) has investigated the use of Stingrays and has also successfully identified 54 agencies in 21 states and the District of Columbia that own Stingrays. Many agencies continue to shroud their purchase and use of Stingrays in secrecy.

A growing number of courts and legal authorities are increasingly wary on whether Stingrays violate citizen’s rights against unlawful search under the Fourth Amendment to the U.S. Constitution. For example,  in FROM SMARTPHONES TO STINGRAYS: CAN THE FOURTH AMENDMENT KEEP UP WITH THE TWENTY-FIRST CENTURY? attorney Brittany Hampton wrote a Note in the University of Louisville Law Review which discussed the questionable use of the Stingray devices by police agencies.

In her article, Ms. Hampton argues that individuals have a reasonable expectation of privacy in their movements when using their cellphones; therefore, the use of the Stingray constitutes a search within the meaning of the Fourth Amendment. She also discusses the need for the United States Supreme Court to develop a clear warrant requirement for the monitoring of an individual using the Stingray device. Ultimately, Hampton advocates a warrant requirement for utilizing the Stingray devices for police tracking purposes because the warrantless use of the Stingray is an unreasonable search under the Fourth Amendment.

My opinion? I wholeheartedly agree with Ms. Hampton, the ACLU and other legal experts on this issues. Using Stingrays is an unlawful search. Quite frankly, the government should not have carte blanche secret access to people’s cell phone use and information. It’s overly intrusive and distasteful that the government can, without warning, essentially use people’s cell data as pretextual evidence to investigate our whereabouts, listen to our conversations and ultimately charge us with crimes.

Even worse – and speaking as a criminal defense attorney – it’s disturbing that police agencies can use the information obtained from Stingrays as probable cause to obtain search warrants of people’s homes and seize evidence therein. Moreover, if I move to suppress the evidence gained from the search warrant as the fruits of an unlawful search, local police agencies deny and circumvent my Motions to Compel Evidence and Public Disclosure Requests by simply having the feds conduct the Stingray search. This is bad.

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.

Have Plea Bargains Superseded Jury Trials?

Bellingham Defense Attorney, Constitutional Rights, Due Process, Jury Trial, Race & Law, Sixth Amendment, Studies, Uncategorized, Whatcom County Criminal Defense, , ,

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“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

~Thomas Jefferson

How did the Sixth Amendment’s guarantee of a public jury trial in all criminal prosecutions become useless and outdated?

Seattle criminal defense attorney Kelly Vomacka answered these questions during her presentation at  the 7th Annual Smoke Farm Symposium on Aug. 22, 2015. Smoke Farm is a program center and events venue run by the Seattle-based nonprofit organization Rubicon Foundation.

Titled, “Plea Nation: Dispelling the Illusion That the US Criminal Justice System Sorts the Guilty from the Innocent,” Vomacka spoke to the trend that today’s criminal defendants are waiving their right to jury trials and entering plea bargains.

Studies show that 97% of criminal cases in the U.S. result in plea bargains that do not determine guilt or innocence. Only 3 percent go to trial by jury.  Vomacka also discusses incarceration issues, the risks of trial verdicts, the numerous “gaps” (race, communication, socio-economic status, etc. – between defendants and their lawyers, pleading guilty to get out of jail, etc.

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.

New DUI Court Helps Native Americans

Bellingham Defense Attorney, Blood Test, Drug Court, Drug Offenses, DUI, misdemeanor, Race & Law, Tribal Courts, Whatcom County Criminal Defense, , ,

An Albuquerque, New Mexico court is taking bold and progressive steps in stopping Native Americans from committing DUI.

The newly established Urban Native American Drug Court uses nine months of treatment and supervision instead of incarceration to deter alcoholism. In order to qualify, each defendant must be Native American and have been convicted of more than two DWIs.

“The idea is to try to incorporate some of the traditional beliefs into healing and wellness,” Judge Maria Dominguez said.

