Criminal Law

THE NEW HOPE ACT: Changing the Eligibility Requirements for Vacating Criminal Convictions

October 15, 2019 | by Blair & Kim, PLLC

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;

Washington Appeals Court Overturns Conviction Based on Warrantless Search

October 15, 2019 | by Blair & Kim, PLLC

In a Washington criminal case, a warrantless search will be found to be unreasonable unless the state shows that a warrant exception applies. In a recent case, a defendant challenged her conviction based on evidence found during a warrantless search.

According to the court’s opinion, a police officer responding to a trespass report saw a woman and man sitting in a field that was posted with “no trespass signs.” After identifying himself, the officer saw the pair moving some objects on the ground. After getting their identification, he learned the woman had an active Department of Corrections warrant. He saw a pink backpack sitting behind the woman. He asked if it was hers, and she indicated it was.

The officer arrested the woman based on the active warrant. He offered to take the backpack, but she indicated she wanted the man to take it with him. The officer told the man the woman’s personal property would be searched incident to arrest and that it would stay with her. He asked the man to leave.

Washington Court Allows Evidence Found in Search Following “Terry Stop”

September 20, 2019 | by Blair & Kim, PLLC

Generally, warrantless seizures are unconstitutional unless an exception applies. One such exception is a Terry stop. A defendant recently challenged evidence found in a search after what the state agreed was a Terry stop in a Washington criminal case.

A sheriff deputy was dispatched after a 911 call reporting an unwanted person in the caller’s home. The caller told the dispatcher the woman’s first name and said he had previously allowed her to stay there, but she was not welcome any more. He reported she had left, but then said she came back. He also said she had previously climbed in through a window to get inside. He did not indicate she was violent.

The deputy saw a woman matching the description the caller gave walking about two-tenths of a mile from the caller’s home. He stopped, and when he asked, the woman indicated her first name was the name given by the caller. The deputy asked her for identification, but she indicated she did not have any. She provided her name and birth date. The woman stayed in front of his car and its headlights while the deputy searched her name in his computer. The deputy confirmed she had an outstanding warrant. He arrested her and found a white powdery substance in a baggie in her pocket. The substance was found to be methamphetamine.

Washington Prosecutor Does Not Have to Stipulate No-Contact Order

September 6, 2019 | by Blair & Kim, PLLC

In a Washington felony violation of a no-contact order case, the prosecution must prove the existence of the no-contact order and the defendant’s knowledge of it. For a variety of reasons, the defense may not want the jury to see the no-contact order. A recent issue in Washington has been whether a defendant can keep a no-contact order out of evidence by stipulating to its existence and his or her knowledge of it. The Washington Supreme Court recently addressed this issue.

A court entered a domestic violence no-contact order prohibiting the defendant from contacting his girlfriend after he was convicted of a domestic violence offense. Finding the defendant was a “credible threat to [her] physical safety,” the court ordered the defendant not to come within 1000 feet of her residence.

Nevertheless, the couple lived together. According to the Washington Supreme Court’s opinion, a neighbor witnessed them having a verbal altercation outside their home. The girlfriend told the neighbor the defendant had hit her and asked them to call 911. The girlfriend told law enforcement the defendant struck her head and face repeatedly and law enforcement observed bruising and other injuries.

Washington Appeals Court Overturns Juvenile Offender’s Sentence

August 22, 2019 | by Blair & Kim, PLLC

In some ways, Washington juvenile offenders may be treated differently than they would be if they were adult offenders. Both the Washington Supreme Court and the U.S. Supreme Court have acknowledged that “children are different.”

In a recent case, a juvenile defendant challenged her sentence. She was a first-time offender. She did not meet the conditions of her deferred disposition, so it was revoked. The juvenile court found the standard sentencing range would be insufficient and entered a manifest injustice disposition and imposed 24 to 32 weeks total incarceration.

The defendant appealed and the appeals court granted expedited status. However, according to the appeals court’s opinion, its review was “compromised by the transgressions of the prosecutor.” The appeals court noted the prosecutor had not timely obtained findings of fact and conclusions of law. When the prosecutor did obtain the findings and conclusions after being ordered to do so by the clerk of court, they did so in an ex parte proceeding without giving notice to the defendant or her attorney. The defendant raised the issue and included it in her brief. The prosecutor did not directly address the issue in its brief, but instead referenced a different pleading.

