Seattle Criminal Lawyer Blog

Oak Harbor, Seattle, and Whidbey Island Attorney Discusses the Validity of Car Searches.

In America, it is acceptable for police officers to conduct a warrantless search of a vehicle when the officers have probable cause to believe that contraband, fruits of a crime, or other evidence is in a vehicle. This is known as the "automobile exception" to the warrant requirement. Also, police may conduct a warrantless search of a vehicle when a recent occupant (e.g. driver) has been validly arrested only under two exceptions--(1) when the arrestee is unsecured and within reaching distance of the passenger compartment of the vehicle at the time of arrest; or (2) when it is reasonable to believe that evidence relevant to the crime of arrest may be found in the vehicle. This second exception is known as the "Thornton exception." The above exceptions were clarified in the 2009 United States Supreme Court decision of Arizona v. Gant. However, Washington does not necessarily adhere to these same exceptions mentioned above.

In a recent story, police officers stopped a Longview citizen's vehicle because it did not have mud flaps (classic pretext). Then the trooper claims that he "spotted" a clear plastic container holding what the officer thought was marijuana. You may read about this and another similar story here.

It is typically unclear whether a driver actually gives valid, voluntary, knowing, and intelligent consent for an officer to search the vehicle (as officers claim oftentimes), but one thing is for sure in Washington--absent valid consent, the rules permitting officers to search vehicles are strict.

Unlike on the federal level, the "automobile exception" to the warrant requirement is not recognized in Washington. That is, even if an officer has well founded probable cause to believe that contraband or other evidence of a crime is in a vehicle, the officer still cannot search the vehicle without a warrant. Because of this, the officer must conduct the search pursuant to another exception to the warrant requirement.

Oftentimes officers conduct a vehicle search pursuant to the "incident to arrest" exception. However, the car search incident to arrest is also very narrow in Washington as well due to the recent Washington State Supreme Court case State v. Snapp. In Snapp, the Washington State Supreme court reiterated the fact that the "automobile exception" to the warrant requirement is not recognized in Washington. More importantly, the court held that the Thornton exception mentioned above is inconsistent with Article I, Section 7 of the Washington State constitution. Therefore, in Washington, an officer may only search a vehicle incident to an arrest when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Because of this new ruling--officers have a lot more difficultly conducting car searches. As a result, it appears that officers have reacted by exploiting other exceptions to the warrant requirement.

Consent is another exception to the warrant requirement. As mentioned above, in general an officer may search a vehicle if the driver or owner of the vehicle provides the officer with consent that is knowing, intelligent, and voluntary consent. Getting consent from an individual is not always easy when the driver knows that contraband or other substance is located in the vehicle. Therefore, officers may "pressure" an individual into thinking that they have an obligation to consent to the search. Officers may make the driver feel as if he or she has no choice but to allow an officer into the vehicle (e.g. by telling the individual that they have probable cause and will get a warrant if the individual does not grant consent). Alternatively, officers may conduct an "inventory search." If the vehicle is impounded the officers may take an inventory of the items in the vehicle in order to "protect" the arrested driver from theft or loss of items.

Ultimately, a driver need not give the officer consent to search. The officer may truly not have probable cause to search the vehicle which a warrant will require. Additionally, although unclear at this time, since an "inventory search" is designed to protect an arrestee from loss or theft of items in an impounded vehicle, it makes sense that a driver should be able to decline an "inventory search" due to impound. This issue, however, seems to have reached the appellate level.

Overall, if a vehicle search is unlawful, then the fruits of such an unlawful search may lead to the suppression of evidence. If your vehicle was subject to a car search that led to charges, it is important to have an attorney who will evaluate this issue and fight for suppression.

The attorneys at Platt & Buescher will evaluate whether your vehicle has been unlawfully searched. Contact our Oak Harbor, Seattle, and Whidbey Island attorneys to discuss the search of your vehicle.

Oak Harbor, Seattle, Whidbey Island DUI/DWI lawyer and/or Seattle, Oak Harbor, Island County Drunk Driving Attorney discusses the DUI Corpus Delicti Rule.

