Seattle Criminal Lawyer Blog

The fact that George Zimmerman fatally shot and killed Trayvon Martin is tragic. It appears that Zimmerman was an overzealous neighborhood watchdog, armed with a firearm, and was looking for trouble. However, although Mr. Zimmerman's attitude and actions may have been simply outrageous--that does not necessarily mean that he is guilty of murder...although he could be. The decision as to whether George Zimmerman is a murderer may ultimately rest in the hands of a jury.

To read more about the fatal shooting of Trayvon Martin click here.

In Washington State, individuals have the right to use lawful force in certain situations. Washington State law provides that no person shall be placed in legal jeopardy for using reasonable means to protect him or herself, his or her family, or property or for coming to the aid of another who is in danger of assault, robbery, kidnapping, arson, burglary, rape, or any other violent crime.

Continue reading "Trayvon Martin and Justified Self Defense in Washington State" »

In February, a Seattle resident referred to as the "Piggyback Bandit" plead guilty to two misdemeanor counts of assault. The Piggyback Bandit apparently has a history of jumping on the backs of athletes at sporting events in the Pacific Northwest. Jumping on someone's back can constitute assault in the fourth degree.

The Seattle PI story on the Piggyback Bandit's guilty plea can be read here.

Unfortunately, the Piggyback Bandit faced these assault charges in Montana. Washington State has a statute which allows "compromise of misdemeanors."

Under RCW 10.22, certain misdemeanor crimes can be "compromised" unless defendant is charged with criminal street gang tagging and graffiti, or when the offense is committed (1) by or upon an officer; (2) "riotously"; (3) with an intent to commit a felony; or (4) is a crime of domestic violence committed by one family or household member against another.

A compromise of misdemeanor can avoid a criminal conviction for a misdemeanor offense if there is a tort claim that has overlapping elements with the misdemeanor. However, the procedure to obtain a "compromise of misdemeanor" requires the victim to provide a written acknowledgment that he or she has been compensated for their injury. If the victim provides such an acknowledgement, the court has discretion to dismiss the misdemeanor.

Continue reading "Compromise of Misdemeanors in Seattle, Oak Harbor, Island County" »

Prior to the incorporation of the Fourth Amendment into the Fourteenth Amendment, it was important to determine whether Federal officials substantially participated in raids conducted by State officials. This was because a "joint venture" would subject state actors to the requirements of the Fourth Amendment. Incorporation of the Fourth into the Fourteenth Amendment diminished the importance of the joint venture doctrine. However, the doctrine remained alive following incorporation in order to determine whether Fourth Amendment protections applied with respect to foreign law enforcement.

As a general rule neither the Fourth Amendment nor the judicially created exclusionary rule applies to acts of foreign officials. However, an exception to the inapplicability of the exclusionary rule applied when United States agents' participation in the investigation is so substantial that the actions constitute a joint venture between United States and foreign officials.

However, in 1990 the Supreme Court's decision in United States v. Verdugo-Urquidez appears to have dealt another great blow to the joint venture doctrine's applicability.

In Verdugo-Urquidez, the Supreme Court held that the Fourth Amendment does not apply to searches and seizures conducted by United States agents of property of property that is owned by nonresident aliens and located in foreign countries.
The Court reasoned that the term "the people" as used in the Fourth Amendment refers to a class of persons who are part of a national community or who have otherwise developed sufficient connections with the United States to be considered part of a community. This is unlike the Fifth Amendment which has been deemed more of a fundamental right having broader applicability--even foreigners who are located outside of the United States may enjoy rights under the Fifth Amendment (e.g. Miranda).

Continue reading "Fourth Amendment via the Joint Venture Doctrine For Foreigners? " »

A rape or sex crime victim may feel ashamed, scared, and even perhaps upset with their own self. The psychological impact is devastating. Furthermore, the wrongdoer may be a family member, loved one, a highly respected member of the community, employer, or a person in the position of power. Therefore, it is understandable that it may take time for a sex crime victim time to come forward and reveal the abuse.

