Criminal Law

Washington Missing Person Instruction Error Where Testimony Would Be Self-Incriminating

December 7, 2016 | by Blair & Kim, PLLC

Under the missing witness doctrine, if a person who could have been called to testify is not, the jury may infer that person’s testimony would have been unfavorable to the party who naturally would have called him or her. This doctrine and the associated jury instruction can be highly detrimental to a case, and are therefore to be used sparingly, particularly in the case of a criminal defendant. There are therefore requirements and limitations to when they apply.

The Washington Court of Appeals recently considered the application of the missing witness jury instruction in State v. Houser . A woman called 911 after the defendant knocked on her door at about 9 p.m. with a swollen lip and bloody nose. He told the woman’s husband that his car was in a ditch about a mile away. The defendant later told the state trooper he had some beers that night and drove off the road and struck a pole. After a field sobriety test indicated impairment and he was arrested, the defendant said he was not driving and that his “buddy” had been the driver.

The defendant was charged with felony DUI. The defendant testified he was waiting in his truck outside his friends’ house when he saw an old friend he had not seen in many years. The two decided to get some marijuana, with the friend driving the defendant’s truck because the defendant had been drinking. Afterward, they were on their way to another friend’s house when the accident occurred. The defendant testified his friend was driving at the time of the accident. He said he could not remember exiting the truck. He knew his friend did not stay in the truck, but did not know how he got out or where he went. He had not contacted the friend since the accident, had not tried to reach him, and did not know how to do so.

Supreme Court of Washington Holds There Is No Constitutional Right to Refuse Field Sobriety Test in DUI Case

June 24, 2016 | by Blair & Kim, PLLC

In a significant ruling, Washington’s highest court tackled the question of whether a defendant’s refusal to perform a field sobriety test may be used against him at trial on a charge of driving under the influence (DUI). The court ultimately held that a field sobriety test is not a search but a seizure justified under the doctrine of Terry. Therefore, the court explained, defendants do not have a constitutional right to refuse a field sobriety test, and such a refusal may properly be used as evidence of guilt against them at trial.

In State of Washington v. Mecham (Wash. June 16, 2016), a police officer ran a random license check on the defendant’s vehicle while stopped behind him at a light. After finding an outstanding warrant, the police officer pulled over the defendant and arrested him. The officer smelled alcohol on the defendant’s breath and observed an open beer can in the defendant’s passenger seat. The officer asked the defendant if he would consent to perform a field sobriety test, and the defendant refused. The police eventually obtained a search warrant authorizing a blood draw, which indicated alcohol in the defendant’s system. Following a trial, a jury found the defendant guilty of felony DUI. The defendant appealed, arguing that the trial court erred in allowing evidence of his refusal to perform a field sobriety test to be used against him at trial.

In Washington, although prosecutors may not comment on a refusal to waive a constitutional right, the state may admit evidence that a defendant is asserting a non-constitutional right as evidence of consciousness of guilt at trial. On appeal, the court narrowed the dispositive issue to whether a defendant has a constitutional right to refuse to perform a field sobriety test.

Washington Court Suppresses DUI Breath Test Results After Police Fail to Provide Statutory Warnings

May 9, 2016 | by Blair & Kim, PLLC

Police officers must generally follow statutory and constitutional protections when arresting or interacting with individuals. In a recent case, the Washington Court of Appeals addressed the consequences of failing to provide the required statutory warnings before administering a breath test to a defendant arrested for driving under the influence (DUI).

In State v. Murray, 192 Wash. App. 1040 (2016), a Washington State Patrol Trooper stopped the defendant for a traffic violation. The trooper alleged that she smelled alcohol from inside the defendant’s vehicle and that the defendant’s eyes were bloodshot and watery and her speech slurred. After the defendant performed field sobriety tests, the trooper arrested her. During a standard inventory search, a pipe and a bag of marijuana were found in the defendant’s vehicle. At the police station, the trooper read the defendant the implied consent warnings for the breathalyzer test, but she failed to provide warnings about per se THC concentration in her blood. The defendant agreed to a breath test that indicated a level over the per se limit for alcohol.

Pursuant to RCW 46.20.308, an officer is required to inform a driver of specific warnings regarding the consequences of denying or submitting to a breath test. Before trial, the defendant moved to suppress the evidence of the breath test results, contending that the trooper’s failure to provide all of the warnings required by RCW 46.20.308 was a violation of her rights. The defendant’s motion was denied by the trial court, and the defendant was found guilty as charged. On appeal, the superior court reversed the lower court, holding that officers do not have discretion to decide which of the required warnings are given to subjects suspected to have consumed both alcohol and THC. The state appealed, and the matter was brought before the Washington Court of Appeals.