Many DUI cases arise after an motor vehicle accident. In such cases oftentimes no one, including the officer, witnesses the accused actually driving or behind the wheel. Consider, the case where an officer responds to a report of an accident, arrives on the scene, interviews a bystander (the officer concludes he is the driver immediately) found near the vehicle involved in the crash, sees the bystander uninjured, the bystander tells the officer that he was driving, the officer administered standardized field sobriety tests, and then the bystander is charged with DUI. There is no other conclusive evidence that person was driving aside from his incriminating statements.

Obviously driving (not just intoxication) is a necessary element that the state must prove beyond a reasonable doubt to obtain a DUI conviction. This is a tough burden to meet when the only evidence of driving is the defendant's admission to driving--especially in Washington. In Washington, a defendant's admission to driving is not admissible if the prosecution cannot provide sufficient evidence which establishes the "corpus delicti" of the crime. Corpus delicti means "body of the crime." The corpus delicti of DUI requires prima facie evidence of driving.

State v. Hamrick is the seminal case concerning the corpus delicti rule as applied to a DUI case. In Hamrick, an officer arrived at the scene of an accident where he found a truck in a ditch and another car 200 feet west of the pickup. Both vehicles were damaged. The officer contacted the defendant in the center of the roadway. The officer did not determine whether the defendant owed either vehicle involved in the accident. However, the defendant allegedly admitted he was driving the car. The defendant was also intoxicated.

On appeal the Hamrick court concluded that the State's evidence, aside from the defendant's admission to driving, was insufficient to establish the corpus delicti of the crime of DUI. The state's evidence established only that the defendant was present when the officer arrived, but there was no independent evidence connecting the defendant with control of the car. As a result the court did "not have the slight evidence necessary to logically and reasonably deduct that the defendant was driving the car." Therefore, due to lack of independent evidence, the defendant's admissions could not be considered, and the court held that the state failed to establish the corpus delicti. As a result dismissal of the charge was proper.

The rationale of the corpus delicti rule that Washington adheres to is "based upon the suspect nature of out-of-court confessions. The idea is to avoid convictions "of innocent persons through the use of false confessions of guilt." Corroboration of an admission through independent evidence aside from an admission is sued to protect against potential police abuses (i.e. it would be harsh to permit convictions to stand when the only evidence is an officer's claim that the defendant admitted guilt without more).

Beyond the corpus delicti rule that may potentially support a motion to dismiss--it is important to always consider that intoxication alone is insufficient to convict one of DUI. Actual driving or physical control of a vehicle is a necessary element of a crime. Therefore, even if the state meets its burden of providing prima facie evidence of the corpus delicti which will support the admissibility of a defendant's alleged admission to driving--the state must still prove beyond a reasonable doubt that the defendant was in fact driving. This is the highest burden to prove and the state may have difficulty to meet this burden when no one can actually put the defendant "behind the wheel." Corpus delicti and quasi corpus delicti issues must always be closely evaluated by the DUI defense attorney.

The attorneys at Platt & Buescher have been defending those in Oak Harbor and on Island County accused of DUI/DWI, drunk driving, and actual physical control while intoxicated for over 20 years. Contact the Oak Harbor DUI defense lawyers at Platt & Buescher today about your DUI charge.

Seattle, Oak Harbor, Whidbey Island Criminal Defense Attorneys Discuss the Potential Unintended Consequences of Domestic Violence Laws.

NFL football player Chad Johnson, formerly known as "Ochocinco," was recently arrested on a domestic violence charge. Apparently Johnson's wife, Evelyn Lozada, had a few questions for Johnson about a receipt for a box of condoms.... Thereafter, Lozada told police that Johnson "head-butted" her. Inevitably, Johnson was arrested for domestic violence. You can read about the story here.

While it is unclear whether the allegations made by Lozada are with or without merit--it is possible that Chad Johnson is facing the unintended consequences of domestic violence laws. Oftentimes couples argue--this is a normal everyday occurrence and fact of life. Arguments may escalate into screaming or yelling matches and outsiders may interpret such nasty scenes as physical altercations and may respond by calling the police. Alternatively, a person involved in such an altercation may feel threatened or scared. Sometimes, wives, girlfriends, and even husbands or boyfriends may be so outraged in the heat of the moment that they may simply respond irrationally by calling the police in order to "get back" at the significant other or have law enforcement intervene to end the argument. Such irrational responses may result in unintended consequences.

