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Defendants in Washington criminal cases often challenge the evidence used against them.  One way to challenge evidence is to challenge the validity of the search warrant used to obtain it.  When a court issues a search warrant, it must determine there is probable cause based on the facts presented to it.  This determination is the court’s responsibility and cannot be made by police officers, so there must be more than conclusory statements supporting the warrant.  The court is permitted, however, to draw reasonable inferences from the facts presented.

The defendant in a recent case challenged a search warrant.  According to the appellate court opinion, the defendant was convicted of vehicular assault after losing control of her vehicle and crashing into two other vehicles.  Subsequent blood tests found a Blood Alcohol Concentration (BAC) of 0.13 and 4.0 nanograms of THC.  The defendant appealed her conviction, arguing a lack of probable cause to support the warrant authorizing the blood draw.

The firefighter paramedic who responded to the scene saw a female driver who was barely conscious.  He transported her to the hospital.  He identified the defendant as the driver.

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Following a Washington final divorce decree, a maintenance award, also known as spousal support, may only be modified if there has been a substantial change in circumstances since the decree.  The change has to be something that was not within the contemplation of the parties at the time of the divorce.  There may be a change in circumstances if the spouse receiving maintenance was expected to become self-supporting, but is unable to do so through no substantial fault of his or her own.  A trial court may choose a disproportionate property division instead of ordering maintenance.

A former wife recently sought modification of an order of maintenance shortly before the maintenance obligation was to expire.  The couple had been married 30 years before they separated.  The husband was a cardiologist, and the wife had worked as a registered nurse, but stopped working in 1989.  She had been treated for mental health issues since 1996.

The husband was ordered to pay maintenance of $4,600 a month for five years, starting in August 2010, and child support of $1,400 a month until the youngest child graduated high school.   The monthly maintenance payment was to increase to $5,750 per month when the oldest child graduated.

In a series of decisions, the United States Supreme Court held that it is unconstitutional to impose certain severe sentences on juvenile offenders.  The Court first found the death penalty unconstitutional for juvenile offenders.  Then, it found a sentence of life without parole to be unconstitutional for any juvenile offender who did not commit a homicide.  The Court later held that mandatory life without parole for juvenile offenders is unconstitutional.  Following these decisions, Washington juvenile sentencing laws were revised to eliminate mandatory life sentences for juvenile offenders.  A new Washington law also required re-sentencing of juvenile offenders who had been sentenced to life without parole: RCW 10.95.030.  Washington also enacted RCW 9.94A.730, which allows juvenile offenders to petition for early release after serving 20 years.

An eligible offender sought re-sentencing under RCW 10.95.035. He had been convicted of multiple crimes as a juvenile, including aggravated murder and premeditated murder in 1992.  He received a sentence of life without parole for aggravated murder and a consecutive sentence for premeditated murder.

At his re-sentencing hearing, he argued his sentences should run concurrently.  The state argued the statute only gave the court the authority to address the sentence of life without parole and that the consecutive sentence was required pursuant to RCW 9.94A.589 because the crimes involve d multiple violent offenses that arose from separate and distinct criminal conduct.  The judge agreed with the state and sentenced the defendant to 25 years to life for aggravated murder and left the sentence for the premeditated murder at 280 months to be served consecutively.  The defendant appealed and the Court of Appeals affirmed the trial court.  The Washington Supreme Court granted review upon the defendant’s petition.

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Washington personal injury cases generally hinge on proving the defendant’s negligence.  A recent case, however, turned on contract law.  In this unusual case, the court had to determine if a defendant was bound by its agreement to accept responsibility for the condition of a parking lot after learning the accident did not occur on its property.

According to the appeal court’s opinion, the plaintiff was injured when he hit a pothole while riding his bicycle in a parking lot.  He notified the realty company that owned the shopping complex property and Wal-Mart, which had a store in the shopping center.

The realty company sent a letter to Wal-Mart stating Wal-Mart was responsible for maintaining the parking lot.  The plaintiff subsequently filed a claim with Wal-Mart.  Wal-Mart denied the claim, stating its investigation found no negligence on Wal-Mart’s part.

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Parents are expected to comply with the parenting plans that set forth custody and visitation arrangements for their children.  If a parent fails, in bad faith, to comply with a court order in a Washington custody case, the court may find that parent in contempt of court.

A mother recently challenged a contempt order against her.  The court found her in contempt after she failed to transfer her daughter to the girl’s father in accordance with the parenting plan.  There were two additional contempt orders, a writ of habeas corpus and a warrant.  The mother appealed.

According to the appeal court’s opinion, the daughter had special needs.  The psychologist found the she was estranged from her father for “completely irrational” reasons that were the result of her anxiety and OCD.

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Evidence collected from an unlawful search is generally not admissible in a Washington criminal case.  If, however, the evidence is ultimately obtained pursuant to lawful means independent of the lawful search, it may be admissible.  When considering this “independent source doctrine,” the court must consider whether the illegally obtained evidence affected the decision to seek or issue the warrant.  The independent source doctrine applies if the illegal search did not contribute to the otherwise lawful warrant being issued.

