Seattle Attorneys Blog

Supreme Court of Washington Holds There Is No Constitutional Right to Refuse Field Sobriety Test in DUI Case

June 24, 2016 | by Blair & Kim, PLLC

In a significant ruling, Washington’s highest court tackled the question of whether a defendant’s refusal to perform a field sobriety test may be used against him at trial on a charge of driving under the influence (DUI). The court ultimately held that a field sobriety test is not a search but a seizure justified under the doctrine of Terry. Therefore, the court explained, defendants do not have a constitutional right to refuse a field sobriety test, and such a refusal may properly be used as evidence of guilt against them at trial.

In State of Washington v. Mecham (Wash. June 16, 2016), a police officer ran a random license check on the defendant’s vehicle while stopped behind him at a light. After finding an outstanding warrant, the police officer pulled over the defendant and arrested him. The officer smelled alcohol on the defendant’s breath and observed an open beer can in the defendant’s passenger seat. The officer asked the defendant if he would consent to perform a field sobriety test, and the defendant refused. The police eventually obtained a search warrant authorizing a blood draw, which indicated alcohol in the defendant’s system. Following a trial, a jury found the defendant guilty of felony DUI. The defendant appealed, arguing that the trial court erred in allowing evidence of his refusal to perform a field sobriety test to be used against him at trial.

In Washington, although prosecutors may not comment on a refusal to waive a constitutional right, the state may admit evidence that a defendant is asserting a non-constitutional right as evidence of consciousness of guilt at trial. On appeal, the court narrowed the dispositive issue to whether a defendant has a constitutional right to refuse to perform a field sobriety test.

Washington Appeals Court Addresses Recreational Use Immunity in Personal Injury Case

May 27, 2016 | by Blair & Kim, PLLC

In a recent case, the Court of Appeals of Washington reviewed a personal injury claim brought by a park visitor against the Port of Skamania County. In Hively v. Port of Skamania County (Wash. Ct. App. Apr. 4, 2016), the plaintiff was visiting one of the Port’s parks, Teo Park, when he tripped and fell on an asphalt path on the way to the restroom. The plaintiff brought suit against the Port for negligence. The Port moved for summary judgment on the ground that it was entitled to recreational use immunity, and the trial court granted the motion. The plaintiff appealed the trial court’s decision to the appellate court.

In Washington, there is a statutory exception to common law invitee premises liability, known as recreational use immunity. The purpose is to encourage landowners and those in lawful possession of land to make it available to the public for recreational purposes by limiting their liability. To be immune, the landowner must prove that the property is open to members of the public for recreational purposes and that no fee of any kind is charged.

In Hively v. Port of Skamania, the plaintiff conceded the first and second elements but argued that the Port charges a fee to cruise ships to dock and to parties who wish to exclusively rent Teo Park. On appeal, the court explained that a landowner may charge a fee to use part of its land but maintain immunity for the recreational use of the remainder of the land. However, the fee cannot be one charged for using the land or water area where the injury occurred. As a result, a landowner is not entitled to immunity when the place where the injury occurred is a necessary and vital part of the fee-generating area.

Washington Court Suppresses DUI Breath Test Results After Police Fail to Provide Statutory Warnings

May 9, 2016 | by Blair & Kim, PLLC

Police officers must generally follow statutory and constitutional protections when arresting or interacting with individuals. In a recent case, the Washington Court of Appeals addressed the consequences of failing to provide the required statutory warnings before administering a breath test to a defendant arrested for driving under the influence (DUI).

In State v. Murray, 192 Wash. App. 1040 (2016), a Washington State Patrol Trooper stopped the defendant for a traffic violation. The trooper alleged that she smelled alcohol from inside the defendant’s vehicle and that the defendant’s eyes were bloodshot and watery and her speech slurred. After the defendant performed field sobriety tests, the trooper arrested her. During a standard inventory search, a pipe and a bag of marijuana were found in the defendant’s vehicle. At the police station, the trooper read the defendant the implied consent warnings for the breathalyzer test, but she failed to provide warnings about per se THC concentration in her blood. The defendant agreed to a breath test that indicated a level over the per se limit for alcohol.

