Articles Posted in Criminal Law

Sometimes a criminal defendant is not competent to stand trial.  Washington criminal law sets out procedures for competency evaluations and restorative treatment.  Unfortunately, there are not always sufficient resources for these procedures to timely occur.  This lack of resources does not justify holding defendants in jail for excessive amounts of time until resources are available.

A defendant recently challenged his conviction and alleged a violation of substantive due process because he had been detained in jail pending transfer to the hospital for competency restoration treatment.  The trial court found the defendant was not competent to stand trial and ordered him to be committed to Western State Hospital (WSH) for 45 days within 15 days of the order.   76 days passed before the defendant was admitted to WSH. During that period, he twice moved to have the charges against him dismissed based on a substantive due process violation. He also moved in the alternative for the hospital to show cause as to why it should not be held in contempt.  The court ordered a show cause hearing, but denied the motion to dismiss.  Before the hearing occurred, the defendant filed two more motions to dismiss.

A doctor provided a declaration for the show cause hearing stating the hospital had to put the defendant on a waiting list.  The doctor stated the average wait time for a 45-day restoration case was 71 days.

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Criminal records, especially felony convictions, can have an ongoing impact on a person’s life.  Convictions can affect a person’s rights, including the right to possess firearms. Washington criminal defense attorneys know that getting a juvenile record sealed can restore certain rights.

In a recent case, a Washington appeals court found that sealed juvenile adjudications do not preclude a person from possessing a firearm.  The petitioner in this case had been found guilty of two class A felonies as a juvenile.  Many years later, the court sealed those records.  The petitioner was subsequently denied a concealed pistol license (CPL) on the basis of those felony adjudications.  He petitioned for a writ of mandamus to compel the sheriff to issue the CPL, but the superior court denied the petition.  He appealed.

The court found that the petitioner met the requirements of RCW 13.50.260 and ordered that the official juvenile court record, social file, and related agency records be sealed.  The court also entered a subsequent order stating that the petitioner qualified for restoration of his firearm rights.

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marijuana grow

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Washington criminal defense attorneys understand that people sometimes face drug charges because they were in a vehicle or a home where drugs were present.  This can be particularly true of the owner or resident of the property where the drugs were found.  Although a landlord generally cannot be held liable for a tenant’s criminal actions just because he or she failed to evict the tenant, a Washington appeals court recently upheld a conviction of a woman whose boyfriend allegedly had a marijuana grow operation in her home.

According to the appeals court’s opinion, the defendant lived in a home owned by her stepmother with no formal lease agreement.  She shared the home with her children, her boyfriend, and her boyfriend’s brother.  The police executed a search warrant and found 27 marijuana plants in the back yard, marijuana in the kitchen, and drying marijuana and glass pipes in the basement.  The defendant was charged with manufacturing marijuana.  She testified that the marijuana was her boyfriend’s and denied any involvement with the marijuana grow.  She testified she had asked him to stop, but he did not do so.  She admitted it was her choice to allow her boyfriend to remain at the residence.

drunk driving

Photo Credit: Paul Biryukov /

A misdemeanor Washington DUI can be elevated to a felony under some circumstances, including a prior conviction for “[v]ehicular assault while under the influence of intoxicating liquor or any drug.”  To elevate a charge, the state must prove the existence of the conviction and that it relates to the defendant.  Vehicular assault is an alternative means offense, with three alternatives, but not all of the alternatives qualify for the enhancement.  A Washington appeals court recently considered whether the state had proved a defendant’s prior conviction for vehicular assault qualified for the enhancement.

The defendant was charged with a DUI in 2016.  The state alleged the defendant’s prior conviction for vehicular assault while under the influence made the current offense a felony.  After finding the defendant had committed DUI, the jury was then asked to determine whether the defendant had a qualifying prior vehicular assault conviction. The state introduced the court records from the previous conviction as well as testimony from a police officer.  The jury found the defendant had a prior vehicular assault while under the influence of alcohol conviction.

The defendant appealed, arguing the state did not produce sufficient evidence to elevate the offense to a felony.  He argued the evidence only established a generic conviction for vehicular assault, rather than showing that he was convicted of vehicular assault while under the influence pursuant to RCW 46.61.522(1)(b).

