Tag Archives: Whatcom County Criminal Defense Attorney

Alcohol Consumption Increases During Coronavirus Pandemic

Bellingham Defense Attorney, Coronavirus, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

 

A recent study from RTI International found that “Pandemic Drinking” has increased in direct response to the surging Coronavirus Pandemic.

According to the article, the start of the COVID-19 pandemic forced many people into their homes, where they were encouraged to shelter in place for weeks. And, while many restaurants and bars closed as a result of the pandemic, a new study finds that people – especially women, those who are unemployed, Black people and parents – have actually been drinking more than they did before COVID-19 hit.

The results of the study came from a poll conducted in May on about 993 people from various regions of the country. Overall, it found that a person’s average drinks per day increased 27 percent, while the increased frequency of exceeding “drinking guidelines” increased by 21 percent and binge drinking by 26 percent.

Drinking guidelines established by the National Institute of Alcohol Abuse and Alcoholism say that men should consume no more than four drinks per day and/or 14 drinks per week, while women should consume no more than three per day or seven per week.

But while on average Americans are drinking more, researchers found that minorities and women are more likely to be drinking more since the pandemic began.

The study also found:

  • 16 percent of respondents increased their usual quantity by an average of two drinks; and
  • 27 percent increased the total number of drinks consumed on “more than usual” days by 4.5 drinks.

Please contact my office if you, a friend or family member are charged with DUI, Domestic Violence or other alcohol-related crimes during the Coronavirus Pandemic. It’s very easy to become dismayed, distracted and depressed in these times. Hiring an experienced criminal defense attorney is the first and best step toward justice.

Excessive Parking Fines

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Eighth Amendment, Excessive Fines Clause, Federal Crimes & Prosecutions, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Traffic Infractions, Whatcom County Criminal Defense, , , , ,

How a Parking Ticket Impacts a Driver

In Pimentel v. City of Los Angeles, the Ninth Circuit Court of Appeals held that the Eighth Amendment’s Excessive Fines Clause applies to excessive parking fines.

BACKGROUND FACTS

The City of Los Angeles imposes civil fines for parking meter violations. Under an ordinance, if a person parks her car past the allotted time limit, she must pay a $63 fine. And if she fails to pay the fine within 21 days, the City will impose a late-payment penalty $6300. In sum, a person who overstays a parking spot faces a fine of $63 – $181.

Appellant Mr. Pimentel and the other appellants sued the City of Los Angeles under 42 U.S.C. § 1983, asserting that the fines and late payment penalties violate the Eighth Amendment’s Excessive Fines Clause and the California constitutional counterpart.

The case made its way through the lower federal district court. The lower court ordered that the initial parking fine was not grossly disproportionate to the offense and thus survives constitutional scrutiny. The case was appealed to the Ninth Circuit, however, who issued its own opinion below.

COURT’S REASONING & CONCLUSIONS

The Court of Appeals held that although the initial parking fine was not disproportionate to the offense, the the City’s late fee runs afoul of the Excessive Fines Clause.

The Court said the Excessive Fines Clause of the Eighth Amendment limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense. Also, the Court reasoned that the Excessive Fines Clause traces its lineage back to at least the Magna Carta which guaranteed that a free man shall not be fined for a small fault.

“For centuries, authorities abused their power to impose fines against their enemies or to illegitimately raise revenue,” said the Ninth Circuit. “That fear of abuse of power continued to the colonial times. During the founding era, fines were probably the most common form of punishment, and this made a constitutional prohibition on excessive fines all the more important.”

The Court extended the  four-factor analysis found in United States v. Bajakajian to decide whether a fine is “grossly disproportionate” to the offense: (1) the nature and extent of the crime, (2) whether the violations was related to other illegal activities, (3) the other penalties that may be imposed for the violation, and (4) the extent of the harm caused.

The Court reasoned that under the first Bajakajian factor—  the nature and extent of the crime — the plaintiffs were indeed culpable because there was no factual dispute that they violated the parking infraction code for failing to pay for over-time use of a metered space. However, the Ninth Circuit also found the the parking transgressions were small:

“But we also conclude that appellants’ culpability is low because the underlying parking violation is minor. We thus find that the nature and extent of appellants’ violations to be minimal but not de minimis.”

