Seattle Attorneys Blog

Washington Juvenile Drug Possession Adjudication Vacated Under Blake

December 23, 2021 | by Blair & Kim, PLLC

In State v. Blake in 2021, the Washington Supreme Court determined that Washington’s strict liability drug statute violated due process because it “criminalize[d] innocent and passive possession.” This case has had a tremendous impact on Washington drug possession cases. A Washington criminal conviction that is based on an unconstitutional statute is required to be vacated. A number of cases under the previous version of R.C.W. 69.50.4013(1) have been overturned as a result of the Blake decision. Recently, a juvenile appealed his drug possession adjudication under a different statute, arguing it should also be vacated due to the court’s holding in Blake.

The juvenile was found guilty of violation of the Uniform Controlled Substances Act under former R.C.W. 69.50.4014. He appealed, arguing the Washington Supreme Court’s decision in Blake required his adjudication to be vacated. He argued the applicable version of R.C.W. 69.50.4014 was unconstitutional and void based on the reasoning in Blake.

The state argued that Blake did not void the applicable version of R.C.W. 69.50.4014 because that charge carried a lesser punishment than the statute Blake found was unconstitutional. The appeals court rejected the state’s argument, noting the Blake court did not base its decision on the severity of the punishment. The Blake decision was instead based on the statute’s lack of an intent element.

Washington Committed Intimate Relationship Doctrine Not Applicable to Married Parties

December 13, 2021 | by Blair & Kim, PLLC

Washington family law recognizes committed intimate relationships, which are stable relationships where the parties cohabit knowing that they are not lawfully married. It is an equitable doctrine, intended to protect unmarried partners who acquire property during the relationship. Before distributing property under the doctrine, the court must first determine whether there is a committed intimate relationship, based on the circumstances of the case with consideration of a number of factors. If there is a committed intimate relationship, the court must next evaluate the parties’ respective interest in the property acquired during the relationship. Then, the court must distribute the property in a just and equitable manner.

A woman recently sought relief under the committed intimate relationship doctrine for property acquired after she reunited with her husband following a legal separation. The parties legally separated in 2002, resulting in an agreed judgment and decree of legal separation in California. They got back together instead of following through with a divorce at that time. However, they still divided their assets and the father paid child support and spousal maintenance in accordance with the California order.

They stayed together for several years, but separated again in early 2020. The wife petitioned for an equitable distribution of the property acquired after the separation order under the committed intimate relationship doctrine. The husband moved to dismiss the case for failure to state a claim, arguing they were still married. The trial court ultimately dismissed the petition, finding the wife could not pursue a committed intimate partnership claim because the parties were married.

Title IX Plaintiff Required to Use Initials Instead of Pseudonym

November 30, 2021 | by Blair & Kim, PLLC

Because Title IX cases may involve allegations of sexual harassment or sexual assault, Title IX plaintiffs often want to maintain anonymity. Courts commonly allow Title IX plaintiffs, both alleged victims and those who have been accused of sexual misconduct, to proceed under a pseudonym. Recently, however, some courts have denied male plaintiff’s requests to do so.

In one recent case in Colorado, the plaintiff asked to be allowed to file a complaint under a pseudonym in February. The court originally granted that motion, finding the plaintiff had alleged a significant privacy interest. The court noted that the defendants could still object to the use of a pseudonym or the judge could revisit the issue later in the case.

The defendants moved to require the plaintiff to proceed under his true name, arguing the case did not involve highly personal and sensitive matters and that the interests of the defendants and the public interest’s weighed against allowing him to proceed with a pseudonym.

Visitation Provisions in Washington DVPO Are Not Parenting Plan Modification

November 28, 2021 | by Blair & Kim, PLLC

Washington domestic violence protection orders must be supported by a preponderance of the evidence that domestic violence occurred. Domestic violence protection order proceedings are not subject to the same rules of evidence as other types of cases. A court may rely on evidence, such as hearsay, that would not be allowed in other types of proceedings. In a recent unpublished case, a father challenged a domestic violence order against him, arguing in part there was not credible evidence supporting it.

When the parents divorced, the trial court entered a permanent restraining order prohibiting the father from contacting the mother except for reasons related to the children. The trial court in the divorce proceeding found the father engaged in domestic violence and abusive use of conflict. The court also ordered the father to participate in parenting classes and domestic violence treatment.

Several years later, the children told their mother that they were afraid of their father and did not want to go back to his home.

Restoration of Washington Gun Rights After Blake Decision

November 21, 2021 | by Blair & Kim, PLLC

A Washington criminal conviction can have significant and lasting consequences. Convictions may result in greater sentences for subsequent offenses, the loss of firearm rights, and the loss of voting rights. In some circumstances, some rights may be restored. In a recent case, a man who had lost his firearm rights following a felony conviction was denied restoration based on a prior misdemeanor possession conviction.

According to the appeals court’s unpublished opinion, the petitioner was convicted of misdemeanor possession of less than 40 grams of marijuana under former RCW 69.50.401(e), a strict liability offense, in 2003. The following year, he pleaded guilty to felony manufacturing methamphetamine. The judgment and sentence stated the maximum penalty was 10 years and did not list his prior conviction. The petitioner lost the right to use or possess firearms as a result of the 2004 felony conviction.

