The Future Of Our "Rights": Punishment For Exercising The Right To Withhold Consent From Warrantless Searches?

April 16, 2014,

Attorney serving Oak Harbor, Bellingham, Mt. Vernon, and Burlington discusses withholding consent from warrantless searches and seizures.

A Minnesota appellate court recently appears to have claimed that the state may criminalize a person's refusal to consent to a warrantless search if the officer could have hypothetically obtained a warrant. You can read the opinion here. This is dangerous. It is another sign of courts abandoning the fundamental law of the land.

It has long been recognized that persons can without consent from warrantless searches and seizures. It has also been held that persons cannot be punished for withholding consent or that withholding consent cannot be used as evidence of guilty knowledge because it would burden assertion of a fundamental right. For example, recently Division One of the Court of Appeals of Washington recently reached the correct result in a well reasoned opinion.

In State v. Guathier, the court of appeals held that a prosecutor's use of a person's invocation of his constitutional right to refuse consent to a warrantless search as substantive evidence of guilt was a manifest constitutional error. State v. Gauthier concerned a rape suspect's refusal to submit to DNA testing when he was not under arrest. However, this opinion has raised issues about the validity of utilizing refusals to submit to breath tests as substantive evidence of guilt in the DUI context in light of Missouri v. McNeely where the United States Supreme Court recently made clear that nonconsensual, warrantless blood testing is unconstitutional absent exigent circumstances.

Now it appears the Minnesota court of appeals has heard this issue and has decided that because an officer can get a warrant--the state can penalize the person for not giving consent to warrantless breath testing? This is odd. It basically opens the door for outrageous conduct.

For example, let's say a state passes a law that state's everyone who owns property impliedly consents to a search of their home for illegal drugs if they are suspected of drug use. If the person refuses consent he or she may be charged with the crime of refusal. This arrangement essentially erodes the fundamental right to be free of nonconsensual warrantless searches--you can exercise your right, but if you do you will be punished. It seems the Minnesota appellate court thinks this is okay because an officer can hypothetically obtain a warrant.

Let's hope our appellate court judges in Washington state will be wiser than the authors of the opinion issued in State of Minnesota v. William Robert Bernard. Fundamental rights are not rights at all if you can be punished for exercising them. We will see how this area of law develops in Washington state and around our nation.

DOMESTIC VIOLENCE AND THE HOME IN WASHINGTON STATE (PART 2)

April 8, 2014,

Attorney serving Oak Harbor, Island County, Whidbey Island, Coupeville, Skagit County, Anacortes, Burlington, Mt. Vernon, and Bellingham discusses the protections afforded to the home in Washington state. Although deterring domestic violence is important, we must not permit government to diminish our privacy rights through the guise of "domestic violence" policy.

In part 1, we discussed what is required for law enforcement to make a warrantless entry into the home. The state must prove each of the following elements of the emergency aid exception to the warrant requirement:

(1) The police officer subjectively believed that someone likely needed assistance for health or safety concerns;

(2) A reasonable person in the same situation would similarly believe that there was need for assistance;

(3) There was a reasonable basis to associate the need for assistance with the place being searched;

(4) There is an imminent threat of substantial injury to persons or property;

(5) State agents must believe a specific person or persons or property are in need of immediate help for health or safety reasons; and

(6) The claimed emergency is not a mere pretext for an evidentiary search.

Schultz, 170 Wash.2d at 754; id. at 760 n. 5 ("failure to meet any factor is fatal"). Such constitutional requirements would make it difficult for Washington state to justify a program such as invasive routine inspections such as that in New York. Such monitoring is questionable.

Now we turn to the scope of the warrantless entry under the emergency aid exception to the warrant requirement.

Schultz explained the emergency aid exception contemplates a "limited invasion" "when it is necessary for police officers to render aid or assistance." Schultz, 179 Wash.2d at 754 (emphasis added). This is a narrow exception. Ferguson writes "[o]nce the exigency justifying the initial entry has terminated, the police must obtain a warrant for the further search of the premises." FERGUSON, 12 WASH. PRAC., CRIMINAL PRACTICE & PROCEDURE, §2728 (3d ed.).

In State v. Schroeder, 109 Wash.App. 30 (Wash. Ct. App. 2001), police officers responded to Schroeder's home after she called 911 about a shooting in her home. Upon arrival, Schroeder directed the officers to a bedroom where her boyfriend was lying face down on the floor with a pistol in his hand. He shot himself, but was still alive. Medics arrived but were unable to save the boyfriend's life. Schroeder, 109 Wash.App. at 34.

Although Schultz was decided over ten years later it is likely the warrantless entry in Schroeder would satisfy the elements of the emergency aid exception announced in Schultz. But the analysis does not end at the entry. It must be determined whether the officers exceed the scope of the emergency aid exception.


In Schroeder, after the boyfriend's death, the officers then searched the deceased boyfriend and bedroom for identification. Their search included checking on top of dressers and through papers scattered about. The officers' search then moved to the kitchen and an adjacent hallway. Over a pound of meth was eventually discovered. Id. at 35-36.

The Court of Appeals concluded evidence should have been suppressed and remanded the case for dismissal with prejudice. It held the search exceeded the permissible scope of a community caretaking function. "[T]he exigency that justified the BPD officers' entry into Schroeder's house ended when [her boyfriend] died." Id. at 45. The Court of Appeals looked to State v. Kinzy where the Washington Supreme Court stated:

Once the [community caretaking function] exception does apply, police may conduct a noncriminal investigation so long as it is necessary and strictly relevant to performance of the community caretaking function. The noncriminal investigation must end when reasons for initiating an encounter have been fully dispelled.

Id. at 43 (quoting State v. Kinzy, 141 Wash.2d 373, 395, 5 P.3d 668 (2000)) (emphasis added). The Court of Appeals also made clear the 911 call for help did not diminish Schroeder's expectation of privacy. See Schroeder, 109 Wash.App. at 41 (citing and quoting Thompson v. Louisiana, supra (holding as unreasonable warrantless search of house following entry in response to defendant's call for help)).

Schroeder shows that once an entry is justified under the emergency aid exception--that does not give law enforcement authority of law to conduct an unfettered investigation in the home. The entry must be strictly tied to addressing a true emergency and nothing more. If the actions of law enforcement go beyond community care taking that addresses a true emergency (i.e. fighting a fire, providing emergency medical aid), then the continued presence of law enforcement is not lawful.

Routinely law enforcement officers enter the home due to "domestic violence." They then enter the home without a warrant when there is no imminent threat or emergency. Then they conduct what is purely a criminal investigation--oftentimes violating other constitutional rights (i.e. Miranda, Edwards, etc.). Such activities inside the home is not community care taking. It is also not lawful absent a warrant or the applicability of an exception to the warrant requirement.

The attorneys at Platt & Buescher have an emphasis in defending against allegations of domestic violence. Call Platt & Buescher today at (360) 678-6777 to discuss your domestic violence matter today.



DOMESTIC VIOLENCE AND THE HOME IN WASHINGTON STATE (PART 1)

March 31, 2014,

The law has recognized that "every man's home is his castle." This does not mean that a homeowner can do whatever he or she pleases or engage in abuse. For example, Ray Rice of the Baltimore Ravens has recently seen that he is not above the law. But it is true that the home is afforded special protections. That is especially true in Washington state.

Warrantless searches and seizures are per se unreasonable under the Fourth Amendment. Article I, section 7 of the Washington state constitution goes beyond this. It creates an "almost absolute bar to warrantless arrests, searches, and seizures." And the home enjoys special protection. The closer officers come to intrusion into a dwelling, the greater the constitutional protection. State v. Schultz, 170 Wash.2d 746, 753, 248 P.3d 484 (2011) (citing State v. Ferrier, 136 Wash.2d 103, 112, 960 P.2d 927 (1998) (quoting State v. Young, 123 Wash.2d 173, 185, 867 P.2d 593 (1994))).