Pursuant to RCW 46.20.308, an officer is required to inform a driver of specific warnings regarding the consequences of denying or submitting to a breath test. Before trial, the defendant moved to suppress the evidence of the breath test results, contending that the trooper’s failure to provide all of the warnings required by RCW 46.20.308 was a violation of her rights. The defendant’s motion was denied by the trial court, and the defendant was found guilty as charged. On appeal, the superior court reversed the lower court, holding that officers do not have discretion to decide which of the required warnings are given to subjects suspected to have consumed both alcohol and THC. The state appealed, and the matter was brought before the Washington Court of Appeals.

The One Page of Paper that Can Make Your Meeting with a Family Law Attorney More Valuable

April 21, 2016 | by Blair & Kim, PLLC

Everyone can relate to the experience of walking into the grocery store without a shopping list and leaving the store without what you went in for, having spent lots of money on things you didn’t need. Notes aren’t only important for grocery shopping. They can help keep meetings on task, organized, and efficient. That is why we recommend that people bring notes into their first meeting with a family law attorney. One sheet of paper is probably enough for your first meeting. The paper should include the following: Continue reading

Washington Court Discusses Parental Immunity and Proportionate Liability in Personal Injury Appeal

April 20, 2016 | by Blair & Kim, PLLC

In a recent personal injury case, the Court of Appeals of Washington decided issues involving parental immunity and allocation of fault in a negligence claim. In Smelser v. Paul (Wash. Ct. App. Apr. 4, 2016), the defendant was visiting a friend with two young sons who were playing in the yard. As the defendant was leaving the driveway, she backed up her truck before turning to go forward. As she started forward, she hit one of the boys with her truck, causing him serious injuries.

The plaintiffs brought a negligence lawsuit against the defendant for the injuries of the boy she hit, as well as for emotional harm to his brother. The defendant responded with an affirmative defense that the father was also negligent in causing the alleged injuries. The trial court subsequently granted the defendant’s motion to have the fault allocated against all the plaintiffs who caused the injuries, including the boys’ father. After a trial, the jury found that the negligence of both the defendant and the father equally caused the boy’s physical injuries, but neither negligently caused his brother’s emotional harm. On appeal, the father contended that he was entitled to parental immunity, and he argued that the trial court erred in allowing the jury to allocate fault.

Washington’s tort reform statute provides for proportionate liability, which requires the fact-finder to allocate the percentage of fault attributable to multiple parties responsible for a plaintiff’s injuries. Specifically, RCW 4.22.070 lists the parties whose fault shall be determined, including parties immune from liability to the claimant, with an exception for those with immunity pursuant to the worker’s compensation act.

5 Common Child Support Myths in Washington State

April 12, 2016 | by Blair & Kim, PLLC

Myth 1:

You don’t have to pay child support if you have a 50/50 parenting plan.

Fact: While it is true that in some cases with 50/50 parenting plans there will be no transfer payment of child support from one parent to the other, in many 50/50 cases, especially those where the parents’ incomes are very different, one parent may still have to pay money to the other parent for the support of the child.

Washington Court Reverses Conviction and Orders New Trial for Defendant Charged with Domestic Violence

April 6, 2016 | by Blair & Kim, PLLC

In a recent opinion, the Court of Appeals of Washington decided a case in which a defendant appealed his jury trial conviction for fourth-degree assault involving domestic violence. In City of Tacoma v. Driscoll (Wash. Ct. App. Mar. 22, 2016), the defendant argued that the lower court violated his right to present a defense when it excluded his testimony regarding two prior incidents of the victim attacking him. The Court of Appeals agreed with the defendant, reversed the conviction, and remanded for a new trial.

