Seattle Attorneys Blog

Washington Appeals Court Affirms New DVPO after Original DVPO Expired

June 22, 2023 | by Blair & Kim, PLLC

Washington domestic violence protection orders (“DVPOs”) protect abused spouses, romantic partners, and family and household members. The court may order the DVPO for a fixed period of time, in many cases, one year. The petitioner may seek a renewal of the DVPO and, under current RCW 7.105.405, the petitioner does not have a burden to prove they have “a current reasonable fear of harm. . .” Instead, the respondent has the burden to prove they will not resume acts of domestic violence. In some cases, however, a DVPO may be inadvertently allowed to expire. A former husband recently challenged a DVPO protecting his former wife and their children after the previous DVPO was allowed to expire.

The parties shared custody of their two children following their divorce in 2019. According to the appeals court’s opinion, the ex-husband tried to force his way into the ex-wife’s home and injured her. She sought a domestic violence protection order (“DVPO”). The court issued a DVPO protecting the ex-wife and the children for one year. The order also limited the ex-husband’s residential time with the children to a weekly four-hour supervised visit. The ex-wife sought renewal in June 2021. Thereafter, the DVPO was extended through agreed short-term orders and ultimately expired in January 2022.

The ex-wife sought another DVPO in February 2022, alleging she allowed the prior order to expire accidentally. She stated she was still afraid of the ex-husband and that she thought she and the children were only safe because of the protection order. She also stated she had moved to modify the parenting plan to limit the ex-husband to supervised visits, but that motion was still pending.

Washington Driver Can’t Consent to Search of Passenger’s Backpacks

June 13, 2023 | by Blair & Kim, PLLC

Evidence obtained through an unlawful search is generally inadmissible in a Washington criminal case. Both the Fourth Amendment to the U.S. Constitution and the Washington Constitution offer protections against unlawful searches. The Washington Constitution provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law,” Article I, Section 7. This section in some circumstances provides greater privacy protections than the Fourth Amendment.

A defendant recently challenged a search of his backpacks that were inside a vehicle. The appeals court’s opinion states the defendant was a passenger in a vehicle during a traffic stop for suspicion of suspended license. The officer recognized the defendant as having an outstanding warrant. The officer ordered him to remain seated, but the defendant got out of the car and subsequently fled. The officer caught him and searched his pockets. He found a pipe, cash, and a small amount of what he thought was heroin.

The driver told the officer the defendant asked her to stop at a gas station when the patrol car was following them. She said he moved some bags to the back seat. She pointed out two backpacks on the rear floorboard and another on the passenger side floorboard. She gave permission to search the car “without limitation.”

Department of Education Delays Final Title IX Rule

May 31, 2023 | by Blair & Kim, PLLC

In July 2022, the Department of Education (“Department”) proposed Title IX regulations that would undo a number of changes made during the Trump Administration. The final rule was expected to be released this month. The Department recently provided an update, however, stating that the new anticipated date for the final Title IX rule is October 2023.

According to the Department, more than 240,000 public comments were submitted in response to the proposed regulations. This is more than twice the number of comments the controversial 2018 proposed regulations received. Under the proposed rule, sex-based discrimination and harassment would include gender identity, sexual orientation, sex characteristics, sex stereotypes, and pregnancy or related conditions. Much of the attention around the proposed rule has been focused on the protections based on gender identity and sexual orientation, but there are other significant changes.

Victim advocates and education organizations have raised concerns over the mandatory reporting requirements, which require certain employees to report conduct that may constitute sex discrimination to the Title IX Coordinator. The American Association of University Professors commented that such requirements negatively affect teaching and advising relationships. Other commenters noted that the mandatory reporting requirements as written could be confusing to students and would likely discourage victims from seeking help and support.

Washington Appeals Court Affirms Admission of 911 Call as Excited Utterance

May 28, 2023 | by Blair & Kim, PLLC

Generally, hearsay is not admissible in a Washington criminal case, unless it meets an exception. Hearsay is an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” ER 801(c). Generally, hearsay is not admissible unless it meets a specific exception. One exception is an “excited utterance.” Statements made while the speaker is still under the stress of the exciting event are considered more likely to be true because they are thought to be spontaneous. The exception only applies if there has been “a startling event or condition,” the statement was made while the speaker was under the stress of the excitement from that event or condition, and the statement was related to the startling event or condition. ER 803(2). In determining if the excited utterance exception applies, the court may consider the speaker’s emotional state, the spontaneity of the statement, how long has passed, and if the speaker has had the opportunity to fabricate a story. A defendant recently challenged the admission of a 911 call when the alleged victim had not testified at trial.