In many states, including Washington, there are special laws which apply to "domestic violence" situations. "Domestic violence" has a very broad definition in Washington--it concerns crimes committed by one "family or household member" against another. "Family or household members" includes spouses, former spouses, persons who have a child in common regardless of whether they are married or live together, adults related by blood or marriage, adults who reside together or who have resided together in the past, or persons who have had a "dating relationship." A "dating relationship" means a social relationship of a romantic nature. Therefore, law enforcement may determine that a domestic violence situation exists under countless circumstances.

In Washington, police officers are required by law to make an arrest and take a person into custody when the officer has probable cause to believe domestic violence has occurred. Therefore, unfortunately, oftentimes arrests might be made when allegations are without merit. As a result prosecutors, courts, and the legal system may be burdened by countless cases that are in fact without merit. Beyond this, husbands, wives, children, and families may face further burdens associated with the issuance of no contact orders. Oftentimes courts will automatically issue no contact orders in cases concerning domestic violence in order to prevent further altercations which may arise shortly after domestic violence arrests. No contact orders may separate husbands and wives, temporarily break up families, and cause financial burdens (e.g. paying for hotels, day-care, babysitters, etc.) Ultimately, a no-contact order may effectively create a temporary single parent status in a household.

The policy rationale supporting domestic violence laws are laudable in many ways. Many girlfriends, wives, and possibly boyfriends or husbands oftentimes are in denial with respect to abusive relationships. Legislatures across the county recognize this. In such situations it is good for local law enforcement to intervene.

Additionally, the policy rational supporting the issuance of no-contact orders is also laudable. Courts recognize that domestic violence may reoccur shortly after domestic violence arrests. No contact orders, at least in part, are intended to promote a "cooling off" period as a person who is charged with domestic violence may still be "heated" over the prior argument, altercation, or arrest. How do you think Chad Johnson feels after being arrested?

Nevertheless, as discussed above, there are countless times where a report of domestic violence may be without merit. Prosecutors and defense attorneys alike recognize that individuals involved in nasty arguments may react irrationally by calling the police in the heat of the moment. The domestic violence call will inevitably result in the mandatory arrest of the person whom the officer believes to be the primary aggressor (which more often than not may turn out to be the male). Therefore, many prosecutors understand that numerous domestic violence cases are without merit. However, prosecutors remain aware that many individuals in abusive relationships are in denial. Therefore, regardless of whether an alleged victim later recants, changes their story, or desires that the domestic violence charge to be dropped--prosecutors may remain reluctant to dismiss a domestic violence case.

Individuals should stop and think about the potential unintended consequences before picking up the phone and calling 911 in the heat of the moment. Chad Johnson may now be facing the unintended consequences of a heated argument (although this remains uncertain).

When facing a domestic violence allegation it is important to have a lawyer who understands the laws concerning domestic violence, no contact orders, and who is able to effectively negotiate with prosecutors. Oftentimes prosecutors may be persuaded to dismiss domestic violence charges.

Seattle, Oak Harbor, Whidbey Island Criminal Lawyer Discusses the Right to Confrontation. Crawford v. Washington: not just another Thurston County assault--it is now the essence of Sixth Amendment.

Recently, in Massachusetts, a defendant convicted of killing a drug dealer had his conviction overturned and now will get a new trial. You can read about the case here. Two men (hereinafter co-conspirators "A" and "B") allegedly conspired to rob a drug dealer and then either A or B ended up shooting the drug dealer in the chest....drug dealer dies...A and B are charged with murder. Apparently co-conspirator "B" made statements against "A" to the police. "B" also made statements against "A" in the presence of co-conspirator B's sister (hereinafter sister "C"). "B" allegedly told "C" that "B" told A "not to do it" and "he shot that kid." At trial the prosecutors offered "B's" above statements against A through the testimony of police and "C" into evidence. That is, "C" told the jury that "B" said to "A" to "not do it." This makes A look bad...to say the least.