The petitioner sought restoration of his firearm rights in 2020. The state argued he was not eligible for restoration because the maximum sentence should have been 20 years instead of the state 10 years. The state argued the 2003 conviction automatically triggered the doubling provision of RCW 69.50.408. RCW 69.50.408 allows the doubling of a sentence for a conviction under Chapter 69.50, the Uniform Controlled Substances Act, if the defendant had a prior conviction under Chapter 69.50 or a federal or another state’s law related to narcotics, marijuana, depressants, stimulants, or hallucinogenic drugs.

Washington Appeals Court Allows Separate Property to Be Traced from Joint Account

November 10, 2021 | by Blair & Kim, PLLC

In a Washington divorce, a party who claims an asset is separate property must show it qualifies as separate property by clear and convincing evidence. If separate property becomes commingled with community property to the extent it is impossible to distinguish it, then it becomes community property. In a recent case, a husband challenged the trial court’s distribution of property, arguing the certain assets could not be sufficiently traced to retain their separate character.

The parties were married for nearly 32 years when they separated in January 2018. They owned nine rental properties. The wife argued she made the down payments for three of the properties from her inheritance from her father’s death. She claimed she had a traceable separate property interest in those properties.

Her inheritance had been deposited into a joint savings account where community funds had been deposited. The funds in the account were sometimes used for community expenses. The wife testified the account was used infrequently so the inheritance “was kind of kept separate in there.” She testified she had wanted to keep her inheritance as separate property, but was concerned putting it in a separate account would look like she was not trying to work things out after a recent reconciliation.

Constitutionality of Washington Juvenile Community Supervision Revocation Procedure

October 31, 2021 | by Blair & Kim, PLLC

Community supervision and probation are often preferable to confinement, but some people can find it difficult to comply with their times at times. Additionally, the requirements for the state to prove a violation of such terms do not require the same level of proof as would be required for new Washington criminal charges. In a recent case, a juvenile challenged the constitutionality of RCW 13.40.200 because of the burden of proof it requires for violations.

The juvenile offender was 13 years old when she pleaded guilty to fourth degree assault. She was sentenced to 3 days of confinement, 12 months of community supervision, and 16 hours of community service. She violated the community supervision conditions multiple times.

After four violation hearings and 61 days of additional confinement, she contested allegations she had failed to go to school and follow rules and curfew. She moved to challenge the constitutionality of RCW 13.40.200. RCW 13.40.200 sets forth the procedure and punishment for a juvenile offender’s failure to comply with an order for community supervision. She argued section (2) of the statute violates due process because it requires the juvenile to disprove the willfulness of the violation. She also argued section 3 allows for the imposition of confinement based on a preponderance standard until the maximum adult sentence. She argued the state should prove all elements of a willful violation beyond a reasonable doubt once the offender’s confinement exceeds the standard range.

Title IX Defendant Prohibited from Using Pseudonym

October 31, 2021 | by Blair & Kim, PLLC

Students involved in a Washington Title IX case often wish to remain anonymous. Title IX lawsuits are often brought under pseudonyms such as “John Doe” or “Jane Doe.” In some cases, however, a court may not allow a plaintiff to proceed with the lawsuit anonymously.

A Michigan federal court has reportedly dismissed a student’s Title IX case against his university because it was filed anonymously. According to the court, the university suspended the plaintiff from its football team after he was accused of sexual assault by another student. He sued the university, alleging it violated his Title IX rights.

The plaintiff filed the suit as “John Doe” and sought the court’s permission to proceed anonymously.

Concurrent DOSA Sentences Do Not Render Washington Defendant Ineligible for Another DOSA

October 22, 2021 | by Blair & Kim, PLLC

In some Washington drug cases, a court may impose alternative sentencing if doing so is in the defendant’s and community’s best interests. Defendants may be eligible for a drug offender sentencing alternative (“DOSA”) if they meet certain conditions under RCW 9.94A.660(1). One of the conditions is that the defendant may not have received a DOSA “more than once in the prior ten years. . .” RCW 9.94A.660(1)(g). If the high end of the standard sentence range for the offense is greater than one year, the court may order prison-based DOSA, in which the defendant serves half of the standard range sentence in prison and the other half in the community with treatment. RCW 9.94A.662(2). The court may revoke the DOSA sentence if the defendant does not comply with its requirements. RCW 9.94A.660(2).

In a recent case, a defendant appealed his sentence after the sentencing court found him ineligible for a DOSA. In 2016, the defendant received separate DOSA sentences resulting from guilty verdicts in two separate trials, but the sentences were made to run concurrently. He completed the DOSA for those charges in June 2020.

On June 17 of the same year, the defendant was arrested following a reported burglary at a store. The police did not find the stolen merchandise in the defendant’s vehicle, but did find less than half a gram of methamphetamine in his pocket.

Appeals Court Reverses Dog Visitation in Washington Divorce Decree

October 13, 2021 | by Blair & Kim, PLLC

Many people consider their pets to be part of the family, but the law often treats pets as personal property. In a recent case, a husband challenged court-ordered visitation with the dogs awarded to him in his divorce decree.

The parties, who had been married for about 27 years, had two dogs at the time of the divorce. They referred to the dogs as “[t]he babies” and regularly texted about them. When the wife moved out into a motor home, the dogs remained in the marital home with the husband. The wife visited them several times a week.

The husband petitioned for legal separation at the end of August, 2018. In her answer, the wife asked the court to dissolve the marriage and requested at least 10 hours per week visitation with the dogs and the right of first refusal for their care. She also asked that the parties split costs for the dogs. The commissioner’s temporary orders only ordered the wife to pay half of the dogs’ grooming and veterinary bills, but otherwise did not address the dogs. She kept visiting them several times per week.