Officials said the biggest challenge is a fear of losing their spirituality. David Lente, a Native American substance abuse counselor in Albuquerque, provides the therapeutic component of the program by integrating activities cultural activities, like talking circles and community service projects. The hope is to reconnect Native American defendants with the positive aspects of their culture.

Court officials said drug court, as a whole, is a much more effective tool than jail time. They said only 6 percent of those who participate end up getting arrested again for drunken driving.

My opinion? This program is an excellent progressive step forward. Typically, alcohol abuse is symptomatic of something much worse taking place within the abuser. They may be suffering with physical, mental, emotional and/or spiritual health issues and using alcohol to self-medicate. Kudos to Judge Dominguez in the continued success of this program.

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.

State v. O’Dell: Court May Consider Defendant’s Youth at Sentencing

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In State v. O’Dell,  the Washington Supreme Court held that a defendant’s youthfulness can support a lower prison sentence.

About 10 days after his 18th birthday, O’Dell had sex with 12-year-old A.N. The two met up on Sunday afternoon, along with a mutual friend, to drink wine and smoke cigars in the woods. Apparently, she, the friend, and O’Dell made plans to meet up again later that night but that the friend did not join them as planned. She and O’Dell sat in the woods to wait for their friend and, after a few minutes of talking, O’Dell forcibly raped her.

Sean O’Dell was convicted of Rape of a Child Second Degree. At O’Dell’s sentencing hearing, the defense requested a lighter sentence because, as he said it,  “The defendant’s capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law, was significantly impaired by youth.”

The defense also argued that when O’Dell committed his offense, he “was still in high school, associating with school age persons” and “was not some mid-twenties man hanging out at the local high school or trolling the internet for young people.”

Finally, the defense quoted portions of the United States Supreme Court’s decision in Roper v. Simmons, which held that it is unconstitutional to impose the death penalty on a juvenile. Roper relied on research, by various medical and psychiatric associations, indicating that juveniles are more susceptible to negative influences and impulsive behavior and therefore less morally culpable for their crimes relative to adults.

Despite Defense Counsel’s arguments, the trial court sentenced O’Dell to 95 months of prison and said that it could not consider age as a mitigating circumstance.

O’Dell committed this offense 10 days after his 18th birthday. As stated by his defense attorney, “had the incident happened two weeks prior, and assuming the State could not convince the Court to prosecute O’Dell as an adult, he would be facing 15-36 weeks in a well-guarded juvenile detention facility … rather than 78-102 months in an adult prison.”

On appeal, O’Dell challenged his 95-month sentence. He argued that the trial court abused its discretion when it refused to consider O’Dell’s own relative youth as a basis to depart from the standard sentence range.

The WA Supreme Court ruled that the trial court erred when it refused to consider O’Dell’s youth as a mitigating factor justifying a lower sentence. First, it reasoned that all defendants 18 and over are, in general, equally culpable for equivalent crimes. But it could not have considered the particular vulnerabilities – for example, impulsivity, poor judgment, and susceptibility to outside influences – of specific individuals. The trial court is in the best position to consider those factors.

Second, the WA Legislature defining an adult felony offender as “18 and over” did not have the benefit of psychological and neurological studies showing that the parts of the brain involved in behavior control continue to develop well into a person’s 20’s:

These studies reveal fundamental differences between adolescent and mature brains in the areas of risk and consequence assessment, impulse control, tendency toward antisocial behaviors, and susceptibility to peer pressure. Until full neurological maturity, young people in general have less ability to control their emotions, clearly identify consequences, and make reasoned decisions than they will when they enter their late twenties and beyond.

Finally, the Court concluded, in light of what we know today about adolescents’ cognitive and emotional development, the defendant’s youth may, in fact, relate to a defendant’s crime that it is far more likely to diminish a defendant’s culpability; and that youth can, therefore, amount to a substantial and compelling factor justifying a lighter sentence. “For these reasons, a trial court must be allowed to consider youth as a mitigating factor when imposing a sentence on an offender like O’Dell, who committed his offense just a few days after he turned 18.”