The general rule is that a statement offered to prove the truth of the matter asserted is inadmissible at trial. That is known as "hearsay." So, if the prosecutor offers "B's" statement against "A" through "C" in order to prove that A "...shot that kid" then such a statement, under the general rule forbidding hearsay, should be inadmissible. The policy behind hearsay rule is to prevent untrustworthy evidence from being admitted--to prevent the jury from being exposed to evidence that is inherently questionable or unreliable. Ever play the game telephone while growing up? The game always starts with a simple phrase or message. Then after the message is passed through others, the message always seems to come out totally distorted on the other end. That is one of many reasons why the rules of evidence forbid the admission of hearsay.

However, there are many MANY exceptions to the hearsay rule. The rules of evidence can be very complicated. One exception (or exemption as some professors may call it) is an admission by a party-opponent. For purposes of this exception an "admission" is very broad--basically anything that a party says. One form the admission by a party opponent exception is when one co-conspirator of a party says something during the conspiracy--a co-conspirator statement. Therefore, in the Massachusetts case, it is possible that "C" could, under the rules of evidence, testify before the jury that "B" told "A" to "not do it" under the admission by a party opponent exception to the hearsay rule.

Notwithstanding the applicability of a hearsay exception, the Sixth Amendment right to confrontation may still forbid such statements. In Crawford v. Washington, the defendant allegedly stabbed a guy (alleged victim) that attempted to rape his wife. Prior to trial, during the police investigation of the stabbing, the defendant's wife gave a recorded statement to police during an interrogation. The wife apparently made statements that tended to show that her husband, the defendant, did not act in self-defense when he stabbed the alleged victim (or attempted rapist). At trial, the state could not call the wife to the stand to testify because the defense asserted the marital privilege (another rule of evidence). Therefore, the state offered into evidence the recorded statement of the wife (which is also hearsay, but is admissible under the Washington rules of evidence via another exception--declarant unavailable--statement against interest). The defendant was convicted, but then on appeal contended that his Sixth Amendment right to confrontation was violated. The case went all the way up to the Supreme Court.

The Supreme Court basically held that, under the Sixth Amendment Confrontation Clause testimonial hearsay is inadmissible unless the witness is unavailable and the defendant had the prior opportunity to cross examine the witness. So, basically, defendant's have the right cross examine witnesses, face to face, in court before the eyes of the jury, unless the witness is unavailable and the defendant was able to previously cross examine the witness.

So here, with this Massachusetts case, the case got overturned because it was unconstitutional for "C" or law enforcement to testify that "B" said something out of court that incriminated "A" when "A" was never able to cross-examine "B." The general rule is basically that a witness's statements are inadmissible unless the witness comes into court and says what he or she has got to say to the defendant's face and before the eyes of the jury.

The attorneys at Platt & Buescher will thoroughly analyze your case under the rules of evidence and will determine the constitutionality of evidence offered by the prosecutors. If you have a criminal case pending contact our office today to set up a consultation.

Courts in Seattle, Oak Harbor, and on Whidbey Island May Require Individuals Facing DUI Charges to Get Treatment for Alcohol or Drug Abuse.

Recently Bobby Brown, former husband of the late Whitney Houston, checked into rehab as part of a plea deal concerning his DUI arrest. While this may be news as a result of Bobby Brown's celebrity status, this is actually a very common thing for individuals facing DUI charges.

More often than not Courts in Washington State will order individuals convicted of DUI to obtain a drug and alcohol evaluation and complete any recommended treatment. In fact, this sentencing condition is listed in the DUI sentencing grid that is available on the Washington State Courts website.

During the evaluation session, the individual must answer many questions concerning their alcohol consumption, drug use, history of abuse, criminal history, and other questions related to drugs and alcohol. The individual may also be required to submit a urine sample. Questions that may be asked may include the following:

When did you have your first drink?
Do you smoke?
Have you ever used drugs?
Have drugs or alcohol had an impact on your relationships?
Have drugs or alcohol use resulted in your arrest in the past?
Do you personally feel that you have a drinking problem?
Do you take any prescribed medications? If yes, have you ever abused or taken an amount beyond the prescribed amount?
Do you have any mental problems?
Do you have relationships or do you associate with others who drink or use drugs heavily?
When was your last drink?
How often do you drink?
Have you ever consumed so much that when you wake up in the morning you do not remember events from the previous evening?
Do you ever drink in the morning in order to ease shaking, sweating, or other symptoms of alcohol withdraw?
To you have tuberculosis?
Any health issues? Any health issues as a result of drug or alcohol use?
Do you ever continue to use drugs or alcohol despite the fact that you know it is having a negative impact on your health.
And so on... (as Kurt Vonnegut would say in Breakfast of Champions).

