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Articles Posted in Domestic Violence

Article I, section 7 of the Washington State Constitution provides individuals a privacy right that is greater than the protection provided by the Fourth Amendment to the U.S. Constitution.  A search occurs under article I, section 7, when the government disturbs a citizen’s privacy interests that the citizen should be entitled to have safe from government interference without a warrant.  Courts consider the nature and extent of the information the government may obtain through its conduct.  An officer observing something through his or her own senses is not a search under this section, if the officer is in a location he or she is lawfully allowed to be.  Officers may use tools that enhance their natural senses, such as binoculars or flashlights, but equipment that does more than enhance the senses may require a warrant.  Law enforcement needs a warrant to use infrared thermal devices to observe heat patterns in a home or to track a private vehicle with a GPS device.

In a recent case, a defendant challenged his conviction of two counts of felony violation of a domestic violence no-contact order that involved video surveillance evidence.  He had previously pleaded guilty to misdemeanor counts of violation of a domestic violence no-contact order under a previous order.  According to the appeals court’s opinion, a detective initiated an investigation after an investigator with the Prosecuting Attorney’s Office encountered the defendant in the parking lot of his wife’s apartment building.  The detective had surveillance cameras installed on a telephone pole.  In the videos, she saw someone she believed to be the defendant walking toward the defendant’s wife’s apartment.  The police then obtained a search warrant.  When they executed the warrant, they found the defendant standing outside an open window.  They also found his mail and clothes in the bedroom.  He was arrested and charged with residential burglary and two counts of felony violation of a domestic violence order.

The defendant sought to suppress the video surveillance evidence, arguing the police violated his rights under both article I, section 7, and the Fourth Amendment.  He also argued the police were not allowed to install the surveillance cameras on telephone poles.  The trial court found the cameras were directed to public areas and the parking lot, not the defendant’s wife’s apartment.  The court also found the defendant did not have standing to raise the telephone pole issue.  The trial court denied the defendant’s motion to suppress the video evidence.

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When a Washington civil protection order is issued, the parties generally know who the protected party is.  In some cases, however, there may be errors in the identification of the protected party in the order.  A defendant recently challenged his conviction for violation of a domestic violence court order because the domestic violence no-contact order identified a race for the protected party that did not match his wife’s race.

In 2013, the court issued a domestic violence no-contact order that prohibited the defendant from contacting a named individual.  The order included the protected party’s birthdate. It included a finding of fact that the protected party was the defendant’s “[i]ntimate partner.” The name and birthdate of the protected party matched that of the defendant’s wife. The order also stated the protected party was a black female.  It expired in July 2018.

According to the appeals court’s opinion, the defendant’s wife called 911 in February 2017 and reported that the defendant had assaulted her.  The defendant told the responding officer that his wife had assaulted him at her home.  He acknowledged there was a no-contact order that prohibited him from contacting his wife, but stated he thought it had expired.

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In many Washington domestic violence cases, a person faces criminal charges as well as a petition for a civil protection order.  When there are “parallel” civil and criminal proceedings, there would be a risk that the criminal defendant may be compelled to incriminate himself or herself in the civil proceedings if not for the protections of the Fifth Amendment.  In addition to protecting the defendant during the criminal trial, the Fifth Amendment also allows a person to refuse to answer official questions in other proceedings if the answer might tend to incriminate the person in future criminal proceedings.  Washington courts do not automatically delay the civil case until the criminal case is over.  Instead, they apply a balancing test based on several factors identified in King v. Olympic Pipeline Company, LLC to determine if the civil case should be stayed.

King was a wrongful death case following a pipeline rupture that resulted in a fire that killed three people.  A criminal investigation focused partly on some of the defendants.  Those defendants sought a limited partial stay of discovery in the civil case to preserve their Fifth Amendment right and the right to fully defend themselves in the civil case.  The trial court denied their motion and the appeals court reviewed.

The Washington Appeals Court adopted factors considered by federal courts in parallel proceedings, noting that it was not necessarily an exhaustive list.  The court must balance the factors in light of the circumstances and competing interests of the case.

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Violation of a Washington no-contact order is generally a gross misdemeanor.  In some circumstances, however, it can be elevated to a class C felony if the violation includes an assault.  Defense of property can be an affirmative defense to assault.  The Washington Supreme Court has recently reviewed a case in which the defendant sought a jury instruction on defense of property as an affirmative defense to felony violation of a no-contact order.

According to the Court’s opinion, the defendant checked his car after thinking he saw someone near it.  His phone and other items were missing.  The defendant saw his former girlfriend walking down the street.  There was a no-contact order prohibiting the defendant from coming near or having any contact with her at the time.  He followed her and tried to take her purse to retrieve his phone. A witness testified to seeing a man hit a woman, then lift her off the ground and slam her back down.  According to the appeal court’s opinion, the defendant denied hitting her.