A defendant recently challenged evidence that was collected from his phone pursuant to a second warrant after the original warrant had been found to be improper.  According to the appeal court’s opinion, the defendant was arrested after a shopper noticed him taking “upskirt” photos of a teenage girl at a grocery store.  The police seized his phone at the time of the arrest and subsequently obtained a warrant to search the phone.  The warrant covered all photos and videos on the phone “related to this investigation of voyeurism.  The officers seized more than 500 files and charged the defendant with voyeurism.

The trial court granted a motion to suppress the phone evidence, finding the warrant lacked sufficient particularity.  That day, the police obtained another warrant that again covered photos or videos related to the voyeurism investigation, but this time added the name of the store, the city, the name and age of the alleged victim, what the alleged victim was wearing, and the date the photos were taken.  Eighteen photos of the girl were found on the phone.  The trial court denied the defendant’s motion to suppress the evidence from the second search.

In some instances involving alleged domestic violence, courts may issue permanent protection orders.  Even if there are no intentions to contact the protected party, a respondent may find an ongoing protection order to have other consequences and seek to terminate it.  The court is to consider nine factors to determine if a substantial change in circumstances supports termination of the protection order.  Only factors that address whether the respondent is likely to commit domestic violence acts against the other party in the future are to be considered.  The respondent has the burden of showing the substantial change in circumstances by a preponderance of the evidence.

A man recently sought termination of a permanent protection order.  According to the appeals court opinion, the man’s wife filed for legal separation and a one-year protection order after he assaulted her in 1996.  The divorce decree prohibited each party from going to each other’s homes or workplaces.

In 2002, the ex-wife sought a protection order against her ex-husband on behalf of herself and their children.  She alleged that he had behaved aggressively toward their son, but he denied any abuse.  The court entered an ex parte domestic violence order of protection.

The rules of evidence can be important in any court case, even in a Washington custody case.  A mother recently challenged a custody modification that gave the father primary residential custody on the grounds certain evidence should have been excluded at trial.

The children had been living with their mother and her husband in Germany.  While they were in Washington for several weeks visiting their father, he petitioned to become the custodial parent.  He alleged abuse in the mother’s home was harmful to the children’s physical, mental, and emotional health.

According to the court’s opinion, the father took the children to the doctor after they told him about abuse, and they were referred to a counselor.  The counselor testified the children told her about several incidents of abuse and violence at their mother’s home.  She said those statements helped her diagnose and treat them.  She diagnosed all three children with adjustment disorder with anxiety and dysthymia, and one of them with depression.

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Washington Title IX defense attorneys know that the procedures used by schools and colleges to investigate allegations of sexual harassment are not always fair.  The Secretary of Education has proposed amendments to the regulations that implement Title IX of the Education Amendments of 1972. Title IX prohibits sex-based discrimination in education programs and activities receiving federal financial assistance.  The proposed regulations would define sexual harassment, specify when a school must respond to a sexual harassment allegation, impose a standard for a school’s response to sexual harassment allegations, set forth when a school must initiate its grievance procedures, and require procedures to ensure a fair and reliable factual determination during the investigation and adjudication of a sexual harassment complaint.

The Secretary found problems with how Title IX has been applied.  These problems included definitions of sexual harassment that were too broad, lack of notice, not providing both parties with the evidence reviewed by the investigator, not allowing cross-examination of the parties and witnesses, and adjudications that applied the lowest standard of evidence.

The proposed regulations are intended to ensure that allegations are properly investigated and procedures are fair to both parties.  Unfortunately, sometimes schools and universities engage in procedures that deny due process to those accused of sexual harassment, regardless of whether the accused person is a student or a faculty member.

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In a Washington criminal case, the court must generally impose a sentence within the standard sentence range.  RCW 9.94A.505.  In some circumstances, however, the court may deviate from the standard range.  These exceptions include exceptional sentences, first-time offender waivers, and Drug Offender Sentencing Alternative (DOSA). DOSA allows a reduced sentence, treatment, and increased supervision for certain non-violent drug offenders with a goal to help them recover from addiction.  The DOSA statute sets forth the criteria for qualifying for special sentencing and provides for both prison-based and residential chemical dependency treatment-based alternatives.  RCW 9.94A.660.  Under the statute, the residential chemical dependency treatment-based alternative is only available if the midpoint of the standard range is not greater than 24 months.

In a recent case, the state challenged the imposition of a residential-based DOSA sentence because the defendant’s standard range midpoint was greater than 24 months.  According to the opinion, the defendant twice sold his prescription Suboxone strips to a police informant within 1,000 feet of a school bus stop.  He was charged with two counts of delivering the drug, each with a sentence enhancement for delivering within 1,000 feet of a school bus stop.  The standard sentence range for the defendant, based on his offender score and the seriousness of the crime, was 12 to 20 months, plus a 24-month enhancement for each count.

The state offered a deal that would drop one count and recommend prison-based DOSA for the other.  This would have resulted in 20 months in prison and 20 months in community custody.  The state rejected the defendant’s counter offer to plead guilty if the state removed the school-zone enhancements so he could serve a residential-based DOSA rather than a prison-based DOSA.

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