Criminal Law

Washington Appeals Court: Marijuana Odor in Vehicle Occupied by Minors Sufficient for Terry Stop

January 17, 2020 | by Blair & Kim, PLLC

Generally, a police officer needs a warrant to seize a person suspected of a crime. There are some exceptions to the warrant requirement, including the Terry stop. Terry allows an officer to briefly stop and question someone if the officer had reasonable suspicion of criminal activity. The officer’s suspicion must be based on specific and articulable facts and be individualized to the person. Challenging the validity of a seizure, including a Terry stop, can be an important aspect of a Washington criminal defense case.

A minor defendant recently appealed his conviction, arguing the officer did not have grounds to conduct a Terry stop. According to the court’s opinion, the officer stopped a vehicle after seeing it roll through a stop sign. There were three passengers in addition to the driver. The defendant was the front seat passenger.

The officer smelled marijuana when he approached the vehicle. The driver told him all of the occupants were seventeen. The driver denied having marijuana, there being marijuana in the car, or any of the passengers having marijuana. He said his mother used marijuana and that could have been what the officer smelled. The officer frisked him and put him the back of the patrol car.

Washington Supreme Court Clarifies Elements of Felony DUI

January 9, 2020 | by Blair & Kim, PLLC

A DUI in Washington is generally a gross misdemeanor, but it can be elevated to a felony if the defendant has three prior offenses, as defined under the statutes within the past 10 years. RCW 46.61.502. RCW 46.61.5055 sets out which convictions qualify as prior offenses, including reckless driving if it resulted from a charge that was originally filed as a DUI. A Seattle DUI attorney can explain whether a conviction may be considered a prior offense.

The Supreme Court of Washington recently reviewed a felony DUI conviction. At the time of the offense, the statute required four prior offenses for elevation to a felony, but it has subsequently been amended to require only three. The defendant had a previous DUI conviction, a first-degree negligent driving conviction, and two convictions for reckless driving. At trial and on appeal, the defendant argued that the state failed to present sufficient evidence that the reckless driving convictions “involved alcohol.”

The trial court assessed the prior convictions on the record and found that there was sufficient evidence for the case to move forward. The court did not instruct the jury that it had to find that each prior offense involved alcohol to find the defendant guilty of felony DUI.

Washington Court Can’t Impose Discretionary Cost on Indigent Defendant

December 9, 2019 | by Blair & Kim, PLLC

Over the past several years, there has been increasing focus on how the imposition of fees and costs on criminal defendants can disproportionately affect poor and disadvantaged individuals. Washington drew national attention for the way its courts imposed fees and costs on defendants, and particularly the 12% annual interest rate that was applicable to fees and costs. Last year, Washington passed an act to address some of the issues with the legal financial obligations for criminal defendants. The act eliminated interest for all legal financial obligations except restitution. Although Washington criminal courts may still require defendants to pay certain costs, a court may not order an indigent defendant to pay costs. Even if a defendant is not indigent, the court must still consider his or her financial resources and the burden payment of the costs will create in determining the amount of costs and the method of payment. (RCW 10.01.160.) A defendant is indigent if he or she receives certain types of public assistance, is involuntarily committed, or has an annual net income of 125% or less of the federal poverty level. (RCW 10.101.010.) Additionally, under the new act, a court can no longer sanction a defendant with contempt based on a failure to pay unless it finds the defendant’s failure to pay is willful. A willful failure to pay occurs when the defendant has the ability to pay but refuses to do so. The law identifies the factors the court must consider in determining if the defendant has the current ability to pay. (RCW 10.01.180.)

An indigent defendant recently challenged community supervision costs that were imposed upon him by the trial court. After the defendant pleaded guilty to first degree assault and second degree robbery, the trial court waived all non-mandatory fees and costs and stated the defendant did not have financial resources. The judgment and sentence, however, required the defendant to pay supervision fees.

The defendant appealed, arguing the community supervision fee was a non-mandatory cost that should not have been imposed by the trial court in light of his indigence.

Washington Court Did Not Consider Teen Brain Development in Assessing Criminal Culpability

November 27, 2019 | by Blair & Kim, PLLC

Teenagers sometimes act impulsively, and, unfortunately, if someone gets hurt as a result of those impulsive actions, it could result in Washington criminal charges. In a recent case, a juvenile defendant challenged his conviction, arguing in part the court should have considered adolescent brain development and maturity in assessing his culpability for assault.

According to the appeals court’s opinion, three friends were in eighth grade at the same middle school. The court used pseudonyms for all of the boys: Timothy Martin, Andrew Christopher, and Bob Simpson. While Christopher was sitting on a desk talking to Simpson one day, Martin came up from behind and put Christopher into a choke hold.

Martin said it was a professional wrestling choke hold that he had seen during professional wrestling matches. He knew it could stop a person’s breathing and cause them to become unconscious. Martin said he wanted to show the choke hold to Simpson and did not mean to interrupt Christopher’s air or blood flow.

Washington Supreme Court Holds Impound Statute Unconstitutional

November 9, 2019 | by Blair & Kim, PLLC

The Washington State Constitution recognizes a privacy right and prohibits disturbance of that privacy without authority of law. When a driver is arrested for driving under the influence, the vehicle must be impounded pursuant to RCW 46.55.360. A defendant recently challenged the impound statute as a violation of the Washington State Constitution.