The defendant was charged with felony violation of a no-contact order predicated on assault. He requested a jury instruction on defense of property.  The judge, however, found he “was acting offensively, not defensively…” and was not entitled to the instruction.  The jury convicted the defendant, and he appealed, arguing he had been improperly denied the jury instruction.  The appeals court affirmed, finding the defendant was not entitled to the defense because he used force to try to recover the property, not prevent its theft.

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When a court sentences a defendant to community custody in a Washington criminal case, there are some conditions the court must impose and others that the court may impose in the court’s discretion.  These conditions are set forth in RCW 9.94A.703.  Pursuant to the statute, the court may require an offender to “[p]articipate in crime-related treatment or counseling services” or “in rehabilitative programs” that are reasonably related to the offense, the risk of reoffending, or community safety.  Additionally, a court may order an offender convicted of a domestic violence crime to participate in a domestic violence perpetrator program, if either the offender or the victim have a minor child.

In a recent case, a defendant challenged the imposition of domestic violence treatment.  The defendant was convicted of second degree assault, unlawful imprisonment, and felony harassment of his former girlfriend.  The jury found the defendant and the victim were members of the same family or household.

To convict a defendant of felony violation of a no-contact order, the state must prove that an order existed and that the defendant knew of the order.  The order is therefore generally relevant and likely admissible.  In a recent case, however, the defendant challenged the admission of a no-contact order because he had stipulated to the existence of his order and his knowledge of it.The defendant was charged with several Washington domestic violence offenses, including felony violation of a no-contact order, after the woman with whom he was living told police he assaulted her.  The defendant was under Department of Corrections supervision at the time.  The defendant pleaded guilty to some of the charges, but the charge for felony violation of a no-contact order went to trial.

The state planned to admit two no-contact orders into evidence.   To prove the charge, the state would have to prove that there was a no-contact order in place and that the defendant knew of it.  The defendant requested that the no-contact order be excluded because he had agreed to stipulate to knowing of its existence.  The judge ultimately admitted the no-contact order over the defendant’s objection.

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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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The state can get a conviction in a Washington domestic violence case even when the alleged victim does not testify.  In such cases, it is very important for the defendant to fight the admission of other improper evidence that may be harmful to the defense.  In a recent case, a defendant was convicted of second degree assault and 13 counts of violation of a domestic violence no-contact order despite the fact his wife failed to appear to testify.

A woman called her daughter and told her she had been in an altercation with her husband and he had choked her.  The woman then drove to her daughter’s home in Idaho.  The woman said she was afraid of her husband.  The daughter saw marks on her mother’s face and neck and asked if she should call the police.

When the officer arrived, he observed injuries consistent with strangulation.  The woman told the officer she did not feel safe in her home where the incident occurred.  The officer contacted the local authorities in Washington and an Asotin County detective came to the daughter’s home.  The detective also noticed injuries consistent with strangulation and took photos to document them.

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Romantic and familial relationships can grow contentious and sometimes become violent.  Sometimes relationships can become so contentious that one party seeks to have a court intervene and issue a civil protection order to prevent the other party from contacting them or engaging in other activities.  Washington civil protection order attorneys know that a victim does not have to wait until they are seriously injured to seek a civil protection order.  In some cases, a court may issue a civil protection order even if there has not been a physical assault, as seen in one recent case.

The former husband appealed a domestic violence protection order (DVPO) issued in favor of his ex-wife.  In her petition, the ex-wife stated her ex-husband had violated the no-contact order entered after the divorce.  She stated that he had threatened to kill her when she filed the protection order and that he had threatened her many times.  She stated he had told her she could either be with him, or he would keep harassing her.  She alleged he had a history of both suicidal and violent behaviors.  The court granted her a temporary order and scheduled a hearing.

At the hearing, the ex-wife testified that she was afraid for her safety.  She said she wanted the DVPO because the restraining order that was already in place was not working.  The ex-husband also testified at the hearing and either denied or tried to explain the allegations.

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Some evidence, though relevant, may be unfairly prejudicial.  A court must balance the probative value of evidence against the risk of unfair prejudice.  If the risk of unfair prejudice substantially outweighs its probative value, the evidence must be excluded.  Washington domestic violence attorneys know that some facts about an alleged victim could be prejudicial to their client.

A Washington appeals court recently considered whether the trial court erred in allowing limited evidence of the alleged victim’s pregnancy when the defendant appealed his conviction of a misdemeanor violation of a court order with a special finding of domestic violence.

There was a domestic violence no-contact order prohibiting the defendant from contacting or coming within 500 feet of the mother of his child.  The woman was pregnant at the time with another child that was believed to be the defendant’s.

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