Washington Convictions for Violation of Multiple No Contact Orders Based on a Single Act

The Fifth Amendment to the U.S. Constitution and the Washington Constitution both protect individuals from being charged multiple times for the same offense.  Generally, in a Washington criminal case, a defendant may only be charged with multiple counts of the same crime if each is based on a separate criminal act.

A defendant recently challenged his convictions for violation of a court order, arguing that multiple convictions for violation of separate no-contact orders violated double jeopardy principles when the charges were all based on the same act.

There were three no-contact orders entered against the defendant protecting the same person.  After the defendant contacted that person, he was arrested and charged with violation of a court order.

The prosecutor asked for the defendant to be kept in restraints at the arraignment. The trial court granted the request, stating it based its decision “on the nature of the underlying crime” and indicating it also considered the defendant’s criminal history and alleged resistance to being put back into restraints the last time he was in court.

The state added two more counts of violation of a court order based on the same incident.  The jury found the defendant guilty of the charges. The defendant appealed.

The defendant argued multiple convictions arising from the same act violated double jeopardy.

The statute provides in relevant part that “Any assault that is a violation of an order [of protection] . . . is a class C felony. . .”  and “A violation of a court order [of protection] . . .is a class C felony. . .” RCW 26.50.110(4) and (5). The prosecution argued use of the word “a” before court order in subsection (5) illustrated an intent for a violation of each court order to be the “unit of prosecution.”  The appeals court noted the same logic could be applied to the article “a” before the word violation, suggesting the intended unit of prosecution was instead “an individual act constituting a ‘violation.’” The appeals court further noted that the defendant had committed a single act constituting a violation.

The appeals court found that the result would be unconstitutional if it accepted the prosecution’s interpretation of the statute.  Multiple counts of the same offense must be based on separate criminal acts.  The appeals court therefore found that the statute’s unit of prosecution was “an individual act constituting a ‘violation.’”  The appeals court reversed two of the defendant’s three convictions.

The appeals court found in favor of the state on the issue of shackling, however.  Before allowing the use of restraints at a court appearance, the trial court “must engage in an individualized inquiry. . .”  The trial court may consider a number of factors, including the seriousness of the charges, the defendant’s record, any past attempts to escape, and the adequacy of potential alternatives.

The trial court provided its reasons for allowing the restraints.  The court based its decision on the present charges, the defendant’s criminal history, and the correction officer’s statement he previously resisted restraints.  The appeals court found no abuse of discretion in the trial court’s decision to use the restraints.

A person facing the potential of multiple no-contact orders needs an experienced Washington civil protection order attorney on their side. At Blair & Kim, PLLC, we can help with all aspects of a protection order, from seeking or opposing the order to defending an alleged violation.  Call us at (206) 622-6562 to discuss your situation.

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