In the absence of exigent circumstances, police may not make a warrantless, nonconsensual entry into a home even when making a felony arrest. Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371 (1980). Exigent circumstances include the "emergency aid exception" to the warrant requirement. In order for the government to justify a limited invasion, it must provide each of the following elements:

(1) The police officer subjectively believed that someone likely needed assistance for health or safety concerns;

(2) A reasonable person in the same situation would similarly believe that there was need for assistance;

(3) There was a reasonable basis to associate the need for assistance with the place being searched;

(4) There is an imminent threat of substantial injury to persons or property;

(5) State agents must believe a specific person or persons or property are in need of immediate help for health or safety reasons; and

(6) The claimed emergency is not a mere pretext for an evidentiary search.

Schultz, 170 Wash.2d at 754. The Washington Supreme Court has made clear that "failure to meet any factor [above] is fatal to the lawfulness of the State's exercise of authority." Id. at 760 n. 5. That is a heavy burden. Oftentimes it is impossible for the government to prove each of these elements.

In State v. Schultz, Sequim police responded to an apartment complex after a resident reported a male and female yelling. Upon arrival, Officers Malone and Hill overhead a man and woman talking with raised voices. They specifically recall overhearing the man say he wanted to be left alone and needed his space. Officer Malone knocked and Schultz answered. Schultz appeared agitated and flustered. Officer Malone asked Schultz where the male occupant of the apartment was. Schultz denied that anyone else where there. Officer Malone told Schultz she heard a male voice in the apartment. Schultz called for Sam Robertson who emerged from a nearby bedroom. The state claimed Schultz stepped back, opened the door wider, and Officer Malone followed Schultz inside. Schultz testified she stepped aside because the officers were entering. Regardless, neither officer requested permission to enter, neither Schultz or Robertson were told they could refuse a search, and neither Schultz or Robertson asked the officers to leave or prevented their entry. Schultz, 170 Wash.2d at 750-751. Eventually, the officers discovered meth and drug paraphernalia. Id. at 752.

The Washington Supreme Court held that the warrantless entry was unlawful. Id. at 762, 248 P.3d at 491. The court reasoned:

The facts most favorable to the State are as follows. The police received a phone call from a resident of an apartment complex about a yelling man and woman. The responding officers stood outside and overheard a man and woman talking loudly. The officers heard a man say that he wanted to be left alone and needed his space. The officers knocked on the door. Schultz opened it, appearing agitated and flustered. Officer Malone asked Schultz about the male occupant of the apartment. Schultz told her no one was there, but when confronted with the fact the officers heard voices, summoned Robertson from a nearby bedroom. When Robertson appeared, the officers entered Schultz's apartment based upon her acquiescence only. At the moment the officers crossed the threshold to Schultz's apartment, they did not have enough facts to justify an entry based upon the emergency aid exception to the warrant requirement.

Id. at 760. The Schultz court acknowledged courts may consider that an entry is made into a home in the context of a domestic violence threat in considering the reasonableness of officer's actions under the emergency aid exception. Id. at 761. But the court was careful to point out "[d]omestic violence protection must also, of course, be consistent with the protection the state constitution has secured for the sanctity and privacy of the home." Id. at 756 (citing WASH. CONST. art. I, §7; Ferrier, 136 Wash.2d at 112, 960 P.2d 927 (citing Young, 123 Wash.2d at 185, 867 P.2d 593)). The court concluded:

The evidence that domestic violence was likely to occur in this case may be summarized as follows: (1) a report of a couple yelling, (2) the officers heard "raised voices" and a man say he wanted to be left alone and needed his space, (3) when Schultz answered the door she appeared agitated, and (4) she reported that no one was there before a man appeared from the bathroom. That is not enough.

Id. at 761, 248 P.3d at 491.

The law states that police MUST get a warrant from a neutral and detached magistrate (i.e. a judge). This is critical as the judiciary acts as a check on zealous police officers engaged in the often competitive enterprise of ferreting out crime. Unfortunately, law enforcement routinely ignore this rule and enter private dwellings without a warrant, consent, or exigent circumstances. If the police only have evidence of yelling, shouting, swearing and arguing before entering the home THAT IS NOT ENOUGH! Yelling, shouting, swearing arguing is exactly the type of things that the people want kept private. The home is exactly the type of private place where people should be able to keep private family matters and arguments private and free from government intrusion. Article I, section 7 makes this a right. This is right that law enforcement all too often ignore.

The attorneys at Platt & Buescher whose practice emphasizes domestic violence have succesfully argued motions to suppress evidence due to violation of article I, section 7 and the warrant requirement. Contact Platt & Buescher today at (360) 678-6777 to discuss the domestic violence accusations you are facing.


Richard Sherman Is The Best In The League and Western Washington Is The Best In the Country

January 29, 2014,

Seattle, Oak Harbor, NAS Whidbey, Island County, King County, Criminal Defense Lawyer turned Seahawk discusses the Richard Sherman Media Controversy.


I hope everyone saw Richard Sherman on CNN the other night. If you did you saw an exemplary human being speaking openly with great insight. And, he plays a mean corner.

Before the interview, I assured my wife that he would come through. It wasn't just that I'd seen previews. He's a Stanford man. For the first time in the over thirty years since I earned that distinction myself, I felt protective of my alma mater. Really? How dare you call one of us a thug. We're the nice guys. Well, maybe Tiger Woods and John McEnroe had their bad days, but still.

Above all I felt protective of my adopted city since '81, Seattle, Washington, the United States. I say that because it was obvious nobody understood. I've watched every single game this season, religiously. It has become a big part of our lives up here in the remote can't believe you're really in America ya bunch of coffee swillin', dope smokin', gay liberal Northwest eggheads. [Hey, out here gay people can smoke pot at their weddings. Bet you can't say that, California.]

But, this is not about race or the Northwest or mean football players. It is about Ignorance.

I asked my wife what she thought I might do if someone shoved a mike in front of me after a big win and asked me what I thought about the prosecutor. She laughed and immediately said, "Oh, you would've been waaaay worse. I've had to listen to it for thirty years!" I agree. My quote would have been replete with multiple bleeped f-bombs.

The Seahawks are the American Dream, personified. Not just Sherman. Forget Defense. What about Offence? Aka Russell Wilson and Marshawn Lynch, not to mention Golden Tate and Baldwin and Miller and ..... Let's start with Russell.

Here's a kid who, like Sherman, was disrespected. Most expected him to fail. Too small. But, fate gave him a shot. And he seized his opportunity like nobody else could. I mean, how many QB's are sitting in the offices ? on Monday morning, hours into tapes from yesterday's game before the coaches arrive every week? And, who have enough guts to run into a wall of giants and grab huge yardage out of thin air or dance in the pocket the way he does?

Then there's Lynch. Heard of him? Most hadn't before this year, which is odd, since he has been awesome ever since he got to Seattle. He has been unstoppable, dragging half a dozen giants downfield with him on half his runs.

Then we get to one of the best defensive players in the world, Earl Thomas and his close second Chancellor and on and on and on. There are so many wonderful players on this team. And so many of them are totally underrated and paid only a fraction of what they are worth. We have the best players for the least amount of money in professional sports. Period. And, they all strive every day to be better. That is what makes us great.

This place has that effect on people. Ask Jimi Hendricks, or Quincy Jones, or Nirvana or Pearl Jam or Bill Gates or Starbucks Amazon Microsoft Boeing ......to name a few. Excellence exists here. Sorry.