The defendant was stopped for speeding. According to the court opinion, the officer smelled alcohol on the defendant’s breath. The defendant declined a field sobriety test and the officer arrested him for suspicion of driving while under the influence of intoxicants. The officer impounded the defendant’s jeep without considering any reasonable alternatives.

The officer performed an inventory search of the vehicle and found items he believed were associated with drug dealing. Cocaine was found on the defendant in a search incident to arrest. The defendant was charged with DUI and possession with intent to deliver controlled substances.

Washington Court Does Not Have to Restore Firearm Rights Upon Vacating Juvenile Deferred Disposition

October 30, 2019 | by Blair & Kim, PLLC

Washington law prohibits possession of a firearm by a person, including a juvenile, who has been convicted of a serious offense. Washington law allows a person to petition the court for restoration of the right to possess a firearm in certain circumstances. It is not uncommon for a Washington criminal defendant to challenge the loss of firearms rights or the denial of restoration of those rights. In a recent case, a defendant challenged a court’s denial of his restoration petition.

The seventeen-year-old defendant admitted to second degree malicious mischief based on intentional damage to a vehicle. The juvenile court found him solely responsible for the damage and he pleaded guilty in exchange for deferred disposition. As part of the terms of the deferred disposition, he lost the right to possess a firearm.

The juvenile court ultimately ordered the defendant to pay the estimated cost of repair in restitution as a condition of disposition. The court subsequently dismissed the deferred disposition and vacated the conviction, but indicated it would not seal the case until restitution was made.

THE NEW HOPE ACT: Changing the Eligibility Requirements for Vacating Criminal Convictions

October 15, 2019 | by Blair & Kim, PLLC

Washington State has long allowed adults with criminal convictions to vacate convictions from their record. However, the previous eligibility requirements severely limited the ability to vacate certain convictions and the number of convictions eligible to be vacated.

In April of 2019, the Washington State legislature passed the New Hope Act, a law that changes the requirements for vacating criminal convictions in Washington state. Effective July 28, 2019, the New Hope Act eliminates many of the previous barriers to vacating misdemeanor and felony convictions, making more people eligible to vacate their criminal conviction. The New Hope Act broadens the ability to vacate convictions by:

Allowing additional felony convictions to be vacated;

Washington Appeals Court Overturns Conviction Based on Warrantless Search

October 15, 2019 | by Blair & Kim, PLLC

In a Washington criminal case, a warrantless search will be found to be unreasonable unless the state shows that a warrant exception applies. In a recent case, a defendant challenged her conviction based on evidence found during a warrantless search.

According to the court’s opinion, a police officer responding to a trespass report saw a woman and man sitting in a field that was posted with “no trespass signs.” After identifying himself, the officer saw the pair moving some objects on the ground. After getting their identification, he learned the woman had an active Department of Corrections warrant. He saw a pink backpack sitting behind the woman. He asked if it was hers, and she indicated it was.

The officer arrested the woman based on the active warrant. He offered to take the backpack, but she indicated she wanted the man to take it with him. The officer told the man the woman’s personal property would be searched incident to arrest and that it would stay with her. He asked the man to leave.

Washington Court Allows Evidence Found in Search Following “Terry Stop”

September 20, 2019 | by Blair & Kim, PLLC

Generally, warrantless seizures are unconstitutional unless an exception applies. One such exception is a Terry stop. A defendant recently challenged evidence found in a search after what the state agreed was a Terry stop in a Washington criminal case.

A sheriff deputy was dispatched after a 911 call reporting an unwanted person in the caller’s home. The caller told the dispatcher the woman’s first name and said he had previously allowed her to stay there, but she was not welcome any more. He reported she had left, but then said she came back. He also said she had previously climbed in through a window to get inside. He did not indicate she was violent.

The deputy saw a woman matching the description the caller gave walking about two-tenths of a mile from the caller’s home. He stopped, and when he asked, the woman indicated her first name was the name given by the caller. The deputy asked her for identification, but she indicated she did not have any. She provided her name and birth date. The woman stayed in front of his car and its headlights while the deputy searched her name in his computer. The deputy confirmed she had an outstanding warrant. He arrested her and found a white powdery substance in a baggie in her pocket. The substance was found to be methamphetamine.

Washington Prosecutor Does Not Have to Stipulate No-Contact Order

September 6, 2019 | by Blair & Kim, PLLC

In a Washington felony violation of a no-contact order case, the prosecution must prove the existence of the no-contact order and the defendant’s knowledge of it. For a variety of reasons, the defense may not want the jury to see the no-contact order. A recent issue in Washington has been whether a defendant can keep a no-contact order out of evidence by stipulating to its existence and his or her knowledge of it. The Washington Supreme Court recently addressed this issue.

A court entered a domestic violence no-contact order prohibiting the defendant from contacting his girlfriend after he was convicted of a domestic violence offense. Finding the defendant was a “credible threat to [her] physical safety,” the court ordered the defendant not to come within 1000 feet of her residence.

Nevertheless, the couple lived together. According to the Washington Supreme Court’s opinion, a neighbor witnessed them having a verbal altercation outside their home. The girlfriend told the neighbor the defendant had hit her and asked them to call 911. The girlfriend told law enforcement the defendant struck her head and face repeatedly and law enforcement observed bruising and other injuries.