Seattle Attorneys Blog

Washington Appeals Court Reverses Firearms Conviction Based on Search by Department of Fish and Wildlife

June 11, 2024 | by Blair & Kim, PLLC

RCW 77.15.080 authorizes fish and wildlife officers to temporarily stop a person, based on articulable facts they are engaged in fishing, harvesting, or hunting activities. to ensure they are in compliance with Washington fish and wildlife laws. A defendant recently challenged his firearms conviction, arguing he was improperly stopped by Department of Fish and Wildlife (“DFW”) and the evidence obtained during the stop should not have been permitted.

According to the appeals court’s opinion, DFW officers saw the defendant’s SUV slowly driving on a green dot road during hunting season. They also noticed he had on an orange sweatshirt. They stopped him, believing he was engaged in hunting activities. The officers found a loaded shotgun and a rifle in the vehicle. The defendant was cited and charged with misdemeanor firearms violations.

The defendant moved for suppression of the gun evidence, arguing that the stop been illegal. The trial court found the officers had reasonably believed the defendant was engaged in hunting activities and denied the motion. The jury convicted the defendant.

Seventh Circuit Finds Student’s Due Process Rights Violated in Expulsion

May 31, 2024 | by Blair & Kim, PLLC

It can be difficult for a student who has faced disciplinary action for alleged misconduct to successfully show a Title IX violation by the school in the investigation and disciplinary process. Even if they cannot show sex-based discrimination, in some cases, the student may be able to show the school violated their due process rights.

A medical student at an Indiana university filed suit after he was expelled from the university. He appealed to the Seventh Circuit when the federal court granted summary judgment in favor of the defendants.

According to the Seventh Circuit’s opinion, he was accused of physical abuse by a female student with whom he was romantically involved. The Office of Student Conduct found him culpable and suspended him for a year. The university placed conditions on his return. The Student Promotions Committee for the medical school recommended expulsion, but the Dean rejected that recommendation.

Washington Appeals Court Considers Expanded Seizure and Evidence of Prior Convictions

May 28, 2024 | by Blair & Kim, PLLC

In many Washington criminal cases, defendants challenge the evidence the state wants to use against them. In a recent case, a defendant appealed his conviction, arguing the trial court erred in admitting evidence obtained from his vehicle and evidence of previous criminal convictions.

According to the appeals court’s unpublished opinion, the police received a report someone was trespassing in the parking lot of a hotel. The responding officer found the defendant sleeping in a running vehicle with a beer can outside the driver’s door. The officer could not wake the man and called in another officer to investigate. The first officer looked inside the vehicle and observed what appeared to be credit card numbers on notebook paper in the backseat. The 16-digit numbers were broken into four sets of four numbers and there was also information the officer believed to be expiration dates.

The second officer woke the man when he arrived. The officers identified the defendant and discovered he had a felony warrant and prior convictions for identity theft and other “fraud-related” crimes. The second officer conducted field sobriety tests and decided not to arrest the defendant for physical control of a vehicle while impaired.

Former Husband Cannot Be Required to Name Ex-Wife Sole Beneficiary of Retirement Accounts in Washington Divorce

May 24, 2024 | by Blair & Kim, PLLC

A trial court in a Washington divorce case has broad discretion to justly and equitably distribute the property. The court must analysis the relevant factors as set forth in RCW 26.09.080. The court may distribute both community and separate property and does not need to find exceptional circumstance to support awarding part of one spouse’s separate property to the other. Additionally, it may be fair and equitable for the court to award one spouse’s separate property to the other spouse who has less earning capacity. A former husband recently challenged a division that awarded the former wife a share of his retirement and pension, including his premarital retirement assets.

According to the appeals court’s unpublished opinion, the parties were married for about ten years when they separated in 2019. In March 2021, the wife petitioned for legal separation, and that petition subsequently became a petition for dissolution. The trial focused on the property distribution. Although there was a prenuptial agreement, the trial court found it was unenforceable.

The wife had worked as a flight attendant and later became a stay-at-home mother after the children were born. She worked as an Amazon courier when the trial occurred. She had about $85,000 in her retirement account.

Collateral Estoppel Precludes Child from Seeking DVPO after Washington Court Denied Custody Modification

May 13, 2024 | by Blair & Kim, PLLC

Allegations of domestic violence can affect a Washington custody case. A Washington appeals court recently considered whether a child could pursue a Domestic Violence Protection Order (“DVPO”) against his mother after another court denied his father’s petition to modify custody based on the same domestic violence allegations.

Walla Walla County Proceedings

When the parents divorced in 2016 or 2017, the parenting plan named the mother as primary parent and gave the father visitation.

According to the unpublished opinion of the appeals court, the father petitioned for an immediate restraining order protecting him and the child from the mother in Walla Walla County in June 2022. At the same time, he petitioned for modification of the parenting plan, alleging the mother had been verbally and physically abusive toward the child and that the child refused to go back to her home. He attached a large number of text messages between the mother and the child. The trial ultimately found there was “no substantial change of circumstances” and denied the father’s modification petition and awarded the mother attorney’s fees.