We are better than most of America. Sorry to say. But true. More beautiful place to live. Smarter. Richer. Healthier. More Enlightened, educated, intellectual, artistic and well read. The list is endless. We are what America is supposed to be. A beautiful melting pot of extremely gifted and industrious people, who are who they are without pretention and who live every day to be truly the best they can be.

So, YOU GO Richard Sherman. Stanford man. Best Corner in the League. You spoke truth to power and idiots like John McCain call you a loudmouth and a thug, "just like the rest of your team." But we know, don't we? We know.

Part 3: Why Conservatives Should Support Federal Legalization Of Intrastate Marijuana Possession In Washington State

January 26, 2014,

Marijuana DUI Attorney of Oak Harbor, Island County, Coupeville, Skagit County, Burlington, Mt. Vernon, Bellingham, Whatcom County, Anacortes, Seattle, King County, and Western Washington discusses why conservatives should consider supporting federal legalization of intrastate marijuana possession in Washington state.

In part 1 the original understanding of the Federal commerce power and its erosion was discussed. In part 2 the gross, substantial expansion of the Federal Government's power that occurred in the twentieth century was discussed. The relationship of intrastate marijuana possession and use to the expansion of the Federal Government's power is discussed below.

The expansion of the commerce power finally reached marijuana in the 2005 case Gonzales v. Raich. In 1996 California passed proposition 215 making medical marijuana legal. Angel Raich then began growing marijuana at her home legally under state law. Marijuana remained illegal under the Federal Controlled Substances Act. Eventually federal agents began destroying marijuana plants. Raich and others sued the Federal Government contending that it had no power to enforce the Controlled Substances Act pursuant to the commerce clause and in light of the Tenth Amendment (among other legal theories). The Federal Government contended that Wickard v. Filburn applied to the case and that if the activity of home growing marijuana was repeated by many individuals, in the aggregate it would have a substantial effect on the interstate marijuana market, and therefore the Federal Government, pursuant to the commerce power had power to regulate even purely intrastate and private consumption of marijuana under the Controlled Substances Act and that this Federal law preempted California legalization.

Today this huge Federal power grab is a problem. It is inconsistent with our constitutional framework. The Federal Government basically has no limits. The commerce clause jurisprudence discussed in parts 1 and 2 have centralized power in the federal government. The Federal Government can basically exercise "police powers" that were reserved for the states. The Federal Government's regulation of marijuana is one serious example of where the Federal Government is actually overstepping its bounds. It has power under the commerce clause to limit purely private intrastate activities including marijuana possession due to the NLRB v. Jones & Laughlin, Wickard v. Filburn, Gonzalez v. Raich line of jurisprudence. But for this huge power grab it is possible the new laws of Washington and Colorado would not be in jeopardy of preemption.

Conservatives should support federal legalization of intrastate marijuana possession in Washington state and Colorado. It is not necessarily a "marijuana is bad issue." It is an important issue in terms of the limitations on the federal government's power and state sovereignty. I-502 and marijuana legalization may create the potential to revisit the gross and substantial expansion of the Federal commerce power in the wake of Justice John Roberts' claims in National Federation of Independant Business, et al v. Sebeluis.

Supporting federal legalization of intrastate marijuana possession or consumption does not necessarily mean supporting marijuana use per se or marijuana legalization in each state in the entire country. The issue concerns state sovereignty, limited Federal Government, and returning our nation to original framework the founders intended. Individual states should remain free to criminalize marijuana if their people or legislatures choose to do so. Conservatives should support the position that purely intrastate possession or consumption of marijuana is an issue that should remain exclusively within the state's police powers. If a person wants to have a certain potted plant in their own backyard or inside their curtilage or home (like the wheat growing in Wickard v. Filburn) that should not be something that is the Federal Government;s business. Centralization of power in the Federal Government has become a problem.

If you are conservative and disagree with marijuana use, then support laws that make marijuana illegal on the state level. However, conservatives that truly believe in state sovereignty, limited federal government, and our constitutional framework should consider supporting federal legalization of intrastate marijuana possession in those states that have chosen to legalize it. Such positions are not hypocritical. Rather, positions reflect conservative values in a truer and more reasoned sense.

Fiscal conservatives may also find reasons to support marijuana legalization. There is a potential for tax revenue. Certain costs may also decrease as a result of legalization (e.g. the cost of law enforcement, prosecution, enforcement, and burdening courts).

Beyond the above what about individual responsibility? What about parents teaching their kids about marijuana? What about young adults making their own decisions? Don't we have to do the same with alcohol? Individual freedom and responsibility is also something conservatives value.

Conservatives should consider supporting legalization of intrastate marijuana possession for reasons other than lending support marijuana use per se.

Part 2: Why Conservatives Should Support Federal Legalization Of Intrastate Marijuana Possession In Washington State

January 25, 2014,

Green DUI Lawyer of Seattle, King County, Island County, Oak Harbor, Whidbey Island, Skagit County, Burlington, Mount Vernon, Anacortes, Coupeville, Western Washington discusses why conservatives should consider supporting federal legalization of intrastate marijuana possession in Washington State.

In Part 1 the original understanding of the Federal commerce power and its erosion was discussed. The gross, substantial expansion of the Federal Government's power that occurred in the twentieth century is discussed below.

Up until about the 1930's the Supreme Court continued to at least consider the "subjects" of the commerce clause ("commerce" "among the states") when evaluating whether the Federal Government's actions were a valid exercise of the commerce power. But the court later abandoned this too. The abandonment was basically for political reasons. FDR's progressive New Deal policies oftentimes were inconsistent with commerce clause jurisprudence. In turn FDR threatened the court with his "Court Packing" plan. The Supreme Court began to change its view of the commerce clause and the limits of the Federal Government's power.

After succumbing to political pressure the Supreme Court determined that, although activity may be characterized as purely intrastate, any activity having a close and substantial relation to interstate commerce that may burden interstate commerce falls within the scope of the Federal Government's commerce power. A 1937 case NLRB v. Jones & Laughlin Steel Corp., concerned a company that produced steel in Pennsylvania only, but imported substantial resources from outside Pennsylvania and shipped 75% of its steel outside of Pennsylvania. Later this steel company fired employees involved with union activity. The Federal Government reacted by filing a lawsuit suit against the company. The lawsuit claimed the steel company violated the National Labor Relation Act (NLRA) by firing employees involved with union activity. The steel company responded by contending Congress had no power to regulate their purely intrastate activity. But the Supreme Court upheld the NLRA as a valid exercise of the commerce power. The court concluded the steel company's business had such a close and substantial relation to interstate commerce. It reasoned any potential labor dispute could substantially cripple interstate commerce. This principle evolved into the "substantial effects" doctrine. Congress now had power to rule over even purely intrastate activity so long as it can be said that such activity can have a substantial effect on interstate commerce.

The "substantial effects" doctrine substantially expanded the Federal Government's power and blurred the lines between state police powers and Federal enumerated powers. But the Federal Government's expansion of power did not stop there. Soon the Supreme Court adopted the "aggregation principle." The aggregation principle amplified the "substantial effects" doctrine to effectively permit the Federal Government to regulate any class of activities without any proof the particular individual activity has a substantial effect on interstate commerce. The aggregation principle provides that if it can be said a particular individual activity, when repeated by many people, will have a substantial effect on interstate commerce, Congress may regulate it pursuant to the commerce power regardless of whether the individual activity is purely intrastate and itself has no effect on interstate commerce. In the 1942 case Wickard v. Filburn, the Federal Government put quotas on the production of wheat in order to limit supply and artificially raise prices. A lone farmer sold wheat in accordance with the quota, but he produced more and used it simply to support his individual farm. Long story short, this farmer was violating Federal law. The Supreme Court upheld the quota as a valid exercise of the commerce power pursuant to the new "aggregation principle" even though the farmer's activity was purely intrastate and limited to his own farm. The court reasoned that if every farmer did the same it would frustrate the goal of keeping supply low and prices high.

