Division II of the Washington court of Appeals has just reversed the conviction of a man who was charged with 2nd degree assault. The decision is based on the fact that the defendant's lawyer did not ask for a jury instruction on the lesser included offense of 4th degree assault. In the case of State v. Breitung, the victims claim that Breitung approached the victims' vehicle, pointed a gun at them, and threatened to kill them. This constitutes 2nd degree assault because the defendant allegedly used a deadly weapon.
However, Breitung testified that he did not aim a gun at the victim's, but rather a microscope, which he put in his pocket once he got the victims to stop. Breitung testified that he later walked up to the vehicle and asked the victims to leave.
Breitung's lawyer argued that no assault occurred. Since the argument was that there was no assault, Breitung's lawyer did not ask for an instruction on the lesser included offense of assault 4. Second degree assault is an assault where the defendant intends to inflict great bodily harm, actually does inflict great bodily harm, or uses a deadly weapon. The assault in this case was the intentional act of putting the victims in reasonable apprehension of bodily harm or death. When there is no intent to inflict great bodily harm, no actual bodily harm or use of deadly weapon, then the assault wold be assault 4 rather than assault 2.
Breitung appealed his felony conviction of assault 2 on the grounds that it was ineffective assistance of counsel for his lawyer to not ask for a jury instruction on the lesser included offense of assault 4. The Washington Supreme Court found that, because Breitung himself testified that he pointed a microscope at the victims, there was evidence that he committed 4th degree assault and the defense should have asked for a jury instruction on that offense. Though the Court recognized that it was a trial strategy to not ask for the instruction because the defense was arguing that no assault whatsoever took place, it was too risky not to ask for the instruction on the lesser included offense because assault 4 is a misdemeanor and assault 2 is a violent felony with much more serious consequences.
To prove ineffective assistance of counsel, the defendant must show 1) that the defense lawyer was deficient and 2) that the defense was prejudiced by the deficiency. The second part usually means that there was a high probability that the case would have come out differently if it was not for the deficiency.
I agree with the dissenting opinion in this decision, that the defense lawyer should not have been required to ask for an instruction on assault 4. This is because it was likely that Breitung would be convicted of being in unlawful possession of a firearm, which Breitung admitted. Breitung was therefore already facing 9-12 month in prison on the firearm charge and the assault 2 conviction would not have made that much of a difference. Also, Breitung's testimony that he approached the victims with a microscope rather than a gun is, as the dissenting Judge said, “comedic.”
The trial lawyer was put in a tight spot in deciding between arguing an implausible version of the facts or taking a risk and arguing that no assault occurred whatsoever. As a Washington criminal defense lawyer, I do not believe that the trial lawyer's tactical decision not ask for a jury instruction on 4th degree assault amounted o ineffective assistance of counsel in this case.
Sunday, April 25, 2010
Tuesday, April 20, 2010
4/20 EDITITON: CAN YOU BE FIRED FOR USING MEDICAL MARIJUANA PRESCRIBED BY A DOCTOR?
With today being April 20th (4/20), I thought today would be just as good as any to write about the case that is going up to the Washington Supreme Court involving medical marijuana. The case is Roe v. Teletech Customer Care Management, LLC. What happened was Roe was hired by Teletech to work as a customer service consultant for the company. Roe had been prescribed medical marijuana by her physician in Bellevue, Washington to treat her migraine headaches and had documents authorizing her to use marijuana under Washington's medical Use of Marijuana Act (MUMA).
On October 3, 2006, TeleTech hired Roe. When Roe was told that she would have to submit to drug testing, Roe told TeleTech that she used medical marijuana at home and that she was allowed to do so by law. On October 5, 2006, Roe took a drug test and on October 10, 2006, she began working for TeleTech. Roe's drug test results also came back on October 10, 2006 and indicated that Roe tested positive for marijuana. On October 18, 2006, TeleTech fired Roe because of the positive drug test.
Roe sued Teletech for wrongful termination based on two different legal theories. The first theory was that under MUMA, it is implied that that employees who are authorized to use medical marijuana can sue employers who fire them for their use of medical marijuana. The trial court rejected this argument, finding no such legislative intent and that the average lay person who voted for the MUMA initiative would not have read an implied cause of action against employers into the plain language of the initiative.
The second legal theory was that Roe's termination was wrongful because it was against public policy to fire a person for legally using prescribed medication. The lower court rejected this argument as well and granted a motion for summary judgment in favor of Teletech. Roe appealed the trial court's decision to Division 2 of the Washington State Court of Appeals. The Court of appeals affirmed the trial court's decision.
In the Court of Appeals' decision, the court pointed out that to succeed on a wrongful termination claim, Roe would have to show (1) the existence of a clear public policy; (2) discouraging Roe's use of medical marijuana would jeopardize the public policy; (3) the public policy linked conduct was the reason Roe was fired; and (4) TeleTech cannot offer an overriding justification for Roe being fired.
The Court of Appeals found that Roe had not established that a clear public policy existed. The Court of Appeals stated that MUMA only protects patients and physicians from criminal prosecution, it does not provide them with a basis to bring a lawsuit against employers for wrongful termination. The ACLU of Washington had filed an amicus memorandum to the Washington Supreme Court, which has decided to review the case.
I predict that the Washington Supreme Court may very well reverse the lower court's decision. Although, it may be a long shot in showing that there is an implied cause of action in MUMA to sue employers, I do think that it is clearly against public policy to terminate employees for legally taking prescribed medication at home when it does not pose a threat to safety of other sin the workplace or negatively affect job performance.
On October 3, 2006, TeleTech hired Roe. When Roe was told that she would have to submit to drug testing, Roe told TeleTech that she used medical marijuana at home and that she was allowed to do so by law. On October 5, 2006, Roe took a drug test and on October 10, 2006, she began working for TeleTech. Roe's drug test results also came back on October 10, 2006 and indicated that Roe tested positive for marijuana. On October 18, 2006, TeleTech fired Roe because of the positive drug test.
Roe sued Teletech for wrongful termination based on two different legal theories. The first theory was that under MUMA, it is implied that that employees who are authorized to use medical marijuana can sue employers who fire them for their use of medical marijuana. The trial court rejected this argument, finding no such legislative intent and that the average lay person who voted for the MUMA initiative would not have read an implied cause of action against employers into the plain language of the initiative.
The second legal theory was that Roe's termination was wrongful because it was against public policy to fire a person for legally using prescribed medication. The lower court rejected this argument as well and granted a motion for summary judgment in favor of Teletech. Roe appealed the trial court's decision to Division 2 of the Washington State Court of Appeals. The Court of appeals affirmed the trial court's decision.
In the Court of Appeals' decision, the court pointed out that to succeed on a wrongful termination claim, Roe would have to show (1) the existence of a clear public policy; (2) discouraging Roe's use of medical marijuana would jeopardize the public policy; (3) the public policy linked conduct was the reason Roe was fired; and (4) TeleTech cannot offer an overriding justification for Roe being fired.
The Court of Appeals found that Roe had not established that a clear public policy existed. The Court of Appeals stated that MUMA only protects patients and physicians from criminal prosecution, it does not provide them with a basis to bring a lawsuit against employers for wrongful termination. The ACLU of Washington had filed an amicus memorandum to the Washington Supreme Court, which has decided to review the case.
I predict that the Washington Supreme Court may very well reverse the lower court's decision. Although, it may be a long shot in showing that there is an implied cause of action in MUMA to sue employers, I do think that it is clearly against public policy to terminate employees for legally taking prescribed medication at home when it does not pose a threat to safety of other sin the workplace or negatively affect job performance.
Subscribe to:
Posts (Atom)
