Seattle Attorneys Blog

Free Speech and Washington Civil Protection Orders

May 30, 2017 | by Blair & Kim, PLLC

Under Washington law, “unlawful harassment” is “a knowing and willful course of conduct” directed toward a particular person that “seriously alarms, annoys, harasses, or is detrimental” to that person. To be unlawful harassment, the conduct cannot serve a legitimate or lawful purpose. Furthermore, the course of conduct must be the type of conduct that would cause a reasonable person substantial emotional distress, and it must actually cause distress to the person seeking the protection order. RCW 10.14.020. Although communications are included in the “course of conduct,” constitutionally protected speech is not.

A Washington appeals court considered whether a woman’s actions were protected by the First Amendment in a recent unpublished case. The woman appealed a civil anti-harassment protection order on the grounds that it was based on constitutionally protected speech. She also argued that the oral findings of the trial court had not been supported by substantial evidence.

In his testimony in support of the petition, the appellant’s former romantic partner testified the appellant had contacted his female acquaintance and pointed her to a website containing a post, partly written by the appellant, that described his alleged history of affairs. He also testified that she called him an “impulsive alcoholic, with a violent streak.”

Washington Recreational Immunity Statute Does Not Apply to Mixed-Use Property

May 22, 2017 | by Blair & Kim, PLLC

Washington encourages landowners to open their property up to recreational use by the public by providing immunity to the landowners. The statute provides that a landowner who does not charge any kind of fee to the public is not liable for “unintentional injuries” to members of the public using the property for recreational purposes. RCW 4.24.210. It is clear that injuries on land open exclusively for recreational purposes may fall under the statute and that injuries on land open exclusively for other purposes do not. It is less clear, however, whether immunity can apply when the injury occurs on land that is open to the public for mixed use.

A Washington appeals court addressed this issue in a recent case. The plaintiff was injured while riding her bicycle on a trail. She approached a lawn mower, operated by an employee of the county, and attempted to pass it. She raised her hand to shield her eyes from the debris from the lawn mower. In her deposition, she testified that she tried to veer to the left to get off the trail and clipped the bicycle being ridden by her niece. The plaintiff fell and was injured.

The county’s website described the trail as “a popular commuter route and recreational destination for bicyclists….” Likewise, the county’s Regional Trails Plan provided that the regional trails system would be used “for recreation and transportation….”

Washington Appeals Court Finds No Unlawful Seizure in Drug Possession Case

May 12, 2017 | by Blair & Kim, PLLC

Drug possession cases hinge on evidence of the drugs themselves. Under the exclusionary rule, if drug evidence resulted from an unlawful search or seizure, it must be excluded. It is therefore common in drug cases for the defendant to move for the evidence to be suppressed on the ground it resulted from an unlawful search or seizure. In a recent unpublished case, a Washington appeals court considered whether evidence of drugs in a vehicle should have been suppressed.

The defendant pulled his vehicle over to the side of the road after a police sergeant pulled behind him. When the sergeant turned around and drove back toward him, the defendant moved forward, passing the sergeant. The sergeant turned around again. The defendant again pulled over and put on his flashers. The sergeant pulled over behind him.

The defendant told the sergeant he thought he had a flat, but the sergeant did not think the tire looked flat. The sergeant then asked the defendant if he had a driver’s license, and the defendant showed him a Colorado license. The sergeant thought the defendant seemed unsure and nervous when asked if the license was valid, so he asked if it was suspended. The defendant said it could be suspended because of unpaid child support. A dispatcher confirmed that it was suspended in Washington and Colorado.

Failure to Identify Property for Distribution Before Washington Divorce Trial

May 5, 2017 | by Blair & Kim, PLLC

In any divorce, it is important for the parties to identify all of the assets they want to be considered and divided. While all of the property is before the court for distribution in a divorce, the court can only distribute those assets of which it is aware. If the parties fail to follow the appropriate procedures to timely identify property, the court may exclude evidence of that property.

A Washington appeals court recently reviewed a case in which the trial court had excluded certain property that had not been included in the property worksheets the parties submitted before trial.

The parties each submitted property worksheets with their trial briefs before trial. At trial, the wife testified about property that was not included on the property worksheets. The husband objected to this testimony, but the objections were generally overruled.

Washington Appeals Court Finds No Prosecutorial Misconduct in Vehicular Assault Case

April 28, 2017 | by Blair & Kim, PLLC

In cases involving driving under the influence, the state often relies on test results to show that the defendant was intoxicated. However, the prosecutor may also point to the defendant’s behavior as evidence of intoxication. A Washington appeals court recently considered whether a prosecutor committed misconduct when she referenced negative statements the defendant made about the other driver and her passenger after the accident in a recent unpublished case.

The defendant appealed his convictions for two counts of vehicular assault. According to the appeals court’s opinion, the defendant had three or four drinks on the evening of the collision. His blood alcohol level after the accident was .12 grams per 100 milliliters. A witness had seen the defendant’s truck swerve across the yellow line several times. The witness saw the defendant drive into the opposite lane toward an oncoming car. The two vehicles collided head-on.