THIS IS TOTALLY RIDICULOUS. WHAT PEOPLE DO ON THEIR OWN PRIVATE LAND IS NONE OF THE FEDERAL GOVERNMENT'S BUSINESS. AND THIS JURISPRUDENCE CAUSED POWER TO BE CENTRALIZED IN THE FEDERAL GOVERNMENT, ERODED FEDERALISM, THREATENED STATE SOVEREIGNTY, AND TOTALLY BLURRED OR ERADICATED THE LINE BETWEEN STATE EXERCISE OF POLICE POWER AND FEDERAL ENUMERATED POWERS. AND THIS IS STILL THE LAW TODAY.

The gross expansion of the commerce power caused the Federal Government to have limitless power. This jurisprudence effectively burned the constitutional framework that was set in place by the people and our founding fathers. This is antithetical to conservative values and convictions concerning limited federal government and state sovereignty. In reality, there is no longer any real limits on the federal government's power. This is true despite Justice John Roberts' disingenuous claim that Obamacare could not rest on an exercise of the commerce power in National Federation of Independant Business et al. v. Sebelius (the Obamacare case). He (obviously giving into political pressure) nonetheless turned around and expanded Federal power.

To learn more about why conservatives should support federal legalization of of intrastate marijuana possession in Washington state read part 3.

Part 1: Why Conservatives Should Support Federal Legalization Of Intrastate Marijuana Possession In Washington State

January 23, 2014,

Seattle, King County, Island County, Oak Harbor, Whidbey Island, Skagit County, Burlington, Mount Vernon, Anacortes, Coupeville, Western Washington Green DUI Lawyer discusses why conservatives should support marijuana legalization in Washington State.

Conservatives champion small federal government limited to the express functions set forth in the constitution (i.e. enumerated powers), state sovereignty, federalism, separation of powers, laissez faire economics, and limited regulation. Yet some conservative pundits (including Sean Hannity of Fox News) appear disgusted with the recent moves of Colorado and Washington state to legalize marijuana. Why? This may be consistent with social conservative values. But it is inconsistent with conservative principles with respect to limited federal government and state sovereignty.

Conservative lawyers, judges, and politicians have criticized the expansion of the federal government. The most noteworthy gross expansion of the Federal Government's power occurred during the twentieth century--the commerce power was stretched so far as to virtually eradicate federalism.

The Federal Government got its power from the people and the states. It was designed to be a government with limited, enumerated powers, expressly set forth in the constitution. Power not expressly granted to the Federal Government remained as the vested authority of the state governments. This broad power of state governments is referred to as the "police powers." The state governments pursuant to their police powers had authority to legislate for the health, safety, morals, and general welfare of their peoples. On the other hand the limited Federal Government was limited only to exercising its specifically enumerated powers and not general police powers. Such enumerated powers of the Federal government include but are not limited to providing for the common defense of the United States, declaring war, raising and supporting armies, providing and maintaining a Navy, coining money and regulating its value, providing punishment for counterfeiting the securities and current coin of the United States, establishing post offices and post roads, promoting progress of science and useful arts, and to make laws that are necessary and proper for executing the foregoing and other enumerated powers.

The "Commerce Power" is another enumerated power of the Federal Government. The commerce clause provides that Congress has the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." This power has been stretched in such a way to make the Federal Government the leviathan it is at present.

The original purpose or "object" of the commerce power was to permit the Federal Government to terminate trade barriers or other dangers to interstate commerce to ensure an open and free common market within the United States. Staying true to the plain language and meaning of the commerce clause, the "subjects" of the commerce power concerned (1) "commerce" (2) "among the states." So it was originally understood that Congress could exercise the commerce power by regulating trade, buying, selling, traffic, and other instrumentalities of commerce between states in order to achieve the objective of protecting a free and common market (e.g. avoiding trade wars and protectionism between states). Activities that were purely intrastate were beyond the scope of the commerce power if such activity did not concern either the "object" or "subjects" of the commerce clause. States could even validly exercise their police powers despite incidental impacts on interstate commerce. For example, in the 1892 case Willson v. Black Bird Creek Marsh, the Supreme Court held that a state's authorization of a dam that blocked a navigable waterway was a valid exercise of the state's police power regardless of whether it had an incidental impact on interstate commerce.

Later the object-subject paradigm or understanding of the commerce power began to erode. Eventually the Supreme Court determined that both states and the Federal Government had concurrent power to regulate interstate commerce. In the 1851 case Cooley v. Board of Wardens, a Pennsylvania law required all ships entering Philadelphia Harbor to have a local pilot familiar with local waters. Cooley brought an action contending this burdened interstate commerce and was an invalid exercise of the commerce power by a state. But the Supreme Court concluded both the states and Federal Government had the concurrent power to regulate commerce. The court reasoned some subjects require uniformity while others vary depending on the locality's needs.

The Cooley opinion eroded the "object" "subject" understanding of the commerce power. Cooley caused the "object" aspect of the commerce power to erode because the opinion tended to ignore the dichotomy between state police powers (health, safety, morals, and general welfare) and the Federal commerce power (protecting a common market). In the wake of Cooley, the Supreme Court began looking only at the "subjects" of the commerce power (i.e. "commerce" "among the states") when reviewing the legality of the Federal Government's purported exercise of the commerce power. The removal of the "object" analysis caused the Federal Government's power to expand.

Eventually the Supreme Court determined that Congress could regulate and protect the instrumentalities of interstate commerce, persons, or things regardless of whether it may concern purely intrastate activities. For example, in the 1911 case Southern Railway Co. v. United States, the Supreme Court upheld, as a valid exercise of the commerce power, a Federal statute which required all railroad cars engaging in commerce to equip certain safety features. Then in the 1914 "Shreveport Rate Case," the United States Supreme Court upheld, as a valid exercise of the commerce power, a Federal law that required railroads to charge the same rates for all shipments of good even if the rate concerned purely intrastate shipping. These cases and their analyses further expanded the Federal government's power to regulate intrastate activities.

Later the Supreme Court determined that Congress had authority to regulate any activity although it was not part of interstate commerce so long as the activity directly affected interstate commerce. For example, in the 1935 case Schechter Poultry v. United States, the Supreme Court struck down regulations concerning hours and wages of employees as an invalid exercise of the commerce power because it did not directly affect interstate commerce. A similar result was reached in 1936 in Carter v. Carter Coal. While these cases recognized a limitation on the Federal Government's commerce power, the opinions tended to expand Federal power by recognizing that even purely intrastate activities could be regulated if they "directly affected" interstate commerce. But Federal power under the commerce clause expanded even more only a few years later.

To learn more about why conservatives should support federal legalization of of intrastate marijuana possession in Washington state read part 2.



No New Laws That Compromise Freedoms. Educate Washingtonian's About The Laws We Already Have.

January 22, 2014,

DUI Defense Attorney of Seattle, King County, Oak Harbor, Island County, Coupeville, Skagit County, Snohomish County, and Greater Western Washington Proposes That Our Politicians Should Consider More Robust Education Regarding DUI Law Before Passing Laws That Compromise Individual Freedoms.

It seems like every time there is a terrible tragedy a cliche of a light bulb suddenly lights up in every politician's mind and a thought bubble materializes over each politician's head that reads: "bingo...I got an 'NEW' idea....how about a BRAND NEW LAW law?" Unfortunately, this less than novel approach occurs year after year after year. The result? Nothing. Nothing aside from placing more limitations on the freedoms of law abiding citizens.

