Seattle Attorneys Blog

Renewal of a Washington Civil Protection Order

July 15, 2019 | by Blair & Kim, PLLC

It is common for a person with a Washington temporary protection order to seek renewal before the order expires. If a victim petitions for renewal, the court must order a hearing. The burden is on the respondent to show by a preponderance of the evidence that he or she will not commit acts of domestic violence against the petitioner or the petitioner’s family or household members if the order ends. If the respondent fails to meet this burden, then the court will grant the renewal.

A Washington appeals court recently reviewed the renewal of a protection order against the petitioner’s brother. The sister sought a temporary protection order against her estranged brother in 2017. She alleged he made threats against her through her mother and other brother. She also alleged he was emotionally unstable and had firearms. The court granted a protection order for one year. During the year, they had some indirect contact through other family members.

The sister petitioned for renewal shortly before the order expired. She alleged her brother threatened to come to her home after the order expired. Both parties testified at the hearing. The evidence included voice mail transcripts and a letter from another brother.

Washington School Searches Must Be Reasonable

June 27, 2019 | by Blair & Kim, PLLC

Generally, unless there is an applicable exception, both the Washington and U.S. constitutions require a warrant supported by probable cause before someone acting on behalf of the government can conduct a search. One exception to the warrant requirement applies to school officials. Under the school search exception, a school official may conduct a reasonable search of a student. This does not mean a school can search any student at any time for any reason—the search must be reasonable. Washington criminal courts use the “McKinnon Factors” to determine if a school search was reasonable.

A defendant challenged her conviction on the grounds the search was unlawful. According to the appeals court opinion, the school received information about a threat involving the juvenile defendant, who was not a student of that school. Staff looked her up in the school district’s system so they could identify her. When the vice principal saw her, he asked her to come into the office.

In the office, the principal asked the defendant why she was there. After a few minutes, the principal determined she was uncooperative and told her they were calling the police. The vice principal testified the defendant would have been allowed to leave if she had chosen to do so. He also testified they did not have the authority to discipline her since she was not a student at their school.

Washington Strict Liability Dog Bite Law Only Applies When There Is a Dog Bite

June 20, 2019 | by Blair & Kim, PLLC

A dog owner is generally strictly liable for injuries resulting from a Washington dog bite if the person who was bitten was in a public place or lawfully in a private place, including the dog owner’s property. This strict liability statute applies only when the dog bites a person. Where there is no dog bite, strict liability does not apply.

A woman recently appealed a jury verdict against her in an alleged dog bite case. The plaintiff filed suit against the defendant and his mother-in-law alleging one of the defendant’s dogs bit her during an altercation between her dog and the defendant’s dogs. The defendant’s dogs were in his mother-in-law’s care at the time of the incident, but the mother-in-law settled with the plaintiff prior to trial. The plaintiff alleged the defendant was strictly liable for her injuries as the dog’s owner pursuant to RCW 16.08.040. Under RCW 16.08.040, a dog owner is liable for injuries resulting from his or her dog biting a person who is in a public place or lawfully in a private place.

The jury responded “no” on the special verdict form asking if one of the defendant’s dogs bit the plaintiff. The plaintiff appealed, arguing the jury instructions were erroneous. The appeals court, found, however, that the plaintiff had not preserved the issues regarding the jury instructions for appeal and therefore did not address them.

Washington Appeals Court Reverses Conviction Based on Admission of Prejudicial Calls

June 13, 2019 | by Blair & Kim, PLLC

Challenging irrelevant or prejudicial evidence is often a significant part of defense in a Washington state criminal case. Evidence of prior bad acts by the defendant is not admissible to show the defendant’s propensity to commit the charged crime, but may be admissible for other purposes, such as showing intent or motive. Even if there is an allowable reason to admit evidence of a prior bad act, it must be excluded if the risk of unfair prejudice substantially outweighs its probative value.

A defendant successfully challenged his conviction after a trial court allowed evidence of an alleged assault on his girlfriend that occurred prior to the events leading to the charges. His girlfriend called 911 and reported being assaulted by the defendant. She said he was intoxicated and had punched her. There were then sounds of her screaming and repeatedly saying “Stop” on the recording. There were also what the appeals court referred to as “hitting sounds.” Someone else then told the operator that the girlfriend looked to be “hurt quite badly” and provided a description of the defendant and his vehicle. The girlfriend provided the defendant’s name and said he had beaten her.

According to the appeals court opinion, the defendant later wrecked his truck. A woman subsequently found the defendant coming up her basement stairs. He told her he was hiding from the police because he had been abused and framed by his girlfriend. The woman ultimately called 911. Law enforcement found a large knife belonging to the woman in the defendant’s waistband when they arrested him.

No Joint Decision-Making in Washington Parenting Plan When Parent Has History of Domestic Violence

June 6, 2019 | by Blair & Kim, PLLC

Courts handling Washington child custody cases should base their determinations regarding parental responsibilities on the best interests of the child. The court has broad discretion in determining the parenting plan. However, the court must place restrictions on a parent’s decision-making if it finds he or she has a history of domestic violence.

A Washington appeals court recently reversed a parenting plan that allowed joint decision-making despite a history of domestic violence. The parents divorced in 2014. The final parenting plan required the father to meet with a doctor to address domestic violence issues before his summer residential time with the children. The parenting plan also required him to get a certified evaluation regarding domestic violence and follow any treatment recommendations.

The plan also awarded the mother sole decision-making until the court heard from the domestic violence counselor or evaluator. The order provided that there would be joint decision-making after the father met the requirements regarding domestic violence.