Washington Appeals Court Holds No Exigent Circumstances Justify Warrantless Blood Test in Marijuana DUI Case

March 25, 2016 | by Blair & Kim, PLLC

In an important decision, the Court of Appeals of Washington addressed the issue of whether a warrantless blood test violated the rights of a defendant charged with driving under the influence (DUI) of marijuana. In City of Seattle v. Pearson (Wash. Ct. App. Feb. 29, 2016), the defendant struck a pedestrian with her car. The defendant suffered from health conditions for which she was authorized to consume medical marijuana and told police she had smoked earlier in the day. After the defendant performed field sobriety tests, the police officer arrested the defendant on suspicion of driving under the influence. The officer then transported the defendant to a hospital for a blood draw without her consent or a warrant, two hours after the accident had occurred. The test determined a THC concentration of approximately 20 nanograms.

Both the U.S. and Washington State constitutions provide protection against unreasonable searches, including the intrusion into a person’s body to draw blood. Absent a recognized exception, a warrantless blood draw is unlawful. An exception may exist in the case of exigent circumstances, in instances where acquiring a warrant is not realistic because the delay that occurs in the pursuit of securing a warrant would adversely affect factors such as an officer’s safety, enable escape, or allow for the destruction of evidence. On appeal, the defendant argued that the trial court erred in admitting evidence of the blood test after finding that exigent circumstances existed to justify the warrantless blood test.

Washington Supreme Court Finds No Alternative Means to Commit DUI Under Prior Statute

January 20, 2016 | by Blair & Kim, PLLC

The Supreme Court of Washington issued a recent opinion in the case of State v. Sandholm (Wash. Dec. 3, 2015), interpreting the former version of the driving under the influence (DUI) statute, RCW 46.61.502, in order to determine the number of alternative means of committing an offense under the statute. In addition, the court analyzed former RCW 9.94A.525 to decide how offender scores for prior convictions are calculated.

In Sandholm, the defendant was pulled over while driving and ultimately charged with felony DUI, as a result of his prior DUI offenses within 10 years. At trial, the jury instructions presented two alternative statutory means to commit DUI: (1) that the defendant was under the influence of alcohol or drugs, or (2) that the defendant was under the combined influence of alcohol and drugs. The defendant appealed the verdict against him, arguing that the jury instruction was erroneous, since there was no evidence to support a conviction based on drug intoxication. The Court of Appeals agreed that the jury instruction was erroneous but affirmed the conviction, holding that the error was harmless. The defendant subsequently appealed to the Supreme Court of Washington.

Pursuant to the Washington Constitution, criminal defendants have the right to a unanimous jury verdict. Nevertheless, in alternative means cases, in which the criminal offense can be committed in more than one way, jury unanimity is not required if each alternative means presented to the jury is supported by sufficient evidence. However, a conviction will not be affirmed if the evidence is insufficient to support one or more of the alternative means presented to the jury. Under the former DUI statute, a person is guilty of driving while under the influence if he or she has an alcohol concentration of 0.08 or higher, is under the influence of liquor or any drug, or is under the combined influence of or affected by intoxicating liquor and any drug.

Washington Court of Appeals Reviews Conviction of No-Contact Order Violation

December 17, 2015 | by Blair & Kim, PLLC

The Washington Court of Appeals recently reviewed a defendant’s conviction for violating a no-contact order, evaluating whether evidence should have been suppressed. In State v. Burks (Wash. Ct. App. Nov. 3, 2015), the police officer conducted a traffic stop of a vehicle for speeding. The police officer obtained the driver’s information and entered it into a search, which indicated that the driver was a protected party in a no-contact order. The police officer noticed that the description of the respondent in the no-contact order matched the defendant, who was riding as a passenger in the driver’s vehicle. The officer requested identification from the defendant, which he did not have on him. The police officer returned to the computer in his vehicle and located a photograph of the respondent in the no-contact order, which matched the defendant. The officer then arrested the defendant for violating the no-contact order.

The defendant was charged with one count of a felony violation of a court order with a special allegation of domestic violence. The defendant moved to suppress the evidence obtained during the traffic stop, arguing that it was an illegal invasion of privacy pursuant to the Washington Constitution. The trial court denied the motion, finding that the police officer had a reasonable suspicion to believe that the defendant was violating the no-contact order, there was an independent reason to request the defendant’s identification, and the traffic stop was lawful. The trial court convicted the defendant as charged, and the defendant appealed on the basis that the trial court erred in allowing the evidence of the traffic stop.