For example, some politicians are still stuck on the idea of warrantless, suspicionless, random sobriety check points. While no one wants to be on the road with those that are impaired, certainly no one wants to be caught in an "artificial" traffic jam. And we do need to stop think about protecting and not sacrificing our constitutional freedoms.

It is ironic how our elected "lawmakers" make laws that violate the law. The law in Washington is article I, section 7. It reads "NO PERSON SHALL BE DISTURBED IN HIS PRIVATE AFFAIRS, OR HIS HOME INVADED, WITHOUT AUTHORITY OF LAW." That "authority of law" is a warrant. Any warrantless stop, seizure, or search is presumed illegal. Period. This is the law. And it is well settled that this law, article I, section 7, provides greater protection than the Fourth Amendment than the United State's constitution. The heritage and values of Washingtonians, regardless of political persuasion, place a high premium on freedom and liberty.

The Washington Supreme Court has already clearly ruled that random, warrantless, sobriety checkpoints are unconstitutional. In Seattle v. Mesiani, 110 Wash.2d 454, 755 P.2d 775 (1988), the city of Seattle argued that the state's interest in the legal operation of automobiles defeats ANY privacy interest under article 1, section 7. Wow. Fortunately, the Supreme Court found the city's position to be "without support in either our cases or the language or logic of our constitution."

So why do politicians continue to insist that we should have field sobriety checkpoints although it has been clearly held that it violates the constitution? Simple. They have no better ideas. Or they do not respect the constitution or the fundamental rights of the people. Consider the NSA spying program and other power hungry policies like where a member of the executive branch can order a drone strike to kill an american citizen without due process or a fair trial. The people need to become less politically apathetic and more aware. We need to have a constitutional, civil and political reawakening. Some laws may sound "good." Some laws may appear to stand on the "moral" high ground. But the people need to consider our precious freedoms and rights. We have already lost hundred of miles. We cannot afford to give another inch. I am sure other feasible approaches exist that may address our problems aside from passing laws that curtail freedoms (e.g. random warrantless sobriety checkpoints, requiring biological testing or ankle bracelets BEFORE due process is afforded at a fair trial).

Education is one area that should be considered as an alternative. It is ironic that we make great efforts to inform individuals about DUI laws and DUI sentencing grid ONLY AFTER a person gets a DUI. Millions of teenagers, adolescence, and adults are TOTALLY IGNORANT of the consequences of a DUI (in terms of lives lost, painful injuries, sentencing, employment consequences, entry into Canada or other countries, and costs and financial issues that surround DUIs). Laws are more effective when people are aware and understand them.

Recall sex education where many were exposed to the reality of STDs and the gruesome and painfully detailed pictures of venereal diseases? Recall learning about abstinence, monogamy, safe sex, and condom use? And recall that such education was provided at an appropriate age (unlike DARE)? Why not make such efforts with DUI?

Instead of slapping a single video in during a driver's ed class or having a member of MADD come in on a single occasion and tell a story, it might be helpful to incorporate into curriculum a reasonable section about DUI laws, consequences, and making good life choices. It makes no sense to pass laws year after year after year when NO ONE LEARNS ABOUT THEM other than the politicians who pass them, lawyers, and defendants who become informed after the fact.

Less laws that abridge our constitutional freedoms and more in depth education is one idea politicians should consider.

Statements Against Interest And Their Use Against Others Part 2

November 11, 2013,

Oak Harbor, Seattle, King County, Whidbey Island, Island County, Coupeville, Attorney, Criminal Defense Lawyer, Felony Defense, Gross Misdemeanor, Misdemeanor Defense Attorney Discusses Statements Against Interest and Their Use Against Others.

Hearsay is not reliable. The game "telephone" is illustrative. One person says something and it comes out distorted and inaccurate on the other end. The hearsay rule is designed to avoid such unreliable, inaccurate, and untruthful statements from being admitted against an accused.

Returning to the statement against interest exception to the hearsay rule under ER 804(b)(3) in Part 1--some jurisdictions adhere to the the "whole statement approach." The whole statement allows narratives to be admitted if the whole statement, generally, is against the declarant's interest. Thus, returning to our example, if defendant A makes an out of court statement, whereby he allegedly tells witnesses B and C, that he committed the crime with the help of D, then, under the whole statement approach if A becomes unavailable for D's trial (e.g. asserts the fifth amendment right to silence), then B and C may take the stand at D's trial and testify that A said he and D committed the crime. This could be damning evidence against D. B and C's statements may be critical for the state's case against D. However, a scrupulous analysis may defeat the applicability of the "whole statement approach" to the ER 804(b)(3) exception to the hearsay rule.

The "whole statement approach" was previously acceptable. See, e.g. State v. Whelchel (cited oftentimes for proposition that statements against interest include statements that incriminate the declarant and another defendant). But the "whole statement approach" under ER 804(b)(3) is no longer acceptable in Washington and under federal law.

In Williamson v. United States, the declarant was arrested after he consented to a vehicle search that uncovered 19 kilograms of cocaine. Thereafter the declarant made several statements against his interest and implicated Williamson. The declarant explained that he was transporting the cocaine for Williamson and Williamson had been travelling in tandem with him prior to the declarant's arrest.

At Williamson's trial, the declarant refused to testify and was deemed unavailable under Rule 804. The trial court concluded that the statements made by the declarant were against the declarant's penal interest and were admissible. The court specifically admitted the declarant's statements that implicated Williamson under 804(b)(3).

The U.S. Supreme Court, however, vacated the judgment and remanded for further proceedings. As mentioned above, the Court held "the most faithful reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. The Court reached this conclusion because it determined that "statement" under Rule 804(b)(3) is "a single declaration or remark." This means that "Rule 804(b)(3) cover[s] only those declarations or remarks within the confession that are individually self-inculpatory." And courts may not assume under 804(b)(3) that a statement is self-inculpatory simply because it is part of a narrative that is against interest, "and this is especially true when the statement implicates someone else." The court reasoned that:

The fact that a person is making a broadly self-inculpatory confession does not make more credible the confession's non-self-inculpatory parts. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.

The Court went on to state:

Nothing in the text of Rule 804(b)(3) or the general theory of hearsay Rules suggests that admissibility should turn on whether a statement is collateral to a self-inculpatory statement. The fact that a statement is self-inculpatory does make it more reliable; but the fact that a statement is collateral to a self-inculpatory statement says nothing at all about the collateral statement's reliability. We see no reason why collateral statements, even ones that are neutral as to interest, should be treated any differently from other hearsay statements that are generally excluded.

The Washington State Supreme Court later adopted Williamson's reasoning and rejected the whole statement approach as well. In State v. Roberts, the declarant made a tape-recorded statement to two detectives. The declarant admitted to helping Roberts bind a murder victim, tape the victim's mouth, and move the victim to prevent discovery of the victim. The declarant also admitted he wiped his fingerprints after leaving the scene of the crime. However, during this narrative the declarant stated that Roberts admitted he killed the victim and that Roberts also helped bind the victim and tape his mouth.

Prior to Roberts' trial, the defense made a pretrial motion to admit the declarant's tape-recorded statements into evidence. The defense sought to admit only those portions of the declarant's statements that were against the declarant's interest--remaining sections of the statement were redacted. However, the trial court denied this motion. The trial court "...took an all or nothing approach to what constituted [the declarant's] statement...." (i.e. applied the whole statement approach to ER 804(b)(3). Thereafter, at trial, the defense attempted to call the declarant, but the declarant asserted his Fifth Amendment right to not testify.

On appeal, Roberts contended that the declarant's confession may be redacted so that only those portions specifically against the declarant's interest would constitute his "statement." The state argued the entire confession was the declarant's "statement" and was inadmissible. The state argued that admitting portions of the declarant's statements would permit Roberts to mislead the jury.