Washington Hit-and-Run Claims

May 29, 2019 | by Blair & Kim, PLLC

When a person is injured by someone else’s negligence in a Washington automobile accident, he or she may want to seek compensation from the negligent party. In some cases, however, the negligent party may not have sufficient insurance or may be unidentified. In such cases, the injured person may seek recovery from his or her own uninsured or underinsured motorist coverage. If the insurance company denies the claim, the injured person may have to sue his or her own insurance company.

In a recent case, a man challenged the dismissal of claims against his insurer. The plaintiff was injured while riding his bicycle. There were no witnesses. The plaintiff cannot remember the accident, but believes he was hit by an automobile. He suffered a traumatic brain injury and was in the hospital for 10 days. He reported the accident to his automobile insurer. The insurer denied his underinsured motorist (UIM) claim because it did not find evidence he was hit by a vehicle. The insurer reopened the claim after being contacted by the plaintiff’s attorney, but denied it again. The plaintiff sued his insurer for breach of contract, negligence, and violations of the Insurance Fair Conduct Act and the Consumer Protection Act.

The insurer moved for summary judgment, arguing the plaintiff failed to raise a genuine issue of material fact regarding whether he had been hit by a vehicle. The insurer also argued his other claims were barred by the statute of limitations. The trial court granted the motion, and the plaintiff appealed.

Washington Court Finds Decision Not to Retire Is Substantial Change Supporting Modification of Spousal Maintenance

May 18, 2019 | by Blair & Kim, PLLC

Once a Washington divorce decree is issued, a maintenance award can only be modified by the court when the party seeking the modification shows a substantial change in circumstances. A fact unknown to the trial court or an unanticipated fact that arises after the decree is entered may constitute a substantial change in circumstances. In a case involving spousal maintenance, commonly referred to as “alimony,” a substantial change may involve a significant increase or decrease in income. In a recent case, the ex-wife sought to continue maintenance when her ex-husband decided not to retire at the time they had previously expected him to do so.

The divorce decree required the husband to pay spousal maintenance in the amount of $1100 per month for 48 months. The wife sought to extend the maintenance four years later. She alleged there was a substantial change in circumstances because the husband had not retired from the military as she had expected. If he had retired, she would have started receiving part of his retirement benefits when the maintenance payments stopped. She provided an email from the husband in which he stated he would pay the maintenance “until [he] got out.” The husband told her he was not ready to retire in December 2016, and suggested he would not do so until 2019. The wife requested the maintenance continue until the husband’s retirement. She also requested attorney fees in her reply declaration.

The commissioner denied the wife’s motion, finding no substantial change in circumstances. The commissioner also granted the husband’s motion to strike the wife’s request for attorney’s fees and denied the request.

State Must Prove Intent Element in Washington Domestic Violence Case

May 8, 2019 | by Blair & Kim, PLLC

In any criminal case, the prosecution must prove all elements of the crime, including the mens rea, or intent. Depending on the facts of the case and the crime charged, the intent element can sometimes be difficult for the prosecution to prove. This can be especially true in Washington domestic violence cases, where witnesses may be reluctant to testify.

A defendant recently challenged his convictions of assault in the second degree and misdemeanor violation of a no-contact order. He appealed, arguing there was insufficient evidence to support the convictions. He argued alternatively that there was insufficient evidence he met the “reckless” element of the assault charge. He further argued the information failed to include an essential element of the misdemeanor violation charge.

In April of 2016, a judge granted a domestic violence no-contact order to the woman the defendant had lived with.

Washington Landlord May Be Liable for Injuries If It Maintains Responsibility for Repairing Premises

April 26, 2019 | by Blair & Kim, PLLC

Generally, in a Washington premises liability case, a landowner may be held liable for injuries on the land if he or she has not given exclusive control of the premises to a lessee. If, however, the lease requires the landlord to repair the premises, then the landlord may be held liable for his or her own negligence.

The Washington Supreme Court (the “Court”) was recently asked to determine if a landlord was liable for injuries occurring in an area where the tenant had exclusive possession, but where the lease only granted the tenant priority use and the landlord was obligated to maintain and repair the premises.

The plaintiff was severely injured when a passenger ramp at the Port of Bellingham (the “Port”) fell. She worked for the Alaska Marine Highway System (AMHS). The State of Alaska has leased the Bellingham Cruise Terminal (BCT) from the Port of Bellingham for many years. Although AMHS has exclusive use of some areas under the lease, the lease gives AMHS only priority use of parking spaces and the marine facilities, including the passenger ramp. Under the lease, the Port was solely responsible for keeping the premises “in good repair and tenantable condition.” The lease requires the Port to keep the premises “in good and substantial repair and condition.” The Port is to “maintain the leased premises free of structural or mechanical hazards.”

Officer Does Not Have to Provide Specific Basis for Knowledge of Facts in Washington Search Warrant Declaration

April 19, 2019 | by Blair & Kim, PLLC

Defendants in Washington criminal cases often challenge the evidence used against them. One way to challenge evidence is to challenge the validity of the search warrant used to obtain it. When a court issues a search warrant, it must determine there is probable cause based on the facts presented to it. This determination is the court’s responsibility and cannot be made by police officers, so there must be more than conclusory statements supporting the warrant. The court is permitted, however, to draw reasonable inferences from the facts presented.

The defendant in a recent case challenged a search warrant. According to the appellate court opinion, the defendant was convicted of vehicular assault after losing control of her vehicle and crashing into two other vehicles. Subsequent blood tests found a Blood Alcohol Concentration (BAC) of 0.13 and 4.0 nanograms of THC. The defendant appealed her conviction, arguing a lack of probable cause to support the warrant authorizing the blood draw.

The firefighter paramedic who responded to the scene saw a female driver who was barely conscious. He transported her to the hospital. He identified the defendant as the driver.