The WA Supreme Court remanded O’Dell’s case for re-sentencing.

My opinion? Good decision. The defense attorney was very intelligent to provide the court with studies showing that young offenders have less ability to control their emotions and impulses. This is very true. Indeed, this reasoning is exactly why the Washington Legislature adopted the Juvenile Justice Act in 1977 and treats young offenders differently than adult offenders.

Here, although the Defendant was categorically denied Juvenile Court because he was 18 years old, he was barely 18 years old when he committed the offense. He’s much closer to being a child than an adult. And until a young person turns 25, their brains haven’t fully developed. 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.

State v. Martines: WA Supreme Court Finds Defendant Guilty of DUI on Blood Test Case

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Bad news.

In State v. Martines, the Washington Supreme Court reversed the WA Court of Appeals Division I. I blogged about this case last year in State v. Martines: More Good Caselaw on Blood tests Taken After DUI Arrests. There, the WA Court of Appeals version of State v. Martines held that the blood test performed on Martines was an unlawful warrantless search. The Court of Appeals also reasoned that drawing blood and testing blood constitute separate searches, each of which requires particular authorization, and that the warrant here authorized only a blood draw.

The original Martines opinion appeared strong. It was rooted in the United States Supreme Court’s decision in Missouri v. McNeely; which requires police officers to obtain search warrants for blood draws in DUI cases when exigent circumstances do not otherwise exist. It also followed Washington State legalizing marijuana, thus necessitating stronger regulations and monitoring of blood tests performed during DUI investigations.

The WA Supreme Court decided differently in a short, scathing opinion signed by all justices.

First, the Court held that a warrant authorizing the testing of a blood sample for intoxicants does not require separate findings of probable cause to suspect drug and alcohol use so long as there is probable cause to suspect intoxication that may be caused by alcohol, drugs, or a combination of both.

Second, the Court  further held that the search warrant lawfully authorized testing Martines’s blood sample for intoxicants because it authorized a blood draw to obtain evidence of DUI. In other words, the search of Martines’s blood did not exceed the bounds of the search warrant when a sample of Martines’s blood was extracted and tested for intoxicants anyway.

My opinion?

Bad decision. I’m amazed the WA Supremes didn’t discuss Missouri v. McNeely at all. Not once. McNeely profoundly and significantly evolved search and seizure law concerning blood draws in DUI investigations. Indeed, McNeely was the underpinnings for Division One Court of Appeals case State v. Martinez. Yet the WA Supremes ignore McNeely as if it didn’t exist. Ignoring case precedents violates stare decisis, plain and simple.

Hopefully, this case gets appealed to the U.S. Supreme Court for further review.

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.

State v. Brock: WA Supreme Court Reverses Search of Backpack Case

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, law enforcement, police, Search and Seizure, Terry Stop, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

In State v. Brock, the WA Supreme Court reversed the Court of Appeals decision to reverse the Defendant’s convictions for 10 counts of Identity Theft in the Second Degree, 3 counts of Forgery, and violation of the Uniform Controlled Substances Act.

Last year, in State v. Brock: The “Time for Arrest” Doctrine, I blogged about how the Court of Appeals reversed Brock’s conviction, agreeing with Brock that it was not a valid search of his person under article I, section 7 of the Washington Constitution. The court reasoned that under the “Time for Arrest” doctrine, Brock did not have actual, exclusive possession of the backpack “immediately preceding” arrest and reversed Brock’s conviction on that basis.

Well, the WA Supreme Court decided different.

The Court reasoned that the “Time for Arrest” doctrine didn’t apply because the Defendant’s backpack was a part of his person at the time of arrest:

“Under these circumstances, the lapse of time had little practical effect on Brock’s relationship to his backpack. Brock wore the backpack at the very moment he was stopped by Officer Olson. The arrest process began the moment Officer Olson told Brock that although he was not under arrest, he was also not free to leave. The officer himself removed the backpack from Brock as a part of his investigation. And, having no other place to safely stow it, Brock would have to bring the backpack along with him into custody. Once the arrest process had begun, the passage of time prior to the arrest did not render it any less a part of Brock’s arrested person.”