The Court further reasoned that the second Bajakajian factor — whether the violations was related to other illegal activities — was not as helpful to its analysis: “We only note that there is no information in the record showing whether overstaying a parking meter relates to other illegal activities, nor do the parties argue as much.”

Similarly, the Court said that the third Bajakajian factor — whether other penalties may be imposed for the violation — also did not advance its analysis. “Neither party suggests that alternative penalties may be imposed instead of the fine, and the record is devoid of any such suggestion.”

Finally, the Court turned to the fourth Bajakajian factor — the extent of the harm caused by the violation. “The most obvious and simple way to assess this factor is to observe the monetary harm resulting from the violation,” said the Court. Ultimately, it reasoned that while a parking violation was not a serious offense, the fine is not so large, either, and likely deters violations.

With that, the Ninth Circuit held that the City’s initial parking fine of $63 was not grossly disproportional to the underlying offense of overstaying the time at a parking space. Nevertheless, the Court also held that the 100% late fee on the initial fine must be remanded back to the lower district court for the City to justify:

“The government cannot overstep its authority and impose fines on its citizens without paying heed to the limits posed by the Eighth Amendment. Yet in its brief to this court, the City of Los Angeles did not even bother addressing the constitutionality of its late fee. Based on the record, we do not know the City’s justification for setting the late fee at one hundred percent of the initial fine.”

With that, the Ninth Circuit Court of Appeals gave the case back (remanded) to the lower court for a further analysis on this issue.

My opinion? Good decision. At the end of the day, paying a 100% late fee for a parking fine is truly excessive. The case is novel because we don’t see much litigation surrounding the Excessive Fines Clause of the Eighth Amendment. We do know, however, that the Eighth Amendment also encompasses the Cruel and Unusual Punishments Clause, which is the most important and controversial part of the Amendment.

The issues relating to that constitutional amendment are, in some ways, shrouded in mystery. What does it mean for a punishment to be “cruel and unusual”? How do we measure a punishment’s cruelty? And if a punishment is cruel, why should we care whether it is “unusual”?

Again, 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.

Shackling Defendants In Court – Without Reason – Is Unconstitutional.

Assault, Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, felony, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Court ruling about shackles puts stress on judicial system | Local ...

In State v. Jackson, the WA Supreme Court held that shackling in court without analyzing whether the shackles are necessary violates the defendant’s constitutional rights.

BACKGROUND FACTS

In 2017, Mr. Jackson,  was charged with assault in the second degree, domestic violence, for strangling his fiancée. At every court appearance, Jackson was forced to wear some form of restraints pursuant to jail policy. The trial court did not engage in any individualized determination of whether restraints were necessary for courtroom safety but, instead, filed a consolidated opinion adopting the jail policy for all superior court appearances for all incarcerated defendants.

After a jury found Jackson guilty, he appealed, arguing that his constitutional right to due process was violated when he was forced to wear restraints without an individualized inquiry into their necessity.

The Court of Appeals held that the shackling of Jackson without an individualized inquiry into whether shackles were necessary violated his constitutional rights. However, it also held that this violation was harmless; thus leaving Jackson with a constitutional violation without a remedy.

Both the Prosecutor and Mr. Jackson appealed to the WA Supreme Court. Jackson argued that the Court of Appeals did not apply the constitutional “harmless error test” correctly. The State, on the other hand, cross-petitioned for review of the constitutionality of the use of pretrial restraints.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court reviewed the history of defendants wearing pretrial restraints in court:

“The problems in the history of shackling in early America are not limited to the courts and incarcerated individuals . . . The use of shackling as a means of control and oppression, primarily against people of color, has run rampant in the history of this country . . . Shackles and restraints remain an image of the transatlantic slave trade and the systematic abuse and ownership of African persons that has endured long beyond the end of slavery.

Shackles and restraints also represent the forced removal of Native people from their homelands through the Trail of Tears and the slave labor of Native people. We recognize that although these atrocities occurred over a century ago, the systemic control of persons of color remains in society, particularly within the criminal justice system.” ~WA Supreme Court

Next, the Court reasoned that under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 22 of the Washington State Constitution, it is well settled that a defendant in a criminal case is entitled to appear at trial free from all bonds or shackles except in extraordinary circumstances.

That said, the WA Supreme Court also mentioned that the right to be free from restraint is not absolute, and trial court judges are vested with the discretion to give measures that implicate courtroom security, including whether to restrain a defendant in some capacity in order to prevent injury.

