SEATTLE CRIMINAL DEFENSE LAWYER

FOURTH OF JULY POST- IS IT LEGAL TO POSSESS OR USE FIREWORKS IF YOU HAVE LOST YOUR GUN RIGHTS?

2010-07-03T12:36:00.000-07:00

With 4th of July celebrations just 1 day away, I thought I'd examine the issue of possessing fireworks unlawfully. This post does not address possession of illegal fireworks, but rather the unlawful possession of legal fireworks.

As you may be aware, when you are convicted of a felony or a misdemeanor domestic violence charge, you lose your right to possess firearms. If you have been convicted of a felony or a misdemeanor charge of domestic violence and you own or possess a firearm, you are guilty of the crime of Unlawful Possession of a Firearm. This crime is a felony in and of itself.

In Washington, RCW 9.41.010 (7) sets forth the statutory definition of “firearm” :

" 'Firearm' means a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder."

It sounds like many fireworks that are commonly used to celebrate Independence Day would fit the definition of “firearm” under Washington State law. Does that mean you cannot possess or use fireworks if you have a felony or domestic violence conviction?

No. Here's why:

RCW 9.41.320 says:

"Nothing in this chapter [9.41] shall prohibit the possession, sale, or use of fireworks when possessed, sold, or used in compliance with chapter 70.77 RCW."

RCW 70.77 sets forth provisions for the public fireworks displays, selling, and manufacturing of fireworks, and the statutory definition of fireworks:

“Fireworks” means any composition or device designed to produce a visible or audible effect by combustion, deflagration, or detonation, and which meets the definition of articles pyrotechnic or consumer fireworks or display fireworks.

"Consumer fireworks" means any small firework device designed to produce visible effects by combustion and which must comply with the construction, chemical composition, and labeling regulations of the United States consumer product safety commission, as set forth in 16 C.F.R. Parts 1500 and 1507 and including some small devices designed to produce audible effects, such as whistling devices, ground devices containing 50 mg or less of explosive materials, and aerial devices containing 130 mg or less of explosive materials and classified as fireworks UN0336 by the United States department of transportation at 49 C.F.R. Sec. 172.101 …..

So as long as you're in compliance with RCW 70.77, you can use consumer fireworks without being considered to be in possession of a firearm.

But what if you're NOT in compliance with RCW 70.77? What if you possess or use fireworks containing more than 50 mg of explosive materials and do not have the required license for display fireworks?

If that is the case, in theory, it looks like you COULD be found to be in possession of a firearm under RCW 9.41 if you use a device that meets the statutory definition of “firearm” because it is a device that fires a projectile using an explosive such as gunpowder.

But for most instances involving the average consumer using consumer fireworks on the Fourth of July, you cannot be found to be in possession of a firearm.

ARIZONA'S NEW LAW, RACIAL PROFILING & PRETEXT STOPS: IS THE NEW LAW UNCONSTITUTIONAL?

2010-05-07T22:33:00.000-07:00

As you may well have heard, Arizona recently passed a new law that makes entering and/or remaining in the country illegally a crime. The law has been criticized for a variety of reasons, one of the main ones being that the law will lead to racial profiling and pretext stops. On April 30, 2010, new text was added to the Arizona statute, which says that the police can investigate the immigration status of a person only if the police have already made a lawful stop, detention, or arrest of that person. A stop, even a brief stop, is considered a seizure under the Fourth Amendment ban on unreasonable searches and seizure. The stop is lawful only if the police have reasonable suspicion.

Critics say that this will lead to racial profiling and pretext stops. Does that make the Arizona law unconstitutional? First, I'll explain what a pretext stop is. A pretext stop occurs when the officer observes a person violating some law or otherwise has reasonable suspicion that the person violated a certain law, and uses that violation (such as failing to signal a turn) as an excuse to make the stop, but the officer's real purpose of making the stop is to obtain evidence of some other crime for which the officer lacks probable cause or reasonable suspicion. Police may stop a member of a minority group for some minor violation in the hopes that the stop may result in the officer smelling the odor of marijuana or observing a bag of drugs in plain view in the vehicle once the stop is made.

Is this practice constitutional? In 1996, in the case of Whren v. U.S., the U.S. Supreme Court said YES. This practice is allowed under the U.S. Constitution as long as the officer had a lawful reason to stop the person who is detained. Under the Fourth Amendment, the police can stop a person if they have reasonable suspicion, which is supported by objective articulable facts that a law violation has been committed or is about to be committed.

That means the police can single certain people out who appear to be latino and follow them until they observe a traffic violation or stop someone who appears to be latino for jaywalking when they would not normally stop a person who appeared to be caucasian for the same violation. As long as they have reasonable suspicion that a person has violated the law, the police may stop a person. At that point, under the new Arizona law, they may ask for immigration papers. This is allowed under Whren v. U.S. The Supreme Court did say that racially motivated stops were invalid. In practice, however, it is nearly impossible to prove that a stop was racially motivated if the police had reasonable suspicion that the person stopped had violated the law.

I personally don't like the probable result of police using pretext stops to harass people who appear to be Mexican in the hopes that they just might stop someone who happens to be an illegal immigrant. As a criminal defense lawyer who practices in Seattle and other parts of Washington,I'd like to point out how some states, such as Washington, have outlawed this type of police practice.

In 1999, The Washington Supreme Court decided the case of State v. Ladson. In that case, the Court said that, while pretext stops may be allowed under the U.S. Constitution, the Washington State Constitution provides broader protection from unreasonable police stops than the U.S. Constitution and that pretext stops are not allowed under the Washington State Constitution.

Not every state has taken the same position as Washington and pretext stops are allowed in those states. I am not familiar with Arizona State law, but unless the Arizona Supreme Court holds that pretext stops are not allowed or legislation is passed that prohibits pretext stops, the new Arizona law is constitutional as far as the law of search and seizure goes.

There have been other constitutional attacks to Arizona's new law. Among these is the argument that immigration is reserved for the Federal government to regulate and that Arizona's law is unconstitutional because it encroaches on an area that has been set aside exclusively for the Federal government. Such arguments are beyond the scope of this blog post, which is limited to addressing the constitutionality of Arizona's new law with regard to the Fourth Amendment and the law of search and seizure.

THE DIFFERENCE BETWEEN FOURTH DEGREE AND SECOND DEGREE ASSAULT CAN BE TRIAL STRATEGY

2010-04-25T22:01:00.000-07:00

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.

4/20 EDITITON: CAN YOU BE FIRED FOR USING MEDICAL MARIJUANA PRESCRIBED BY A DOCTOR?

2010-04-20T21:08:00.000-07:00

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.

WHAT IF YOU CHANGE YOUR MIND? CAN YOU WITHDRAW A PLEA OF GUILTY?

2010-03-21T11:31:00.000-07:00

People ask me all the time about withdrawing their guilty plea because they are unhappy with the sentence they received. Can it be done? The answer is yes, but only under rare circumstances. When you enter a plea of guilty you are giving up several important constitutional rights. Among these rights is the right to a trial. By entering a plea of guilty, you are allowing the judge to find you guilty based solely off of the police reports or your written statement. Because you are giving up these significant rights, the court does everything it can to ensure that you are entering the plea knowingly and voluntarily.

When you enter a guilty plea, there is a colloquy that goes on the record in which the judge confirms that you know that you are giving up your constitutional right to a trial. The judge also confirms that you understand that the court may impose a sentence that exceeds the prosecutor's recommendation. The judge usually follows the recommendation that is on the plea agreement that you sign, but the judge is not obligated to follow that recommendation- the court may impose the maximum sentence allowed by law.

On the plea forms, you will also provide information concerning your age and level of education. This assists the court in determining whether you are making a knowing waiver of your rights. The court also confirms that you you were not threatened to enter the agreement and that you were not promised anything if you entered into the agreement. All of this is confirmed in the agreement you sign and it will also go on the record when you appear in front of the judge. If the plea agreement is not placed on the record in its entirety in court, you may have grounds to withdraw the plea.