Court Finds Constitutional Violation of Defendant’s Right to Remain Silent in Washington DUI Case

November 11, 2015 | by Blair & Kim, PLLC

A Washington Court of Appeals recently reviewed a DUI felony conviction in the case of State v. Diaz, No. 46016-5-II (Wash. Ct. App. Oct. 6, 2015), after a jury found the defendant guilty of felony driving under the influence. The defendant’s primary argument on appeal was that his constitutional right to be free from self-incrimination was violated when a police officer testified at trial regarding his post-arrest right to silence. Ultimately, the court agreed that the comments were a constitutional violation but harmless error.

In Diaz, the defendant’s vehicle was found heavily damaged against a telephone pole with the engine still running, late at night. The defendant was observed crawling out of a ditch nearby, missing a shoe, and bearing marks on his body allegedly consistent with injuries caused by a seatbelt and airbag. The shoe was later found on the driver’s side floorboard. When the defendant refused a breath test, the police transported him to a hospital where, pursuant to a search warrant, a blood sample was taken, indicating that the defendant’s blood alcohol level was over the legal limit. The only element in dispute at the trial was whether the defendant was the driver of the vehicle.

The Fifth Amendment to the United States Constitution provides that no person shall “be compelled in any criminal case to be a witness against himself.” This provision is applied to states through the Fourteenth Amendment, and the Washington State Constitution also shares an equivalent right. In Washington, a defendant’s constitutional right to silence applies in both pre- and post-arrest situations. In the post-arrest context, it is a violation of due process for the State to comment upon or otherwise exploit a defendant’s exercise of his right to remain silent. In addition, it is constitutional error for a police witness to testify that a defendant refused to speak to him or her, since the State may not use a defendant’s constitutionally permitted silence as substantive evidence of guilt.

Washington Supreme Court Holding Limits Protection of Rule 3.1 in DUI Case

October 9, 2015 | by Blair & Kim, PLLC

The Washington Supreme Court recently published an opinion in the case of State v. Fedorov, addressing the issue of whether a police officer’s presence in the room where the defendant was speaking with his attorney violated CrR 3.1, the rule-based right to counsel. The defendant moved to suppress the results of a breath alcohol concentration (BAC) test based on an alleged violation of CrR 3.1. The lower courts denied the defendant’s motion, and the defendant appealed his subsequent conviction.

Under Washington law, when a person is taken into custody, he must be immediately advised of his right to a lawyer and the opportunity to consult with a lawyer without charge if he cannot pay for one. CrR 3.1(c)(1). At the earliest opportunity, a person in custody who desires a lawyer shall be provided access to a telephone, the number of the public defender or official responsible for assigning a lawyer, and any other means necessary to put the person in communication with a lawyer. CrR 3.1(c)(2). The Fedorov court further explained that unlike the Sixth Amendment right to counsel under the United States Constitution, CrR 3.1 is more limited and provides only the opportunity to speak to counsel, rather than requiring actual communication with an attorney.

Three Issues to Consider When Choosing an Attorney

September 22, 2015 | by Blair & Kim, PLLC

When confronted with a legal issue, many people have to go through the process of choosing an attorney for the first time. Choosing the right attorney for the legal issue you face is an important decision. As attorneys, we understand the importance of choosing the right attorney for you and your case, and with that we provide these issues to consider when choosing an attorney: Continue reading

Washington Court Holds That Defendant’s Previous Conviction Elevates DUI to Felony Charge

September 15, 2015 | by Blair & Kim, PLLC

In a recently published opinion, the Washington Court of Appeals addressed the issue of whether a defendant’s prior Alford plea could elevate a subsequent driving under the influence (DUI) offense to a felony charge. In State v. Bird, 352 P.3d 215 (Wash. App. 2015), the state appealed the trial court’s decision dismissing the felony DUI charge against the defendant. The Court of Appeals agreed with the prosecution and reversed the trial court, holding that the defendant’s previous conviction for vehicular assault served as a predicate offense enabling the state to charge him with a felony DUI.

In 2009, the defendant entered an Alford plea to vehicular assault under all alternatives, which was accepted by the court. The defendant’s statement on the guilty plea acknowledged that he drove a vehicle while under the influence of alcohol and caused substantial bodily harm to another individual. The court subsequently entered a felony judgment and sentence, finding the defendant guilty on a plea of “Vehicular Assault—All Alternatives,” with “DUI” handwritten over the charge. In 2013, the defendant was arrested after being stopped by police for erratic driving. The officers stated that the defendant was slurring his speech, had red eyes, and performed poorly on field sobriety tests. The defendant also blew a .138 on a portable breath test administered by the officers. Due to his 2009 vehicular assault conviction, the DUI was elevated to a felony offense.