Criminal Law

Constructive Possession in Washington Drug Cases

March 21, 2018 | by Blair & Kim, PLLC

In Washington, a person may be convicted of possession of a controlled substance if he or she has actual or constructive possession of the substance. A person has actual possession if he or she has physical custody of the substance. A person has constructive possession if he or she has dominion or control over the item. The dominion and control may be over the substance, or over the premises where it was located. Washington drug crime attorneys may challenge whether the defendant was in possession of the drugs, or even whether the substance in question was a controlled substance. In a recent case, the defendant challenged the evidence of possession and of the nature of the substance.

The police executed a warrant at a trailer. A man and his girlfriend were in the front of the trailer. The police officers found the defendant in a back bedroom with a female and took him into another room. According to the officers, they asked him where his “bulk amount of dope” was, and he gestured with his head toward the room where they found him and said they “might want to check back there.”

The officers found three lines of suspected methamphetamine on a table, two safes, mail addressed to the defendant at another address, knives, a shotgun and a box with shells, two glass pipes, small baggies, and a backpack containing another knife. They opened one safe with a key they found in a pair of pants. Inside the safe, they found a baggie containing 17.62 grams of what they believed to be heroin.

Driving on Neutral Area Between Ramp and Highway Lane is a Violation of Washington Law

February 6, 2018 | by Blair & Kim, PLLC

Washington criminal defense attorneys know that the validity of a traffic stop can have a significant effect on a resulting criminal case. A finding that the traffic stop was improper can result in the exclusion of evidence found during the stop. One defendant sought to have evidence suppressed due to a stop she argued was improper in a recent case.

The defendant was pulled over after a trooper saw her vehicle cross over the “neutral area” between the entrance ramp and the highway. The “neutral area” is the paved triangular space between the ramp and the lane of the highway. The neutral area was marked by white lines on both sides. The defendant was arrested for driving on a suspended license and other misdemeanors.

The defendant moved to dismiss, arguing she was stopped without cause. The trial court denied her motion. The trial court found the defendant violated RCW 46.61.670 by “driving with wheels off roadway” when she merged across the neutral area. The defendant was ultimately convicted by a jury of several misdemeanors.

Deferred Disposition Records May Be Sealed Prior to Juvenile’s 18th Birthday

January 26, 2018 | by Blair & Kim, PLLC

Criminal charges can have lasting negative effects. In many cases involving a juvenile defendant, those effects can be prevented through sealing the record. Washington criminal defense attorneys know that sealing the record prior to the juvenile’s 18th birthday may help prevent negative effects as the young person applies to colleges, but the state sometimes objects to the timing of a record being sealed.

In a recent case, the state appealed the sealing of a juvenile’s deferred disposition record. The juvenile defendant was charged with taking a motor vehicle without permission in the second degree and theft in the third degree. The trial court granted her a deferred disposition. She complied with the conditions of the deferral and the court vacated her conviction and dismissed the case with prejudice.

The court granted the defendant’s request to seal her juvenile record, and the state appealed. The state argued the trial court could not seal the record until the juvenile turned 18.

Defense of Property and Washington No-Contact Orders

January 1, 2018 | by Blair & Kim, PLLC

Property disputes, property damage, or outright theft sometimes occur following a romantic breakup or a fight between romantic partners. While it is understandable for a person to want to retrieve their property, trying to get the property back in violation of a no-contact order could result in criminal charges. Washington civil protection order attorneys know that the theft or property damage may not provide a successful defense to those charges.

A Washington appeals court recently reviewed a case in which the defendant raised a defense of property defense surrounding the violation of a no-contact order. A domestic violence no-contact order prevented the defendant from contacting a woman he had previously dated for several years.

According to the defendant, he was loading boxes from his son’s garage in his car. He left his cell phone in the car, which had a broken window. He saw someone walking down the street but could not tell who it was. When he went back to his car, he found his cell phone and other items were gone.

Excited Utterances May Be Admissible in Washington Even If Partly Untrue

December 7, 2017 | by Blair & Kim, PLLC

Many people are aware of the general rule that hearsay is inadmissible. Washington criminal defense attorneys know that a court may admit hearsay evidence if it meets one of a number of exceptions to that general rule. A Washington appeals court recently reviewed a case involving the excited utterance exception to the hearsay rule.

The defendant’s girlfriend had been drinking during the evening of the incident. She left the home for a while after an argument, but she subsequently returned. About 45 minutes later, she called her 16-year-old daughter. According to the daughter, the woman was crying and hysterical and spoke at a high volume. The daughter testified she had trouble understanding her mother. The woman described an assault and told her daughter she had been shot.

The girl gave the phone to her father. The woman’s ex-husband testified that she was hysterical, crying, and very scared. She described an assault and told him the defendant had shot her. The ex-husband called the police.

Washington Supreme Court Rules on State Delay in Disclosing Toxicology Witness

November 22, 2017 | by Blair & Kim, PLLC

Washington DUI defense attorneys often have to fight vigorously to ensure they get information from the State. In DUI cases, the State sometimes fails to name the toxicologist who will testify until very close to the trial. In one particularly egregious case, the prosecution provided a list of potential witnesses and waited until the morning of the trial to identify the actual witness. We discussed this case following the Court of Appeals decision, and the Washington Supreme Court has recently reviewed it.

