Criminal Law

Merger Doctrine in Washington DUI Case

February 8, 2023 | by Blair & Kim, PLLC

During a Washington criminal sentencing proceeding, an offender generally cannot challenge the constitutional validity of a previous conviction. If, however, a conviction that is “constitutionally invalid on its face,” the court cannot consider it during sentencing. A Washington appeals court recently considered whether a defendant’s prior conviction was facially invalid under the merger doctrine.

The merger doctrine applies when the state has to prove the occurrence of an act that is defined as a separate crime to prove a particular degree of the charged crime. In such circumstances, the crimes “merge.” The merger doctrine does not apply if the legislature intended to allow multiple punishments.

If the legislature did not clearly intend to allow multiple punishment for the same act under different laws, the court determines its intent through application of the same evidence test, merger, and the independent purpose test.

Proposed Changes to Washington DUI Laws

January 29, 2023 | by Blair & Kim, PLLC

Two bills in the Washington legislature propose significant changes to Washington’s impaired driving laws. SB 5002 proposes to lower the legal limit for a driver’s alcohol concentration. SB 5032 would extend the felony DUI lookback period and create a sentencing alternative for certain impaired driving convictions.

If passed, SB 5002 would lower the legal alcohol concentration from .08 to .05. The change would apply to the DUI statute at RCW 46.61.502 and to the physical control statute at RCW 46.61.504. According to SB 5002, there were 540 fatal crashes in Washington in 2021, killing more than 600 people. The bill states that there was a 31.3% increase in crashes resulting from an impaired driver between 2020 and 2021. The bill points to a Utah law that lowered the legal alcohol concentration limit from .08 to .05 and a subsequent 19.89% drop in fatal crashes and an 18.3% drop in the fatality rate. The bill estimates such a change in Washington would result in an 11.1% decrease in alcohol-related fatalities and between 538 and 1,790 lives saved annually.

If SB 5032 passes, a person could be convicted of felony DUI or felony physical control instead of a gross misdemeanor if they have three or more previous convictions within the past 10 years. The current law has a lookback period of 15 years. Similar bills proposing to expand the lookback period over the past few years have failed.

Washington Court Can’t Seal Juvenile Record Before Individual Restitution Is Paid

January 18, 2023 | by Blair & Kim, PLLC

A Washington juvenile record may be sealed if certain circumstances are met. The court schedules an administrative sealing hearing at the disposition hearing, if the juvenile is eligible. The hearing is to occur after the last of the following: the juvenile’s 18^th birthday, the anticipated end of the juvenile’s probation, and the juvenile’s anticipated release from confinement or completion of parole. Certain offenses, including “most serious offenses,” certain drug offenses, and certain sex offenses, are not eligible for a sealing hearing. The court is to seal the record if it finds at the time of the hearing that the juvenile is no longer on supervision for the case and has fully paid restitution to the person named in the order, excluding any restitution owed to an entity providing insurance or health care coverage. If the court finds the juvenile is still on supervision, then it is to continue the hearing within 30 days after the anticipated completion of the supervision. If the court finds the juvenile is not still on supervision for the case but has failed to fully pay restitution to the person named in the order, the court is to deny sealing the record and issue an order that specifies the restitution that is unpaid to the person and directs the juvenile on how to pursue sealing the record. RCW 13.50.260. The state recently appealed the sealing of a juvenile record, arguing the juvenile had failed to fully pay restitution.

According to the appeals court’s opinion, the juvenile pleaded guilty to second degree malicious mischief and agreed to pay restitution. The court ordered him to pay $1,233.17 in restitution and set a date for a hearing to seal the record.

The state argued at that hearing that the juvenile failed to fully pay restitution so the record could not be sealed pursuant to RCW 13.50.260(1)(d). The juvenile court still sealed the record, finding the juvenile was eligible for the record to be sealed because he had “paid in full the amount of restitution owing,” but also that “the remaining amount of restitution . . . is $613.17.”