Washington Supreme Court Finds Second Collision Is Not Superseding Cause in Vehicular Homicide Case

July 22, 2019 | by Blair & Kim, PLLC

To convict a defendant of vehicular homicide in a Washington criminal case, the state must prove that the defendant’s conduct was the proximate cause of the victim’s death. In Washington law, the term “proximate cause” includes both actual cause and legal cause. In a recent case, a defendant challenged his vehicular homicide conviction, alleging that there was an intervening superseding cause of the victim’s death.

According to the court’s opinion, the defendant was intoxicated when he rear-ended a vehicle at 85 m.p.h. The defendant did not stop to assist the other driver, whose vehicle was disabled across the left and middle lanes.

A witness to the collision stopped to help. The Good Samaritan pulled onto the right shoulder and engaged his flashers. He crossed the freeway to help the driver and was on the phone with the 911 dispatchers when another vehicle struck the disabled vehicle. The impact caused the disabled vehicle to strike the Good Samaritan, causing injuries that resulted in his death 12 days later.

Washington School Searches Must Be Reasonable

June 27, 2019 | by Blair & Kim, PLLC

Generally, unless there is an applicable exception, both the Washington and U.S. constitutions require a warrant supported by probable cause before someone acting on behalf of the government can conduct a search. One exception to the warrant requirement applies to school officials. Under the school search exception, a school official may conduct a reasonable search of a student. This does not mean a school can search any student at any time for any reason—the search must be reasonable. Washington criminal courts use the “McKinnon Factors” to determine if a school search was reasonable.

A defendant challenged her conviction on the grounds the search was unlawful. According to the appeals court opinion, the school received information about a threat involving the juvenile defendant, who was not a student of that school. Staff looked her up in the school district’s system so they could identify her. When the vice principal saw her, he asked her to come into the office.

In the office, the principal asked the defendant why she was there. After a few minutes, the principal determined she was uncooperative and told her they were calling the police. The vice principal testified the defendant would have been allowed to leave if she had chosen to do so. He also testified they did not have the authority to discipline her since she was not a student at their school.

Washington Appeals Court Reverses Conviction Based on Admission of Prejudicial Calls

June 13, 2019 | by Blair & Kim, PLLC

Challenging irrelevant or prejudicial evidence is often a significant part of defense in a Washington state criminal case. Evidence of prior bad acts by the defendant is not admissible to show the defendant’s propensity to commit the charged crime, but may be admissible for other purposes, such as showing intent or motive. Even if there is an allowable reason to admit evidence of a prior bad act, it must be excluded if the risk of unfair prejudice substantially outweighs its probative value.

A defendant successfully challenged his conviction after a trial court allowed evidence of an alleged assault on his girlfriend that occurred prior to the events leading to the charges. His girlfriend called 911 and reported being assaulted by the defendant. She said he was intoxicated and had punched her. There were then sounds of her screaming and repeatedly saying “Stop” on the recording. There were also what the appeals court referred to as “hitting sounds.” Someone else then told the operator that the girlfriend looked to be “hurt quite badly” and provided a description of the defendant and his vehicle. The girlfriend provided the defendant’s name and said he had beaten her.

According to the appeals court opinion, the defendant later wrecked his truck. A woman subsequently found the defendant coming up her basement stairs. He told her he was hiding from the police because he had been abused and framed by his girlfriend. The woman ultimately called 911. Law enforcement found a large knife belonging to the woman in the defendant’s waistband when they arrested him.

State Must Prove Intent Element in Washington Domestic Violence Case

May 8, 2019 | by Blair & Kim, PLLC

In any criminal case, the prosecution must prove all elements of the crime, including the mens rea, or intent. Depending on the facts of the case and the crime charged, the intent element can sometimes be difficult for the prosecution to prove. This can be especially true in Washington domestic violence cases, where witnesses may be reluctant to testify.

A defendant recently challenged his convictions of assault in the second degree and misdemeanor violation of a no-contact order. He appealed, arguing there was insufficient evidence to support the convictions. He argued alternatively that there was insufficient evidence he met the “reckless” element of the assault charge. He further argued the information failed to include an essential element of the misdemeanor violation charge.

In April of 2016, a judge granted a domestic violence no-contact order to the woman the defendant had lived with.

Officer Does Not Have to Provide Specific Basis for Knowledge of Facts in Washington Search Warrant Declaration

April 19, 2019 | by Blair & Kim, PLLC

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.