A guilty plea may only be withdrawn if you can show that a manifest injustice will occur if you are not allowed to withdraw the plea. The burden is on the defendant to prove that a manifest injustice will occur. The factors that indicate that a manifest injustice will occur are: ineffective assistance of counsel, the defendant did not agree to the plea, the plea was not voluntary, and breach of the agreement by the prosecutor. If these factors are not present, then the defendant must prove that there are some other set of circumstances that would result in an obvious injustice.

Ineffective assistance of counsel usually means that the defense attorney did not do his or her job by failing to properly advise you AND your decision to plead guilty would have been different had you been properly advised. When you attempt to withdraw a guilty plea on the ground of ineffective assistance of counsel, you should have a different criminal defense lawyer represent you due to the conflict of interest.

Although you may be unhappy with your sentence because the judge gave you more jail time than the prosecutor had recommended, that is not grounds for withdrawing a guilty plea. You generally must show that you were not properly advised, that your plea was not voluntary, or that the prosecutor breached the agreement. A motion to withdraw a guilty plea must be made within 1 year of the judgment and sentence.

CAN THE POLICE CHECK MOTEL REGISTRIES TO SEE IF THERE IS A WARRANT FOR YOUR ARREST?

2010-03-03T23:18:00.000-08:00

The issue of whether the police can randomly check a motel registry to see who is staying at the motel and whether they have outstanding warrants is of particular interest to me, not only because of the constitutional implications, but because I encountered this specific issue back when I was appealing felony convictions at the Washington Appellate Project in 2005.

In the case that I appealed, the police observed the defendant and his female companion enter a motel on Aurora, a high crime area known for prostitution and drug activity. After the defendant entered the room, the police checked the motel registry. They then ran a warrants check on the defendant after getting his name, birth date, and driver's license number from the registry. Sure enough, the defendant had an outstanding warrant.

The police then went to the defendant's motel room and knocked on the door. The man answered and by this time, he was not wearing pants. The police arrested him because of the outstanding warrant and placed him in a patrol car. They then went back into the motel room to get the defendant's pants. Before giving the pants to the defendant, they searched the pants and found...crack cocaine.

So my client was convicted of a felony- possession of a controlled substance. The main issues I argued on appeal involved illegal searches and seizures. One of the first questions in a search and seizure argument is whether there is a privacy interest involved. Another question is whether that privacy interest is protected by the Fourth Amendment to the U.S. Constitution. At the time I was drafting my brief, the U.S. Supreme Court had held that it was not a violation of the Fourth Amendment for the police to randomly check motel registries without probable cause.

The next question to ask in this type of case is whether the search is a violation of our state constitution. The Washington Supreme Court has long held that the Washington State Constitution provides broader protection than the Fourth Amendment. This is largely because Article 1, Section 7 of our state constitution includes the words, "private affairs." So in 2005, I argued that a person in the state of Washington has a privacy interest in the information they provide to motels and that a random check of motel registries by police was a violation of our state constitution. This argument was rejected by Division One of the Washington State court of Appeals and the felony conviction was affirmed.

While I was drafting the brief for the appeal, another attorney shared her brief with me. She was arguing the very same issue, but she was taking it to the Washington Supreme Court. By 2007, the Washington Supreme Court had decided the case and held that random checks of motel registries without probable cause was a violation of our state constitution and are not permitted. The case was State v. Jorden.

In a relatively short opinion, the Court reasoned that "private affairs" meant "interests which citizens of this state have held, and should be entitled to hold, safe from government trespass." The court acknowledged that there were a number of legitimate reasons why a person who was lawfully staying at a motel would want to keep his or her presence at the motel private. For that reason, the Court found that the Washington State Constitution prohibits random searches of motel registries.

The decision in State v. Jorden was a major victory, not only for criminal defense lawyers like myself, but for the residents of Washington in general. For years police had made arrests by checking who was signed in at a motel and running warrants checks on those people just in case they might find something. The police can no longer do this in Washington State.

Since State v. Jorden, evidence has been suppressed after police conducted random searches at motels. For example, a colleague of mine recently had a case in which police performed a random search of a motel registry which led them to his client, who happened to be in possession of 1 pound of methamphetamine. My colleague referred the court to State v. Jorden and the evidence was suppressed. Needless to say, the case was dismissed.

DEATH PENALTY LOSES SUPPORT- PART III

2010-01-14T13:31:00.000-08:00

33 years after the Supreme Court decided Gregg v. Georgia, the American Law Institute (ALI) has withdrawn its capital punishment provisions set forth in the Model penal Code “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”

I explained why the U.S. Supreme Court reinstated the death penalty in the U.S. In the last posting. After the Court invalidated all of the state statutes regarding the death penalty in Furman v. Georgia, many states based their new statutes on the Model Penal Code, which was drafted by the ALI. When the Court reviewed the new state statutes in Gregg v. Georgia, the Court held that the statutes did not violate the Eight Amendment because they ameliorated the problems of racial discrimination, disproportionate sentencing, and arbitrary capricious sentencing. That case was decided in 1976.

In 2007, ALI members planned on making a motion to have the ALI take a position in favor of abolishing the death penalty at the ALI annual meeting. The ALI president told the members that there would not be a vote on that matter at the 2007 annual meeting, but he would appoint a committee to conduct a study and submit its recommendations at the 2008 annual meeting.

Members of ALI have since written a lengthy paper discussing the state of the death penalty today. The authors concluded that the guided discretion “experiment” was a failure. When the ALI drafted section 210.6 back in 1962, it was untested and considered to be an innovation where juries would exercise guided discretion in deciding who lives and who dies by weighing aggravating and mitigating factors. Now that we have over three decades worth of capital cases to look at since many states modeled their capital punishment statutes on section 210.6, the ALI says that it did not succeed in taking away arbitrariness and caprice away from the administration of the death penalty.

Prior to Furman v. Georgia, many crimes were punishable by death, including burglary, rape, and armed robbery. The ALI's provision in the Model Penal Code limited the crimes for which someone could be executed to murder. Section 210.6 attempted to further limit the kinds of murder that would make a person eligible for the death penalty by listing aggravating factors. What has happened since the death penalty was reinstated as a result of states following the Model Penal Code is that the statutory aggravating factors have become so numerous that they cover many if not most murders in several states.

The ALI has also acknowledged that racial discrimination is still prevalent in the administration of the death penalty today, almost 40 years after Furman v. Georgia. Today, the race of the victim seems to have more of an influence on whether a person will receive the death penalty than the race of the defendant.

Another problem that the ALI has found is the sensationalism in the media regarding capital cases and the political pressures involved. District Attorneys and judges do not want to appear soft on crime when an election is near and are more likely to seek the death penalty depending on certain political circumstances.

The ALI also noted the numerous individuals who had been sentenced to death and were later found to be innocent, often through DNA evidence. I personally had the opportunity of meeting the 100th person to be exonerated from death row since 1973 (Ray Krone) when he visited my law school several years ago. Mention of the lack of funding inadequate counsel often provided in capital cases is made in the ALI's report.

For all of these reasons, the ALI has decided that section 210.6 of the Model Penal Code, which sets forth the ideal manner in which to administer the death penalty has failed. Because the ALI is divided, with some members in favor of the death penalty and others who are not, the ALI will not take a stance supporting the abolition of capital punishment, but at the same time it will not endorse the death penalty by maintaining a section in the Model Penal Code that instructs states on how to carry it out.

The ALI has recently said, “Unless we are confident we can recommend procedures that would meet the most important of the concerns, the Institute should not play a further role in legitimating capital punishment, no matter how unintentionally, by retaining the section in the Model Penal Code.”

