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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.Legal News Gavel

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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Legal News GavelWhen one parent seeks a protection order against the other parent, they often ask that the order also be applied to the children.  However, when a court issues a domestic violence protection order, any provisions addressing the residential arrangement of minor children must be made in accordance with Washington child custody laws.  The court must make findings as to the relevant factors justifying the modification.  In a recent case, a Washington appeals court considered whether a protection order that included the child was an improper modification of the parenting plan.

The couple divorced in 2015 and the parenting plan gave each parent 50% residential time with their child.  In 2017, the ex-wife petitioned for a protection order, alleging her ex-husband had given her a threatening letter.  In the letter, he stated he had two things to live for:  “redemption by taking revenge on [his ex-wife]…” and protecting his son.  The wife also provided a post on a website purportedly made by the ex-husband in 2015, stating he “contemplated murder and considered violence” but that his “son was too young to be separated from his mother permanently.

Following a hearing, the commissioner issued a protection order restraining the ex-husband from contact with the ex-wife or the child except for his supervised visits.

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Legal News GavelWhen a person is killed due to someone else’s negligence, their loved ones may be able to pursue Washington wrongful death and survivorship claims.  Survivorship claims and wrongful death claims are similar, but not identical. A Washington appeals court recently considered whether a judgment in a survivorship claim precluded a wrongful death action.

The deceased sued several defendants after she was diagnosed with mesothelioma.  She settled with all but one of the defendants during trial, releasing all claims arising out of her personal injury claim and any future wrongful death claim.  The remaining claim was converted to a survivorship claim after she died during trial.  The jury returned a verdict in favor of the estate, but the court reduced it on a motion from the defendant.  The court also allocated 20% of the settlement proceeds to future wrongful death claims.  The court also reduced the judgment by 80% to offset the proceeds from the settling defendants.  Both parties appealed and the appeals court affirmed the verdict, but reversed the reduction.

The estate filed a wrongful death action against several defendants.  The trial court dismissed, finding the claims had been extinguished by the judgment in the survivorship case.  The estate appealed, arguing a wrongful death claim is a new and distinct cause of action.

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In a Washington divorce, parents generally cannot escape child support obligations by being voluntarily underemployed.  If the court finds the parent is underemployed for the purpose of reducing the child support obligation, the court can calculate child support based on imputed income.  A Washington court recently considered whether a father was subject to imputed income because he stopped working overtime after the separation.

Legal News GavelIn her motion for child support, the wife alleged the husband was voluntarily underemployed.  The trial court entered a child support order, imputing income to the husband based on past earnings.  The husband appealed.

The husband argued the court erred in finding him voluntarily underemployed and in imputing his income. The husband owns and operates a commercial harvest diving business. He previously owned and operated as many as four commercial dive boats and worked as boat captain and diver until about six months before the separation.  He stated he had previously worked over 80 hours per week and worked out of town for weeks at a time.  He claimed he had been able to work so much during the marriage because the wife had been a stay-at-home mother and homemaker.  He argued he was unable to maintain that schedule and care for his children on the shared schedule.  His salary dropped from $146,884 in 2015 to $93,094 in 2016.

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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.

Legal News GavelThe 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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In Washington, drivers involved in an accident resulting in injury must stop at the scene and remain there to give their name, address, insurance information and vehicle license number to the other driver, passengers or anyone who was struck or injured.  Pursuant to RCW 46.52.020, drivers must also show their driver’s license.  They must provide assistance to anyone injured, including getting them to medical treatment.  What happens, though, if a driver is shaken up and fails to provide all of the required information? A Washington appeals court recently considered whether a case could proceed when the plaintiff originally filed suit against the wrong party after not receiving all of the other driver’s identifying information.

Legal News GavelThe plaintiff was rear-ended.  She stated the other driver was very upset after the collision and insisted they not call the police or an ambulance.  The plaintiff stated that they exchanged insurance cards and wrote down each other’s information.  She stated the other driver did not offer her a driver’s license or state her name.  She believed the other driver’s name was the name on the insurance card.  In fact, the person named on the card was the other driver’s mother.

The plaintiff filed suit against the person named on the insurance card on the last day before the statute of limitations expired.  The defendant answered, stating the plaintiff had sued the wrong defendant.  The plaintiff amended the complaint to add the driver as a defendant more than two months after the statute of limitations expired.

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Sometimes in a Washington child support case, a parent may seek credit for expenses during their residential time or a modification of the custody arrangement in an effort to reduce child support payments.  However, the parent must show adequate cause to modify the parenting plan to change the custody arrangement.  A Washington appeals court recently considered a husband’s efforts to reduce his child support obligation.

Legal News GavelThe parties divorced after approximately 11 years of marriage.  The agreed parenting plan allowed equal residential time with the two children, and other agreed orders required the husband to pay $1,700 in child support and $900 in maintenance each month.

In 2012, the husband moved to adjust child support due to the child care expenses he paid while he had the kids.  The court denied the motion, noting a residential credit could not be considered in a motion for adjustment but should instead be raised in a petition to modify.  A couple of months later, the husband filed a petition to modify the child support.  The court found he failed to demonstrate a substantial change in circumstances and denied the petition.  It also awarded the wife attorney’s fees and costs.

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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.

Legal News GavelA 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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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.

Legal News GavelA 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 Legal News Gavelprotective 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.