For instance, Jerry Sandusky has been accused of more than 50 counts involving sexual acts with ten boys going back to 1994.

Recently, former Penn State star quarterback, Mike McQueary, testified against Sandusky about events that allegedly occurred in 2002. McQueary purported that he walked into the locker room and heard someone in the shower. Then McQueary heard "rhythmic, slapping sounds, like that of skin on skin." McQueary then stated that he looked in the mirror and saw Sandusky with a boy in the shower.

There is no doubt that sex crimes are terrible and sick. Period. Those who are guilty of sex crimes, especially against children, should be punished to the maximum extent of the law.

While it is extremely important that sexual predators are brought to justice for past wrongs--there can be another side to the coin.

Continue reading "Jerry Sandusky -- The Past and the Washington Statute of Limitations" »

If you are facing a DUI in Seattle, Island County, Oak Harbor, or within the Greater Western Washington area, you are not alone. You may appear in court alongside a prosecutor...also facing DUI.

Prosecutors are not infallible. They are human.

Recently the Washington State Patrol arrested an individual in Yakima for DUI. However, the arrestee happened to be the Yakima County Prosecutor. Read the Yakima Herald article here.

A Selah police officer made contact with the prosecutor and discovered the prosecutor had alcohol on his breath and swayed slightly. Thereafter, the prosecutor actually performed field sobriety tests. This is surprising.

A prosecutor should know that field sobriety tests (FSTs) are completely voluntary in Washington State. Drivers who are pulled over for DUI have no obligation to perform field sobriety tests. The Supreme Court of Washington has clearly stated, "it is undisputed that in Washington, FSTs are voluntary and a Driving Under the Influence suspect has no legal obligation to perform an FST." City of Seattle v. Stalsbroten, 138 Wash.2d 227, 237, 978 P.2d 1059, 1064 (1999)(citing City of Seattle v. Personeus, 63 Wash.App. 461, 819 P.2d 821 (1991)).

Therefore, regardless of whether a driver is completely sober, a driver should respectfully decline an officer's request to perform FSTs. This is especially true since many independent scientific studies show that a high percentage of police officers conclude that individuals performing FSTs are impaired when, in fact, such individuals are absolutely and completely sober.

Continue reading "Prosecutor DUI - When Worlds Collide" »

When one is charged with DUI in Island County or Seattle, they may have their entire case dismissed if the police conducted an unlawful stop.

The Fourth Amendment and Article I, §7 of the Washington State Constitution

The Fourth Amendment provides that people should not be subject to unreasonable searches and seizures and that search warrants should only be issued after probable cause is established.

The general rule that has evolved from the Fourth Amendment is that any warrantless search or seizure is per seunreasonable (i.e. unlawful) absent proof that one of the few limited and jealously garded exceptions.

At one time the Fourth Amendment only protected people from the actions of the Federal Government. However, following the American Civil War and the adoption of the Fourteenth Amendment's due process clause, the Fourth Amendment was eventually "incorporated" into the Fourteenth Amendment and therefore expanded to protect citizens from unreasonable searches and seizures conducted by all types of government - whether federal, state, or local. Ultimately, the Fourth Amendment is now binding on the states, local governments, and their agents.

Article I, §7 of the Washington State Constitution reads, "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." This provision, with it's "private affairs" language, has been interpreted by the Washington State Supreme Court to give citizens even more protection than the Fourth Amendment.

Ultimately, the Fourth Amendment and Article I, §7 have enormous implications when it comes to DUI practice.

Continue reading "Pulled Over for DUI--The Fourth Amendment, Article I §7, Prado, and Archuleta" »

A driver charged with DUI in Seattle or Island County may have their case dismissed where police unlawfully stop the driver.