The defendant was charged with driving under the influence. Five months before the trial, the State disclosed a list of nine toxicologists, indicating one of them would testify. Two weeks before trial, the defendant filed a supplemental discovery request, seeking identification of the testifying witness. Three days before trial, the defendant moved to dismiss or suppress the testimony. On the day before the trial, the State narrowed the list to three names. It finally identified which toxicologist would testify on the morning of the trial.

The defendant moved to suppress the testimony based on the late disclosure. The trial court denied the motion, finding no actual prejudice to the defense. The court also noted that the practice of providing a list rather than disclosing a specific name was caused by underfunding of crime labs rather than mismanagement.

Independent Basis for Washington Officer Requesting I.D. for Suspicion of Violating Protection Order

October 27, 2017 | by Blair & Kim, PLLC

The Washington Constitution protects people from unlawful searches and seizures. Article 1, section 7 has been interpreted by Washington courts to prohibit police from requesting identification of a passenger unless there is an independent basis for the request. An independent basis exists if the officer can identify specific and articulable facts that, when taken with rational inferences, justify the request. Washington criminal defense attorneys know that an unlawful search or seizure can occur in any kind of case, including a violation of a protection order.

In a recent case, a Washington appeals court considered whether an officer had an independent basis to ask the identity of a passenger when the driver was protected by a no-contact order. The defendant’s arrest arose from an incident in which an officer stopped a vehicle for expired registration and failure to transfer title. A man got out of the vehicle before the officer approached. The officer learned that the driver of the vehicle had several warrants. He also learned she was the protected party in a domestic violence no-contact order. The officer determined the description of the restrained party matched the passenger who had gotten out of the vehicle. He found that the passenger was in the portable outdoor restroom of a nearby gas station. The door to the restroom indicated it was unlocked and unoccupied. He knocked and opened the door, finding the passenger inside.

The passenger gave the officer a name and date of birth that did not match the restrained party. They then returned to the patrol vehicle, where the officer saw pictures of the man bearing the name given and the restrained party. The officer determined that the passenger was the restrained party and arrested him for a violation of the no-contact order.

Jury Access to Inadmissible Evidence Results in New Trial for Washington Criminal Defendant

October 6, 2017 | by Blair & Kim, PLLC

A jury must base its decision on the evidence before the court and may not consider evidence outside the record. While courts do their best to ensure that juries are properly instructed and not exposed to outside information, jurors still sometimes consider extrinsic information in robbery and other theft cases. When this happens, a Washington robbery defense attorney may seek a new trial for his or her client.

Such was the case recently, when a jury was exposed to a video that had not been admitted into evidence at trial. The defendant was charged with second-degree robbery of a restaurant. Police apprehended him at the end of an alley about five blocks away shortly after the robbery. There were shoe prints in the alley matching the defendant’s shoes. He had a roll of pennies on him and just a few dollars more than what had been taken. The robber’s shirt was found in a garbage can along the alley. The employee, however, did not think the defendant was the robber.

There were three videos from inside the store and another that captured the parking lot. The outside video also showed the robber walking out of the building in the general direction of the alley. All four videos were put onto a DVD admitted as a prosecution exhibit. However, just the videos inside the store were admitted at trial. The prosecution did not have a witness to establish a foundation for the exterior video, so it was withdrawn after the defense objected. The existence of the exterior video came out at trial when the defense asked an officer about not having watched it.

Sentencing Enhancement for Proximity to School Bus Stop in Washington Drug Case

September 7, 2017 | by Blair & Kim, PLLC

Drug possession, manufacture, or sale that occurs in certain public places carries enhanced penalties under Washington law. Prison time or fines may be as much as double as what is otherwise allowed. Under RCW 69.50.435, locations that can result in sentencing enhancements include schools, school buses, public parks, certain public housing projects, public transit vehicles and public transit vehicle stop shelters, and certain civic centers and the surrounding areas. Seattle drug crime attorneys understand the importance of location in drug cases. Additionally, the statute allows for an enhancement if the offense occurs within a specified distance from school grounds or a school bus route stop.

A defendant recently challenged a jury’s verdict related to an enhancement. He argued the state had not sufficiently proved that the location fell within the statutory definition for the enhancement.

A police officer found methamphetamine and paraphernalia in the defendant’s vehicle following a routine traffic stop. The defendant was charged with possession with intent to deliver within 1,000 feet of a school bus route stop. A school district employee testified a school bus route stop was located within 1,000 feet from the location where the officer first saw the defendant’s vehicle. He also testified that a school bus carrying preschool students used that stop.

Washington Supreme Court Allows Random Urinalysis of DUI Defendant on Probation

August 11, 2017 | by Blair & Kim, PLLC

Article I, section 7, of the Washington Constitution provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Washington criminal defense attorneys know that the privacy protections of section 7 provide greater coverage than the Fourth Amendment of the U.S. Constitution in some areas.

In a recent case, the Washington Supreme Court considered whether section 7 prohibits a requirement of random urinalysis of individuals on probation for a misdemeanor DUI offense. The defendant in this case pleaded guilty to a gross misdemeanor DUI offense. The trial court imposed a partially suspended sentence, with a condition that she not consume alcohol, marijuana, or nonprescribed drugs. The court also ordered that she submit to random urinalysis drug testing to monitor her compliance with that condition.

The defendant appealed on the grounds that the random urinalysis condition violated her privacy rights under the Fourth Amendment to the U.S. Constitution as well as article I, section 7 of the Washington Constitution. She argued that a warrantless search of an individual on probation for a misdemeanor “must be supported by a well-founded suspicion” that she violated one of the conditions. The court found in favor of the defendant, vacated the sentence, and remanded.