AV Preeminent 2018
Lead Counsel Rated
Justia Badge
AVVO Reviews
 AVVO Rating 10

Generally, a police officer needs a warrant to seize a person suspected of a crime.  There are some exceptions to the warrant requirement, including the Terry stop.  Terry allows an officer to briefly stop and question someone if the officer had reasonable suspicion of criminal activity.  The officer’s suspicion must be based on specific and articulable facts and be individualized to the person.  Challenging the validity of a seizure, including a Terry stop, can be an important aspect of a Washington criminal defense case.

A minor defendant recently appealed his conviction, arguing the officer did not have grounds to conduct a Terry stop.  According to the court’s opinion, the officer stopped a vehicle after seeing it roll through a stop sign.  There were three passengers in addition to the driver. The defendant was the front seat passenger.

The officer smelled marijuana when he approached the vehicle.  The driver told him all of the occupants were seventeen.  The driver denied having marijuana, there being marijuana in the car, or any of the passengers having marijuana.  He said his mother used marijuana and that could have been what the officer smelled.  The officer frisked him and put him the back of the patrol car.

Continue reading

A DUI in Washington is generally a gross misdemeanor, but it can be elevated to a felony if the defendant has three prior offenses, as defined under the statutes within the past 10 years.  RCW 46.61.502.  RCW 46.61.5055 sets out which convictions qualify as prior offenses, including reckless driving if it resulted from a charge that was originally filed as a DUI.  A Seattle DUI attorney can explain whether a conviction may be considered a prior offense.

The Supreme Court of Washington recently reviewed a felony DUI conviction.  At the time of the offense, the statute required four prior offenses for elevation to a felony, but it has subsequently been amended to require only three.  The defendant had a previous DUI conviction, a first-degree negligent driving conviction, and two convictions for reckless driving.  At trial and on appeal, the defendant argued that the state failed to present sufficient evidence that the reckless driving convictions “involved alcohol.”

The trial court assessed the prior convictions on the record and found that there was sufficient evidence for the case to move forward.  The court did not instruct the jury that it had to find that each prior offense involved alcohol to find the defendant guilty of felony DUI.

Continue reading

A person who has experienced domestic violence may seek a protection order with the assistance of a Seattle civil protection order lawyer. Courts may order a protection order based upon violence against a child.  Washington law does, however, recognize a parent’s right to physically discipline his or her child, as long as that discipline is reasonable and moderate.  An incident of reasonable and moderate physical discipline should not lead to the issuance of a protection order.

A father recently challenged a protection order, claiming that the incident in question was discipline rather than assault.  The mother had petitioned for an order of protection against her former husband, alleging that he had assaulted the mother and their son.  A judge issued a temporary order of protection, prohibiting the father from having contact with his former wife and their three children.

The father filed opposing declarations, disputing most of the accusations.  He did admit, however, that he had recently slapped his 11-year-old son’s cheek for talking back.  A police report indicated that the responding officers did not see any marks on the child’s face.

Continue reading

The Sixth Circuit recently weighed in on a circuit split involving a school’s liability for its response to sexual harassment. While this does not directly affect Washington Title IX cases, it shows the contrasting interpretations of Title IX throughout the country.  Four female students filed suit against a University, alleging that its response to their reports of sexual assault was inadequate and caused physical and emotional injuries, resulting in a denial of educational opportunities.  The defendants moved to dismiss, and ultimately all but four claims were either withdrawn or dismissed.  The remaining claims were Title IX claims and an equal protection claim under § 1983.

The Sixth Circuit granted the defendants’ motion for an interlocutory appeal to address the question of whether there must be additional acts of discrimination to support deliberate indifference to peer-on-peer harassment under Title IX. In evaluating a Title IX private cause of action against a school, courts use the test set forth in Davis v. Monroe County Board of Education. The Sixth Circuit noted that Davis requires the school’s actual knowledge of actionable sexual harassment and a deliberate indifference to that harassment that results in additional actionable harassment.  Under Davis, harassment must be severe, persuasive, and objectively offensive to be actionable.

The plaintiff must then prove the elements of deliberate indifference. The plaintiff must show that the school had actual knowledge of actionable sexual harassment.  The plaintiff must show that there was an act, meaning an unreasonable response in light of the circumstances. There must be an injury, meaning that the plaintiff was deprived of access to educational opportunities or school benefits.  The plaintiff must also show that the defendant’s act caused the injury.  The Sixth Circuit noted that the Davis case requires the plaintiff to show that the defendant’s deliberate indifference subjected students to further actionable harassment.  The plaintiff must show both that the response was unreasonable and that it led to further harassment.

Continue reading

Unfortunately, in some cases, a Washington car accident victim’s biggest adversary may be his or her own insurance company.  Washington automobile insurers must offer personal injury protection (PIP) coverage to their policyholders.  PIP provides no-fault coverage for the insured’s medical expenses arising from an automobile accident.  Insurers must conduct a reasonable investigation before they deny claims.  Additionally, Washington law provides that it is an unfair practice for a PIP carrier to deny benefits for reasons other than medical bills that are not reasonable, necessary, related to the accident, or incurred within three years of the accident.  Sadly, it is not uncommon for an insurer to wrongfully deny the claims of its own insured.

