Criminal Law

Washington Breath Test Admissible Despite “Strands” of Tobacco in Defendant’s Mouth

August 30, 2024 | by Blair & Kim, PLLC

To admit evidence of a breath test in a Washington criminal case, the state must produce prima facie evidence of certain facts, including that the tested person did not have any foreign substances in their mouth in the fifteen minutes before the test. RCW 46.61.506. The state can make this showing with evidence a check of the person’s mouth found no foreign substances or evidence that the person denied having anything in their mouth.

According to the appeals court’s unpublished opinion, the defendant was involved in a dirt bike collision. He told the deputy on the scene that he had consumed alcohol a few hours earlier. The deputy said the defendant had chewing tobacco in his mouth but removed it at the scene. The deputy arrested the defendant for driving under the influence and took him to jail.

At the jail, the deputy prepared to give the defendant a breath alcohol test. He asked if the defendant had anything in his mouth and the defendant answered no. The deputy observed strands of tobacco in the defendant’s teeth that were not taken out before the test.

Washington Appeals Court Reverses Juvenile’s Conviction Based on Judge’s Questioning of Witnesses

August 28, 2024 | by Blair & Kim, PLLC

Individuals facing Washington criminal charges have a due process right to a “fair trial in a fair tribunal.” A person’s due process rights may be violated if the court acts as an advocate instead of a neutral arbiter. A juvenile recently challenged his conviction after the trial judge questioned the prosecution’s witnesses.

The 15-year-old juvenile was charged with escape in the second degree. The state alleged he had “knowingly escape[d]” from home custody.

Witnesses

A community placement specialist testified about ankle monitor technology and electronic home monitoring (“EHM”). He was asked on cross examination if he remembered going over the contract with the juvenile or if his answers were based off the reports. He testified that he “felt” like he had, but could not say so for certain.

Washington Appeals Court Overturns Conviction Based on Search of Probationer’s Car

July 31, 2024 | by Blair & Kim, PLLC

The U.S. and Washington Constitutions generally protect individuals from unlawful searches. Although individuals on parole or probation have somewhat diminished privacy rights, there are still limitations on when they can be searched. A defendant recently appealed his conviction, arguing the search of his vehicle was improper.

According to the appeals court’s published opinion, the defendant was pulled over for suspicion of driving on a suspended license in October 2020. When the officer found out the defendant was on probation, he contacted the Department of Corrections and requested a community custody officer (“CCO”). The defendant’s probation arose from a previous firearm conviction.

Upon reviewing the conditions of the defendant’s community custody, the CCO found that the defendant was in violation of a geographic boundary condition which prevented him from being in the Central District of Seattle, where he was pulled over. The CCO testified that the geographic restriction had been requested because the defendant was listed in a police data base as a member of a gang associated with that area.

Washington Appeals Court Remands Juvenile Case for Consideration of Racial Bias

June 29, 2024 | by Blair & Kim, PLLC

In some circumstances, a Washington juvenile court may decline or waive jurisdiction and transfer a case, resulting in the juvenile being tried as an adult. The U.S. Supreme Court set forth the factors to be considered by a juvenile court in making a decision to decline jurisdiction in Kent v. United States. Division One of the Washington Court of Appeals has further held that when a defendant raises the issue of racial bias in a declination hearing, supported by some evidence, the juvenile court must rule on the issue. State of Washington v. Quijas. In a recent case, Division Three also reviewed a case in which the juvenile court had not addressed the issue of racial bias or discrimination.

At the time of the appeals court’s unpublished opinion, the fifteen-year-old defendant was pending trial for first degree murder. The state alleged the defendant shot and killed a nineteen-year-old man. The state also alleged the murder had been unprovoked and premeditated, and that the juvenile and the victim did not know each other.

The defendant was just fourteen years old at the time of the shooting. The state moved to have him tried as an adult. The court admitted 49 exhibits and heard eight witnesses testify, including the defendant’s mother, his school principal, a gang expert, juvenile detention staff, and a forensic psychologist.

Washington Appeals Court Reverses Firearms Conviction Based on Search by Department of Fish and Wildlife

June 11, 2024 | by Blair & Kim, PLLC

RCW 77.15.080 authorizes fish and wildlife officers to temporarily stop a person, based on articulable facts they are engaged in fishing, harvesting, or hunting activities. to ensure they are in compliance with Washington fish and wildlife laws. A defendant recently challenged his firearms conviction, arguing he was improperly stopped by Department of Fish and Wildlife (“DFW”) and the evidence obtained during the stop should not have been permitted.

According to the appeals court’s opinion, DFW officers saw the defendant’s SUV slowly driving on a green dot road during hunting season. They also noticed he had on an orange sweatshirt. They stopped him, believing he was engaged in hunting activities. The officers found a loaded shotgun and a rifle in the vehicle. The defendant was cited and charged with misdemeanor firearms violations.

The defendant moved for suppression of the gun evidence, arguing that the stop been illegal. The trial court found the officers had reasonably believed the defendant was engaged in hunting activities and denied the motion. The jury convicted the defendant.

Washington Appeals Court Upholds Conviction Based on Drugs Found in Defendant’s Wife’s Purse

April 30, 2024 | by Blair & Kim, PLLC

To convict a defendant of possession of a controlled substance with intent to deliver, the state must prove the defendant possessed the controlled substance and had an intent to deliver it to someone else. Whether the defendant actually possessed the controlled substances is often an issue. A defendant recently appealed his convictions for possession with intent to deliver because the drugs were found in his wife’s purse.