The Washington State Supreme Court agreed with Roberts. It held that the "trial judge erred in failing to consider portions of [the declarant's] confession as separate 'statements' for purposes of the statement against interest exception to the hearsay rule." The court expressly adopted the Williamson approach. The court reasoned:

Williamson is based on a reading of ER 804(b)(3) more consistent with the rule's underlying principle. Hearsay is excluded because 'out-of-court statements are subject to particular hazards. The declarant might be lying; he might have misperceived the events which he relates; he might have faulty memory; his words might be misunderstood or taken out of context by the listener. As the text of the rule suggests, however, a hearsay 'statement...which...at the time of its making...so far tended to subject the declarant to...criminal liability' is one 'that a reasonable person in the declarant's position would not have made...unless the person believed it to be true.' Hearsay 'statements against interest' are admissible 'because it is presumed that one will not make a statement damaging one's self unless it is true.' The 'whole statement' approach, however, often admits 'statements' which do not fall under this rubric.

Thus, returning to the example, in Washington state and in the federal jurisdictions, B and C should not be able to testify under ER 804(b)(3) that an unavailable A said that D committed a crime. A's statements that implicate D are not specifically against A's interest. A's out of court statements that implicate D do not fall within the exception under ER 804(b)(3) and constitute inadmissible hearsay.

Contact the Oak Harbor, Seattle, and Whidbey Island attorneys at Platt & Buescher for zealous representation and lawyers who are committed to engaging in an in-depth and scrupulous analysis of all legal and factual issues for clients.

Statements Against Interest And Their Use Against Others

October 8, 2013,

Oak Harbor, Seattle, King County, Whidbey Island, Island County, Coupeville, Attorney, Criminal Defense Lawyer, Felony Defense, Gross Misdemeanor, Misdemeanor Defense Attorney Discusses Statements Against Interest and Their Use Against Others.

Less is always more. It has once been said that any lawyer worth his salt will advise his client to make no statements. Indeed, more often than not folks get in trouble because of their own statements. Loose lips sink ships. One classic situation may involve statements against interest discussed below.

In general an out of court statement offered to prove the truth of the matter asserted is hearsay and thus not admissible. However, one exception to this rule is a statement against interest. A statement against interest permits certain out of court statements to be admitted where the declarant (i.e. the person that made the statement) is unavailable to testify in court and where the statement is contrary to the declarant's pecuniary or proprietary interest, or tended to subject the declarant to civil or criminal liability. ER 804(b)(3).

Consider when defendant A is charged with a crime. Witnesses B and C claim that witness A admitted to committing the crime. Witnesses B and C also claim that A also said that defendant D was involved, planned it, and helped A carry out the evil deed and cover up it up.

At A's trial, Defendant A's statements will be admissible against A under the rules of evidence (Miranda and due process are not considered for the purposes of this discussion). That is, Witnesses B and C may take the stand and say that A admitted to committing the crime. This is because an "admission by a Party-Opponent" is not considered hearsay under the rules of evidence. ER 801(d)(2). It is also likely at A's trial, Witnesses B and C may further testify that A said Defendant D was involved, planned it, and helped A carry out the evil deed under an admission by a Party-Opponent theory.

However, at Defendant D's trial things may be a lot more difficult. Defendant A would certainly be able to testify about Defendant D's conduct and statements that Defendant A witnessed and heard. But, Defendant A may refuse to testify as oftentimes is the case. Thus, Defendant A would become "unavailable" for purposes of ER 804 because he or she asserts the 5th amendment right to not testify. ER 804(a)(1). If Defendant A becomes unavailable, the prosecution then may be limited to attempting to get Witness B and C, to testify about what Defendant A said about Defendant D's conduct and statements. It is likely the only hearsay exception available for the prosecution would be the statement against interest exception to the hearsay rule under ER 804(b)(3).

A quick reading of ER 804(b)(3) may lead a lawyer to believe that Witness B and C may testify as to what Defendant A said about Defendant D's involvement. However, a scrupulous, in depth legal analysis reveals otherwise.

To be continued.

Lawnmowers, Bicycles, and Skateboards: How Far Does DUI Go?

October 3, 2013,

Seattle, King County, Oak Harbor, Whidbey Island, and Western Washington DUI, Drunk Driving, DWI, Driving While Intoxicated, Lawyer, Defense Attorney, Criminal Defense, DUI Defense, Drunk Driving Defense.

For a person to be guilty of DUI he or she must "drive a vehicle within this state." RCW 46.61.502. But what exactly constitutes "driving" or what is a "vehicle" has sparked some discussion. Recently a man was cutting grass on his lawnmower. He had a few beers with friends after he got done mowing the lawn. And, instead of taking his truck home, he decided it would be a good idea to take the lawnmower home. Wrong! After a short distance of travelling down the shoulder of the road policed stopped the lawnmower and lawnmower man was arrested for DUI.

In City of Montesano v. Wells, the Washington Court of Appeals Division 2, recognized that a "vehicle" includes "every device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway, including bicycles." RCW 46.04.670. That statute goes on to read that a "vehicle" does not include power wheelchairs or devices other than bicycles moved by human or animal power. Thus, as the Montesano court reasoned, a literal reading of the DUI statute and 46.04.670, would allow the state to charge bicyclists with DUI.

Enter common sense. The Montesano court went on to conclude that such a strict reading above is not the correct reading. The court looked to the spirit and intent of the law. After a review of the statutory scheme as a whole the Montesano court concluded that the Legislature did not intend to apply the DUI law to bicycles.

The Montesano court went further by stating "[i]ncluding bicycles in the crime of driving under the influence...would lead to an absurd result." And the court also recognized that, although an intoxicated bicyclist may pose a danger, bicycles do not have the force and speed of cars, a drunk bicyclist is not capable of causing the tremendous "carnage and slaughter" associated with drunk driving.

It would seem logical that the same rationale of Montesano would apply to skateboards and razor scooters. Lawnmowers on the other hand are self-propelled and are devices capable of being moved upon a public highways that can transport persons or property. Thus, surely a lawnmower falls within the definition of "motor vehicle" or "vehicle" and therefore a driver of a lawnmower will be subject to DUI laws if he or she drivers one in this state.

But what about the guy that likes to have a beer as he mows his own lawn on his own property during a Saturday afternoon? Can one drive a lawnmower drunk on his or her own private property? What about private property rights and freedom?

In State v. Day, the Washington Supreme Court faced a case where a guy was driving an unlicensed Ford pickup rapidly in circles in a field owned by his parents. He was not on or near a public road. He was never observed driving on a public road or driving on property where the public had a right to be. A Skagit County sheriff saw the aggressive driving, entered the private land, and arrested the driver of the Ford pickup for DUI.

The court pointed out that the DUI statute concerns driving under the influence "within this state." RCW 46.61.502(1). Further, RCW 46.61.005 provides that Chapter 46.61 shall apply "upon highways and elsewhere throughout the state." The court recognized that the policy is to avoid dangers to the public. And finally writes:

"In light of the purpose of the statutes and the unique facts herein, it would be an unreasonable exercise of police power to extend the prohibition [i.e. DUI law] to [the guy in the Ford's] conduct. He was posing no threat to the public. This is not a case where it is logical to assume he would leave the private property and pursue a course along a public roadway. The vehicle was unlicensed and he was not on or even near a public road. In addition, the land on which he was driving was privately owned and the public had not right to be there nor was the public expected to be on the property. His arrest did not further the purpose of the statute in any way."

Ultimately the Day court held that the case did not fall within the scope of DUI.

Thus, as long as one remains on their own private property, is not near a public roadway, does not pose a threat to others, one should be able to have a cold drink while cutting the grass without issue. Just don't be the drunk guy driving the lawnmower home on the shoulder of a public road.