Next, the court  identified several factors under State v. Hartzog which help a trial court determine if a defendant needs to be shackled:

“The seriousness of the present charge against the defendant; defendant’s temperament and character; his age and physical attributes; his past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats to harm others or cause a disturbance; self-destructive tendencies; the risk of mob violence or of attempted revenge by others; the possibility of rescue by other offenders still at large; the size and mood of the audience; the nature and physical security of the courtroom; and the adequacy and availability of alternative remedies.” ~WA Supreme Court quoting State v. Hartzog

The Court reasoned that a trial court must engage in an individualized inquiry into the use of restraints prior to every court appearance. Furthermore, the State does not meet this burden by simply establishing that no jurors observed the restraints during trial.

“When the State does not meet its burden to prove that the use of restraints at trial was harmless beyond a reasonable doubt, the defendant is entitled to a new trial and the defendant may only be restrained or shackled during any stage of the proceedings after the court makes an individualized inquiry into whether shackles or restraints are necessary,” said the Court.

With that, the WA Supreme Court reversed the Court of Appeals on harmlessness and remanded for a new trial with instructions that at all stages of court proceedings, the court shall make an individualized inquiry into whether shackles or restraints are necessary.

My opinion? Good decision. The manner in which the justice system treats people in these public settings matters for the public’s perception, including that of the defendant. Practices like routine shackling are inconsistent with our constitutional presumption that people who have not been convicted of a crime are innocent until proven otherwise.

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.

True Threats

Bellingham Defense Attorney, Constitutional Rights, First Amendment, Harassment, Juvenile, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

P Emojis and Emoticons in Court – The Air Force JAG Corps Reporter

In State v. D.R.C., the WA Court of Appeals held that a 17-year-old girl’s text messages to friends which aired her grievances about her mother after they verbally argued did not constitute “true threats” for purposes of proving Harassment.

BACKGROUND FACTS

The case against 17-year-old juvenile defendant D.R.C. began with a mother-daughter dispute over whether D.R.C. violated house rules by possessing gang-colored clothing. The argument took place in D.R.C.’s bedroom, and at some point D.R.C. slammed her door shut. D.R.C.’s mother responded by removing the door from its hinges.

During the argument with her mother, D.R.C. was on her phone and texting with several friends, indicating she wanted to kill her mother. The texts were vaguely worded and peppered with smiling emojis and the initialism “LOL.”

After removing D.R.C.’s bedroom door, the mother confiscated D.R.C.’s phone and turned to leave the room. As she was leaving, D.R.C.’s mother heard a loud noise. D.R.C. had punched her bedroom wall, leaving a hole in it. D.R.C.’s mother called the police. The police arrived and talked to D.R.C. and her mother, but did not take further action. Later that night, D.R.C.’s mother reviewed D.R.C.’s phone and discovered the text messages.

D.R.C.’s mother shared the text messages with the police. The State charged D.R.C. with felony harassment in juvenile court. The case proceeded to trial. The juvenile court found D.R.C. guilty of harassment.

D.R.C. appealed under arguments that the State failed to meet the additional burden of proving a true threat.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that in order to penalize a defendant for harassment, the State must prove not only the elements of the offense but also that the defendant’s words were not the type of speech protected by the First Amendment.

“A true threat is a serious threat,” said the Court. “It is not an idle statement, a joke, or even a hyperbolic expression of frustration.” The court further reasoned that when analyzing whether a statement is a “true threat” it looks carefully at the context of the inflammatory statement in order to avoid infringement on the precious right to free speech.

“The focus of the true threat analysis is on the speaker. But we do not look at the speaker’s actual intent . . . Instead, the test is objective . . . We ask whether a reasonable person in the speaker’s position would foresee their statement would be interpreted as a serious expression of intent to cause physical harm.” ~WA Court of Appeals

Next, the Court of Appeals examined whether D.R.C.’s friends thought the threats were “true threats.” It reasoned that D.R.C.’s past conversation with one friend supports D.R.C.’s testimony that she tended to use hyperbolic language with her friends. “In the prior text between D.R.C. and Lexy, D.R.C. accompanied her statements about harming or killing a mutual acquaintance with ”Lmfao”; the face with tears of joy emoji, ; a shrug emoji, ; a smiling face with horns emoji, ; a zany face emoji, ; and a heart emoji,” said the Court of Appeals. “The combination of the initialism and emojis conveyed an unmistakable message of sarcasm, as opposed to a serious intent to cause harm or death.”

