Seattle Attorneys Blog

Washington Supreme Court Vacates Sentencing Enhancement Not Adequately Described in Information

March 9, 2020 | by Blair & Kim, PLLC

The Washington Constitution provides that a person accused of a crime has a right to notice of “the nature and cause of the accusation against him.” An information in a Washington criminal case must set out all essential elements of the crime along with the facts that support them. If the information does not include this information, it is deficient. The information must also include any enhanced penalties the prosecution intends to seek. When the adequacy of an information is challenged, the court looks at the charging document, and does not consider the evidence presented at trial or jury findings.

A defendant recently challenged a sentencing enhancement after her conviction of four counts of delivering a controlled substances. She argued that the information did not give her adequate notice of the enhancement. The charges arose from two controlled drug buys by a confidential informant. The information, amended multiple times, alleged four counts of delivery of a controlled substance. The first and third information included aggravating circumstances with each count that alleged the defendant violated RCW 69.50.401 by engaging in the prohibited activity “within one thousand feet of a school bus route…”

The defendant was convicted of four counts of delivering a controlled substance, which the jury found occurred, “within one thousand feet of a school bus route stop.” She received a 24-month enhanced sentence due to those findings.

Federal Court Dismissed State Law Claims, But Title IX Claims Will Proceed

February 27, 2020 | by Blair & Kim, PLLC

Many recent Title IX cases filed by students accused of sexual assault or sexual misconduct have focused on procedural issues, such as denial of an opportunity to cross-examine the accuser. In some cases, however, the pressures to address allegations and support alleged victims may result in gender bias against accused male students during investigations and in the outcomes of those investigations.

Recently, a federal court in Virginia considered a university’s motion to dismiss part of a former student’s claims against it. In March 2017, the plaintiff engaged in sexual intercourse with a female student, identified in the court’s opinion as Jane Roe. She reported the incident as sexual assault, but the plaintiff alleged the encounter was consensual. He alleged they agreed to meet and walked to his house. He alleged they had sex and fell asleep, and Jane Roe left in the morning.

According to the opinion, Jane Roe later texted the plaintiff and asked what time they had sex. He answered that he “honestly had no idea.” Jane Roe met with the Title IX Coordinator and said she had not consented because she fell asleep and did not remember having intercourse. She filed a Title IX complaint.

Washington Appeals Court Allows Negligence Case Against School District for Student’s Death to Proceed

February 23, 2020 | by Blair & Kim, PLLC

In a Washington negligence case, the plaintiff must prove the defendant breached a duty of care and that the breach was the proximate cause of the plaintiff’s injury. Generally, there is not a duty for one person to prevent someone else from causing injury to another person, but there may be a duty if there is a special relationship. School districts, due to the custodial relationship with their students, may have a duty to take reasonable steps to prevent a reasonably foreseeable harm to their students.

In a recent case, a personal representative sued a school district after a high school student was killed in an accident off campus. A physical education teacher took the class for a walk off campus. The school had policies requiring teachers to get parental or guardian permission before taking students off campus for an excursion or field trip. The teacher did not follow those policies, but the defendants argued they were not applicable to the walk off campus. The teacher claimed the principal had approved him taking the class off campus, but there was conflicting information regarding exactly what the principal knew.

The teacher did not get any additional adult supervision. He walked with the students on the sidewalk beyond the school safety zone. The speed limit was up to 40 miles per hour. Some of the students were up to 200 meters away from the teacher at times. The appeals court’s opinion stated students were “explicitly granted permission” to cross the street outside the designated crosswalks.

Washington Appeals Court Affirms Dismissal of Criminal Charges Based on Court Mismanagement

February 13, 2020 | by Blair & Kim, PLLC

Under Washington rules of criminal procedure, a court may dismiss a criminal prosecution due to arbitrary action or governmental misconduct if the accused rights have been prejudiced and his or her right to a fair trial has been materially affected. CrRLJ 8.3(b) and CrR 8.3(b). Washington case law has held that mismanagement may be sufficient and the misconduct does not have to be evil or dishonest. In a recent case, a Washington appeals court considered whether the court’s actions were within the scope of “governmental misconduct” that would support dismissal under CrRLJ 8.3(b).

The court continued the defendant’s arraignment on fourth degree assault and third degree malicious mischief charges after ordering he be provided an interpreter. There were 14 additional pretrial hearings in the next 15 months, but the interpreter failed to appear at 10 of them. The interpreter appeared by phone “ineffectively,” according to the appeals court, twice. Two times the interpreter actually appeared in person. The defendant moved to dismiss the charges pursuant to CrRLJ 8.3(b). After the interpreter failed to appear at yet another hearing, the trial court dismissed the charges with prejudice. The trial court found the failure to provide an interpreter “seriously interfered with” the defendant’s right to representation.

The state appealed, and the superior court affirmed the dismissal. The state then sought discretionary review by the Court of Appeals. The appeals court granted the review to address the issue of whether CrRLJ 8.3(b) can apply to mismanagement by court administration.

Washington No Contact Order Violation Conviction Upheld Where Protected Party Said She Planned to Drop the Order

February 6, 2020 | by Blair & Kim, PLLC

When a Washington civil protection order is in place, any contact with the protected party could result in a charge for a violation of the order. In a recent case, a defendant challenged his conviction for violation of a no contact order, claiming the state did not prove he knowingly violated the order because the protected party told him she had dropped it.

The defendant was stopped for driving with a broken taillight. The officer discovered the vehicle belonged to the passenger and that she was the protected party in a no-contact order against the defendant. The officer arrested the defendant.

