Articles Posted in Criminal Law

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Domestic violence violation of a protection order is generally a gross misdemeanor under Washington law, but it can be a class C felony if a violation of the order is also an assault or if the defendant has at least two prior convictions for violating a protection order.  RCW 26.50.110.  The Washington Supreme Court considered whether a jury has to reach a unanimous decision as to which of these alternatives forms the basis of the verdict in a recent case.

surveillance cameraAt the time of the incident, there was a no-contact order prohibiting the defendant from contacting his former partner.  When the defendant’s former partner learned that he was at a nearby bus, she went there to address some items she had to return to him.  She testified that the defendant got angry and struck her twice.  She then ran to a gas station, and the defendant followed her.  The store clerk testified that the defendant followed the woman around the store for several minutes.  The defendant left the store when the clerk called the police.

The jury was instructed that there were five elements that must be proved beyond a reasonable doubt.  One of those elements was that either the defendant’s conduct was an assault, or the defendant had been convicted of violating a court order twice previously.  The court instructed that these were alternative elements, and the jury did not have to be unanimous as to which of the two alternatives had been proved, as long as each juror found that one of the alternatives was proved.  The defendant did not object to the instruction or to the prosecutor’s discussion of the instruction in the closing argument.

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Drug possession cases hinge on evidence of the drugs themselves.  Under the exclusionary rule, if drug evidence resulted from an unlawful search or seizure, it must be excluded.  It is therefore common in drug cases for the defendant to move for the evidence to be suppressed on the ground it resulted from an unlawful search or seizure.  In a recent unpublished case, a Washington appeals court considered whether evidence of drugs in a vehicle should have been suppressed.

PoliceThe defendant pulled his vehicle over to the side of the road after a police sergeant pulled behind him.  When the sergeant turned around and drove back toward him, the defendant moved forward, passing the sergeant.  The sergeant turned around again.  The defendant again pulled over and put on his flashers.  The sergeant pulled over behind him.

The defendant told the sergeant he thought he had a flat, but the sergeant did not think the tire looked flat.  The sergeant then asked the defendant if he had a driver’s license, and the defendant showed him a Colorado license.  The sergeant thought the defendant seemed unsure and nervous when asked if the license was valid, so he asked if it was suspended.  The defendant said it could be suspended because of unpaid child support.  A dispatcher confirmed that it was suspended in Washington and Colorado.

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In cases involving driving under the influence, the state often relies on test results to show that the defendant was intoxicated.  However, the prosecutor may also point to the defendant’s behavior as evidence of intoxication.  A Washington appeals court recently considered whether a prosecutor committed misconduct when she referenced negative statements the defendant made about the other driver and her passenger after the accident in a recent unpublished case.

country-roadsThe defendant appealed his convictions for two counts of vehicular assault.  According to the appeals court’s opinion, the defendant had three or four drinks on the evening of the collision.  His blood alcohol level after the accident was .12 grams per 100 milliliters. A witness had seen the defendant’s truck swerve across the yellow line several times.  The witness saw the defendant drive into the opposite lane toward an oncoming car.  The two vehicles collided head-on.

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Often, a person charged with driving while under the influence will face additional, related charges.  Attempting to elude police is one such charge.  Sometimes, a person may feel they are justified in not stopping for the police officer, but a necessity defense is very difficult to prove in this type of case.

stoplightIn a recent unpublished case, a Washington appeals court considered a defendant’s claim of necessity based on her statement that she did not stop because she was fleeing a person who had threatened her.

According to the opinion, the defendant ran a red light in front of an officer and failed to stop when he engaged the emergency lights.  The defendant stopped in front of a residence and tried to go inside.  The officer tackled her to stop her and subsequently arrested her for DUI.

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Under Washington law, police must advise individuals of the right to independent testing when a breath test is administered pursuant to the implied consent statute.  Under a previous version of the statute, this information was also required for blood tests.  A Washington appeals court has recently addressed whether police must still inform of the right to independent testing of blood when it is no longer specifically included in the statute.

Yellow lineThe defendant was convicted of vehicular assault as a result of a two-car collision.  The defendant appealed, arguing that blood test evidence should have been excluded because he was not informed he had the right to independent tests at the time the blood was taken.

According to the court’s opinion, the defendant caused the accident by crossing the center line. The defendant called 911.  The police officer smelled alcohol and noticed signs of impairment at the scene.   The defendant went to the hospital by ambulance.  The trooper who spoke with the defendant at the hospital also smelled alcohol and observed signs of impairment.  The defendant did not respond to the trooper’s requests for a field sobriety test or a portable breath test.  Blood was subsequently drawn pursuant to a warrant.  The defendant’s blood alcohol content was 0.12 three and a half hours after the collision.

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Criminal cases often hinge on whether evidence is admissible.  Evidence obtained through an unlawful search is generally inadmissible.  Vehicles can be especially vulnerable to questionable searches.

motorcyclerecent case considered whether drug evidence seized in an inventory search of an impounded motorcycle should have been suppressed.  A trooper stopped the defendant for speeding.  During the stop, the trooper began to suspect the motorcycle the defendant was riding may have been stolen, although the court’s opinion does not detail what caused this suspicion.  The trooper was unable to determine if the motorcycle was stolen.  He did not arrest the defendant but also did not let him drive the motorcycle because he did not have a motorcycle endorsement.  The officer impounded the motorcycle because of a Washington State Patrol policy that required the impound of motorcycles operated by a driver without an endorsement.

