Articles Posted in Criminal Law

The Fifth Amendment to the U.S. Constitution provides the right to be free from self-incrimination. The police must advise suspects of their rights when they are subject to a custodial interrogation by a state agent.  If they fail to give the Miranda warning, then the statements made during the custodial interrogation are presumed to be involuntary and are to be excluded from evidence.  A juvenile defendant in a Washington criminal case recently challenged his conviction on the grounds the court erred in admitting the statement he made to the chief of police in the principal’s office.

The fourteen-year-old defendant had been talking about video games with some classmates in one of their middle school classes.  The other students said the defendant said something like “he was going to shoot the school.” One student said he did not really take the statement seriously because the defendant said that sort of thing “all the time” and he thought the defendant was joking.

The other student also said the defendant had previously made similar statements he had not taken seriously.  This time, however, he was concerned and told the teacher.  He said the defendant did not make the statement to anyone individually, but muttered it to himself.  He said he was afraid the defendant would hurt someone.

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The Washington Constitution provides that a person accused of a crime has a right to notice of “the nature and cause of the accusation against him.” An information in a Washington criminal case must set out all essential elements of the crime along with the facts that support them.  If the information does not include this information, it is deficient.  The information must also include any enhanced penalties the prosecution intends to seek.  When the adequacy of an information is challenged, the court looks at the charging document, and does not consider the evidence presented at trial or jury findings.

A defendant recently challenged a sentencing enhancement after her conviction of four counts of delivering a controlled substances.  She argued that the information did not give her adequate notice of the enhancement.  The charges arose from two controlled drug buys by a confidential informant.  The information, amended multiple times, alleged four counts of delivery of a controlled substance.  The first and third information included aggravating circumstances with each count that alleged the defendant violated RCW 69.50.401 by engaging in the prohibited activity “within one thousand feet of a school bus route…”

The defendant was convicted of four counts of delivering a controlled substance, which the jury found occurred, “within one thousand feet of a school bus route stop.”  She received a 24-month enhanced sentence due to those findings.

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Under Washington rules of criminal procedure, a court may dismiss a criminal prosecution due to arbitrary action or governmental misconduct if the accused rights have been prejudiced and his or her right to a fair trial has been materially affected.  CrRLJ 8.3(b) and CrR 8.3(b). Washington case law has held that mismanagement may be sufficient and the misconduct does not have to be evil or dishonest.   In a recent case, a Washington appeals court considered whether the court’s actions were within the scope of “governmental misconduct” that would support dismissal under CrRLJ 8.3(b).

The court continued the defendant’s arraignment on fourth degree assault and third degree malicious mischief charges after ordering he be provided an interpreter.  There were 14 additional pretrial hearings in the next 15 months, but the interpreter failed to appear at 10 of them. The interpreter appeared by phone “ineffectively,” according to the appeals court, twice.  Two times the interpreter actually appeared in person.  The defendant moved to dismiss the charges pursuant to CrRLJ 8.3(b).  After the interpreter failed to appear at yet another hearing, the trial court dismissed the charges with prejudice.  The trial court found the failure to provide an interpreter “seriously interfered with” the defendant’s right to representation.

The state appealed, and the superior court affirmed the dismissal.  The state then sought discretionary review by the Court of Appeals.  The appeals court granted the review to address the issue of whether CrRLJ 8.3(b) can apply to mismanagement by court administration.

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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.

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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.

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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.

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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.

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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.

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Washington law prohibits possession of a firearm by a person, including a juvenile, who has been convicted of a serious offense.  Washington law allows a person to petition the court for restoration of the right to possess a firearm in certain circumstances.  It is not uncommon for a Washington criminal defendant to challenge the loss of firearms rights or the denial of restoration of those rights.  In a recent case, a defendant challenged a court’s denial of his restoration petition.

The seventeen-year-old defendant admitted to second degree malicious mischief based on intentional damage to a vehicle.  The juvenile court found him solely responsible for the damage and he pleaded guilty in exchange for deferred disposition.  As part of the terms of the deferred disposition, he lost the right to possess a firearm.

The juvenile court ultimately ordered the defendant to pay the estimated cost of repair in restitution as a condition of disposition.  The court subsequently dismissed the deferred disposition and vacated the conviction, but indicated it would not seal the case until restitution was made.

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Washington State has long allowed adults with criminal convictions to vacate convictions from their record. However, the previous eligibility requirements severely limited the ability to vacate certain convictions and the number of convictions eligible to be vacated.

In April of 2019, the Washington State legislature passed the New Hope Act, a law that changes the requirements for vacating criminal convictions in Washington state. Effective July 28, 2019, the New Hope Act eliminates many of the previous barriers to vacating misdemeanor and felony convictions, making more people eligible to vacate their criminal conviction. The New Hope Act broadens the ability to vacate convictions by:

  • Allowing additional felony convictions to be vacated;