Washington Appeals Court Upholds Conviction Based on Drugs Found in Defendant’s Wife’s Purse

April 30, 2024 | by Blair & Kim, PLLC

To convict a defendant of possession of a controlled substance with intent to deliver, the state must prove the defendant possessed the controlled substance and had an intent to deliver it to someone else. Whether the defendant actually possessed the controlled substances is often an issue. A defendant recently appealed his convictions for possession with intent to deliver because the drugs were found in his wife’s purse.

According to the unpublished opinion of the appeals court, the police saw the defendant put a backpack in a vehicle registered to his father-in-law and his wife put a purse in the area of the front passenger seat. The defendant drove. The police subsequently conducted a traffic stop.

The officers observed a purse in the front floorboard. The zipper was open and they could “clearly see a plastic bag containing what they believed to be methamphetamine. They also saw a glass pipe. They got a warrant to search both the car and the purse. They found methamphetamine, heroin, scales, baggies, and $195 cash. There were two phones mounted on the driver’s side and the wife was carrying another.

2024 Title IX Final Rule

April 30, 2024 | by Blair & Kim, PLLC

The Department of Education has finally released the final rule on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (“Final Rule”). The Final Rule makes significant changes to the Title IX regulations that were previously amended under the Trump administration in 2020.

The Final Rule specifically provides that sex-based discrimination includes discrimination based on “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” A number of lawsuits have already been filed challenging protections related to sexual orientation and gender identity.

The Final Rule includes a new definition of “sex-based harassment” and removes the current definition of “sexual harassment.” The definition identifies and defines three types of sex-based harassment: quid pro quo harassment, hostile environment harassment, and specific offenses. The specific offenses include sexual assault, dating violence, domestic violence, and stalking.

Washington Appeals Court Rules Against Retroactive Application of Law Excluding Juvenile Adjudications from Offender Score

April 21, 2024 | by Blair & Kim, PLLC

In 2023, the legislature amended RCW 9.94A.535(1)(b) to prohibit the inclusion of most prior juvenile adjudications in an offender score. A defendant recently challenged a sentence imposed in October 2022 because the court had included juvenile adjudications in his offender score.

Following an incident in May 2022, the defendant was found guilty of third degree theft and residential burglary. According to the appeals court’s opinion, the court included six juvenile adjudications in calculating the defendant’s offender score. He was sentenced in October 2022 to 364 days of confinement, which was suspended, for the theft conviction and 45 months of confinement for the residential burglary.

The defendant appealed, arguing that his offender score should be calculated without the previous juvenile adjudications based on RCW 9.94A.535(1)(b).

Washington Appeals Court Affirms Parenting Plan Awarding Residential Placement to Father

April 11, 2024 | by Blair & Kim, PLLC

Pursuant to RCW 26.09.191(5), a court in a Washington custody case may not draw presumptions from the provisions of the temporary parenting plan when it enters a permanent parenting plan. The court must instead base the permanent residential custody on the child’s best interest as determined at trial. The court generally must consider the factors set forth in RCW 26.09.187(3)(a), which relate to the child’s relationship with each parent, knowing and voluntary agreements between the parties, each parent’s performance of parenting functions, the child’s developmental level and emotional needs, the child’s relationship with significant people and involvement in activities and with the physical surroundings, the wishes of the parents and the child if mature enough, and each parent’s employment schedule. A mother recently challenged a parenting plan, arguing the trial court had improperly drawn presumptions from the temporary plan and had improperly applied the factors.

According to the appeals court’s opinion, the original parenting plan in Arizona granted substantially equal parenting time. The father had moved to Spokane by the time it was entered.

The father petitioned for modification in Spokane County, alleging the mother had moved to Virginia. A temporary parenting plan gave him primary placement and allowed the mother visitation in Spokane. Three factors were at issue in the appeal.

Washington Supreme Court Addresses Students’ Due Process Rights in Disciplinary Actions

March 31, 2024 | by Blair & Kim, PLLC

The Washington Supreme Court has recently decided a case involving school discipline. A Washington public school student filed suit after being suspended and not allowed to return to in-person school after the suspension was over.

The Court noted that students facing suspension are entitled to due process because they have a property interest in their educational benefits. Students also have statutory protections in Washington.

RCW 28A.600.015 requires the superintendent of public instruction to adopt rules regarding the substantive and procedural due process rights of students. The rules may allow a district to use informal due process procedures for short-term suspensions, if the superintendent determines that the students’ interests are adequately protected. The law prohibits a suspension or expulsion from being indefinite. Short-term suspension procedures apply for suspensions up to 10 consecutive school days. Emergency removal must be converted to another form of corrective action within 10 school days if they do not end within that timeframe. The law also prohibits schools from using long-term suspension or expulsion as discretionary discipline.