Many prosecutors and defense attorneys have used Prado in support of the proposition that a mere one second crossing over a lane marker by approximately two tire widths does not justify a traffic stop. However, a recent opinion filed Mart 14, 2011 seems to interpret State v. Prado in a way that provides even greater protection to drivers.

The Washington State Court of Appeals in State v. Archuleta elaborated on State v. Prado and indicates taht the rule announced in Prado was not limited to its specific facts.

In Archuleta, a driver in King County crossed over or touched the fog line at least three times in a quarter of a mile. The police officer who observed this decided to pull the driver over. As a result of this stop, the driver was charged with a crime.

The defense moved to suppress and argued that the stop was unlawful based on Prado. The Prosecution responded by arguing that Prado was distinguishable because it involved a driver who only crossed over a line once as opposed to three times.

The appellate court, in Archuleta, revisited Prado and its reasoning. The appellate court determined that Prado relied heavely on several out-of-state cases that involved factual scenarios where drivers crossed over or touched lines more than once. As a result, the appellate court determined that Prado required a totality of circumstatnces test that considers whether the driver's actions constitutes a danger to others - it is not limited to merely counting the number of times a driver might touch a lane line.

Continue reading "Pulled Over for DUI Part 2 -- Washington State Law" »

DUI for Marijuana, Driving High, and THC Impairment

There is an urban myth of sorts that has been floating around amongst students in high schools, community colleges and universities since at least the late 1990's. It is the myth that a person cannot get a DUI for driving high.

The truth is that "green DUI's" are very real. One can be charged with DUI for driving under the influence of marijuana just as one can be charged with DUI for driving drunk.

Under Washington State's Driving Under the Influence Statute codified as RCW 46.61.502, there are two theories, or prongs, under which an individual may be charged for DUI.

One is known as the "per se prong", where an individual has an alcohol concentration of .08 or higher within two hours after driving--such an individual is automatically deemed to be impaired. If the breath test is admissible, then the accused may find it difficult to defend themselves against DUI by claiming lack of impairment.

The other prong under which one may be charged for DUI is the "affected by prong." Under this prong, an individual may be charged with driving under the influence if the person is "under the influence of or affected by" any drug. This is the theory under which prosecution for a green DUI will proceed. However, unlike a prosecution that commences under the "per se prong" of the DUI statute, a prosecution that proceeds under the "affected by prong" requires the prosecution to show that the driver accused of a green DUI was in fact under the influence or affected by THC. This can raise a variety of issues for several reasons.

Continue reading "Green DUI's, Medical Marijuana, and Initiative 502 - Part 1" »

Marijuana users in Seattle, Oak Harbor, and Island County will have a higher risk of being charged with DUI if I-502 is approved by voters.

DUI FOR MARIJUANA AND INITIATIVE 502

Under current DUI law, and pursuant to the "affected by" prong of the DUI statute, the prosecution bears the burden of proving impairment caused by marijuana beyond a reasonable doubt. This can be a heavy burden and may be difficult to prove. The prosecution, in order to successfully meet this burden, will likely have to produce testimony from an expert witness. Even then, such an expert witness's testimony may be undermined by another expert witness.

As mentioned previously, the "affected by prong" of the DUI statute, unlike the "per se prong" concerning alcohol consumption, does not render one strictly culpable for DUI when it comes to cannabis consumption. Initiative 502 will change that.

Initiative 502 will change the current DUI statute, RCW 46.61.502 by creating another per se prong specifically for marijuana. Under this new DUI statute, a person will be guilty of driving under the influence if he or she has a THC concentration of 5.00ng or higher within two hours after driving, as shown by a blood test.

This may seem reasonable to some--representing a quid pro quo of sorts. However, this change in the DUI statute may lack a scientific basis and therefore may be unfair to medical marijuana patients.

