Seattle Attorneys Blog

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.

First Circuit: Student Is Not Entitled to Cross-Examination in Disciplinary Proceedings

November 20, 2019 | by Blair & Kim, PLLC

In the past few years, students have been challenging the procedures used by colleges and universities in disciplinary proceedings related to Title IX. As schools have become more proactive in addressing sexual harassment and sexual assault, ongoing issues regarding the required due process for related disciplinary proceedings have arisen. Schools sometimes suspend or expel students without giving students fair notice and an opportunity to be heard.

A case in the First Circuit recently held due process does not require an accused student be allowed to cross-examine his accuser. The student had been accused of assault by another student, who was his girlfriend at the time. The university suspended him for five months and ultimately expelled him. He filed suit against the university. The district court entered summary judgment in favor of the defendants, and the plaintiff appealed to the Ninth Circuit.

A student in a state educational institution has a property interest in their “legitimate entitlement to a public education. . .” That interest is protected by the Due Process Clause and therefore cannot be taken away for misconduct unless procedures required by the Due Process Clause are followed. The essential requirements of due process are “notice and an opportunity to be heard.” For school disciplinary action, this generally requires a hearing.

Washington Appeals Court Enforces Arbitration Provision in Divorce Agreement

November 13, 2019 | by Blair & Kim, PLLC

When a couple reaches an agreement regarding their divorce, it is not uncommon to agree that any disputes regarding the agreement are subject to arbitration. Generally, Washington law favors arbitration. In a recent case, however, a husband challenged a court’s decision not to refer a matter to arbitration.

The couple established a business during their marriage. The husband ran the business and the wife raised their children. The husband had developed a gambling compulsion and lost $185,000 in the year before the divorce.

The wife filed for divorce and asked for a restraining order keeping the husband from conducting the business’s finances. The court granted the wife full authority to run the business “in a fiscally responsible manner.”

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.

Washington Tenant Found Not Liable for Fall on Stairs in the Common Area

October 22, 2019 | by Blair & Kim, PLLC

When a person slips and falls in an office building, it is important to ascertain who may be liable. Multiple tenants, a property management company, building owners, and even some vendors contracted to do certain work may have some responsibility. Liability may depend in part on the leases, contracts, and business arrangements among the potential defendants. In a recent case, a plaintiff challenged summary judgment in favor of two defendants.

The plaintiff slipped and fell down some stairs outside her acupuncturist’s office. The acupuncturist’s office was in a rented room on the second floor of a house with multiple tenants. The written lease was expired, and named just one tenant. The named tenant had moved out, and one of the other tenants collected rent from the others.

The patient sued the acupuncturist, the named tenant, the building’s owners, and other defendants for damages related to her injuries from the fall. The trial court found the acupuncturist and the named tenant did not owe the plaintiff a duty of care with respect to the stairs in the common area. The court granted summary judgment in favor of those defendants. The plaintiff appealed.

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 Appeals Court Upholds Spousal Maintenance Award to Repay Debt

October 7, 2019 | by Blair & Kim, PLLC

Courts in Washington divorce cases must make an equitable and just distribution of the couple’s property and liabilities. In some cases where one spouse owes the other, spousal maintenance or alimony may be used to achieve an equitable and just distribution. In a recent case, a husband challenged the award of spousal maintenance to pay off his share of the community debt.

The evidence showed the wife had a home worth about $500,000 with a mortgage and about $400,000 in other assets at the time of the marriage. A prenuptial agreement provided that the husband had no interest in the home. The husband had a checking account with a small balance and a vehicle. He also had an interest in a limited liability company he established and shares of another company, with values listed as “unknown.” He owed $8,000 on the vehicle, $36,000 in back taxes, and $55,000 on a promissory note to the wife. The wife’s assets were depleted during the marriage and the couple accrued significant community debt in the wife’s name.

In accordance with the prenuptial agreement, the trial court awarded the home to the wife. It also ordered the husband to repay the promissory note. The trial court found a BMW in the wife’s name was community property. In her petition, the wife listed the vehicle and the debt on it as property to be awarded to the husband. She ultimately changed that position, partly because the husband had not obtained separate financing. The trial court awarded the vehicle to the wife, noting the husband had surrendered his driver’s license and therefore would not be allowed to drive for a significant while.