In City of Tacoma, a witness called police officers to a bus shelter after observing the defendant kneeing the victim in the head. The defendant told officers he had acted in self-defense. At the time, the defendant had a no-contact order against the victim. The defendant was subsequently charged with one count of fourth-degree assault involving domestic violence. At trial, the defendant asserted the act was in self-defense, and he offered evidence of three prior incidents in which he alleged the victim had attacked him. One of the attacks resulted in a charge of second-degree assault against the victim, and the other two attacks could not be corroborated by documentation or evidence other than the defendant’s testimony. The trial court allowed the defendant to present evidence of the first attack because it was documented, but not the others. On appeal, the defendant argued that his constitutional right to present a defense was denied when the trial court excluded his testimony regarding the two incidents.

Washington Family Law Forms Will Be Changing – May 1, 2016

March 31, 2016 | by Blair & Kim, PLLC

Washington family law clients and attorneys alike should know that there are changes coming to the Washington State Family Law Forms. The revised forms will become required on May 1, 2016, but they are available now on the Washington Courts Website for review and preparation for adoption.

The forms are called “Plain Language” forms and are meant to be easier to read and understated. From our review, many of the forms are easier to read and understand. This will benefit pro se litigants (those people that are not being assisted by a family law attorney). It will also benefit people that have attorneys, because they won’t have to waste their valuable time having the complicated forms explained, and, instead, will be able to spend their time telling their family law attorney about the facts of their case and giving the attorney time to discuss strategy and the best way to move forward. It will also benefit people that are represented by an attorney, but are opposing a party that is pro se. These pro se opposing parties sometimes make claims that they did not understand the online forms and as such should not be held to what they agreed to therein. The Plain Language forms will be easier to understand and thus, if someone signs these documents the courts will probably be less likely to believe that a party did not understand what they were signing. Continue reading

Washington Supreme Court Finds in Favor of Plaintiff in Injury Claim Against King County

March 29, 2016 | by Blair & Kim, PLLC

The Washington Supreme Court recently decided an appeal involving a car accident in the case of Wuthrich v. King Cty. (Jan. 28, 2016). The plaintiff was riding a motorcycle when another motorist pulled out in front of him at an intersection. The plaintiff brought an action against the County, alleging that it was liable for his injuries because overgrown blackberry bushes obstructed the motorist’s view of traffic at the intersection. The lower court granted summary judgment in favor of the County, and the plaintiff appealed.

In order to recover on a common law claim of negligence, a plaintiff must establish: (1) the existence of a duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) the breach was the proximate cause of the injury. In Washington, a municipality has a duty to maintain its roadways in a reasonably safe condition for ordinary travel. This duty is not confined to the asphalt. If a wall of roadside vegetation makes the roadway unsafe by blocking a driver’s view of oncoming traffic at an intersection, the municipality has a duty to take reasonable steps to address it.

Washington Appeals Court Holds No Exigent Circumstances Justify Warrantless Blood Test in Marijuana DUI Case

March 25, 2016 | by Blair & Kim, PLLC

In an important decision, the Court of Appeals of Washington addressed the issue of whether a warrantless blood test violated the rights of a defendant charged with driving under the influence (DUI) of marijuana. In City of Seattle v. Pearson (Wash. Ct. App. Feb. 29, 2016), the defendant struck a pedestrian with her car. The defendant suffered from health conditions for which she was authorized to consume medical marijuana and told police she had smoked earlier in the day. After the defendant performed field sobriety tests, the police officer arrested the defendant on suspicion of driving under the influence. The officer then transported the defendant to a hospital for a blood draw without her consent or a warrant, two hours after the accident had occurred. The test determined a THC concentration of approximately 20 nanograms.

Both the U.S. and Washington State constitutions provide protection against unreasonable searches, including the intrusion into a person’s body to draw blood. Absent a recognized exception, a warrantless blood draw is unlawful. An exception may exist in the case of exigent circumstances, in instances where acquiring a warrant is not realistic because the delay that occurs in the pursuit of securing a warrant would adversely affect factors such as an officer’s safety, enable escape, or allow for the destruction of evidence. On appeal, the defendant argued that the trial court erred in admitting evidence of the blood test after finding that exigent circumstances existed to justify the warrantless blood test.