“The language used by D.R.C. was distastefully violent, but it was not as disturbing as some of the past statements held to fall within First Amendment protections.” ~WA Court of Appeals

The Court of Appeals reversed D.R.C.’s conviction – but not without warning:

“While we rule in D.R.C.’s favor, our disposition should not be interpreted as approval of D.R.C.’s choice of language . . . We, like the trial court, find nothing funny in the texts. Nevertheless, the First Amendment protects all sorts of speech, even when the sentiment is hurtful or vile.” ~WA Court of Appeals

My opinion? I’ve gained jury acquittals in similar cases. In proving harassment charges, the State must prove that a reasonable person would have felt the threats were true threats under the circumstances. That’s a high burden to prove. Many people – indeed, most people – are guilty of making threats during or after an emotional situation. However, simply uttering threats does not logically mean that the threat is intended to be carried out out.

Please contact my office if you, a friend or family member are charged with Harassment. Hiring an experienced criminal defense attorney like myself is the first and best step towards justice.

Reasonable Suspicion & 911 Calls

911 Call, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Federal Crimes & Prosecutions, Firearm, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Reasonable Suspicion, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , , ,

Concealed Carry and Alcohol - What's the Bottom Line? - Alien Gear ...

In United States v. Vandergroen, the 9th Circuit Court of Appeals held that the police’s search of a suspicious person was reasonable under the circumstances when bar patrons called 911 minutes before to report the man had a pistol on him.

BACKGROUND FACTS

Late on a Saturday evening of February 17, 2018, a worker at a bar in California called 911 to report that three patrons had seen a man in the area with a pistol on him. In response to this call, the police stopped the man as he drove away, discovered a pistol in his car, and placed him under arrest. The man, Mr.  Vandergroen, argued a Rule 12 motion to suppress the evidence. The lower federal court denied the motion. Vandergroen was subsequently convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), which is a federal criminal conviction.

On appeal, Vandergroen now argues that the 911 call should never have led to his stop in the first place because it did not generate reasonable suspicion, and that the evidence of the pistol should therefore have been excluded.

COURT’S ANALYSIS & CONCLUSIONS

The 9th Circuit Court of Appeals disagreed with Mr. Vandergroen. It affirmed the lower court’s denial of Vandergroen’s motion to suppress and upheld his conviction.

The Court began by saying that under the Fourth Amendment, an officer may conduct a brief investigative stop only where s/he has a particularized and objective basis for suspecting the particular person stopped of criminal activity, commonly referred to as “reasonable suspicion.”

The Court further elaborated that while a 911 call may generate reasonable suspicion, it can only do so when, under the totality-of-the circumstances, it possesses two features. First, the tip must exhibit sufficient indicia of reliability, and second, it must provide information on potential illegal activity serious enough to justify a stop.

Finally, the Court identified a number of factors that demonstrate the reliability of a tip. These facts include (1) whether the tipper is known, rather than anonymous; (2) whether the tipper reveals the basis of his knowledge; (3) whether the tipper provides detailed predictive information indicating insider knowledge, id.; whether the caller uses a 911 number rather than a non-emergency tip line; and (4) whether the tipster relays fresh, eyewitness knowledge, rather than stale, second-hand knowledge.

With the above in mind, the Court of Appeals delved into its analysis.

“The totality of the circumstances in this case demonstrates that the 911 call was sufficiently reliable to support reasonable suspicion,” said the Court. It reasoned that first, the statements by an independent witness were undoubtedly reliable. “Witness #2 provided his name and employment position, making him a known, and therefore more reliable, witness,” said the Court.

Second, the Court of Appeals reasoned that the statements by the bar’s patrons were also reliable. “Although the patrons remained anonymous during the call, which generally cuts against reliability, their statements exhibited sufficient indicia of reliability to overcome this shortcoming,” said the Court. Finally, the Court reasoned that the reported activity — possessing a concealed weapon  was presumptively unlawful in California and was ongoing at the time of the stop.