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In Washington domestic violence cases, the prosecution or defense may want to present evidence of what one of the involved parties said about the events.  Hearsay evidence is generally not allowed, so such statements must fall within an exception to the hearsay rule to be admissible.   A Washington appeals court recently considered whether a victim’s statement to a police officer was appropriately admitted into evidence.

The couple lived together in the woman’s home at the time of the incident.  They got into an argument and the woman reached to take back a cell phone she had given the defendant.  According to the court’s opinion, the defendant wrapped his arm around her neck and strangled her for about 10 seconds.

The woman called 911.  When the deputies arrived, the woman described these events to one of them.

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Both the U.S. and Washington Constitutions prohibit warrantless seizures, unless the state can show an exception applies.  Washington criminal defense attorneys know that one such exception is the Terry stop.  An officer may briefly detain an individual if he or she has a reasonable suspicion of criminal activity based on specific and articulable facts the officer knows at the time of the stop.  If the activity is consistent with criminal activity, it may justify a brief detention, even if it is also consistent with activity that is not criminal.

A Washington defendant recently challenged her convictions on the ground that the stop was unlawful.  After being notified of unauthorized vehicles in his driveway, a man returned home to find he had been burglarized.  He reported unauthorized vehicles in his driveway, and two men were arrested.  He subsequently found another vehicle on the private road to his house and again called the police.  The deputy who responded stopped a vehicle that appeared to be leaving the remote road.  The deputy stated the vehicle was “loaded with goods,” so he asked the driver to exit the vehicle.  He handcuffed her and put her in the back of his vehicle.

The property owner identified some fluorescent light bulbs in the vehicle as belonging to him.  When asked why she was there, the defendant told the deputy she needed to urinate.  She was arrested, and officers found a baggie in her jacket that contained a substance that tested positive for methamphetamine.  She was charged with burglary in the second degree and possession of a controlled substance—methamphetamine.

A homeowner or resident may consent to police searching the home.  Washington drug crime attorneys know that a homeowner or resident’s consent can affect others in the home.  In a recent case, a defendant was convicted of unlawful possession of a controlled substance with intent to deliver within 1,000 feet of a school bus stop following a search of an apartment.

The police found the defendant in a woman’s apartment during a protective sweep in response to a report of an assault and robbery in the apartment by the defendant and two others.

The defendant appealed, arguing the sweep exceeded the scope of the “protective sweep” exception to the warrant requirement.

The Washington Constitution, like the Fourth Amendment to the U.S. Constitution, protects individuals against unlawful searches and seizures.  Evidence obtained through an unlawful search or seizure may be excluded. Washington drug crime attorneys know that whether evidence is excluded often turns on whether the encounter between the defendant and law enforcement constituted a seizure, as seen in a recent case.

The trial court entered findings of fact based on the undisputed facts.  The police received an anonymous tip that a woman with an active arrest warrant was staying in a particular room at a hotel.  The hotel clerk told them the room in question was registered to a different name.  The clerk told them to trespass from the hotel anyone other than the registered guest in the room.

One of the officers recognized the defendant when she answered the door of the room.  She was not the woman for whom they were looking.  The defendant told the officers she was the only person in the room. The clerk came to the room and told the officers the defendant was not registered to the room and asked them to trespass her from the room.  The officers then told the defendant to gather her things and leave.  The officers came into the room to make sure that the woman for whom they were looking was not there and that the defendant did not get a weapon.  One officer asked the defendant for her driver’s license so that he could enter her name in the log, indicating she had been trespassed from the hotel, and to check for any active warrants. The system showed she had a misdemeanor warrant. The officers arrested the defendant.  She had already gathered her property from the room and asked if she could return it, but she was told she could not.  She stated her wallet, phone, and identification were in the purse she had, but it was not her purse, and she did not know anything about any other items in it.  The purse was searched incident to her arrest, and the police found a plastic baggie containing a black, tar-like substance wrapped in a goodwill receipt.   The substance subsequently tested positive for heroin.

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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.

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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.

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