THE DEATH PENALTY LOSES SUPPORT: THE AMERICAN LAW INSTITUTE NO LONGER SUPPORTS CAPITAL PUNISHMENT 33 YEARS AFTER GREGG V. GEORGIA- PART II

2010-01-11T11:55:00.000-08:00

In Part I of this posting, I discussed the U.S. Supreme Court's ruling in Furman v. Georgia (1972), which declared invalid all of the state laws regarding the administration of the death penalty. The Court reasoned that the death penalty, as it was being carried out at that time, was a violation of the Eighth Amendment, which bans cruel and unusual punishment. The court noted the disproportionate number of poor and minority defendants that received the death penalty. Because minority defendants would receive a death sentence far more frequently than white defendants who were found to be guilty of the same crime, the Court found the death penalty to be an "unusual punishment" within the meaning of the Eighth Amendment.

At the time, states authorized the death penalty for a number of crimes in addition to murder. These crimes included rape, aggravated assault, and armed robbery. In cases involving these charges, minorities would receive the death penalty while white defendants accused of these crimes would rarely receive a death sentence. The Court also noted the unbridled discretion that judges and juries had in determining who shall receive a death sentence. For these reasons, the Court held that the administration of the death penalty in the U.S. was arbitrary and capricious.

THE STATES' RESPONSE TO FURMAN V. GEORGIA
35 states, wishing to preserve the death penalty as the ultimate criminal sanction, revised their statutes regarding the death penalty to comport with the Supreme Court's ruling. In doing so, they turned to the Model Penal Code, which was drafted by the American Law Institute (ALI), for guidance. Section 210.6 of the Model Penal Code set forth the what ALI considered to be the ideal procedure for administering the death penalty.

Georgia, after turning to the Model Penal Code, enacted legislation that required a jury to find at least one statutory aggravating factor before it could impose the death penalty. Statutory aggravating factors included multiple victims, crimes committed against a police officer, crimes committed for financial gain, and the defendant's prior record of capital offenses.

Also guided by the Model Penal Code, the new Georgia statute required a bifurcated trial that consisted of a guilt phase and a sentencing phase. Once the jury determined that the defendant was guilty, they would weigh aggravating and mitigating factors during the sentencing phase to determine whether the defendant should be sentenced to death. It could use any aggravating factors in making its decision, but it had to find at least one aggravating factor specifically listed in the new statute to impose the death penalty.

Finally, the new Georgia statute required an automatic appeal to the Georgia Supreme Court for review of the death sentence to prevent arbitrary and capricious sentencing. The Georgia Supreme Court was to review death sentences to ensure that they were not given under the influence of passion or prejudice, to ensure that there was sufficient evidence to support the existence of a statutory aggravating factor, and whether the a sentence of death is disproportionate to the sentences imposed in similar cases.

In 1976, the U.S.Supreme Court decided the case of Gregg v. Georgia. The court was asked to decide whether the new Georgia statute, which was enacted in response to Furman v. Georgia, violated the Eighth Amendment prohibition on cruel and unusual punishment. The Supreme Court first noted that it did not believe that the death penalty itself constituted cruel and unusual punishment. To support this proposition, the Court pointed to the fact that the death penalty was common place at the time the Eighth Amendment was drafted and there are other constitutional provisions (such as the Fifth Amendment, which requires due process when the government takes life, liberty, or property) that acknowledge the death penalty as acceptable punishment for certain crimes.

The Court concluded that the new Georgia statute alleviated the constitutional concerns that were present prior to Furman v. Georgia. The Court found that drafting a list of specific aggravating factors and requiring a jury to find the existence of at least one of those factors in a two-phase trial resulted in "guided discretion," which remedied the previous problem of juries having unbridled discretion with regard to the decision of who lives and who dies. The Court also found that the automatic review by the state supreme court remedied the problem of disproportionate sentences being carried out. For these reasons, the Court found that the new Georgia statute was not unconstitutional and the death penalty was reinstated in the U.S.

In the next posting, I will explain what happened since Gregg v. Georgia that made ALI delete its section on the death penalty in the Model Penal Code and decline to further endorse the death penalty as an acceptable form of punishment.

THE DEATH PENALTY LOSES SUPPORT: THE AMERICAN LAW INSTITUTE NO LONGER SUPPORTS CAPITAL PUNISHMENT 33 YEARS AFTER GREGG V. GEORGIA- PART I

2010-01-05T06:40:00.000-08:00

This posting will be a two-part posting in which I will explain the constitutional issues surrounding the death penalty and the reason why capital punishment has just lost one of its most credible and influential supporters. In order to do that, I will need to explain who the A.L.I. is, what happened in Furman v. Georgia, what happened in Gregg v. Georgia, and finally what happened since that decision that has caused the A.L.I. To change its stance on the death penalty.

The American Law Institute (A.L.I.) is an organization made up of legal scholars, lawyers, and judges with the purpose of clarifying American law and assisting in law reform. The A.L.I. has drafted a number of model codes and statutes and many states chose to adopt the A.L.I.'s Model Codes, in their in entirety, or in part. In 1962, the A.L.I. Published the Model Penal Code, which included a section that set forth what they considered to be the ideal way in which to administer the death penalty in the U.S.

In 1972, The U.S. Supreme Court decided the case of Furman v. Georgia, which resulted in a nation-wide moratorium on capital punishment and the invalidation of the death penalty as it was administered at that time. The majority decision was written in four separate opinions. Justice Thurgood Marshall's opinion in this case happens to be the first U.S. Supreme Court opinion I had ever read back in school.

The question before the Court was whether the death penalty violated the Eighth Amendment. The Court found that because the death sentence was given and carried out arbitrarily, it was unconstitutional. In reaching its conclusion, the Court noted that the Eighth Amendment to the U.S. Constitution was based on a similar provision in the English Bill of Rights in 1689, which was concerned with banning arbitrary and discriminatory penalties. This was to protect the dissenters from
the crown from being subject to arbitrary and discriminatory penalties.

The Court pointed to substantial evidence that the death penalty was handed out disproportionately to the poor, minorities, and members of unpopular groups. The Court reasoned that a punishment is "unusual" if it “discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.”

In one Texas study to which the court referred, in capital cases where there were multiple defendants of different races and the defendants were given separate trials, the white defendants were given a term of life in prison while their black counterparts received the death penalty. Justice Marshall also noted that the death penalty was disproportionately given to men- between 1930 and 1972, 32 women were executed compared to the 3,827 men who were executed.

In addition to finding problems justifying the death penalty as an appropriate or necessary punishment and concluding that it was being arbitrarily imposed in a discriminatory manner, the Court also took issue with the unbridled discretion that judges and juries had in determining who lived and who died.

As Justice Douglas wrote, “...we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position.”

This decision invalidated all of the state laws as they were written at that time that imposed the death penalty on a person convicted of a crime. A few years later, the Supreme Court would revisit the issue and the death penalty would be reinstated in the U.S. In the next posting, I'll explain why capital punishment was reinstated and what happened since then that made the A.L.I. change its stance with regard to the death penalty.

CAN THE POLICE SEARCH YOUR CELL PHONE WITHOUT A WARRANT?

2009-12-28T22:35:00.000-08:00

The Ohio Supreme Court just decided a novel question of law a couple weeks ago relating to the law of search and seizure. Up until now, neither the U.S. Supreme Court, nor any state supreme court has rendered a decision on whether the police can search the contents of a person's cell phone without a warrant. As I have said before, the Fourth Amendment to the U.S. Constitution prohibits warrantless searches unless the state can show that there were exigent circumstances or that the person who was searched consented to the search. Exigent circumstances include the possibility that the defendant was armed, that there was some other sort of threat presented, or that there was a possibility of the evidence being destroyed.

In Ohio v. Smith, a person who had bought crack cocaine from the defendant, Smith had been taken to the hospital after a drug overdose. At the hospital, the police questioned the patient and had her call Smith to arrange another drug deal. The police recorded their phone conversation. Later, the police arrested Smith at his customer's home. At the time of arrest, police searched Smith and took his cell phone. The police also later found bags of cocaine at the home.