Call Platt & Buescher to discuss you DUI.


Drug Crimes and Federal Prosecutors in Western Washington, Seattle, and King County

September 24, 2013,

Seattle, King County, Oak Harbor, Island County, Defense Attorney Discusses the Realities of Federal Prosecution of Drug Crimes.

Federal prosecutors and law enforcement dominate the prosecution of drug crimes. Conspiracy to Distribute Controlled Substance Indictments are their magic weapon in the war on drugs. Why? Simple: Mandatory Minimum Sentences. These draconian punishment tools are their stock in trade. Criminal defense attorneys, especially experienced criminal defense attorneys, have been accomplices in this miscarriage of justice, forced to play along with a system that treats due process and equal protection like annoying trifles. Here's how it works.....

You charge everyone from Granny to the family dog as co conspirators, all working together to distribute drugs. Granny relayed that phone message to Junior, a notorious crack dealer? Busted. Lil' Sis brought in that package she found hidden on the front porch? Goin' down. Junior dealing large quantities of cocaine and methamphetamine over time? They all face mandatory minimum sentences of at least ten years. Those Federal Sentencing Guidelines be damned. Better hope a firearm wasn't involved. Not only are they all looking at ten years in prison; they don't even get to have a fair shot at trial since there is a presumption they be held in detention once they are arrested which they must "rebut" or they wind up behind bars from day one. And, best of all, the judges have no choice. Mandatory means what it says.

Thus begins the snitch fest of Safety Valves and Cooperation. You see under certain circumstances the only way out of those mandatory minimums is to tattle on your friends and families, snitching your way to freedom. Of course, it can be dangerous. The drug dealers' favorite phrase is "Snitches get Stitches."

Enter Attorney General Eric Holder, stage definitely left. Make no mistake. I don't like Holder. He has been asleep at the wheel for half a decade as my clients have been run through this nightmare scenario again and again. But now, finally, it's possible that Holder woke up and smelled the jail house disinfectant.

In a series of Memoranda, beginning this past summer, Holder is directing Federal Prosecutors to get their priorities in order, literally. Citing the national priorities for the Department of Justice ["(1) protecting Americans from national security threats; (2) protecting Americans from violent crime; (3) protecting Americans from financial fraud; and (4) protecting the most vulnerable members of our society."] Holder tells prosecutors to think twice before bringing every criminal charge they can, just because they can. There (finally) has to be a good reason. Of course, until now, that good reason has been a desire to ratchet up the snitch game. Now, hopefully, that might change. A bit. Maybe.

In an August 12, 2013 Memo to his people, regarding federal prosecution priorities, Holder directs his lawyers to consider viable alternatives to federal prosecution. They must consider not only whether an important federal interest is being served by bringing these monster indictments. They must also consider whether there are viable alternatives to federal prosecution, meaning prosecution by state courts or perhaps no prosecution at all (oh my!).
Focusing on the dreaded "mando's" he states in a separate memo released that same day: "We must ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers. In some cases, mandatory minimum and recidivist enhancement statutes have resulted in unduly harsh sentences and perceived or actual disparities that do not reflect our Principles of Federal Prosecution. Long sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation. Moreover, rising prison costs have resulted in reduced spending on criminal justice initiatives, including spending on law enforcement agents, prosecutors, and prevention and intervention programs. These reductions in public safety spending require us to make our public safety expenditures smarter and more productive." Makes you wonder if Holder even knows what his prosecutors have been up to all these years.

What this means for actual charging decisions remains to be seen. Holder is taking away every spoiled Assistant U.S. Attorney's favorite toy. How on earth can they go after the 'bigs' if they can't drag the little guys through the dirt? Notice something else. The unwitting force behind these changes are those members of Congress who foisted the sequester and other budget cuts on the criminal justice system. It is not only public defenders and appointed counsel who are being forced to work for free every Friday. Prosecutors have budget problems too. We spend billions investigating, prosecuting and ultimately housing defendants in prison. The well is running dry. And, hopefully, so it the poison in it, the evil magic weapon called mandatory minimums.

Of particular interest is the impact on Holder's policies of changes in marijuana laws in several states. That is what we will look at next. For now, we can all hope that perhaps Granny and 'Lil Sis won't have to sell out their flesh and blood just to save their own hides. Hope springs eternal.

The Basic Requirements that Must Be Established Before a Breath Test MAY be Admissible in Seattle, King County, Oak Harbor, Island County, and Western Washington

September 19, 2013,

Basic Admissibility Requirements for Breath Tests in Seattle, King County, Oak Harbor, Island County, Western Washington:

Major law enforcement campaigns exist to enforce DUI laws. However, with how life altering a DUI conviction can be, it is critical that the driver be treated fairly....as, it is true that some folks have been wrongfully accused before.....

RCW 46.61.506(4) provides the initial threshold foundational elements for admissibility of BrAC results. See City of Fircrest v. Jensen, 158 Wash. 2d 384, 399, 143 P.3d 776, 784 (2006). Satisfaction of these elements does not mandate, but permits evidential breath tests to be admissible. Jensen, 158 Wash.2d at 399, 143 P.3d at 784. Even if the threshold foundational elements of RCW 46.61.506(4) are satisfied--the court may still exercise its discretion to suppress BrAC results. Id. The must establish the following statutory threshold foundation before BrAC results may be admissible in Counts in Seattle, King County, Oak Harbor, Island County, and Western Washington:

1. The analysis was performed according to the methods approved by the state toxicologist. Wash. Rev. Code 46.61.506(3).

2. The individual who performed the analysis of the person's breath possessed a valid permit issued by the state toxicologist. Wash. Rev. Code 46.61.506(3). WAC 448-16-120 provides that "[o]perators whose authorization expires...are not certified to perform any evidential breath test during that period." WAC 448-16-120 ("Permit cards.).

3. The instrument must be approved by the state toxicologist. Wash. Rev. Code 46.61.506(4)(a); WAC 448-16-020 (Datamaster, Datamaster CDM, or Drager Alcotest 9510).

4. The person who performed the test was authorized to perform the test by the state toxicologist. Wash. Rev. Code 46.61.506(4)(a)(i); see WAC 448-16-120.

5. A proper fifteen minute observation period occurred prior to the administration of the test. See Wash. Rev. Code 46.61.506(4)(a)(ii); 46.61.506(4)(a)(iii); see also Washington State Patrol Toxicology Laboratory Division Training Manual--Breath Alcohol Calibration, Effective Date 9/10/08 at 28. The 15 minute observation period is triggered after Miranda rights and implied consent warnings are read and the person's mouth is checked. State Tox. Manual at 30. After the Implied consent warnings are read the Officer signs on "Officer's Signature" line, has the Defendant sign (or the officer writes "refused to sign"), and the defendant is to mark the YES/NO box. State Tox Manual at 22. A mouth check requires either a physical examination of the mouth or a denial by the person that he or she has any foreign substances in their mouth. WAC 448-16-040. And the exact time from the Datamaster clock is to be recorded. State Tox. Manual at 30-31.

6. The person being tested did not vomit or have ANYTHING to eat, drink, or smoke for at least fifteen minutes prior to the administration of the test. Wash. Rev. Code 46.61.506(4)(a)(ii) (emphasis added).

7. The person being tested must not have ANY foreign substances, not to include dental work, in his or her mouth at the beginning of the fifteen minute observation period. Wash. Rev. Code 46.61.506(4)(a)(iii) (emphasis added). This determination is made by either an examination of the mouth or a denial by the person that he or she has any foreign substances in their mouth. WAC 448-16-040(1).