The trooper found two zippered cases during the inventory search.  He opened them to see if they contained ownership documentation.  He instead found drugs and drug-related evidence.  The state charged the defendant with drug offenses.  He moved to suppress the evidence from the motorcycle search, but the court denied his motion.  A jury convicted him, and he was sentenced to 90 months incarceration.   The defendant appealed.

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The prosecution is generally required to prove some level of intent, or mens rea, to succeed in obtaining a guilty verdict in a criminal case.  Some offenses, however, are strict liability offenses, meaning the prosecution does not have to prove intent.  A Washington appeals court recently considered whether the vehicular homicide and vehicular assault statutes require the prosecution to prove a mens rea of ordinary negligence in the case of driving under the influence.

car crashIn a recent case, the defendant appealed convictions for vehicular homicide and vehicular assault, arguing the jury instructions were erroneous because they allowed the jury to find her guilty without a finding of ordinary negligence.

According to the opinion, the defendant’s truck spun out on an icy bridge, slid off the road, and hit two people who were investigating an accident scene.  One man died, and the other was seriously injured.   The officers restrained the defendant and had blood drawn at the hospital.  The tests revealed a blood alcohol concentration of .09.

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Implied consent is an important aspect of DUI defense.  The Washington implied consent statute, RCW 46.20.308, requires officers to inform a driver suspected of DUI of certain consequences of refusing or submitting to a breath test.  When recreational marijuana use was decriminalized in Washington, the legislature set a legal limit for THC levels in the blood while driving.  It also added a warning to the implied consent statute, stating the consequences of a breath test that indicated the driver’s THC concentration was above the legal limit.  The available breath tests, however, could not measure THC.  Although the statute has since been amended again, there were cases that arose under the language requiring the THC warning.

PlantThis blog previously discussed the case of State v. Murray, wherein the Court of Appeals found that the defendant’s breath test results were not admissible because the officer did not provide the THC warning.

The Supreme Court of Washington recently reviewed that case, consolidated with another.  The trooper involved in each case used an identical form in providing the implied consent warning.  The warning did not include statutory language regarding THC, but it advised the defendant that he or she was subject to a driver’s license suspension, revocation, or denial if the test indicated he or she was under the influence of alcohol.  The form stated the defendant had the right to refuse the test, but if he or she did so, his or her driver’s license, permit, or privilege to drive would be revoked or denied for at least a year, and that refusal could be used in a criminal trial.  It further stated that the driver’s license, permit, or privilege to drive could be suspended, revoked, or denied for at least 90 days if the defendant was at least 21 years old, the test indicated a blood alcohol level of .08 or more, and the defendant was in violation of RCW 46.61.502, Driving Under the Influence, or RCW 46.1.504, Physical Control of a Vehicle under the Influence.

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In Washington criminal cases, the prosecution must disclose upon written demand the names and addresses of the people it “intends to call as witnesses . . .” and any expert witnesses it intends to call at trial, if that information is within its knowledge, possession, or control.  The Washington Court of Appeals recently considered whether it was permissible for the State to wait until the day of trial to name the actual witness in State v. Salgado-Mendoza.

RoadAfter being arrested for DUI, the defendant voluntarily submitted to two breath tests.  Several months before his scheduled trial date, he requested that the State disclose information about its expert witnesses.  The State filed a witness list in December 2012, naming nine toxicologists, one of whom would testify.

The defendant filed a supplementary discovery demand about two weeks before trial, seeking the names of all the expert witnesses the state intended to call.  Three days before trial, he moved for the dismissal or exclusion of the toxicologist’s evidence.  He argued the State had committed governmental misconduct by failing to disclose who would testify, despite multiple requests.

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Under the missing witness doctrine, if a person who could have been called to testify is not, the jury may infer that person’s testimony would have been unfavorable to the party who naturally would have called him or her.  This doctrine and the associated jury instruction can be highly detrimental to a case, and are therefore to be used sparingly, particularly in the case of a criminal defendant.  There are therefore requirements and limitations to when they apply.

beer-cupThe Washington Court of Appeals recently considered the application of the missing witness jury instruction in State v. Houser .  A woman called 911 after the defendant knocked on her door at about 9 p.m. with a swollen lip and bloody nose.  He told the woman’s husband that his car was in a ditch about a mile away.  The defendant later told the state trooper he had some beers that night and drove off the road and struck a pole.  After a field sobriety test indicated impairment and he was arrested, the defendant said he was not driving and that his “buddy” had been the driver.

The defendant was charged with felony DUI.  The defendant testified he was waiting in his truck outside his friends’ house when he saw an old friend he had not seen in many years.  The two decided to get some marijuana, with the friend driving the defendant’s truck because the defendant had been drinking.  Afterward, they were on their way to another friend’s house when the accident occurred.  The defendant testified his friend was driving at the time of the accident.  He said he could not remember exiting the truck.  He knew his friend did not stay in the truck, but did not know how he got out or where he went.  He had not contacted the friend since the accident, had not tried to reach him, and did not know how to do so.

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