The individual must always be honest with the treatment provider. If the treatment provider obtains information from "collateral sources" that reveal the individual was untruthful, then the evaluation will be void. In fact, most treatment providers require the individual to sign a form, waiver, or contact that states that if the individual is untruthful, the evaluation and its results are void.

Following the alcohol and drug evaluation--the treatment provider will assess the individual generally in one of three ways. The individual may be deemed to be "no significant problem" or "NSP." If an individual is determined to be NSP, then the treatment center will typically recommend alcohol and drug information school or no treatment at all. Alcohol and Drug Information School (ADIS) typically requires the individual to attend educational type sessions with the treatment provider for a total of eight hours. During ADIS, the treatment provider or counselor, will educate the individual on the effects of alcohol and drugs on the human body, health risks associate with use and abuse, and will attempt to provide the individual with coping mechanisms or skills that encourage moderate consumption or abstinence.

Aside from NSP, other categories that an individual may be assessed as may include either "abuser" or "dependant." An abuser is generally someone who "binge drinks" or gets drunk oftentimes--perhaps only on weekends, but is not someone who is a bona-fide alcoholic. The treatment provider may recommend that an abuser undergo more educational group sessions than one who is NSP. Such group sessions may be recommended for months. Other times an abuser may be required to undergo intensive outpatient treatment. One who is deemed to be a "dependant" is basically a full blown alcoholic--someone who cannot function without alcohol and suffers from symptoms of withdraw. When an individual is deemed to be dependant the treatment provider may recommended intensive outpatient or inpatient treatment--and perhaps detox therapy.
Overall, Bobby Brown's situation is by no means irregular.

A DUI conviction or arrest oftentimes results in the sentencing court ordering the individual to complete treatment recommended by the treatment agency. Individuals who truly do not have any alcohol or drug problems may get stuck in treatment; perhaps for months or longer. This is because treatment providers and counselors are human...and humans make mistakes. Moreover, treatment providers are businesses too...and some allow their incentive to generate profits overcome what is best for the individual being assessed. However, many treatment providers are truthful, fair, professional, and competent. Therefore it is important to have an attorney who will not only aggressively fight against DUI charges and who understands the evaluation process. It is critical to get an attorney who knows what treatment centers are reputable, professional, and trustworthy.

Platt & Buescher is dedicated to providing individuals with advice and guidance beyond the courtroom. The DUI attorneys at Platt & Buescher understand the evaluation process and will educate those facing DUI charges. Contact our office today to discuss the drinking and driving accusations that you are facing.

Oak Harbor, Seattle, Whidbey Island Driving Under the Influence Defense Attorneys Confirm that DUI Checkpoints and Roadblocks are Unlawful in Washington State.

As Labor Day Weekend approaches media outlets continuously warn drivers that state troopers are on the crackdown. Television commercials, oftentimes sponsored by the National Highway Traffic Safety Administration (NHTSA), portray police officers wearing "urban camouflage" while lurking around every corner to investigate drunk driving. Many of these commercials reveal an ominous ending--the driver approaches a random roadblock which results in "the end of the road" for the intoxicated driver.

In many states, including Virginia and Indiana, random DUI checkpoints are lawful. In one article Sergeant Riley, an Indiana law enforcement officer, warns that "the DUI checkpoints and extra DUI patrols usually happen during the holiday season when there is a long weekend." The article goes on to explain that law enforcement will focus their efforts on "high crash areas" and areas where increased DUI arrests occur.

Roadblocks are generally lawful. This is because the United States Supreme Court determined in Michigan Dept. of State Police v. Sitz that, although a DUI checkpoint constitutes a seizure within the meaning of the Fourth Amendment, "the balance of the State's interest in preventing drunk driving, the extent to which this system can reasonably be said to advance that interest, and the degree of the intrusion upon individual motorists who are briefly stopped, weighs in favor of the state [DUI checkpoint] program." As a result, at least with respect to the "floor" of protection afforded by the Fourth Amendment, DUI checkpoints are not unlawful. Therefore, many states have lawful DUI roadblocks. However, such checkpoints are unlawful in Washington state.