The defendant told the officer he knew about the no-contact order, but the protected party said she had taken care of it or was having it dropped. The protected party also told the officer she intended to drop the no-contact order.

State Court Overturns Accused Student’s Suspension with Title IX Claims Still Pending

January 31, 2020 | by Blair & Kim, PLLC

The public often hears about due process violations in schools and universities after an accused student files a Title IX claim in federal court. It is important to remember, though, that there may be an internal appeals process as well as an opportunity to appeal to Washington state court when a student faces disciplinary action as the result of a Title IX investigation. As an example, a state appeals court recently vacated a state superior court’s judgment upholding a student’s expulsion based on a sexual misconduct allegation.

The case arose after a female student reported an alleged sexual assault to the police department. No criminal charges were brought. Five months after the incident, the female student filed a report with the university police department.

The Dean of Students Office notified the respondent its investigation found “it was more likely than not [the respondent] engaged in non-consensual sexual activity” with a woman he knew was incapacitated. The respondent was found responsible for violating the sections of the Code of Conduct relating to furnishing alcohol to an underage person (§ F(15)) and sexual misconduct (§ F(23)). The Dean of Students Office ordered the respondent expelled. The respondent asked for a hearing.

Washington Court Cannot Correct Judicial Error in Property Division in a Divorce Decree

January 22, 2020 | by Blair & Kim, PLLC

A trial court in a Washington divorce generally has broad discretion in the disposition of property and debts. Once the court enters the dissolution decree, though, it generally may not modify the property division unless there are conditions justifying the reopening of a judgment. The court may, however, correct clerical errors pursuant to CR 60(a). The court may not correct judicial errors, which involve “errors of substance.”

In a recent case, a husband challenged a court order that he argued changed the distribution of debt after he had moved for clarification of the original decree.

In his divorce petition, the husband had requested the debts be split equally and paid from the proceeds of the real property the parties owned together. The trial court awarded the husband the landscaping business along with its premises, equipment, and debt. The court awarded the wife $38,000 in spousal maintenance. The “Petitioner’s Debt” section of the decree stated the husband pay the 16 listed debts. Next to a mortgage debt and accounts in the husband’s name, the court wrote 100%. The court did not write any percentage next to two items on the list. The rest of the items had 50% written by them.

Washington Appeals Court: Marijuana Odor in Vehicle Occupied by Minors Sufficient for Terry Stop

January 17, 2020 | by Blair & Kim, PLLC

Generally, a police officer needs a warrant to seize a person suspected of a crime. There are some exceptions to the warrant requirement, including the Terry stop. Terry allows an officer to briefly stop and question someone if the officer had reasonable suspicion of criminal activity. The officer’s suspicion must be based on specific and articulable facts and be individualized to the person. Challenging the validity of a seizure, including a Terry stop, can be an important aspect of a Washington criminal defense case.

A minor defendant recently appealed his conviction, arguing the officer did not have grounds to conduct a Terry stop. According to the court’s opinion, the officer stopped a vehicle after seeing it roll through a stop sign. There were three passengers in addition to the driver. The defendant was the front seat passenger.

The officer smelled marijuana when he approached the vehicle. The driver told him all of the occupants were seventeen. The driver denied having marijuana, there being marijuana in the car, or any of the passengers having marijuana. He said his mother used marijuana and that could have been what the officer smelled. The officer frisked him and put him the back of the patrol car.

Washington Supreme Court Clarifies Elements of Felony DUI

January 9, 2020 | by Blair & Kim, PLLC

A DUI in Washington is generally a gross misdemeanor, but it can be elevated to a felony if the defendant has three prior offenses, as defined under the statutes within the past 10 years. RCW 46.61.502. RCW 46.61.5055 sets out which convictions qualify as prior offenses, including reckless driving if it resulted from a charge that was originally filed as a DUI. A Seattle DUI attorney can explain whether a conviction may be considered a prior offense.

The Supreme Court of Washington recently reviewed a felony DUI conviction. At the time of the offense, the statute required four prior offenses for elevation to a felony, but it has subsequently been amended to require only three. The defendant had a previous DUI conviction, a first-degree negligent driving conviction, and two convictions for reckless driving. At trial and on appeal, the defendant argued that the state failed to present sufficient evidence that the reckless driving convictions “involved alcohol.”

The trial court assessed the prior convictions on the record and found that there was sufficient evidence for the case to move forward. The court did not instruct the jury that it had to find that each prior offense involved alcohol to find the defendant guilty of felony DUI.

Washington Parents May Use Reasonable and Moderate Physical Discipline

December 30, 2019 | by Blair & Kim, PLLC

A person who has experienced domestic violence may seek a protection order with the assistance of a Seattle civil protection order lawyer. Courts may order a protection order based upon violence against a child. Washington law does, however, recognize a parent’s right to physically discipline his or her child, as long as that discipline is reasonable and moderate. An incident of reasonable and moderate physical discipline should not lead to the issuance of a protection order.

A father recently challenged a protection order, claiming that the incident in question was discipline rather than assault. The mother had petitioned for an order of protection against her former husband, alleging that he had assaulted the mother and their son. A judge issued a temporary order of protection, prohibiting the father from having contact with his former wife and their three children.

The father filed opposing declarations, disputing most of the accusations. He did admit, however, that he had recently slapped his 11-year-old son’s cheek for talking back. A police report indicated that the responding officers did not see any marks on the child’s face.