While Smith was at the police station being booked, the police searched Smith's cell phone to confirm that he was the person the hospital patient had called and spoken to about setting up the drug deal. Smith did not consent to the search and the police did not have a warrant.

Smith went to trial and was found guilty of trafficking cocaine. Prior to trial, Smith moved to suppress evidence obtained from his cell phone on the ground that it was a warrantless search in violation of the Fourth Amendment, but the motion was denied. After Smith was convicted, he appealed and the Ohio State Court of Appeals affirmed the convictions. The Court of Appeals based its decision on U.S. v. Finnley, which I will discuss below.

The police can conduct what is called a search incident to arrest if it is contemporaneous to the arrest. This is for officer safety and to prevent the destruction of evidence. The police did this when they initially too Smith's phone, but when they were at the police station, a significant amount of time had passed and a search could not have been considered to be contemporaneous to the arrest at that point. In addition, the whole justification for a search incident to arrest is for officer safety and to prevent the destruction of evidence. Here, the police had no reason to be concerned for their safety, as Smith had already been placed under arrest, handcuffed, and transported to the police station. The Court of Appeals nevertheless ruled that the search was permissible under U.S. v. Finnley, which I will now discuss.

In Finnley, the Fifth Circuit ruled that cell phones were analogous to containers found on an arestee's person, which are subject to searches for the preservation of evidence.

In U.S. v. Park, however, a Federal District Court ruled that cell phones are not the same as containers for the purposes of a Fourth Amendment analysis. That court reasoned that because cell phones “have the capacity for storing immense amounts of private information,” they are much more like laptops, in which arestees have a significant privacy interest.

The Ohio Supreme Court cited U.S. v. Park in rejecting the lower court's reliance on U.S. v. Finnley. The Ohio Supreme Court said that because a person has such a high expectation of privacy in their cell phones, police cannot search the phones without a warrant. The court also stated that the police failed to show that the search was conducted because there was a concern for officer safety or imminent destruction of evidence.

This has been the first state supreme court on the issue of whether police can search the contents of a cell phone and for that reason I am posting it in this blog, which is usually limited to Washington State and federal cases and statutes. Hopefully, Washington State will follow Ohio's lead in protecting our privacy rights.

NEW LAW HELPS TO STOP THE POOR FROM BEING CONVICTED OF DRIVING ON A SUSPENDED LICENSE

2009-11-17T17:30:00.000-08:00

As I have previously written, there are three types of Driving While License Suspended (DWLS) crimes in Washington State: DWLS in the 1st degree, DWLS in the 2nd degree, and DWLS in the 3rd degree. 1st degree DWLS is the crime you will be charged with if you are driving while your license is revoked under the Habitual Traffic Offender Act. 2nd degree DWLS is what you'll be charged with if you drive while your license is suspended and you are ineligible for reinstatement due to a mandatory license suspension for a specified period of time (such a 1 year suspension for refusing to take a breath test). 3rd degree DWLS is where your license is suspended, and you are eligible for reinstatement.

It's this last type of DWLS that I'd like to focus on in this posting because legislation was passed in May that will hopefully reduce the number of people who are convicted of this crime. People who are charged with 3rd degree DWLS usually have some sort of financial problem. They are all eligible for reinstatement as long as they pay money that they owe. This is often for unpaid traffic tickets, but it can also be for failure to pay child support or failure to pay a civil judgment when the defendant was found to be at fault in a traffic accident.

So people struggling financially and are simply unable to pay the money they owe have the license suspended and to earn a living or to get from place to place in order to get the money they to pay off their debts, they end up driving. Now they get charged with 3rd degree DWLS, which is a misdemeanor criminal charge.

I have had a client who could not get his license reinstated because, although he was slowly coming up with the money to pay off his traffic tickets, he was given the runaround when it came to trying to figure out exactly who to pay- The courts told him his fines went to collection and the collections agency told him to call the courts because they did not have an account for him.

In May of this year, Senate Bill 5732 became law. The new law will be added to chapter 46.20 of the RCW and authorizes cities and counties to establish licensing diversion programs for the purpose of helping suspended drivers get their licenses back. The new law also requires the courts in jurisdictions that do not have licensing diversion programs to issue the defendant a copy of his or her driving abstract and give the defendant all of the information regarding what money is owed and to whom. This law only applies to people whose licenses have been suspended due to failure to pay traffic tickets, failure to respond to a notice of traffic infraction, failure to appear at a requested hearing, or for violated a written promise to appear in court.

Under SB 5732 a driver is not be eligible for a diversion program if he or she has been convicted of DWLS more than 4 times in the last 10 years. The law also limits diversion eligibility for drivers who hold a commercial drivers license. For the many struggling people who are down on their luck, the new law may be of great benefit to get out of a hole. It will also free up the courts which have to deal with a large number of 3rd degree DWLS cases.

OBSTRUCTION OF JUSTICE: MAKING FALSE STATEMENTS TO THE POLICE

2009-11-04T18:19:00.000-08:00

Today I’d like to discuss the crime of false reporting. Actually, I'll be referring to the crime of making a false or misleading statement to a public servant, which is commonly known as "false reporting." I recently represented another lawyer on this charge and thought that I should warn others about what the police may do to you if you are rude to them or are otherwise difficult. The lawyer I defended on the charge of false reporting was admittedly rude to the police and made sure they knew she was a lawyer. The cops weren’t happy with the way she talked to them, so they stacked up a few charges against her, one of which was false reporting.

The police claimed that the lawyer left out the last part of her last name when she was asked to identify herself. I am writing about this charge because the police frequently use it to punish someone who made them angry or irritated or to punish someone they just don’t like. So be careful when the police stop you for investigative purposes. You can assert your constitutional rights, but be polite about it. The police often make up false allegations of false reporting against people who mouth off to them.

The actual title of the crime appears as “Making a false or misleading statement to a public servant” in RCW 9A.76.175. That statute says:

"A person who knowingly makes a false or misleading material statement to a public servant is guilty of a gross misdemeanor. "Material statement" means a written or oral statement reasonably likely to be relied upon by a public servant in the discharge of his or her official powers or duties."

Back in 1982, the Washington State Supreme Court found that the statute defining obstructing a law enforcement officer, which had similar wording to our current statute defining false reporting , was unconstitutional. The court reasoned that the term, “public servant” was too vague. So there may be a way to attack the statute on constitutional grounds if you are charged with this offense.

The public servant must be discharging official duties at the time you make a false or misleading statement. The courts have recognized the acts of making an arrest, stopping a suspect to investigate, and requesting ID while investigating a crime as official duties performed by the police.

Aside from attacks concerning the validity of the statute, you can also challenge the police claim that your statements were “material.” Also, if the police weren’t making an arrest, requesting ID, or investigating a crime at the time they cite you for false reporting, you can argue that they weren’t discharging official duties.

Again, one of the best ways to avoid this charge is to be polite to the cops. They have all of the power in many situations, even if you’re a lawyer. They often make up facts to support a charge of false reporting if you give them a hard time.

CONSEQUENSES OF RECEIVING AN OUT-OF-STATE TRAFFIC TICKET

2009-11-03T16:42:00.000-08:00

Although traffic infractions are no longer considered to be criminal offenses in Washington State, I am making this posting in a criminal defense blog because many criminal defense lawyers, myself included, also handle traffic tickets. In addition, the consequences of receiving a traffic ticket that remains unpaid can result in criminal charges, as I will explain below. Just to clarify if anyone is confused, states share information regarding traffic tickets. That includes California and Oregon. If you get a traffic ticket in California or Oregon, Washington will know about it.

People sometimes ask me what will happen if they ignore a ticket they received while visiting another state. The answer is you will almost certainly have your driver's license suspended. Under the interstate Driver's License Compact (DLC), states share information with other member states so that drivers essentially have just one driving record which includes all traffic violations committed in every state.