As stated again and again in previous seattlecriminallawyerblog.com blogs, Article I, Section 7 of the Washington State Constitution provides greater protection than the Fourth Amendment. In City of Seattle v. Mesiani, the Washington State Supreme Court faced the issue of whether the Seattle Police Department's sobriety checkpoint program was constitutional. This checkpoint program resulted in police officers setting up roadblocks where all oncoming motorists were stopped when the police lacked warrants and any individualized suspicion of criminal activity. The City of Seattle argued that the state's interest in the legal operation of vehicles outweighs any privacy interest under Article I, Section 7. Ultimately, the Washington State Supreme Court concluded that the City of Seattle's position was without support and held that sobriety checkpoints violated Article I, Section 7.

Due to this, drivers in Seattle, Oak Harbor, and on Whidbey Island, do not need to fear being randomly stopped at a checkpoint. DUI roadblocks are simply unconstitutional in Washington. Nevertheless, although this is one of the many heightened protections against invasion of privacy that Washingtonians enjoy, drivers should continue to be responsible. The wise decision is to not drink and drive at all.

The DUI defense attorneys at Platt & Buescher are dedicated to providing individuals with passionate, results driven, and caring representation. If you have been charged with a DUI in Seattle, Oak Harbor, Skagit, Whatcom, or Island County, contact our office at to discuss your DUI.

Seattle, Oak Harbor, Whidbey Island DUI Lawyers May Be Able to Get DUI Charges Dismissed

Seattle Seahawks player Marshawn Lynch was charged with DUI after he was alleged spotted weaving. Read about the story here:

If Lynch was only spotted weaving then the case should be dismissed. Period. This should be true even if Lynch was crossed over lane lines on a couple of occasions. This is because a minor incursion over a lane line is not a traffic violation and does not provide an officer with "reasonable suspicion" to stop a vehicle to investigate a crime.

Lynch's DUI occurred in California. Therefore, United States v. Colin should be persuasive. In United States v. Colin, at 2:05 a.m. a California police officer observed a vehicle drift onto a solid white fog line and watched the car's wheels travel along the fog line for about ten seconds. Subsequently, the vehicle drifted to the left side of the right lane, signaled, and moved into the left lane. Thereafter, the officer observed the vehicle drift to the left lane where its left wheels traveled along the solid yellow line for about ten seconds. As a result, the officer stopped the vehicle for a violation of California Vehicle Code §21658(a) (lane straddling) and California Vehicle Code §23152(a) (DUI). Colin, 314 F.3d at 441.

The officer in Colin testified as follows:

"Most people who travel the highway travel the main portion of the lane which is pretty much the center of the lane. To travel the extreme right for an extended period of time and then travel to the extreme left portion of the lane and then make the lane change and then travel again to the extreme left portion of that lane, those are irregular driving patterns."

Following the stop, a search of the vehicle revealed marijuana and methamphetamine. The defendant moved to suppress the evidence on the grounds that the stop was unlawful. On appeal the Ninth Circuit concluded that the officer "lacked the requisite reasonable suspicion to stop [the vehicle] for lane straddling." The Ninth Circuit further concluded that the evidence was insufficient to support reasonable suspicion that the driver was under the influence. The court reasoned that the officer observed the vehicle for only 35-45 seconds before pulling it over, the driver drove within the speed limit, and properly activated his turn signals before making lane charges. The court reached this conclusion despite the officer's testimony that the driver was "possibly" driving under the influence because the vehicle's wheels touched the fog line for 10 seconds, and then touched the yellow line on the far left for another 10 seconds.

If Lynch was only spotted weaving a couple of times then United States v. Colin should apply. As a result, Lynch's DUI should be thrown out of court. GO HAWKS!

Platt & Buescher have been providing successful DUI defense for over 20 years. Contact a DUI defense attorney at 360-678-6777 for a free consultation with a DUI lawyer about your Seattle, Oak Harbor, or Whidbey Island DUI charges.

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" »