8. A thermometer approved of by the state toxicologist must be used to measure the temperature of any liquid simulator solution utilized as an external standard. Wash. Rev. Code 46.61.506(4)(a)(iv). Approved thermometers are (a) mercury in glass thermometers with a scale graduated in tenths of a degree measuring between 33.5 and 34.5 degrees centigrade; (b) Digital thermometer system contained within the Guth 2100 wet bath simulator. WAC 448-16-020.

9. Prior to the start of the test the temperature of any liquid simulator solution utilized as an external standard must be measured by an approved thermometer and be thirty-four degree centigrade plus or minus .3 degrees centigrade. Wash. Rev. Code 46.61.506(4)(a)(iv).

10. The internal standard test results in the message "verified." Wash. Rev. Code 46.61.506(4)(a)(v).

11. The two breath samples must agree to within plus or minus ten percent of their mean according to the formula set forth in WAC 448-16-060. Wash. Rev. Code 46.61.406(4)(a)(vi); WAC 448-16-060.

12. The result of the test of the liquid simulator solution external standard or dry gas external standard must lie between .072 to .088 inclusive. Wash. Rev. Code 46.61.506(4)(a)(vii).

13. All blank tests must give results of .000. Wash. Rev. Code 46.61.506(4)(a)(viii).
If the state satisfies these initial threshold statutory foundational elements--only then the test may be admissible. See Jensen, 158 Wash. 2d at 399, 143 P.3d at 784.

If the state fails to establish these foundational elements the court should suppress the breath test. Thus, it is critical for the lawyer to closely scrutinize whether these elements can be satisfied. Oftentimes, the police reports, breath test tickets, and other materials provided by the prosecutor make it appear that everything was done correctly and that no problems exist. However, further digging, sometimes, can reveal major problems with the breath test.

If you have been charged with a DUI contact Platt & Buescher to set up a consultation.

Part 2: Restore Your Fundamental Right to Keep and Bear Arms In Western Washington, Oak Harbor, Seattle

September 18, 2013,

Restore your right to possess firearms in King County, Seattle, Oak Harbor, Island County, and Western Washington.

The legislature has provided a procedure so those that have lost their right to possess (including convicted felons) can regain their right. The procedure requires one to essentially bring a civil cause of action against the state of Washington and petition the court. Although the procedure is akin to a civil lawsuit, it is much simpler and quicker.

In general, order for a convicted felon to restore his or her right to possess firearms the following test must be met:

(1) the person must not have previously been convicted or found not guilty by reason of insanity of a sex offense that prohibits firearm ownership;

(2) the person must not have previously been convicted or found not guilty by reason of insanity of any felony defined under any law as a class A felony;

(3) the person must not have previously been convicted or found not guilty by reason of insanity of any felony with a maximum sentence of at least twenty years;

(4) the person must have spent five or more consecutive years in the community without being convicted of or found not guilty by reason of insanity of any crime;

(5) the person must not currently be charged with any crime;

(6) the individual must not have a prior felony conviction that prohibits the possession of a firearm counted as part of the offender score under RCW 9.94.525.

In general, order for those who have lost their right to possess firearms because of a misdemeanor or gross misdemeanor offense (e.g. assault in the fourth degree domestic violence) to have their gun rights restored the following test must be met:

(1) the person must not have previously been convicted or found not guilty by reason of insanity of a sex offense that prohibits firearm ownership;

(2) the person must not have previously been convicted or found not guilty by reason of insanity of any felony defined under any law as a class A felony;

(3) the person must not have previously been convicted or found not guilty by reason of insanity of any felony with a maximum sentence of at least twenty years;

(4) the person must have spent three or more consecutive years in the community without being convicted of or found not guilty by reason of insanity of any crime;

(5) the person must not currently be charged with any crime;

(6) the individual must not have a prior felony conviction that prohibits the possession of a firearm counted as part of the offender score under RCW 9.94.525.

Also, a person may only petition for a restoration of gun rights in the Superior Court in the county where he or she lives or in a Superior Court that ordered the loss of firearms.

Case law hold that when a person meets the test(s) above the restoring court simply has a ministerial duty to restore the person's rights. There is no requirement that the person prove that he or she is safe to own or possess guns. The only discretion that the statute contemplates belongs to the petitioning individual, and that discretion concerns his decision to petition the court.

Again, it is great to see that our legislature recognizes that there are folks that made mistakes long in the past who are now completely different people in the present and who deserve to have their rights back.

If you believe that you may meet the tests above and would like to restore your right to keep and bear arms please feel free to contact Platt & Buescher today to set up a consultation to get your right to possess firearms back.



Part 1: Restore Your Fundamental Right to Keep and Bear Arms In Western Washington, Oak Harbor, Seattle

September 17, 2013,

Washington state provides for a procedure to restore gun rights. Those who have lost their gun rights who live in Oak Harbor, Seattle, Western Washington, and on Whidbey Island can get their gun rights back.

We are living in scary times. The government is slowly and quietly infringing on fundamental rights. The media is indoctrinating the politically apathetic without presenting well reasoned opposing points of view. And, even a sizable portion of the American population has been persuaded that our freedoms are evil or harmful.

The right to BOTH keep AND bear is a particular of an abstract general natural right including: the right to survive, the right to defend one's self and others, and the right of life and liberty. This is only the second amendment after all (free expression and conscience only come before it). In fact the argument (if you can call it that) over whether a second amendment was even needed did not even concern guns; rather, the federalists believed a second amendment was not needed only because everyone already understood the right to be fundamental, i.e. codification was redundant and unnecessary. The second amendment was hardly a novel principle. It ultimately simply codified a right known and acknowledged by all and that was merely inherited from England (it was already in the English Bill of Rights).

The Second Amendment reads:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

This guarantees the individual right to possess and carry weapons. Dist. of Columbia v. Heller, 554 U.S. 570, 592 (2008). But the Second Amendment right to keep and bear arms is not dependent on the Second Amendment. Heller, 554 U.S. at 592. It "...codified a pre-existing right." Id. (emphasis theirs). And this right is fundamental. McDonald v. City of Chicago, Ill., 130 S.Ct. 3020, 3042 (2010) ("...it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty); Heller, 554 U.S. at 593-594, 128 S.Ct. at 2798 (acknowledging that right to have arms was understood to be a fundamental natural right). Indeed, "[g]un ownership is an inexonerable birthright of American tradition." State v. Sieyes, 168 Wash.2d 276, 284, 225 P.3d 995, 999 (2010).

Do not be fooled by those that claim the prefatory clause limits the right in connection with militia service. The "well regulated Militia, being necessary to the security of a free State" language merely announces the purpose and policy of the operative clause (the right). "The Militia" actually constitutes all men physically capable of acting in concert for the common defense. This is not a narrow definition. And it is unlike other parts of the constitution that specifically mention the "Navy" or "Armies." The founding fathers believed the individual right to keep and bear arms was necessary to the security of a free state as it would enable countrymen to quell internal rebellions, repel foreign invasions, and even oppose a tyrannical government if the constitutional order were to break down. Beyond this and as mentioned above, the right is certainly a particular of a more greater fundamental natural law of survival and self defense.

"Right of the people" means what it says. This includes all individual peoples of the nation. Not simply those in a militia. "Keep" means to not lose, have in custody, to retain in one's power or possession. "Bear" means to literally carry or wear. Arms means instruments that constitute bearable arms, even those that were not in existence at the time of the founding (of course the second First Amendment applies to modern communications just as the Fourth, supposedly, applies to modern forms of search).

It is true that this right is not without limitation. Laws may prohibit possession of firearms by felons or the mentally ill or possession in sensitive places. Heller, 554 U.S. at 626-627. But the right is fundamental. So it is pleasing to see that our state legislature has codified a way to get fun rights back once lost.