In conclusion the Court of Appeals held that the 911 call generated reasonable suspicion justifying the stop and the lower court was correct to deny Vandergroen’s motion to suppress the evidence obtained during the stop. His criminal conviction was upheld.

My opinion? Mind you, this is a federal opinion. Under Washington law, however,  a bare report that someone is in possession of a firearm does not provide reasonable suspicion for an investigative stop. This is because Washington is both an open carry state and liberally grants concealed weapons permits. United States v. Brown.

In Washington, under RCW 9.41.300(1)(d), a stop may have been permissible in this case if the individual with the pistol had been in that portion of the lounge classified by the state liquor and cannabis board as off-limits to persons under twenty-one years of age. That’s because it is unlawful for any person to enter a bar with a firearm.

Please read my Legal Guide on Search and Seizure and contact my office if you, a friend or family member face criminal charges involving a questionable search or seizure of evidence. Hiring a competent and experienced defense attorney is the first and best step towards justice.

Exigent Circumstances for Warrantless Blood Draw

Bellingham Defense Attorney, Blood Test, DUI, Exigent Circumstances, felony, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

How to Beat and Get Out of a Blood Test DUI Case - DUI Blood Test ...

In State v. Rawley, the WA Court of Appeals held that Exigent Circumstances justified an emergency DUI blood draw at the scene of a car collision. Here, the driver exhibited the effects of alcohol and a telephonic search warrant could not be obtained.

BACKGROUND FACTS

At 2:55 PM, Deputy Aman responded to a two-car, head-on collision. The defendant Ms. Rawley had crossed the center line, causing her vehicle to collide with another vehicle. Rawley was trapped in her vehicle.

As Deputy Aman spoke to Rawley, he noted a strong smell of alcohol and that her speech was slurred and repetitive. Rawley admitted to drinking alcohol.

The paramedics freed Rawley from the vehicle and placed her in the ambulance. Deputy Aman went to the ambulance and learned that IV fluids and medications were about to be administered to Rawley.

Deputy Aman felt exigent circumstances existed to draw Rawley’s blood to check her blood alcohol content (BAC) before administering IV fluids. The paramedic drew Rawley’s blood at 3:07 PM. IV fluids started at 3:23 PM. The ambulance left for the hospital at 3:23 PM. Rawley’s BAC was .35—over 4 times the legal limit under statute.

The State charged Rawley with felony driving under the influence. Before trial, Rawley made a CrR 3.6 motion to suppress the results of the blood draw. The trial court denied her motion. Following a bench trial, the trial court found Rawley guilty of felony driving under the influence.

Rawley appealed on the issues of whether exigent circumstances justified a warrantless blood draw.

COURT’S ANALYSIS & CONCLUSIONS

The Court began by stating that warrantless searches and seizures are per se unreasonable and in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution. However, under Missouri v. McNeely, the U.S. Supreme Court recognized an exception to the warrant requirement allows a warrantless search or seizure when exigent circumstances exist.

“Exigent circumstances exist where the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence,” said the Court.  “But the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, for example, when delay results from the warrant application process.”

Next, the Court of Appeals addressed whether the warrantless blood draw was lawful under the exigent circumstances based on State v. Inman, a WA Court of Appeals case involving  a DUI motor vehicle injury collision occurring in a rural area with spotty phone service. In Inman, the Court held that a search warrant was not required before a blood sample collected under the exigent circumstances exception is tested for alcohol and drugs.

“The circumstances here are like those in Inman. Rawley was in a head-on collision and was trapped inside her vehicle. Her speech was slurred and Deputy Aman could smell intoxicants on her breath. Rawley admitted to drinking. One of the paramedics told Deputy Aman he would be administering IV fluids and then taking Rawley to the hospital. Deputy Aman was aware that IV fluids are generally administered if there is concern for internal injuries. In Deputy Aman’s experience, a warrant request could take on average up to 45 minutes during the day.” ~WA Court of Appeals

The Court of Appeals decided Inman was similar to the present case and was properly relied upon by the trial court. “Accordingly, the trial court’s findings of fact support the trial court’s conclusion of law that exigent circumstances justified the warrantless blood draw based on Inman.”

In closing, the Court of Appeals rejected Rawley’s arguments that a police officer must inquire into the type of IV fluid being administered in order to show that exigent circumstance existed because the IV fluids would alter the blood test results.

