Tag Archives: Skagit County Criminal Defense Attorney

Study: Youth Tolerance Of Marijuana May Increase Chances of DUI

Bellingham Defense Attorney, Blood Test, Boating Under the Influence, Constitutional Rights, Drug Offenses, Drug Recognition Expert, Due Process, DUI, Evidence, Forensics, law enforcement, marijuana, Studies, Whatcom County Criminal Defense, , ,

Study offers support for the notion of e-cigarettes as a gateway drug

A new study from the journal Pediatrics suggests ways to reduce the risk that children will drive under the influence of alcohol or drugs as teenagers.

The study found that 12-year-old children who believed marijuana could help them relax or was otherwise beneficial were more likely to drive under the influence when they were 16. The study also showed these minors were also significantly more likely to ride with someone else who was buzzed, drunk or high behind the wheel.

“Youth view marijuana use as less dangerous than drinking,” the study authors wrote. “We must begin to address how changing views of marijuana might increase risk for not only marijuana use, but other behaviors.”

Driving under the influence is common among American teenagers. The Centers for Disease Control and Prevention estimates that 10% of high school students do so in any given month, and more than 20% have been passengers of someone driving under the influence.

So researchers from Rand Corp. in Santa Monica and Arlington, Va., went looking for risk factors in middle school that could predict these dangerous behaviors in high school. They turned to data from a substance use prevention program called CHOICE that was tested in 16 middle schools in greater Los Angeles.

The Rand researchers focused on 1,124 students who completed detailed surveys in 2009 (when their average age was 12.2 years old), 2011 (when their average age was 14.3) and 2013 (when their average age was 16.3 and 88% were eligible to drive in California). The majority of these students (57%) were girls, and half were Latino.

Using statistical models to control for the students’ age, gender, race and ethnicity, school and whether their mothers had graduated from high school, the researchers identified several factors that seemed to predict unsafe driving at age 16.

According to the study, those who held more tolerant ideas about marijuana when they were 12 (in sixth or seventh grade) were 63% more likely than their peers to admit either driving under the influence themselves or to ride with someone who was under the influence

Additionally, 12-year-olds who felt most confident that they could resist marijuana use wound up being 89% more likely to mix alcohol and drugs with cars, motorcycles or other vehicles. This finding surprised the researchers, they wrote.

By the time the students were 14, some of the risk factors had changed. Those who said they had used alcohol in the last month were more than twice as likely as their peers to drive under the influence or ride with an intoxicated driver two years later.

Also, those whose friends used marijuana were 2.4 times more likely to be involved in unsafe driving later, and those whose family members used marijuana were 54% more likely to do the same.

And positive beliefs about marijuana still mattered — 14-year-olds who had them were still 67% more likely to mix alcohol, drugs and motor vehicles at age 16.

The researchers noted that marijuana has taken on a benign image among middle schoolers “as medical and recreational marijuana legalization increases in our country, adolescents are becoming more accepting of marijuana use,” they wrote. “This highlights the need to address these types of beliefs as early as sixth grade.”

My opinion? If these studies are accurate, they merely reveal our need to EDUCATE our youth about drugs, alcohol and vehicles. In short, DRUGS/ALCOHOL AND VEHICLES DON’T MIX. It doesn’t matter what type of drug you’re taking; whether it be prescription, medical marijuana or street drugs. Don’t do drugs and drive. And it doesn’t matter what type of alcohol you’re drinking. Don’t drink and drive.  If your doctor informs you that taking your prescription medication may affect your ability to operate a motor vehicle, then please think twice about operating a motor vehicle.

I’ve assisted many clients facing DUI charges of varying degrees. However, studies like this show that society is becoming less tolerant and sympathetic toward individuals charged with DUI. It takes a very competent and experienced defense attorney to reveal the science, forensics and idiosyncrasies of DUI litigation in today’s anti-drug climate.

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. Bentura-Ozuna: Letter Found in Jail Cell Supports Conviction for Witness Intimidation

Bellingham Defense Attorney, Constitutional Rights, Due Process, Evidence, felony, Intimidating a Witness, Jail, Jury Trial, Knapstad Motion, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Amazon.com: Jail Mail: Appstore for Android

In State v. Bentura-Ozuna, the WA Supreme Court held that the defendant committed the crime of Intimidating a Witness  under RCW 9A.72.110(2) when a letter found in his jail cell directed a threat to a former witness because of the witness’s role in an official proceeding. The statute defines a “threat” to mean “to communicate, directly or indirectly, the intent to harm another.”

Here, In June 2010, Ozuna was incarcerated in the Yakima County Department of Corrections (Yakima County Jail). Ozuna was awaiting sentencing for a prior conviction. The conduct underlying that conviction involved Augustine Jaime Avalos, a member of the same gang as Ozuna. Avalos had testified against Ozuna in Ozuna’s underlying trial and was also incarcerated in the Yakima County Jail.