According to the unpublished opinion of the appeals court, the police saw the defendant put a backpack in a vehicle registered to his father-in-law and his wife put a purse in the area of the front passenger seat. The defendant drove. The police subsequently conducted a traffic stop.

The officers observed a purse in the front floorboard. The zipper was open and they could “clearly see a plastic bag containing what they believed to be methamphetamine. They also saw a glass pipe. They got a warrant to search both the car and the purse. They found methamphetamine, heroin, scales, baggies, and $195 cash. There were two phones mounted on the driver’s side and the wife was carrying another.

Washington Appeals Court Rules Against Retroactive Application of Law Excluding Juvenile Adjudications from Offender Score

April 21, 2024 | by Blair & Kim, PLLC

In 2023, the legislature amended RCW 9.94A.535(1)(b) to prohibit the inclusion of most prior juvenile adjudications in an offender score. A defendant recently challenged a sentence imposed in October 2022 because the court had included juvenile adjudications in his offender score.

Following an incident in May 2022, the defendant was found guilty of third degree theft and residential burglary. According to the appeals court’s opinion, the court included six juvenile adjudications in calculating the defendant’s offender score. He was sentenced in October 2022 to 364 days of confinement, which was suspended, for the theft conviction and 45 months of confinement for the residential burglary.

The defendant appealed, arguing that his offender score should be calculated without the previous juvenile adjudications based on RCW 9.94A.535(1)(b).

Washington Appeals Court Reverses Conviction for Violation of a No-Contact Order

March 21, 2024 | by Blair & Kim, PLLC

Washington felony violation of a court order occurs when a person, who has at least two previous convictions for violating a court order, knows a no-contact order exists and knowing violates a provision of it. Willful violation of a court order occurs when a person has willful contact with another that is prohibited by a valid court order and the person has knowledge of the order. Accidental contact is not willful. A person must both know of the no-contact order and intend the contact. Washington case law has held that proof that the defendant acted knowingly constitutes proof they acted willfully. Previous Washington cases have held that the defendant does not have to have specific knowledge of the terms of a no-contact order, but instead must have knowledge of the no-contact order and know that the willful contact violated it.

A defendant recently appealed his conviction, arguing the prosecution had misstated the law regarding the meaning of “knowingly.” He was charged with two counts of violation of a court order – domestic violence. According to the appeals court’s published opinion, the protected party under the no-contact order testified that she heard knocking on her bedroom window and saw the defendant outside. She called the police. She also testified that she received two text messages that she translated and summarized as saying “he hates me for everything I’ve done to him, for not letting him see the kids.” She further stated that he hoped the kids started hating her for not letting them see their father.

The state’s closing arguments included multiple statements about the knowledge requirement of violation of a no-contact order. The state stated “This element does not say [the defendant] knew of the provisions of this order and knowingly violated this order. The knowing part refers solely to the violation.” The state further stated, “What I have to prove to you is that [the defendant] knowingly violated a provision of this order.”

Washington Appeals Court Determines Fenced Yard Is Not Dwelling under Residential Burglary Statute

March 7, 2024 | by Blair & Kim, PLLC

Under Washington criminal law, a defendant commits residential burglary if they enter or unlawfully remain in a dwelling, other than a vehicle, with the intent to commit a crime against a person or property inside. RCW 9A.52.025. To convict a defendant of residential burglary, the state must prove that the defendant entered a dwelling, while other forms of burglary only require the state to prove the defendant entered a building. A defendant recently challenged his conviction of residential burglary, arguing a fenced back yard was not a dwelling.

According to the opinion of the appeals court, which considered the facts in a light most favorable to the prosecution, a homeowner saw the defendant attempting to enter the home’s back door. The homeowner testified the defendant had a hammer and a crowbar and was striking the deadbolt. The defendant saw the homeowner and stopped and ran. The homeowner tripped him in the front yard and he dropped his bag and the crowbar. The homeowner testified the defendant tried to hit him with the crowbar and bite him. The homeowner held his arm around the defendant’s neck until the police got there.

The defendant was ultimately charged with residential burglary, possession of burglary tools, third degree assault, and two counts of bail jumping.

Duty of Prosecution to Preserve Evidence in Washington Criminal Case

February 25, 2024 | by Blair & Kim, PLLC

The Due Process Clause of the Fourteenth Amendment requires criminal defendants to have “a meaningful opportunity to present a complete defense.” The prosecution generally has a duty to preserve evidence, but it is not absolute. State v. Wittenbarger. The state’s failure to preserve “material exculpatory evidence” generally requires dismissal, but a failure to preserve “potentially useful evidence only requires dismissal if the state acted in bad faith. Potentially useful evidence is evidence that could have been subjected to tests which might have exonerated the defendant. State v. Groth.

A Washington criminal defendant recently appealed his drug and gun-related convictions after the police department allowed the vehicle in which he was found to be towed from its lot.

According to the appeals court’s opinion, the defendant was arrested on a warrant after a police officer found him sleeping in a vehicle. The officer testified that he found significant amounts of cash and drugs in the defendant’s pocket in a search incident to arrest. The drugs subsequently tested positive for methamphetamine and fentanyl. The officer found paraphernalia, including a box of baking soda, in the car and a revolver in a bag in front of the driver’s seat.