“There is no binding legal authority requiring police officers to be knowledgeable of medicines and their effect on blood alcohol content.” ~WA Court of Appeals

With that, the Court of Appeals affirmed Rawley’s conviction for Felony DUI.

Please contact my office if you, a friend or family member face Alcohol DUI charges and evidence was obtained through a warrantless blood draw. Hiring a competent and experienced trial attorney is the first and best step toward justice.

(Online!) Organized Retail Theft: No Such Thing

Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Organized Retail Theft, Skagit County Criminal Defense, Theft, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Theft Prevention (Retail) – Online Pretrial Education

In State v. Lake, the WA Court of Appeals held that Theft by ordering items online from catalogs will not support a conviction for second degree organized retail theft because the takings are not from a “mercantile establishment;” a phrase which only applies to a physical establishment.

BACKGROUND FACTS

In 2017, Ms. Lake was living in a senior living apartment complex. In February 2017, she placed three catalog orders with different companies using the names and accounts of other apartment complex residents. She had the items delivered to her as “gifts.”

One of the residents noticed that someone had placed an order using her credit account. She reported the suspicious order to the front office and made a fraud complaint with the police. After an investigation, the State charged Lake with one count of second degree organized retail theft, three counts of first degree identity theft, and two counts of second degree possession of stolen property.

At the close of the State’s case, Lake moved to dismiss the second degree organized retail theft charge because there was no evidence that she obtained goods form a “mercantile establishment” as required for that charge. The trial court denied the motion.

The jury found Lake not guilty of one count of first degree identity theft but guilty of the lesser degree offense of second degree identity theft. The jury found Lake guilty of the other five charged counts.

Lake appealed her convictions on arguments that her thefts involving online catalog purchases were not from a mercantile establishment.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals concluded that the term “mercantile establishment” was ambiguous, and applied the Rule of Lenity to hold that Lake’s thefts were not from a mercantile establishment.

The Court gave the framework for reaching its decision. It reasoned that if the plain language of the statute is susceptible to more than one reasonable interpretation, the statute is ambiguous.

“We first attempt to resolve the ambiguity and determine the legislature’s intent by considering other indicia of legislative intent, including principles of statutory construction, legislative history, and relevant case law . . . If these indications of legislative intent are insufficient to resolve the ambiguity, under the rule of lenity we must interpret the ambiguous statute in favor of the defendant.”

With that, the Court of Appeals examined the definition of “mercantile establishment.” In order to prove the charge, the State had to prove that Lake committed theft of property with a cumulative value of at least $750 from one or more “mercantile establishments.”

“The question here is whether fraudulently purchasing items online from a catalog constitutes theft from a mercantile establishment, or whether that term is limited to physical retail stores,” said the Court.

The court reviewed former RCW 9A.56.360 which gave a working definition of “mercantile establishments” as it applied to the crime of retail theft with special circumstances:

(1) A person commits retail theft with special circumstances if he or she commits theft of property from a mercantile establishment with one of the following special circumstances: (a) To facilitate the theft, the person leaves the mercantile establishment through a designated emergency exit; (b) The person was, at the time of the theft, in possession of an item, article, implement, or device used, under circumstances evincing an intent to use or employ, or designed to overcome security systems including, but not limited to, lined bags or tag removers.

Here, reasoned the court, former RCW 9A.56.360 shows that the legislature intended to stop thefts from physical retail stores:

“Only a physical store has a ‘designated emergency exit’ and employs security systems that can be overcome by ‘lined bags’ or ‘tag removers.’” ~WA Court of Appeals

Consequently, the Court concluded that the statutory term “mercantile establishment” was ambiguous. And because the term “mercantile establishment” remains ambiguous, the Court applied the rule of lenity and interpreted the ambiguous statute in favor of Ms. Lake.

“Therefore, we hold that the trial court erred in denying Lake’s motion to dismiss because the evidence was insufficient to convict Lake of second degree organized retail theft,” said the Court. With that, the court dismissed the charges.

My opinion? Good decision. The Prosecutor should have sought different charges under these circumstances. Clearly, the organized retail theft statute clearly applies to brick-and-mortar businesses.

As a side-note, the Rule of Lenity is a rarely used criminal defense argument. In most cases, the definitions of terms are discussed in the legislative intent of statutes and/or found in the criminal statutes themselves. This case shows that when the Rule of Lenity is correctly applied, it’s quite powerful.