On June 8, when Ozuna was moved from one prison cell to another, a corrections officer found two unstamped, unsealed letters in his possession. The deputy opened the letters. One letter was meaningless to this issue. The other letter said the following:

Ey homie, I just got your (unreadable). Well it was a blessing to hear from you. It put’s a smile on my face to know that your ready to ride for me. . .. As you already know, I agreed to a plea deal for 10 years 9 months cause of a pussy that don’t know how to ride or Die. He would rather break weak than to honor our sacred code of silence. He is now marked a rat and a piece of shit in my book He has sealed his fate and now it’s just a matter of time. He rode with me and was given my trust and he decided to dishonor that privaledge …. [A ]11 I can say for that fool is, you know what time it is. You guys let him live in luxery for way to long already. . . How can you live with a rata like that and still be able to rest in peace in that puto’s presence? I hope and pray for satisfaction before I leave this building and may that fool suffer and Die in his rat hole. Fucken snitch bitch rat! … That puto took 10 years of my life and a fucken leva from my barrio, “my big homie” “Gorge” is living in the same house as him …. Gorge could of did something but just decided to let that puta slide and live under the same roof with him …. Tell that fool he’s a piece of shit just like him. Let’em know that this is Campana Gang! He put’s the crack in our bell. No loyalty, no honor, no heart! … Tell’ em he’s as good as dead to me.

Let that fool feel the wrath and let’ em know the rata that he is and tell’em that I siad that bad things come to those that snitch. May he rest in piss … So now you know what I want primo, don’t hesitate vato. Take action, reep the rewards later. Don’t think, just act. … Hit me up later after the shit get’s handled. Do it on the 25 cause that’s when I have court, and I want to have a smile on my face that day knowing that … fool’s getting a lil taste of what’s coming to him. The 25 is the day I get sentenced. Good looking out Primo, don’t let me down fucker! … Tell’em that Vanessa’s gonna be the one to set him up for us, mark my words! Show him how set ups are done. There just waiting for him to get out. … Lol. … Satisfaction will be mine! Let’ em know that he fucked up.

On July 9, Avalos was assaulted by inmate David Soto while in a courthouse holding room. Avalos received stiches at the hospital for his injuries. The inmates who were present when Avalos was injured were not cooperative. Ozuna was not present during the assault.

At trial, the Prosecution produced ample testimony confirming that there was a threat to another person in the letter, however,  no evidence established that the letter was delivered to anyone before the officer confiscated it.

The State also produced expert testimony about gang culture from a Sunnyside Police Department officer who worked in the Yakima area and was knowledgeable about the local gangs, as well as the individuals at issue here.

Similarly, two other officers from the Yakima County Jail discussed the status of being a “shot caller” or “tank boss,” meaning someone who has elevated decision-making authority within a gang or prison. One officer testified that Ozuna was a “shot caller” in the Yakima County Jail.

Before trial, Ozuna argued a Knapstad motion to Dismiss the charge for lack of evidence. Defense counsel argued that “directing a threat at somebody means not keeping it to yourself; it means directing it to somebody, not necessarily … to the intended victim, but to somebody. The Court denied the Knapstad motion to dismiss.

The trial proceeded, and the jury returned a verdict convicting Ozuna of Intimidating a Former Witness. The trial court entered judgment and imposed an exceptional sentence of 10 years based on the jury’s finding of gang-related aggravating factors. Ozuna appealed.

The WA Supreme Court reasoned that a communication must be transmitted and received. However, a person may “direct a threat” under the intimidation of a former witness without that threat being communicated to the threat’s target. “The threat may be transmitted to a third party.” Consequently, there was sufficient evidence at trial for a rational jury to find that Ozuna directed a threat to a third party or to Avalos himself.

The court further reasoned that Ozuna had the state of mind, motivation, and opportunity to direct a threat regarding Avalos. Avalos had been a longtime gang member with Ozuna, and Avalos testified against Ozuna. They were incarcerated in the same prison. Ozuna had gang allies in the prison. Avalos had enemies. Furthermore, testimony from witnesses established the gang follows a strict “no snitch” code, enforced by violent retaliation.

Here, Ozuna’s confiscated letter reveals his state of mind. It said, for example, “Let that fool feel the wrath and let’ em know the rata that he is and tell him that I siad that bad things come to those that snitch. May he rest in piss.” Additionally, the jury could consider the timing of Avalos’s assault by a member of Ozuna’s gang, David Soto. “The evidence is sufficient insofar as it establishes Ozuna’s state of mind, motivation, and opportunity to direct a threat regarding Avalos.”

The WA Supreme Court affirmed Ozuna’s 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.

States With Weird Liquor Laws

Bellingham Defense Attorney, DUI, law enforcement, Legislation, marijuana, misdemeanor, police, Studies, Whatcom County Criminal Defense, , ,

Weird Liquor Laws, Beer ABV Legal Limits, and Blue Laws – Southern Drinking Club

A news report from time.com discusses how many states have bizarre, outdated and just plain weird laws regarding the sale and consumption of alcohol.