Continue reading "Green DUI's, Medical Marijuana, and Initiative 502 - Part 2" »

The Seattle Times recently reported on a Mount Vernon man charged with Assault in the First Degree in Mukilteo due to an incident at the Mukilteo Lighthouse Festival. The Seattle newspaper reported that the individual ran onto the stage with a knife and "attacked" a member of a band performing on stage. The Seattle Times article covering the legal matter raises several legal issues with respect to assault, attempted murder, and the admissibility of evidence.

Assault

Assault, ironically, is a complex crime. When most people think of "assault" they think of someone getting punched or slapped in the face. The truth is actually that assault comes in a variety of flavors.

The Washington State Assault statutes do not define assault. Rather, the legislature has purposefully left this to the courts. Courts have drawn upon the common law in order to supplement the statutes. Ultimately assault comes in three forms:

(1) The intentional touching of another person that is harmful or offensive; or
(2) An act done with intent to inflict bodily injury upon another, tending but failing to accomplish it, yet accompanied by the apparent present ability to inflict the bodily injury; or
(3) An act done with intent to create in another apprehension and fear of bodily injury that does create in another reasonable apprehension and imminent fear of bodily injury even though no injury was inflicted.

Thus, the "attack" the Seattle Times speaks of may very well be an assault regardless of whether the accused did made contact with the individual.

Continue reading "Seattle - Assault in the First Degree" »

Recently the Whidbey News Times reported on an individual arrested for DUI on Whidbey. Apparently it has been his fifth DUI charge thereby making him a habitual offender and potentially culpable for a felony DUI. The officer clocked the individual at 70mph in a 55mph zone. Thereafter the officer pursued the suspect and pulled him over after he crossed the centerline. Thereafter the suspect "failed" the field sobriety tests and purportedly had a blood alcohol level of .114 and .119.

Unlawful Police Stop

The Fourth Amendment of the federal constitution and Art. I §7 of the Washington constitution provide individuals with protection from being stopped by an officer without cause. In Washington, case law holds that the mere crossing over a line once, without more, is insufficient cause to allow an officer to pull one over.

Here, in this case, the individual driving the vehicle was stopped after he merely crossed over the center line. But for speeding, it could be argued that he was subject to an unlawful stop.

What is so big about an unlawful stop? In the US when one is subject to an unlawful seizure--the exclusionary rule and the "fruit of the poisonous tree doctrine" apply. These doctrines provide that if an individual is illegally stopped by an officer, all evidence thereafter gathered is "poisonous" and inadmissible.

The exclusionary rule and fruit of the poisonous tree doctrine are prophylactic rules intended to protect our constitutional rights. These rules provide an incentive for law enforcement to comply with the constitution--if there were no consequences for a police violation of the constitution, then the rule would be virtually non-existent...and so would our rights.

Continue reading "Habitual Offender Arrested for Felony DUI on Whidbey After an Unlawful Stop?" »

Why are drugs like heroin, cocaine and even marijuana llegal? Simple. Drugs are illegal because they get you high. At least that is a big part of the reason. Experienced criminal defense attorneys and prosecutors in Seattle know that drugs are classified according to a number of factors, but that a primary characteristic is their propensity for addiction. Classifications of illegal drugs are called schedules.RCW 69.50.201(a)(1)(i) The greater the addictive propensity the higher illegal drugs are ranked in these schedules.

The Uniform Controlled Substances Act classifies all controlled substances into five schedules, based on their potential for abuse and whether they have accepted medical uses. The State Board of Pharmacy has the authority to add, delete, or reclassify controlled substances. Schedule I drugs have a high potential for abuse, with no accepted medical use in treatment, and lack accepted safety for use in treatment even under medical supervision.

Continue reading "A New Strain of Medical Marijuana May No Longer be a Drug, Legally Speaking" »

Members of the Washington Association of Criminal Defense Attorneys (WACDL) are all buzzing over an article in the Seattle Times today that the U.S. Department of Justice is investigating the Seattle Police Department regarding their "use of force" policies and treatment of minorities. "About time!" is the comment that pretty much sums up the opinion of most experienced Seattle criminal defense attorneys . I could not agree more.