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

No Mask? Criminal Charge!

Bellingham Defense Attorney, Coronavirus, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Wearing a mask isn't a form of oppression: opinion - Business Insider

Last Friday, in the wake of the Coronavirus Pandemic, Governor Inslee and Washington State’s secretary of health have issued a public health order mandating the use of face coverings and/or masks.

Inslee said during a news conference that masks are required in indoor settings, as well as outdoor settings if social distance rules cannot be maintained.

Those who willfully violate the mandate will face a misdemeanor charge, Inslee said.

 

“It is imperative that we adopt further measures to protect us all,” Governor Inslee added. “This is the way we need to look at this, we just cannot wish this virus to go away. We have to use tools that are available to us that we know work.”

The only individuals not required to adhere to the policy are those who are deaf or hard of hearing, children under the age of five, people who are eating, and those in other “common sense” situations.

Many protesters across the states have been pictured defying social distancing guidance without masks or face coverings. Online, the debate about mask effectiveness still plays out, with some claiming masks are not effective – or enforceable under US law.

Please contact my office if you, a friend or family member face criminal charges for not wearing a mask during the Coronavirus Pandemic. Hiring a competent, experienced defense attorney is the first and best step toward justice.

Consecutive v. Concurrent Sentencing

Assault, Bellingham Defense Attorney, Consecutive v. Concurrent Sentencing, Eluding, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, , , , ,

Consecutive vs. Concurrent Sentencing in Kentucky - Baldani Law Group

Clients often ask, “What’s the difference between consecutive and concurrent sentences?”

Quite a lot, actually!

The question applies to Clients facing criminal charges from numerous jurisdictions. For these clients, sometimes the best approach is to seek a global resolution. This can happen if the prosecutors of the different jurisdictions are willing to coordinate their efforts toward a plea bargain involving reductions and dismissals of some criminal charges in exchange for guilty pleas to other charges.

Naturally, a big question in these negotiations is whether the defendant shall serve their jail time under a consecutive sentence or a concurrent sentences. Here’s some definitions:

Concurrent sentences: When sentences run concurrently, defendants serve all the sentences at the same time. This outcome is favorable to the defendant.

Consecutive sentences: When sentences run consecutively, defendants have to finish serving the sentence for one offense before they start serving the sentence for any other offense. This sentence outcome is not favorable to the defendant.

To illustrate the point, in State v. Brown the WA Court of Appeals recently held that firearm enhancements must be served consecutively in cases in which the defendant was 18-years or older when s/he committed the crimes.

BACKGROUND FACTS

A jury convicted Mr. Brown of four counts of first degree robbery, one count of attempted first degree robbery, two counts of second degree assault, and one count of attempting to elude a pursuing police vehicle. Five of the convictions included firearm enhancements, which are increased sentencing penalties.

At sentencing, the State recommended a sentence of 381 months. The State recommended five firearm enhancements ran consecutively to each other and to Mr. Brown’s base sentence of 129 months. The trial court imposed the State’s recommended sentence. Brown appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals raised and dismissed Mr. Brown’s arguments on appeal. It reasoned that under the Sentencing Reform Act – and specifically, RCW 9.94A.533(3)(e) – all firearm enhancements require prison time and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements.

“Brown’s sole claim is that he is entitled to resentencing because the sentencing court erroneously believed it lacked the discretion to depart from the required term of confinement for a firearm enhancement. We disagree.” ~WA Court of Appeals

To support its reasoning, the WA Court of Appeals relied on State v. Brown (no relation) a WA Supreme Court case which held that Washington law deprives sentencing courts of the discretion to impose an exceptional sentence with regard to firearm enhancements.

“In any event, a decision by the Washington Supreme Court is binding on all lower courts of the state,” reasoned the WA court of Appeals. “This court does not have the
authority to overrule Brown.”

With that, the Court of Appeals upheld Mr. Brown’s lengthy prison sentence.

My opinion? Again, if a defendant is convicted of a number of crimes that carry lengthy prison terms, the difference between consecutive and concurrent sentences can be tremendous. The same factors that judges tend to consider when deciding on the severity of a sentence (for example, a defendant’s past record) also affect their decisions on whether to give concurrent or consecutive sentences.