“Knowing” Element of Violation of a No-Contact Order

December 28, 2022 | by Blair & Kim, PLLC

To convict a person of a Washington crime, the state must prove each element of that crime. In a recent case, a defendant appealed a conviction for felony violation of a domestic violence no-contact order, arguing the state had not shown he had knowingly violated a no-contact order.

According to the appeals court’s opinion, the defendant went to his grandmother’s home on September 24, 2020. He asked to come in for a shower and some food. The grandmother let him in, but told him she would call the sheriff because he was “not supposed to be [t]here.” When officers arrived, they arrested the defendant.

A domestic violence no-contact order had been entered against him on June 14, 2019, prohibiting from contacting his grandmother or coming within 1,000 feet of her home. The order was still in effect in September 2020. The defendant had been convicted of violating a court order two previous times, so he was charged with felony violation of the no-contact order.

Washington Residential Burglary Conviction Upheld Despite Necessity Defense

December 21, 2022 | by Blair & Kim, PLLC

Necessity may be available as a defense in a Washington criminal case when “physical forces of nature or the pressure of circumstances” cause a defendant to do something illegal to avoid a harm that is greater than the harm resulting from the unlawful act. A defendant recently challenged her conviction for residential burglary, arguing the jury had wrongly rejected her common law necessity defense.

According to the appeals court’s unpublished opinion, the defendant ran out of gas in an unfamiliar area. She walked to a museum. The defendant claimed she slipped in snow and injured her back. She claimed she called out, but no one responded and the museum was closed for the winter. She did not have a phone with her.

Witnesses testified about the bad weather that night. The defendant claimed it was “super windy” and “freezing.” There was evidence of six to eight inches of snow on the museum property. The defendant claimed she was lying in the snow for hours. She ultimately went to the doublewide manufactured home where the museum caretaker lived.

Washington Appeals Court Upholds Juvenile Criminal Trespass Adjudication

November 27, 2022 | by Blair & Kim, PLLC

Washington second degree criminal trespass is a misdemeanor. To convict a person of second degree criminal trespass, the state must show that they knowingly entered or remained unlawfully on someone else’s property. A juvenile recently challenged a guilty adjudication for second degree criminal trespass, arguing there was insufficient evidence that he had knowingly entered and unlawfully remained on Port property.

According to the appeals court’s opinion, the police received a complaint from a Port employee that the thirteen-year-old juvenile was skateboarding on Port property. The property was posted with several signs prohibiting skateboarding. The employee stated Port employees has contacted the juvenile and asked him to stop, but he had responded with profanity.

The officer issued the juvenile a no trespassing notice and told him he was trespassed from Port property for life. The juvenile, the officer, and the employee all signed the notice.

Washington Firearm Possession Conviction Based on Snapchat Video

November 13, 2022 | by Blair & Kim, PLLC

A person posting a video of illegal activity on social media may find themselves facing Washington criminal charges. In a recent case, a man challenged a firearm possession charge arising from a video he had posted on Snapchat.

According to the unpublished opinion by the appeals court, the defendant posted a 20-second video of himself on Snapchat. The video, as described by the court, depicted the defendant smoking marijuana and listening to music. At one point in the video, the defendant pointed a handgun at the camera and simulated firing it.

The defendant was in a relationship with a woman with two children. The children’s father saw the video and called the police due to concerns for the safety of his children.

Court Can’t Revoke Washington DOSA for Violations Before Community Custody Begins

October 16, 2022 | by Blair & Kim, PLLC

In certain non-violent, drug-related cases, offenders may be eligible for a “drug offender sentencing alternative,” frequently referred to as “DOSA.” While serving the community custody portion of a Washington DOSAd, an offender must comply with the conditions imposed by the court. A defendant recently challenged the revocation of his DOSA before the term of his DOSA community custody started.

According to the appeals court’s unpublished opinion, the defendant was convicted of unlawful possession of a controlled substance with intent to deliver and unlawful possession of ammonia with intent to manufacture methamphetamine in April 2017. The trial court imposed a DOSA sentence of 55 months of confinement and an equal amount of time in community custody. Conditions included participation in drug evaluation and treatment during community custody and prohibition of consumption or unlawful possession of controlled substances. The defendant was also required to obey all laws.