According to the appeals court’s opinion, the defendant and his ex-girlfriend had recently broken up at the time of the incident. The defendant knocked on his ex-girlfriend’s door at about 10 and started crawling in her bedroom window when she did not answer. She woke up and told him not to come in. She then ran a neighbor’s apartment. The defendant followed and knocked on the neighbor’s door.

The neighbor called 911. The ex-girlfriend told the 911 operator the defendant jumped in her window while she was sleeping and was currently standing outside the door trying to open it. She said he wanted to hurt her.

Washington Appeals Court Upholds Deviation from Standard Child Support Calculation

May 23, 2023 | by Blair & Kim, PLLC

Washington child support is determined based on the Washington State Child Support Schedule. A trial court may deviate from the standard child support calculation when it would be inequitable not to do so. The trial court must specify its reasons for deviation or for denying a request for deviation in its findings of fact. RCW 26.19.075 sets forth a non-exclusive list of reasons for deviation. A husband recently challenged a child support deviation, arguing the trial court should instead have characterized that amount as spousal maintenance.

According to the appeals court’s opinion, the parties had three children together during their fourteen-year marriage. The trial court found the wife was voluntarily underemployed and imputed a monthly net income of $2,048 to her, but she actually earned about $800 from her part-time job. The husband had a net monthly income of $7,374.

The trial court determined the wife needed $3017.27 per month for her basic needs and expenses. The court determined she would receive that amount in combined spousal and child support. Pursuant to the child support guidelines, the husband’s adjusted child support would be $1,566. The trial court acknowledged that spousal maintenance would change the income of the parties for determining child support. To get to the intended total, the trial court adjusted the child support amount and ordered the husband to pay $2,017.27 in monthly child support and $1,000 in monthly spousal maintenance for a year. The court indicated child support would be recalculated based on the parties’ income without spousal support after the spousal support ended in a year.

Washington Appeals Court Affirms Juvenile’s Adjudication Despite Self-Defense Claim

May 14, 2023 | by Blair & Kim, PLLC

A Washington criminal defendant can raise a self-defense claim by offering some evidence that their actions occurred in circumstances of self-defense. Once the defendant meets this low burden, the burden shifts to the state to prove, beyond a reasonable doubt, the absence of self-defense.

According to the appeals court’s opinion, the juvenile’s mother came into the 15-year-old juvenile’s room and saw her hide a cell phone under the covers. The juvenile refused to give it to her mother, and they scuffled over it. The juvenile ultimately kicked her mother twice.

The state charged the juvenile with fourth degree assault with notice of a domestic violence allegation. The juvenile testified , saying, “. . . the only reason I kicked her was to . . . get her off of me,” and “. . . I kicked her because she was on my leg, and it hurt. And—because I knew at that point I knew I wasn’t going to get the phone back . . . .”

Washington Appeals Court Upholds Renewal of DVPO

April 30, 2023 | by Blair & Kim, PLLC

A Washington Domestic Violence Protection Order (“DVPO”) may order a respondent to participate in state-certified treatment, and failure to do so may be considered if the petitioner seeks renewal. A respondent recently challenged renewal of a DVPO, arguing the court should have considered his relocation and participation in an out-of-state treatment program.

According to the appeals court’s opinion, the petitioner and respondent were a married couple living in Montana when they separated in 2018. After moving to Washington, the wife sought a Domestic Violence Protection Order (“DVPO”). A court commissioner issued a DVPO for one year, requiring treatment and counseling in a domestic violence perpetrator program approved by Washington’s Department of Social and Health Services (“DSHS”).

The petitioner sought renewal of the order in 2020. The petition stated she still feared the respondent and future violent acts if the order was allowed to expire. She also stated she was afraid to visit her daughter, who lived in the same town as the respondent, without a DVPO. The respondent argued he was not a threat to the petitioner because he was still living in Montana. He offered evidence he had completed a Montana domestic violence treatment program.