Based on that the WA Supremes reversed the Court of Appeals and decided the search was a valid search incident to arrest.

My opinion? Obviously, I agree with Justice McCloud’s dissenting opinion. He stated that the majority opinion ignores the strict limitations imposed on law enforcement during a Terry stop, confuses the justifications for a Terry frisk with the justifications for a search incident to arrest, and “conflicts with our precedent holding that a full custodial arrest is a prerequisite to any search incident to arrest.”

Justice McCloud couldn’t have said it better in the tongue-in-cheek retort in the last sentence of his dissent:

“I fear the majority’s new rule will only invite further expansions of our ‘narrow’ and ‘jealously guarded’ exception to the warrant requirement.”

Exactly.

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.

“Studies” Show Pot-Related Accidents Doubled from 2013-2014

Bellingham Defense Attorney, Blood Test, Department of Licensing, Drug Offenses, DUI, Evidence, law enforcement, marijuana, misdemeanor, police, Reckless Driving, Search and Seizure, Studies, Traffic Infractions, Washington State Traffic Commission, Whatcom County Criminal Defense, , ,

 

Newly released data from the Washington Traffic Safety Commission (WTSC) shows that marijuana is increasing as a factor in deadly crashes. The number of marijuana-impaired drivers involved in accidents has nearly doubled at a 48% increase from 2013 to 2014.

“We have seen marijuana involvement in fatal crashes remain steady over the years, and then it just spiked in 2014,” said Dr. Staci Hoff, WTSC Data and Research Director.

Also , Julie Furlong of the WTSC said 60% of the drivers involved in fatal or deadly crashes between 2010 and 2014 were tested for drugs. Of those tested, about 20% were positive for pot. These figures match those of previous years, they remained about the same year after year.

New testing and new analytics are now allowing the WTSC to determine specific THC levels at the time the driver is tested following an incident or crash. It’s called “active THC,” or enough to impair the driver’s coordination and judgement.  According to the WTSC, less than half of drivers who tested positive for pot in 2010 had active TCH. However, that number increased to 65% in 2013, and skyrocketed to 85% in 2014.

Dr.Staci Hoff, Data and Research Director for the Commission, says that simply means 85% of the drivers involved in deadly-fatal collisions in 2014 who had pot in their system were actually high at the time of the accident.

Young men between the ages of 21-25 have seen the greatest jump,  with over a 66% increase.

Some argue these facts show that since the legalization of marijuana in Washington state, we now face a potential epidemic of impaired drivers who are high behind the wheel. As a consequence, the National Drive Sober or Get Pulled Over campaign is gaining momentum. From now through Labor Day, extra law enforcement officers are patrolling areas and locations where DUI is a problem.

Over 100 law enforcement agencies including all districts of the Washington State Patrol will be teaming up and participating in the extra patrols all across the state. These extra patrols are all part of Target Zero—striving to end traffic deaths and serious injuries in Washington by 2030.

My opinion?

First, only 60% of fatal car crash victims were tested for drugs. Without understanding how this 60% was arrived at, we run the risk of a data selection bias.

Second, if 20% of the group tested positive for marijuana then this only reflects the actual percentage of cannabis users in the state; which, by itself, is not a very convincing argument of anything.

Third, we need more data. You can’t jump to conclusions based on data that’s too new. It needs more time to be compared against other factors. We don’t hear anything else about possible confounding factors to this data, which also raises serious suspicions. However even this admission whittles marijuana as the sole culprit down to maximum of 10% of all fatal crashes.

Fourth, the data comes on the heels of new DUI emphasis patrols. Sounds like a media spin to me.

Finally, what we really need to know is how many fatal accidents occurred solely for users of marijuana over the limit. This number would be the best indication of a causal relationship if confounding factors were accounted for and the sample size was unbiased.

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