Community custody for the DOSA was scheduled to begin in February 2021. The defendant was serving community custody for other cases when he was first released from prison, so he was out of confinement for a period before his DOSA community custody began.

Washington Appeals Court Reverses Conviction Due to Race-Based Prosecutorial Misconduct

September 29, 2022 | by Blair & Kim, PLLC

A Washington appeals court recently reversed a conviction due to prosecutorial misconduct, despite finding there was sufficient evidence to support the conviction. The defendant was convicted of possession of a controlled substance with intent to deliver. On appeal, he argued that the prosecutor had engaged in race-based misconduct by using the phrase “Mexican ounce” to describe the packaging of the heroin for which he had been charged. He argued the prosecutor used this language to tie him to the drugs and to use “stereotypes of Mexican drug-dealing and dishonesty” against him.

Prosecutorial misconduct occurs when a prosecutor uses arguments to arouse the jury’s passions or prejudices. Raising race when it is not relevant can affect the jurors’ impartiality and appeal to their prejudice, resulting in a conviction that is not based on the evidence.

The defendant did not object to this language at trial. Generally, when a defendant first raises prosecutorial misconduct on appeal, they must show improper conduct, prejudice, and that a jury instruction could not have cured the prejudice. Washington treats race-based misconduct differently from other types of prosecutorial misconduct, however. The court instead considers if the prosecutor “flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence.” State v. Zamora (quoting State v. Monday). The test is whether an objective observer could view the comments as an appeal to potential bias, prejudice, or stereotypes. The court should consider the context of the comments. The conviction must be reversed if the appeals court finds the prosecutor flagrantly or apparently intentionally appealed to racial or ethnic prejudice.

Washington Juvenile Deferred Disposition and Loss of Driving and Firearms Rights

September 25, 2022 | by Blair & Kim, PLLC

In a Washington deferred disposition in a juvenile case, the juvenile stipulates to the admissibility of the facts in the police report, acknowledges the report will be entered a used to support a finding of guilt and impose disposition if they do not comply with the terms of supervision, waive the rights to speedy disposition and to call and confront witnesses, and acknowledge the direct consequences of a finding of guilty and of a disposition, if entered. The court then defers entry of an order of disposition and places the juvenile on community supervision, with any conditions deemed appropriate by the court. At the end of the period of community supervision, the court determines if the juvenile is entitled to dismissal based on statutory requirements. If so, the conviction is vacated and the court dismisses the case with prejudice. If the court vacates the conviction, and the juvenile is at least 18 years old and has paid the full amount of restitution owed to the individual victim, the court also orders the case to be sealed. If the juvenile is not yet 18, the court will schedule an administrative sealing hearing within 30 days of the juvenile’s 18^th birthday. If the juvenile is not entitled to dismissal, the court revokes the deferred disposition and enters an order of disposition. RCW 13.40.127.

A juvenile who entered a deferred disposition for attempting to elude a pursuing police vehicle recently challenged the driver’s license suspension and firearms right revocation imposed upon him. Pursuant to RCW 46.20.285, the department of licensing revokes the license or permit of a person convicted of attempting to elude a police vehicle. A juvenile’s right to possess a firearm is revoked if they are adjudicated guilty of any felony under RCW 9.41.040, including attempting to elude. Case law has held that a juvenile is considered to be convicted when they enter into a deferred disposition. A juvenile in deferred disposition who meets the requirements will have their license suspended or firearms rights revoked until the adjudication is vacated.

Washington counties may create alternative therapeutic court programs pursuant to RCW 2.30.030. Therapeutic court programs allow juveniles to have their case dismissed after completing the program. The case is removed from prosecution and the juvenile is not adjudicated guilty. Because they are not adjudicated guilty, juveniles in therapeutic court programs do not face driver’s license suspension or firearms rights revocation.