Federal Court Denies University’s Motion to Dismiss Title IX Claim Arising from Off-Campus Conduct

April 30, 2023 | by Blair & Kim, PLLC

In a recent case, a female student of a Louisiana university sued multiple parties as a result of an off-campus rape by another student who had been accused of multiple prior sexual assaults and rapes. A Louisiana federal court denied the university defendants’ motion to dismiss, finding the university had substantial control over the context of the assault even though it occurred off-campus.

According to the court’s opinion, the plaintiff was raped in 2021 while a student at the university. She did not know the last name of her attacker at the time. A national newspaper reported on the accused student’s alleged sexual misconduct and the defendants’ failure to act. The plaintiff filed suit for Title IX violations and negligence against the Board of Supervisors of the university the accused student previously attended, the Board of Supervisors of the university she attended with the accused student, and the local city-parish government.

The accused student had previously been banned from another university’s campus in Baton Rouge (“First University”) after two female students of that university separately reported him for rape. He subsequently transferred repeatedly between the university attended by the plaintiff (the “University”) and another university (“Second University”) under the same Board of Supervisors.

Washington Appeals Court Upholds 54-Month Spousal Maintenance Award

April 25, 2023 | by Blair & Kim, PLLC

Washington spousal maintenance is intended to support a spouse until they are able to support themselves. The trial court’s primary consideration is the economic situations of the parties after the divorce. Courts must consider the factors set forth in RCW, but those factors are not exclusive. The factors include the financial resources of the spouse seeking maintenance, the time needed for the spouse to obtain sufficient education to find appropriate employment, the standard of living during the marriage, the length of the marriage, the age, physical condition, and financial obligations of the spouse seeking maintenance, the ability of the other spouse to meet their own needs and financial obligations in addition to those of the spouse seeking maintenance. The trial court does not have to make specific findings of fact for each of the factors. A maintenance award must be just, and a court abuses its discretion if it does not base maintenance on a fair consideration of the factors. A wife recently challenged an award of spousal maintenance, arguing the trial court abused its discretion.

According to the appeals court’s unpublished opinion, the parties each finished college with a bachelor’s degree in 1992 and got married in 1994. They moved several times and lived in multiple states before and after the marriage. They agreed the wife would stay home and care for the children, but she did teach fitness classes when she could get childcare.

The wife started experiencing health issues shortly after they moved to Arizona in 2000 or 2001, affecting her ability to work. They moved to Washington in 2006 or 2007. She eventually started teaching yoga and Pilates. She started a business offering yoga classes, massage, and certain merchandise in 2010. She cut back on teaching after having what she believed was a Transient Ischemic Attack, though she was not formally diagnosed. She closed the business center at the end of 2017 as the result of a rent increase. She was in three car accidents in the following two years, causing her constant back and hip pain, issues with balance, shoulder pain, and PTSD.

Washington Appeals Court Holds Occupant Can’t Consent to Search of Someone Else’s Bag

April 13, 2023 | by Blair & Kim, PLLC

Both the Fourth Amendment to the U.S. Constitution and the Washington Constitution make warrantless searches unlawful unless they meet an exception. Valid consent is an exception to the warrant requirement. When premises are shared, a person who has equal control over has the authority to consent to a search of the premises when the other person is absent. Law enforcement must, however, also obtain the consent of the other person with equal control if they are present. State v. Morse. This rule does not apply to someone who does not have common authority over the premises. A host’s consent is effective against a guest in common areas of the premises. A person with authority over the premises does not necessarily have the authority to consent to a search of everything inside the premises. A Washington criminal defendant recently challenged a search of a bag in a motel room after the room’s occupant gave consent to search.

A confidential informant informed the sheriff’s office the defendant and another man were at a motel for a drug deal. A detective detained the other man and the room’s occupant when they left the motel. The defendant was still in the room. The occupant said there were bags belonging to the defendant and the other man in the room. He gave the police written consent to search the room.

The detectives removed the defendant from the room and brought the occupant back in. The occupant acknowledged owning a bag on the bed containing drugs and paraphernalia.