Under the DLC, if you are cited with a traffic violation in another state while you're visiting and the state in which you live permanently has a similar statute prohibiting the same action for which you were cited in the other state, your home state will file an action against you as if the violation had occurred in your home state and your state will apply it's own law. If you disregard the citation and fail to pay the fine or request a hearing, your license will be suspended until the ticket is payed off.

But what if while you're visiting another state, you get a ticket for something that is illegal in that state, but is not considered to be a traffic violation in your home state? That's where the Non-Resident Violator's Compact comes in. 45 states in the U.S. are members of the Non-Resident Violator's Compact. If your state is a member of the Compact and you receive a traffic ticket (for something that would not be illegal had you done it in your home state) in another member state, that state will inform your home state of the traffic ticket. If you do not take care of the ticket, the state in which you received your ticket will inform the state in which you reside and your driver's license will be suspended until the ticket is payed.

If your address of record filed with the Depatment of Licensing (DOL) is not current, then you will not receive notice of the suspension. This is how many people get charged with Driving While License Suspended (DWLS) in the 3rd degree- they were unaware that an out-of-state ticket would have any affect on the status of their driver's license and did not receive notice because their address of record was not current.

If you were issued a traffic ticket in another state, in order to keep your driver's license, you will need to either (1) pay the ticket, (2)request a contested hearing or a mitigation hearing and return to the state where you received the ticket and fight the ticket yourself, or (3) hire a traffic lawyer who is licensed in that state to fight the ticket for you. Your safest bet is option (3).

All states are members of the Non-Resident Violator's Compact except for Michigan, Wisconsin, California, Montana, Oregon,and Alaska.

A newer law called the Driver's License Agreement (DLA) has been written to take the place of both the Driver's License Compact and the non-Resident Violator's Compact. As of the date of this posting, only Connecticut, Arkansas, and Massachusetts are members of this agreement. I will write more about the DLA in a future posting.

CAN YOU REFUSE TO GIVE POLICE INFORMATION WHEN QUESTIONED?

2009-11-02T12:23:00.000-08:00

I read an article recently about Seattle City Attorney, Tom Carr making the announcement that police in Capitol Hill will be stopping people on the street who appear to be intoxicated, ask them where they have been drinking, and try to close down the bars that people name. The author of the article I read urged people to not provide the police with any information regarding where they had been drinking.

That bit of advice prompted me write this posting about your legal rights and consequences of refusing to provide information to the police if you find yourself in the type of situation described above. The statute we have in Washington that defines “Obstructing a law enforcement officer” used to say that you are guilty of this offense if you, without lawful excuse, refuse to furnish or knowingly fail to furnish any information lawfully requested by a public servant. This statute has since been changed after the Washington State Supreme Court found it to be unconstitutionally vague.

Under the old statute, you would be guilty of obstruction of justice if you refused to tell a cop where you had been drinking if a cop asked you. The new statute now says that you are guilty of obstructing a law enforcement officer when you do anything that hinders, obstructs, or delays a law enforcement officer in the discharge of his or her powers or duties.

The courts have found certain things to qualify as acts that hinder, obstruct, or delay the police in performing official duties. These acts include refusing to produce a driver’s license when asked, refusing to stop talking to a person who is being arrested, and refusing to leave the scene of an investigation after being asked to do so.

In the case of State v. Turner, Washington State Court of Appeals said that merely refusing to answer questions asked by the police does not in and of itself constitute obstructing a law enforcement officer. So you can refuse to tell a cop where you have been drinking and not be charged with obstruction. Be careful, however. The cops are known to make false allegations of obstruction or false reporting if you are rude or obnoxious when stopped and questioned.

SEARCH AND SEIZURE: U.S. SUPREME COURT RESTORES OUR 4th AMENDMENT RIGHTS

2009-10-25T14:41:00.000-07:00

It is sometimes said that the law of search and seizure is the bread and butter of criminal defense. The outcome of many cases is frequently determined by the facts surrounding a traffic stop and a search or prolonged detention that follows the stop. I like to comment on recent changes in the law. While the U.S. Supreme Court decision that I will be discussing in this posting was handed down back in April, it is still very recent when you consider the fact that it effectively overturned a case from 1981 establishing basic principles regarding searches of automobiles when the police make an arrest.

Before I get to the recent Supreme Court case, I must first discuss an older case from 1969 called California v. Chimel. In that case, the police showed up at Chimel's house with an arrest warrant. Chimel's wife let them in and they waited for Chimel to arrive so they could arrest him. When Chimel returned home, the police arrested him and then searched the entire 3 bedroom house and the garage. The search lasted about an hour and the police opened a number of drawers.

Here, although the police had an arrest warrant, they did not have a search warrant. Searches without a warrant are considered to be per se unreasonable under the Fourth Amendment of the U.S. Constitution. When the case reached the U.S. Supreme Court, the court said that the police's search of the entire house was unconstitutional. It also created a rule defining a "search incident to arrest." The court said that when the police arrest someone, they may search the area within the immediate control of that person for the purposes of officer safety and to prevent the destruction of evidence. So if it's an area that is within the arestee's reach, the police can search the area so that the arestee cannot grab a weapon or destroy evidence. The search must be contemporaneous to the arrest. The search doesn't necessarily need to take place after the person is officially arrested, but it must be close in time to the arrest.

Now we get to the case of New York v. Belton, which was decided in 1981. In that case, a single cop stopped a car for speeding. The cop made contact with the driver and asked for the driver's license and registration. At this point, the cop smelled marijuana and ordered all four people out of the car, patted them down, and arrested them. He separated all four suspects while he searched the vehicle. During the search, the cop found a bag of cocaine in the pocket of a jacket that was in the backseat of the vehicle.

When that case reached the Supreme Court, the court based its decision in part on California v. Chimel, which I discussed above. The court said that the cops can make a "search incident to arrest" even though the suspects were outside the vehicle. For years, courts across the U.S. interperted this decision broadly. The police took it to mean that they were entitled to conduct warrantless searches of all automobiles as long as someone was arrested, whether the inside of the vehicle was within their reach at the time of the search or not.

I never liked the Belton decision. It just didn't make a whole lot of sense to me. The whole reason the court said that a search incident to arrest was permissible was for officer safety and to prevent the destruction of evidence. If the suspects are in handcuffs and no longer in the vehicle, then how could they possibly grab a weapon that's in the vehicle or destroy evidence that's in the vehicle? This case became an obstacle for me when I was making search and seizure arguments in felony appeals at the Washington Appellate Project.

28 years after New York v. Belton, the Supreme Court has finally said that police can no longer search the suspect's automobile when the suspect is arrested, in handcuffs, and has no access to the automobile unless the police have reason to believe that there is evidence in the automobile related to the offense for which the suspect was arrested.

Just a few months ago, the U.S. Supreme Court decided the case of Arizona v. Gant. In this case, the police were aware that there was an outstanding warrant for Mr. Gant for driving on a suspended license and they were aware that his license was still suspended. They went to his house and saw Mr. Gant pull up in his vehicle. Mr. Gant got out of the vehicle and the police called him over to them. Mr. Gant walked over to the police. They put him in handcuffs and locked him in the backseat of a patrol car.

The police then searched his vehicle and found cocaine in the pocket of a jacket in the backseat, just like the cop in New York v. Belton. In April of this year the U.S. Supreme Court said that this situation is different than the situation in Belton for a few reasons. First of all, in Belton, there was only one cop and four suspects, who were not locked in patrol cars and were all within a short distance from the vehicle that was searched. In Mr. Gant's case, however, there was more than one cop and only one person who had been in the vehicle and the suspect was locked in the back of a patrol car, making it impossible for him to reach any weapons in his vehicle or destroy evidence. Second, the cop in Belton was looking for evidence related to a drug offense- the offense for which he arrested the four suspects. In Mr. Gant's case, there could be no evidence found in Mr. Gant's vehicle that is related to the offense for which he was arrested- driving on a suspended license.