Washington Appeals Court Rules Necessity Defense Unavailable to Defendant Charged with Attempting to Elude

April 27, 2017 | by Blair & Kim, PLLC

Often, a person charged with driving while under the influence will face additional, related charges. Attempting to elude police is one such charge. Sometimes, a person may feel they are justified in not stopping for the police officer, but a necessity defense is very difficult to prove in this type of case.

In a recent unpublished case, a Washington appeals court considered a defendant’s claim of necessity based on her statement that she did not stop because she was fleeing a person who had threatened her.

According to the opinion, the defendant ran a red light in front of an officer and failed to stop when he engaged the emergency lights. The defendant stopped in front of a residence and tried to go inside. The officer tackled her to stop her and subsequently arrested her for DUI.

Sale of the Family Home in Washington Divorce

April 20, 2017 | by Blair & Kim, PLLC

Often, the family home is one of the more difficult assets to address in a divorce. Even if both parties agree to sell the home, the process can still be difficult. In a recent unpublished case, a Washington appeals court determined whether the sale of a home was “imminent,” as required by the divorce decree, or whether the husband was required to pay the wife $15,000 because it was not imminent.

The marriage was dissolved by a degree of dissolution that awarded the home to the husband. The wife was required to execute and deliver a quit claim deed. The trial court subtracted $30,000 from the net value of the home for the closing costs and used that reduced value to determine the property award. The court subtracted the closing costs because the husband assured the court he intended to sell the home imminently. The decree included a provision that required him to pay the wife $15,000 if he did not sell the house “imminently,” which was defined as within nine months from the entry of the decree. February 18, 2016 was nine months from the entry of the decree.

A purchase and sale agreement was signed on February 11, 2016, although the purchase was subject to contingencies. The buyers then waived all contingencies on February 17. The wife moved the court for an order enforcing the decree and awarding her the $15,000 on March 10. The sale of the home then closed on March 15.

Washington Courts May Not Base Custody on Sexual Orientation

April 14, 2017 | by Blair & Kim, PLLC

Courts should remain impartial regarding religious beliefs and sexual orientation when considering custody arrangements and parenting plans. When a court relies on and adopts the opinions and recommendations of witnesses who express biases based on these issues, the entire parenting plan may be called into question. Such was the situation in a case recently decided by the Washington Supreme Court.

The couple had been married for nearly 20 years at the time of their divorce. They had three sons, whom they raised in a conservative Christian church and sent to Christian schools. The wife had been the primary caretaker of the children, and the husband had been the primary wage earner for most of their marriage.

In 2011, the wife told the husband she thought she might be gay. She stopped going to the family church and began a romantic relationship with a woman.

Washington Appeals Court Finds Church Not Liable for Driver’s Failure to Stop at Sign

April 7, 2017 | by Blair & Kim, PLLC

Most automobile accident cases are based on negligence. To succeed in a negligence claim, the plaintiff must show that he or she would not have been injured “but for” the defendant’s negligence. In some cases, there are multiple causes of an accident, and fault and liability may be apportioned among several defendants.

In a recent case, a Washington appeals court considered whether the trial court had erred in granting summary judgment in favor of the defendant, based on the plaintiff’s failure to establish causation. The plaintiff alleged he was injured in an accident with an intoxicated driver at an intersection near a church. The plaintiff sued the church for negligence, claiming that a tree the church owned obscured the stop sign the driver had run. The trial court granted summary judgment in favor of the church. The plaintiff appealed.

The plaintiff was crossing the intersection with the right of way when his moped was hit by a car. The other driver told police he had not stopped at the stop sign. He ultimately pled guilty to vehicular assault.

Washington Police Don’t Have to Advise of Independent Testing Right for Blood Tests

April 3, 2017 | by Blair & Kim, PLLC

Under Washington law, police must advise individuals of the right to independent testing when a breath test is administered pursuant to the implied consent statute. Under a previous version of the statute, this information was also required for blood tests. A Washington appeals court has recently addressed whether police must still inform of the right to independent testing of blood when it is no longer specifically included in the statute.

The defendant was convicted of vehicular assault as a result of a two-car collision. The defendant appealed, arguing that blood test evidence should have been excluded because he was not informed he had the right to independent tests at the time the blood was taken.

According to the court’s opinion, the defendant caused the accident by crossing the center line. The defendant called 911. The police officer smelled alcohol and noticed signs of impairment at the scene. The defendant went to the hospital by ambulance. The trooper who spoke with the defendant at the hospital also smelled alcohol and observed signs of impairment. The defendant did not respond to the trooper’s requests for a field sobriety test or a portable breath test. Blood was subsequently drawn pursuant to a warrant. The defendant’s blood alcohol content was 0.12 three and a half hours after the collision.