Not long ago I was in Island County Superior supervising the felony caseload when an African American defendant had the audacity to appear in court. He and his family were the only people of color in the room. His public defender was making a brilliant argument for his client's release from jail pending his jury trial. Nevermind that this particular defendant had a ton of prior felony convictions and was looking at serious prison time if convicted. That is not the point. The point is that his lawyer was doing an exemplary job advocating and protecting his client's constitutional rights, including, above all, the right to be presumed innocent. (After all, it is far more likely that an African American citizen in Island County with a criminal record will be falsely arrested and prosecuted than a white guy like me with no criminal record....it is the other side of the coin when it comes to who is likely to become a suspect.)

Continue reading "Washington Criminal Defense Attorneys focus on Police Brutality in Seattle" »

"Expert Criminal Lawyer, Specializing in DUI's", "Our Attorneys are Experts in Criminal Law", "We Specialize in Criminal Law", "Hire an Expert Criminal Law Specialist".........You see these phrases all over the internet on web sites for Seattle and Washington State criminal lawyers. One problem. Actual expert lawyers or specialists in criminal law, by definition, know the law. Knowing the law entails knowing more than one thing, despite the way these ads emphasize expert specialization. For example, expert lawyers know enough about the law to know that it is unethical and improper to advertise that you are an expert in criminal law or specialize in criminal law in Washington State (unless you follow extremely strict guidelines).

Why? Because under the rules regarding advertising created by the Washington State Bar Association (WSBA) it is improper to call yourself an expert unless you meet some very specific requirements. Attorney conduct in Washington State is governed by the WSBA Rules of Professional Conduct (RPC's). The analysis of this issue begins with RPC 7.1: A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading."

What is misleading? Well, traditionally, only a few areas were specifically recognized as specialties in Washington: Patents, Admiralty, and Tax. The rule governing specialization requires that, before an attorney can claim to be a specialist in any other area, that lawyer must have received formal receipt of a certificate, award or formal recognition by an appropriate organization: "A lawyer shall not state or imply that a lawyer is a specialist in a particular field of law, except upon issuance of an identifying certificate, award, or recognition by a group, organization, or association..." (RPC 7.4).

Continue reading "Seattle Expert Criminal Defense Lawyer Specialists don't say they are Seattle Expert Criminal Defense Lawyer Specialists" »

Good grief. How I hope that headline is never about me. Instead, it was referring to my old friend and colleague, Anne Bremner. She and I go waaaay back. When I was still a law student at Stanford, she worked in the campus coffee house, where I would go to study my contracts, torts, and other assorted boring non criminal law topics. Anne was an undergrad at Stanford. I vaguely remembered her when she approached me years later in the King County Courthouse in Seattle, me a young criminal defense attorney working for the public defenders office, Anne a hard charging prosecutor. The Stanford connection can be strong, but with one of us righteously defending the innocent, falsely accused of crimes which they did not commit, and the other locking up all the bad guys and throwing away the key, there was a tad bit of tension in the air when we first reconnected......

Shortly thereafter, we were in court, and Ms. Bremner was going after my client in the infamous Kentucky Fried Chicken Robbery Case. I was doing my thing, educating the jury about the presumption of innocence and the arbitrariness of the prosecutorial vindictiveness exemplified by the State, when falsely charging my client. Anne waited patiently until it was her turn. I'll never forget her response: "Well, members of the jury, you don't think he was shot out of a cannon and landed in the courtroom by magic do you?" Outraged, I jumped up screaming "Objection!" What happened next is the subject of some disagreement. Anne likes to tell this story whenever we get together, describing how I had her held in contempt, obtained a mistrial and won the day for my client. My memory is that the result was nowhere near this favorable, but it is hard to interrupt when someone is telling stories about you that make you look so good.

Continue reading "High Powered Seattle Criminal Lawyer Pleads Guilty to DUI" »