The U.S. Supreme Court pointed out that because there was no reason to believe that Mr. Gant could reach a weapon in his vehicle or destroy evidence related to the offense for which he was arrested, there was no justification for a search incident to arrest. The court effectively overturned New York v. Belton.

The dissenting justices in Arizona v. Gant claim that the majority's opinion will make things confusing for law enforcement. They say that police officers have been taught for over a quarter of a century that they can always search a vehicle when they arrest someone who was inside the vehicle and the police should be able to rely on this long-standing rule.

I disagree. I believe New York v. Belton gave the police unbridled authority to search a vehicle with no justification. It gave them an incentive to make arrests when they would not otherwise have done so in order to have an excuse to search the vehicle with the hopes of finding some sort of incriminating evidence- basically a fishing expedition.

There is no reason for the police to be confused about this decision; they have to follow the rules regarding probable cause in all other situations. What's so difficult about them following the rules when there is a vehicle involved? All the court is saying is that the police must have a reason to believe that the suspect may be able to reach a weapon in the vehicle or there's evidence related to the offense for which the suspect was arrested in the vehicle. If the police already arrested the suspect, that means they already have probable cause. They just have to support their decision to search the vehicle by facts indicating that it is more likely than not that there is evidence of the alleged offense in the vehicle. What's so hard about that?

The dissenting justices also criticize the majority for overturning a prior Supreme court case (New York v. Belton). I agree that even though the majority claims that Belton has not been overturned, they really did in fact overturn Belton. But I don't see a problem with that. If the Supreme Court makes a poorly reasoned decision that is in conflict with the Constitution and limits the rights it guarantees, the decision should be reviewed and overturned. In my opinion, the Supreme Court overturning New York v. Belton was long overdue.

As a criminal defense lawyer, I consider this to be a major victory for anyone concerned with individual rights guaranteed by the Constitution. There seemed to have been a good deal of progress made with regard to privacy rights and the Fourth Amendment in the 1960s, but those rights appear to have been eroded by a number of Supreme Court decisions over the last couple decades. Arizona v. Gant is a case that has restored our Fourth Amendment rights to some extent. Interestingly, Justices Scalia and Thomas joined in the majority opinion in this case. These justices are conservative and tend not to reverse criminal convictions or join in opinions that limit law enforcement officers' ability to search you, your belongings, your home, or your vehicle.

QUASHING A WARRANT: WHAT TO DO WHEN THERE IS A WARRANT OUT FOR YOUR ARREST

2009-10-19T17:04:00.000-07:00

Over the last few weeks, I have run into a large number of people who not only have criminal cases pending, but also have warrants out for their arrest. One of the most common reasons people find themselves in this situation is that they missed their court date. When this happens, it is considered to be an FTA (Failure To Appear). If you FTA, the judge will issue a bench warrant.

One of the most common reasons people miss their court date is because they do not keep the court informed of their current address. If you know you have a criminal matter pending, make sure the court knows your current address and that you check your mail regularly.

Many of the people I have talked to who have outstanding warrants are scared and don't know what to do. The only thing you should be worried about is getting picked up by the police. If the police stop you, whether you're in a vehicle or just walking down the street, for whatever reason, and they discover that there is a warrant out for your arrest, you will be taken into custody. No doubt about it- you are going to jail.

The best thing to do when there is a warrant out for your arrest is to go to the warrants calendar at the court in which your case has been filed and have the warrant "quashed". The word, "quash" is a middle English word that means to extinguish or destroy. In the legal context of a warrants hearing, to quash a warrant means to terminate or revoke the warrant. When you do this, the warrant will be gone and you will be given a new court date. Except for unusual circumstances, the judge usually quashes the warrant and gives you a new court date. You will be given a slip with that court date on it. Do not lose this slip; the court will not send you any further notice of your court date. Make sure you inform your attorney of the new court date.

Speaking of attorneys, defendants are usually not represented by a lawyer when they go in to quash a warrant. They usually just call up the court and find out the day, time, and courtroom number where the warrants calendar is held and just show up on their own. In Seattle, you must go to the clerk's office on the 3rd floor of the King County Courthouse on 3rd Avenue and ask to be added to the warrants calendar. Warrants are quashed every day at 2:00 p.m. in courtroom 1 at the King County jail. Yes, that's right- the jail. There is a courtroom in the jail specifically for quashing warrants and probable cause hearings. The courtroom for quashing a warrant in Seattle is in the jail, not the courthouse. But you have to go to the courthouse first to get added to the warrants calendar.

In some cases, the judge may require you to post bail in order for the warrant to be quashed. There is always a bail bondsman present at the warrants calendar at the King County jail. If you can't post bail, then the judge will just send you on your way with an outstanding warrant; people are rarely taken into custody at these hearings. But it does happen sometimes. If you have a history of FTAs or your case is particularly egregious, the judge may require bail or even have you taken into custody. On the other hand, if you accidentally missed just one court date and do not have a significant criminal history or FTA history, the judge probably won't require you to post bail or have you taken into custody. These decisions are made on a case-by-case basis.

The main fear that people have when they "turn themselves in" is that they'll be taken into custody. In many cases, you should not worry about that. The judge will most likely just quash the warrant and give you a new court date and you won't have to be constantly looking over your shoulder to see if a cop is behind you. But if you have a warrant out for your arrest and you chose to ignore it, you will certainly be taken into custody if you're stopped by the police and they run a warrants check. Do not make this mistake.

WHAT CONSTITUTES A "DEADLY WEAPON " BY LAW?

2009-09-13T16:28:00.000-07:00

In Washington State, a deadly weapon can really be any object. It does not matter so much what the object is as the way you use the object. The Washington statute that defines “deadly weapon” says that a deadly weapon is anything that is likely to produce death, is readily capable of producing death or is likely to produce death from the manner in which it is used. The statute lists certain items that are deadly weapons per se- that is, objects that are automatically considered to be deadly weapons by law. These items include, knives with blades longer than 3 inches, daggers, slingshots, explosives, brass knuckles, razors, and firearms. The prosecutor does not need to prove that these items are readily capable of or likely to produce death; the court will presume that these items are deadly weapons.

But what if there is an assault and someone used a pocket knife with a blade less than 3 inches? Is that a deadly weapon? The answer depends on how it was used. Was it used just as intimidation or did the a person using the knife stab another person in an area of the body that would likely cause death. What if the pocket knife was folded shut? Is it a deadly weapon then? I worked on the appeal of a robbery case that presented this very issue. The trial court had found that because the knife could readily be opened, it fit the definition of deadly weapon under Washington State law.

While working at the California Innocence Project in San Diego, I came across a case in which an inmate was convicted of assault with a deadly weapon after stabbing a prison guard with a pencil. In Washington, we could get the same result under our statute defining “deadly weapon.” Depending on how you use it, even a pencil can be considered a deadly weapon.

All of this is important in determining the degree of the crime that the prosecutor will charge a person with, which in turn, determines the sentence a person will receive if convicted. If you are charged with a simple assault for shoving someone, it is normally 4th degree assault, which is a gross misdemeanor and punishable up to no more than 1 year in the county jail. If you happen to use anything that is considered to be a deadly weapon while shoving another person, it could be charged as 2nd degree assault, which is a class B felony, punishable up to 10 years in state prison. This is a huge difference.

You could also get extra time added to your sentence with a deadly weapon enhancement. Similar results occur with regard to the crimes of burglary and robbery. The police and the prosecutors have a lot of room to allege that virtually any object in your possession during the incident is considered a deadly weapon. It all depends on the specific facts of the case and how the object was used in the incident.

DRIVING ON SUSPENDED LICENSE DEFENSES

2009-08-23T16:18:00.000-07:00

You are not defenseless against a driving while license suspended charge in Washington. I recently met someone who was pulled over for a traffic violation. During the stop, the police officer discovered that the driver’s license was suspended. I asked this person if he planned on fighting it. He wanted to fight the speeding ticket, but when it came to the driving on a suspended license charge, he was going to just accept it. He said, “What can I do? My license was suspended.” It may come as surprise to you, but with driving while license suspended (DWLS), like most other crimes, there are a number of defenses a criminal defense lawyer can raise to beat the charge.