As you can see, however, some criminal statutes require that the sentence for the crime in question be served consecutively to any other crime committed in the same incident.

Please contact my office if you, a friend or family member face criminal charges involving the possibility of concurrent or consecutive sentencing. It’s crucial to hire an experienced criminal defense attorney who understands the law.

Illegal Search At Starbucks

Bellingham Defense Attorney, Community Caretaking, Drug Offenses, felony, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In Starbucks incident, Philly cops and employees acted 'in ...

In State v. Martin, the WA Court of Appeals held that the illegal search of a person in a Starbucks store should have been suppressed because the officer was not conducting a criminal trespass investigation when he removed a metal utensil that was sticking out of the defendant’s pocket.

BACKGROUND FACTS

On December 11, 2017, Officer Bickar responded to a 911 call from a Starbucks employee, requesting assistance with the removal of a sleeping person inside the store. When Bickar arrived, he saw Martin sleeping in a chair. Bickar gestured to the Starbucks employee and received a responsive gesture from the employee that Martin was the person identified in the 911 call.

When Bickar approached Martin, he noticed Martin was wearing multiple jackets that had pockets. Bickar attempted to wake Martin, first by raising his voice and then by squeezing and shaking his left shoulder. Martin remained unresponsive.

Bickar noticed the end of a metal utensil sticking out of Martin’s pocket. Bickar worried that the metal utensil could be a knife or another utensil sharpened into a weapon. Bickar also expressed concerns about sharp needles.

Without feeling the outside of the pocket, Bickar removed the utensil. The utensil was a cook spoon, had burn marks on the bottom, and a dark brown residue on the inside. At that point, Bickar determined that he had probable cause to arrest Martin for Possession of Drug Paraphernalia and continued searching Martin. While searching Martin, Bickar found methamphetamine, heroin, cocaine, and other drug paraphernalia. Martin was arrested.

Martin moved to suppress all evidence collected as a result of the unlawful detention and search. The court heard testimony from Officer Bickar and denied Martin’s motion to suppress.

Martin proceeded to a stipulated bench trial on the charge of unlawful possession of a controlled substance. The court found Martin guilty. The court sentenced Martin to 30 days of confinement. Martin appealed.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court held that the search was not a valid Terry search. It explained that while Terry does not authorize a search for evidence of a crime, officers are allowed to make a brief, non-intrusive search for weapons if, after a lawful Terry stop, a reasonable safety concern exists to justify the protective frisk for weapons so long as the search goes no further than necessary for protective purposes.

“A reasonable safety concern exists, and a protective frisk for weapons is justified, when an officer can point to ‘specific and articulable facts’ which create an objectively reasonable belief that a suspect is ‘armed and presently dangerous.

Here, however, the Court of Appeals found the search was not a justifiable under Terry:

“This search fails to meet the requirements under Terry. Starbucks is open to the public. The record does not support the trial court’s finding that Bickar was conducting a criminal investigation for trespass because there is no evidence in the record that Starbucks had trespassed Martin from the premises. Also absent from the record is evidence supporting Bickar’s claim that Martin sleeping created a reasonable safety concern.” ~WA Court of Appeals

Consequently, the Court held the search was not lawful under Terry because there was no reasonable suspicion that a crime had been committed, there was not a reasonable safety concern, and the search exceeded the lawful scope of a frisk.

The Court also rejected the State’s arguments that the search was lawful under the community caretaking exception to the warrant requirement. It explained that the community caretaking exception applies when (1) the officer subjectively believed that an emergency existed requiring that he or she provide immediate assistance to protect or preserve life or property, or to prevent serious injury, (2) a reasonable person in the same situation would similarly believe that there was a need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place searched.

“Officer Bickar did not subjectively believe an emergency existed and a reasonable person in the same situation would not believe there was a need for assistance,” said the Court. “Furthermore, even if the community caretaking exception applied to this search, a simple pat-down on the outside of Martin’s coat pocket would have alleviated any concern that the metal utensil was a sharp object or weapon.” Consequently, the Court held that removing the spoon violated Martin’s right to be free from unreasonable searches and seizures.

With that, the Court of Appeals vacated Martin’s conviction.

Please contact my office if you, a friend or family member face criminal charges in the aftermath of a questionable search and seizure of their home, car or person. Hiring an experienced criminal defense attorney is the first and best step towards justice.