Texas
Texas prides itself on its business-friendly, free-market ethos. But when it comes to alcohol, Texas has some pretty elaborate regulations. Wal-Mart is feuding with Texas over the state’s refusal to let it stock liquor in its aisles. The issue? A 1995 law preventing public companies with more than 35 shareholders from selling hard liquor in the state. Walmart, which argues the law is unconstitutional, sued. Earlier this week, a court date was set for Sept. 2016.

Pennsylvania
For sheer strangeness alone it’s hard to beat Pennsylvania v. 2,447 Bottles of Wine. With its Quaker roots, Pennsylvania has some of the strictest alcohol rules in the nation, allowing sales of wine and liquor only through 600 special-state run stores. When a Chester County attorney was recently charged with importing more than 2,400 bottles of wine and selling some without a license, he struck a deal that let him keep about 1,000 bottles. But state law requires the remainder, more than 1,300 bottles, to be destroyed.

Massachusetts
Pennsylvania has Quakers, Massachusetts has Puritans. If that conjures an image of dour finger waving, you’re not far off the mark. Massachusetts law bans happy hours and drink specials, not to mention drinking games, and severely restricts when supermarkets can sell beer and wine. Some think the Bay State may interpreting its heritage too seriously. The Boston Globe,citing a colonial historian who noted that early settlers opened plenty of taverns, recently argued “Drinking Laws in Massachusetts Aren’t Puritanical — They’re Worse.”

Maine
Like many states, Maine restricts the sale of liquor on Sundays, in this case prohibiting it before 9 a.m. There is an important exception, however. In 2013, sharp-eyed Mainers realized St. Patrick’s Day would fall on a Sunday that year. Not to worry: Gov. Paul LePage signed an emergency law allowing liquor to be served as early as 6 a.m. when the holiday falls on a Sunday. Crisis averted.

 Louisiana

A state also known for its traditions, though not necessarily puritanical ones. Louisiana was the last state to raise its drinking age to 21 from 18. It has taken certain additional steps to combat drunk driving, including an open-container law, which discourages drinking in a vehicle, at least in theory. The law acknowledges the state’s ubiquitous drive-by daiquiri stands with a provision that considers a container closed so long as the straw hasn’t been put in the opening on the lid of the cup. One recent transplant describes the apparent logic of this:

As my friend once said, during my inaugural drive through daiquiri run, “We’re not going to drink it while we’re driving, we’re just going to go get it.”

“Then what are we going to do with it?”

“Then we’re going to go stop and drink it,” she said.

Nevada
In Nevada, bars can (and do) stay open 24 hours, and liquor can be sold at supermarkets and convenience stores. Open containers are permitted in Las Vegas and the nearby Strip. Also, state law explicitly states that it is not a crime to be drunk in public because drunkenness is a health problem—and obviously what all those people sipping gin and tonics on the patio of the Bellagio’s pool need most is the Nevada State Legislature’s support and sympathy.

New Jersey
Several states, including Massachusetts, Pennsylvania, and Idaho, set quotas for the number of liquor licenses they issue to bars and restaurants. That can lead to licenses being traded on the secondary market and changing hands for hefty sums. There are reports of sales in Montana for as much as $1 million. But no one does a shakedown like New Jersey. One New Jersey license reportedly sold for as much as $1.6 million.

Idaho
While Idaho’s liquor licenses may not sell as for as much as New Jersey’s, the state’s quota system has drawn attention for a different reason. The quotas, which allow for just one license for every 1,500 people, are designed to be strict: Temperance is written into the state’s constitution, which calls it a “first concern” of good government. But granting exceptions has proved pretty tempting too. The result: a spate of laws that seem to open the door, if only a crack, like this one highlighted by the Institute for Justice.

For example, in order to grant an exception to Clark House, a historic bed and breakfast on Hayden Lake, the Legislature passed an amendment lifting the rural license ban on any hotel that ‘has been in existence for at least 75 years and has been on the historic register for a minimum of 10 years, is situated within 500 yards of a natural lake containing a minimum of 36,000 acre feet of water when full with a minimum of 32 miles of shoreline, and is located in a county with a minimum population of 65,000.’

Utah
If there’s one thing you know about Mormons it may be that they don’t drink alcohol (or coffee for that matter.) So it’s not a huge surprise that Utah’s attitude toward liquor is more like Pennsylvania’s than that of its next door neighbor Nevada. In fact, Utah’s regulations are so strict, the Salt Lake City tourism board has a whole page devoted just to debunking Utah drinking law myths. The “Zion curtain,” in which the bartender mixes drinks out of sight, really exists—although only in restaurants opened after July 2012, not in bars or clubs, we are reassured. You can have more than one drink in front of you at a time, although indeed it is not permitted to order a double. If you order a drink in a restaurant, you also have to order food, at least an appetizer (which can be shared). Sounding not a little defensive, the tourism board concludes: “But let’s be honest: there are lots of weird liquor laws in the world.”

Washingtonians, if you think we’ve got it bad, there is worse.

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. 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

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GettyImages-89185855

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

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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, , ,

Lady Justice, law, court

“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

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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.