As I have said in many postings and articles already, in every criminal case, the criminal defense lawyer must examine every aspect of the stop and police actions. If the prosecution cannot show that the police were justified in stopping you or that your stop was not unreasonably prolonged, the evidence against you will be excluded and the charge will likely be dropped. Also, just like in any criminal case, statements you make to the police can be excluded from evidence if the police did not follow the rules and give you Miranda warnings before questioning you.

Can the prosecutor prove that the person whose license is suspended and you are the same person? The courts have already ruled that having the same name as someone in a Department of Licensing suspension record is not enough to prove that your license was suspended beyond a reasonable doubt. They must have more to prove this. Driving on suspended licenses cases do occasionally go to trial. The prosecutor must prove that your license was in fact suspended at the time the police stopped you. How do they do this? They must introduce a certified copy of your driving record into evidence. Criminal defense trial lawyers know how to challenge the admissibility of evidence at trial. If the prosecutor cannot lay the proper foundation before introducing the driving record, it will not be admitted into evidence and the prosecutor will not be able to prove that your license was suspended.

The prosecutor must also prove that the Department of Licensing gave you notice that your license was suspended. The Department of Licensing is required to send an entire packet to your “address of record.” If this packet is missing certain forms, the notice is considered to be insufficient for you to be convicted of driving while license suspended.

Can the prosecutor prove that the Department of Licensing sent you notice to your address of record? The address of record is the address you gave the Department of Licensing when you first got your Washington State driver’s license or the address you last gave them by filling out the proper forms. If the prosecutor cannot prove this, they cannot convict you of driving while license suspended. For many license suspensions, not only does the Department of Licensing need to send you written notice informing you that your driver’s license has been suspended, but they also must inform you that you have the right to a hearing. If you were not properly informed of your right to a hearing or a right to appeal the license suspension AND how to appeal a license suspension, you were not given proper notice and the prosecutor cannot convict you of DWLS.

As I have said in other postings, a gross misdemeanor is punishable up to 1 year in jail. DWLS is the most serious licensing offense there is in Washington State and, 1st or 2nd degree DWLS are gross misdemeanors as opposed to simple misdemeanors, which are only punishable up to 90 days in jail. It’s a DWLS in the 1st degree if you’re license was suspended in under the Habitual Traffic Offender Act. It’s 2nd degree DWLS if you were ineligible for reinstatement when you were stopped. Most people who are charged with DWLS are charged with 3rd degree DWLS, meaning they were eligible for reinstatement, but they just haven’t reinstated their license yet. DWLS in the most serious licensing offense we have, contact a criminal defense lawyer to help you if you are charged with this crime.

ILLEGAL SEARCHES BY THE POLICE

2009-08-19T11:56:00.000-07:00

ILLEGAL SEARCHES BY POLICE

Your case can get dismissed if the police searched you illegally. In most criminal cases, the first line of defense is challenging the legality of police actions. Did the police have probable cause to stop the person in the first place? Once the police stopped the person, did they have probable cause to search the person? Did they have probable cause to search the person’s belongings? The Fourth Amendment of the U.S. Constitution says that the police cannot search or seize people, their belongings, or their homes without probable cause. When the police violate a person’s Fourth Amendment rights, any evidence of criminal activity that the police received by an illegal search or seizure must be thrown out. If the defense is successful in getting the evidence thrown out by showing that the actions of the police were unconstitutional, the case can be dismissed.

To help you understand the Fourth Amendment and how to determine if your rights have been violated, I must define certain words in a legal context. Exactly what is a search? A search occurs when the government intrudes upon an area in which someone has a reasonable expectation of privacy. A person has a reasonable expectation of privacy in what is in their pockets, what is in their car, what is in their purse, what is in their backpack, what is in their house, etc. When the police look in these areas without probable cause, they are violating your Fourth Amendment rights. What is a seizure? A seizure occurs when the police stop or detain you for any length of time and you feel as though you are not free to leave. A seizure also occurs when the police confiscate your belongings. What is probable cause? Probable cause exists when it is reasonable to believe that it is more likely than not that a crimes has been or is being committed.

If the police have violated your constitutional rights by conducting an illegal search or seizure, a criminal defense lawyer can get all of the evidence thrown out or “suppressed.” To do this, we file what is called a suppression motion. The motion includes all of the legal reasons as to why the evidence should be suppressed in your case. There will also be a suppression hearing, where we ask the police officers questions. The burden is on the prosecutor to show that the police acted lawfully. If they can’t, all of the evidence will be suppressed and your case will get dismissed.

I have drafted many suppression motions, both in California and in Washington. In addition, I have a deeper understanding of the law of search and seizure by working on appeals of felony convictions at the Washington Appellate Project. The U.S. Supreme Court has produced hundreds of cases involving search and seizure. These court decisions are fact specific and fact driven. A thorough knowledge of the Supreme Court’s interpretation of the Fourth Amendment is necessary to effectively negotiate with the prosecutor for a dismissal or to file a suppression motion and present a winning argument to the judge to get the evidence excluded. If you think there’s no way to win your case, think about what a lawyer could do to get it dismissed by challenging the actions of the police. For more information, visit www.jegattorney.com.

What happens at an Arraignment

2009-07-27T15:17:00.000-07:00

WHAT HAPPENS AT AN ARRAIGNMENT?

If you have never been charged with a crime before, the whole process can be frightening. People charged with crimes sometimes nervously ask me what happens at arraignment. There is no need to panic about an arraignment. Very little actually happens. Your case will not end at this hearing and you will almost certainly have another court date. If you are in custody in the state of Washington, you are entitled to what is called a Gerstein hearing within 48 hours. If you do not receive this hearing, you must be released from jail. The purpose of the Gerstein hearing is to determine whether probable cause exists to justify your arrest. If you remain in custody you have the right to a trial within 60 days of arraignment in Washington State.

If you are reading this, you are most likely not in custody and therefore did not have a Gerstein hearing. Your first court date will be an arraignment. At an arraignment, you will be informed of the charges against you and will be advised of your constitutional rights. These rights include the right to a jury trial, the right to a speedy trial, the right to remain silent and not incriminate yourself, the right to a lawyer, the right to confront and cross examine witness against you, and the right to present evidence in your favor. You will be given a form to sign that indicates you have been advised of your rights and understand them. When your name is called, you will stand in front of the judge with your lawyer, or if you don’t have a lawyer, the Public Defender will represent you at this hearing. The arraignment usually only lasts a minute or two. Your lawyer will hand the judge the form you signed, ask for a jury trial, and request that the judge enter a plea of not guilty. The prosecutor or judge may inform you of the charges and the judge may ask you if you understand your rights.

The judge may also ask your lawyer if he or she agrees that probable cause exists. Generally, the lawyer will say that you admit probable cause exists for purposes of ARRAIGNMENT ONLY. In some cases, the prosecutor or judge may wish to have certain conditions imposed if you wish to remain out of custody. Depending on your charge, these conditions could include no driving without a valid license and insurance, no driving without an ignition interlock device, no consumption of alcohol, or there may be a condition requiring you to stay away from certain places or people.

In some cases, the judge may require you to post bail. This happens only in cases where the judge believes that you are a danger to the public, there is a probability that you may harm someone, or that you are a flight risk. If you are a habitual traffic offender, you are being charged with DUI, and the BAC was particularly high, the judge may find that you are a danger to the public and ask that you post bail as a condition of your continued release. If you are being charged with assault and you are accused of threatening the alleged victim, the judge may require bail. To determine whether you are a flight risk, the judge will look at your ties to the community. These ties include whether you live in the area permanently, the length of time in which you have lived in the area, whether you are employed in the area, the length of time you have worked for your current employer, and whether you have friends and family in the area.