In a recent case, the plaintiffs pursued class actions in federal court against their insurers, including claims under the Consumer Protection Act (CPA) for wrongfully denying their PIP benefits.  One plaintiff alleged that the insurer refused to pay medical bills if a computerized review determined that the bill exceeded a predetermined amount.  The plaintiff alleged that the insurer failed to investigate or make an individualized assessment of the charges before denying them.  The plaintiff argued that this practice constituted unfair practices under Washington insurance law.  WAC 284-30-330 and WAC 284-30-395. She further argued that the practice resulted in a routine failure to pay reasonable medical expenses in violation of Washington insurance law.

The second plaintiff argued that his insurer terminated PIP benefits once an insured reached Maximum Medical Improvement, which he alleged was an unfair practice under WAC 284-30-395. He argued that this practice resulted in the routine failure to pay reasonable medical expenses in violation of RCW 48.22.005.

Continue reading

Over the past several years, there has been increasing focus on how the imposition of fees and costs on criminal defendants can disproportionately affect poor and disadvantaged individuals.  Washington drew national attention for the way its courts imposed fees and costs on defendants, and particularly the 12% annual interest rate that was applicable to fees and costs.  Last year, Washington passed an act to address some of the issues with the legal financial obligations for criminal defendants.  The act eliminated interest for all legal financial obligations except restitution. Although Washington criminal courts may still require defendants to pay certain costs, a court may not order an indigent defendant to pay costs.  Even if a defendant is not indigent, the court must still consider his or her financial resources and the burden payment of the costs will create in determining the amount of costs and the method of payment.  (RCW 10.01.160.)  A defendant is indigent if he or she receives certain types of public assistance, is involuntarily committed, or has an annual net income of 125% or less of the federal poverty level.  (RCW 10.101.010.)  Additionally, under the new act, a court can no longer sanction a defendant with contempt based on a failure to pay unless it finds the defendant’s failure to pay is willful.  A willful failure to pay occurs when the defendant has the ability to pay but refuses to do so.  The law identifies the factors the court must consider in determining if the defendant has the current ability to pay.  (RCW 10.01.180.)

An indigent defendant recently challenged community supervision costs that were imposed upon him by the trial court.  After the defendant pleaded guilty to first degree assault and second degree robbery, the trial court waived all non-mandatory fees and costs and stated the defendant did not have financial resources.  The judgment and sentence, however, required the defendant to pay supervision fees.

The defendant appealed, arguing the community supervision fee was a non-mandatory cost that should not have been imposed by the trial court in light of his indigence.

Continue reading

Teenagers sometimes act impulsively, and, unfortunately, if someone gets hurt as a result of those impulsive actions, it could result in Washington criminal charges.  In a recent case, a juvenile defendant challenged his conviction, arguing in part the court should have considered adolescent brain development and maturity in assessing his culpability for assault.

According to the appeals court’s opinion, three friends were in eighth grade at the same middle school.  The court used pseudonyms for all of the boys: Timothy Martin, Andrew Christopher, and Bob Simpson.  While Christopher was sitting on a desk talking to Simpson one day, Martin came up from behind and put Christopher into a choke hold.

Martin said it was a professional wrestling choke hold that he had seen during professional wrestling matches.  He knew it could stop a person’s breathing and cause them to become unconscious.  Martin said he wanted to show the choke hold to Simpson and did not mean to interrupt Christopher’s air or blood flow.

Continue reading

In the past few years, students have been challenging the procedures used by colleges and universities in disciplinary proceedings related to Title IX.  As schools have become more proactive in addressing sexual harassment and sexual assault, ongoing issues regarding the required due process for related disciplinary proceedings have arisen.  Schools sometimes suspend or expel students without giving students fair notice and an opportunity to be heard.

A case in the First Circuit recently held due process does not require an accused student be allowed to cross-examine his accuser.  The student had been accused of assault by another student, who was his girlfriend at the time.  The university suspended him for five months and ultimately expelled him.  He filed suit against the university.   The district court entered summary judgment in favor of the defendants, and the plaintiff appealed to the Ninth Circuit.

A student in a state educational institution has a property interest in their “legitimate entitlement to a public education. . .” That interest is protected by the Due Process Clause and therefore cannot be taken away for misconduct unless procedures required by the Due Process Clause are followed.  The essential requirements of due process are “notice and an opportunity to be heard.” For school disciplinary action, this generally requires a hearing.

Continue reading

When a couple reaches an agreement regarding their divorce, it is not uncommon to agree that any disputes regarding the agreement are subject to arbitration. Generally, Washington law favors arbitration. In a recent case, however, a husband challenged a court’s decision not to refer a matter to arbitration.

The couple established a business during their marriage.  The husband ran the business and the wife raised their children.  The husband had developed a gambling compulsion and lost $185,000 in the year before the divorce.

The wife filed for divorce and asked for a restraining order keeping the husband from conducting the business’s finances.  The court granted the wife full authority to run the business “in a fiscally responsible manner.”

Continue reading

The Washington State Constitution recognizes a privacy right and prohibits disturbance of that privacy without authority of law.  When a driver is arrested for driving under the influence, the vehicle must be impounded pursuant to RCW 46.55.360.  A defendant recently challenged the impound statute as a violation of the Washington State Constitution.

The defendant was stopped for speeding.  According to the court opinion, the officer smelled alcohol on the defendant’s breath.  The defendant declined a field sobriety test and the officer arrested him for suspicion of driving while under the influence of intoxicants.  The officer impounded the defendant’s jeep without considering any reasonable alternatives.

The officer performed an inventory search of the vehicle and found items he believed were associated with drug dealing.  Cocaine was found on the defendant in a search incident to arrest.  The defendant was charged with DUI and possession with intent to deliver controlled substances.

Continue reading