If your are out of custody, you have the right to a trial within 90 days of arraignment. Once your plea is entered, your next court date (the pretrial hearing) will be set. You will then go to the clerk and receive a slip with your next court date. That’s it. Most of the time spent at arraignments is waiting for your name to be called. People who are represented by a private attorney usually are called first before the public defender begins handling the arraignments.

The summons you received in the mail will tell you the time of your arraignment. Everyone who has an arraignment that day will receive that same time. If your summons says that you are supposed to be in court at 8:45 a.m., you may not actually be called to go in front of the judge until 11:30 a.m., depending on how many other people have arraignments that day and how the court determines the order in which people’s names are called. Some courts do it alphabetically. Even though you most likely won’t be called at the time your summons tells you to be there, don’t be late. If you miss the arraignment, the judge will issue a bench warrant for your arrest. Some judges issue warrants just minutes after court is in session and they are aware that you are not present.

If you’re running late, make sure you get there. Judges will quash the warrant if you show up, even if you’re late. The point is: do what ever it takes, JUST SHOW UP. If you’re late the judge will want a very good reason as to why you were late and may scold you, but you won’t go to jail for being late. Arraignment calendars that begin in the morning usually go all the way to 11a.m. or 12p.m. and then the court breaks for lunch. Arraignments often resume at 1:00 or 1:30 p.m. after lunch. Do not be nervous about an arraignment if you’re charged with a misdemeanor; this hearing is mostly just a formality. Between your arraignment and your next court date, your lawyer will be negotiating with the prosecutor for a resolution to your case and the best possible outcome for you.

I have handled dozens and dozens of arraignments in King County, Pierce County, Snohomish County, Chelan, as well as San Diego, CA. In every location, the arraignment is the same. If you are unsure about how to hire a lawyer or who to turn to, you can always ask an attorney to represent you for the limited purpose of the arraignment and give you time to decide which lawyer you would like to handle the rest of your case. For information about what hearings follow an arraignment, click here.

THE ROLE OF A CRIMINAL DEFENSE LAWYER

2009-07-19T14:44:00.000-07:00

THE ROLE OF A CRIMINAL DEFENSE LAWYER

I often get different variations of the question, “how can you defend someone you know is guilty?” The answer is: because every person is entitled to a lawyer in criminal proceedings. The U.S. Constitution requires that the government prove every element of a criminal charge beyond a reasonable doubt. Whether I know a person is guilty or whether I think a person is guilty doesn’t matter. If the prosecutor’s allegations are just accepted as the truth without any challenges or scrutiny, people could easily be prosecuted arbitrarily, which would lead to the wrongful conviction of many innocent people. In a criminal trial, the defense lawyer forces the prosecution to prove its case. If the prosecution cannot prove what it is alleging, the defendant should not be convicted of the offense; it would be unconstitutional. Bottom line.

People often falsely assume that the main job of a defense lawyer is “to get people off.” This is simply not true. Of course, there are many instances in which the case does go to trial and the defense is seeking a verdict of not guilty on all charges and allegations, but that is not the typical criminal case. A defense lawyer’s job is to protect a defendant’s constitutional rights and prevent the government from trampling on them. Most criminal cases, especially misdemeanors, do not go to trial. A criminal defense lawyer can stop the prosecutor from charging crimes that it just can’t prove or charging crimes that did not even occur, thereby getting the charge reduced to a lesser offense that is appropriate for the alleged conduct.

Take a burglary charge for example. Burglary is the unlawful or unauthorized entering of a building with the INTENT to commit a crime inside the building. If a person merely enters a building for shelter without permission and no intent to commit any crimes inside the building, that person should not be convicted of burglary. The lesser charge would be criminal trespass, which is merely the unlawful entering of a building. In this situation, the criminal defense lawyer can point out the missing elements of the prosecution’s case and negotiate to get the charge dropped from burglary, a felony, to criminal trespass, which is a misdemeanor. Even at trial, the defense lawyer can tell the jury that there are missing parts of the prosecution’s case. The lawyer does not always dispute every fact presented or claim that the defendant is 100% innocent of any wrongdoing. In many cases, the lawyer asks the jury to find that a lesser offense has been committed.

Another way in which a lawyer can protect a person's constitutional rights and stop the prosecutor from overcharging is to raise a double jeopardy argument. The Fifth Amendment of the U.S. Constitution says that no person should be twice put in jeopardy in a criminal case. What this means is that the prosecutor cannot try to charge someone again with a crime after the person has been found to be not guilty by a judge or jury. It also means that the prosecutor cannot charge a person with two separate crimes based on the same conduct.

What exactly does that mean? Well, take a look at robbery. Robbery is essentially theft by force or threat of force. If a person knocks someone down and takes their wallet, it would be a robbery. The prosecutor may want to also charge the defendant with assault for knocking the victim down. A defense lawyer should argue that charging the person twice (robbery and assault) is unconstitutional because the conduct that gave rise to the assault charge is the exact same conduct that gave rise to the robbery charge. I have raised double jeopardy arguments on appeal in cases like these and the State is forced to admit that they have charged a person twice for a single act. In these cases, where the public defender should have raised the issue at trial, I have appealed them to get one of the two charges vacated. That's not to say that the defendant walks away with no charges whatsoever, but I have stopped the State from stacking two felonies up against a person for committing just one single act.

Another job lawyers have is to make sure that the defendant receives a fair sentence. For instance, a DUI is a gross misdemeanor in Washington and is punishable up to a year in jail. There is a mandatory minimum sentence of 24 consecutive hours in jail for a DUI if it is your first offense and your blood alcohol level (BAC) is below .15. If it is above .15, there is a mandatory minimum sentence of 48 consecutive hours in jail. These minimum sentences are MANDATORY. The judge has no room to give you less time if you are convicted of DUI. But as I wrote above, judges can give you up to a year in jail for your first DUI if they want to. This is where the lawyer acts as your advocate to point out any mitigating circumstances and convince the prosecutor to recommend a sentence that is fair and appropriate.

Defense lawyers work with clients to achieve certain goals. Some defendants are not concerned about a criminal conviction, but want to perserve their right to possess a firearm. If you're in the military, a domestic violence conviction, a charge that could result in you losing your Second Amendment rights, can destroy your career because you will not be allowed to do your job, which requires you to possess a firearm. A defense lawyer will strive to work something out with the prosecutor so that you may keep your job in the military. Some clients may be most concerned with perserving their ability to drive. Some may be trying to avoid jail in order to keep their job and support their families. A defense lawyer takes all of these needs into conbsideration in working with the prosecutor to achieve the client's objectives. There are many alternatives to a regular jail senetence such as probation, electronic home monitoring, or work furlough. A defense lawyer can make arrangements that require a client to report to jail only on the weekends so they can keep their job during the week and support their families.

In Washington State, we have something called a Stipulated Order of Continuance (SOC). An SOC is essentially a contract between the client and the prosecutor that says that the client will comply with certain conditions for a specified period of time. After that specified period of time has expired, the case is dismissed. A defense lawyer advocates on your behalf to convince the prosecutor that an SOC is appropriate in your case.

In conclusion, the role of a defense lawyer is not just "getting people off." The role is to protect the client's constitutional rights and minimize the damage that a criminal charge can do to a person's life. The defense lawyer makes sure that the prosecutor has sufficient grounds for making certain allegations against you and makes sure that the prosecutor is not overcharging you or alleging things they just can't prove. The defense lawyer makes sure you are being treated fairly and the disruption to your life is minimal. The main role of a defense lawyer is to be your ADVOCATE. This means many things beyond "getting people off." As a criminal defense lawyer, I do everything within my power to achieve the best possible outcome for my clients. If the best possible outcome is a dismissal or a verdict of not guilty, then that is what I will work towards. The client ulimately has the final say in the matter; the lawyer is your advocate who speaks on your behalf to protect you and to achieve your goals. If you have questions about a criminal matter, you can contact me by visiting www.jegattorney.com.