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Seattle Municipal Court Marijuana Arrests to be Dismissed

The Seattle Times reported today that Seattle City Attorney Pete Holmes and Seattle Mayor Jenny Durkan plan to vacate and dismiss all misdemeanor marijuana-possession convictions prosecuted by the city before pot was legalized in Washington. A few things to keep in mind about this plan. First, this only affects cases filed in Seattle Municipal Court, because Pete Holmes’ office only prosecutes crimes in that court, not misdemeanor marijuana charges filed across the street in King County District Court or felony charges filed across the street in King County Superior Court. If a person was arrested for misdemeanor marijuana possession in Seattle by a Seattle Police officer, their charge would likely have been filed in Seattle Municipal Court and will now be dismissed. But if a person was arrested by another law enforcement agency, such as the King County Sheriff, Washington State Patrol, University of Washington Police Department, or Port of Seattle Police, their charge typically is sent to the King County Prosecuting Attorney, who files the charge in King County District Court. So if someone was arrested for possession of marijuana near the University of Washington by a Seattle police officer, their charge gets dismissed. But if a person was arrested for possession of marijuana near the University of Washington by a University of Washington police officer, their conviction would not be dismissed and remain. Maybe King County Prosecutor Dan Satterburg will follow Pete Holmes and Jenny Durkan’s lead, but for now, that disparity exists.

Anyone who is getting their conviction vacated and dismissed based on this announcement should also follow up with the Washington State Patrol and make sure that all records of the offense are deleted from the publicly available Washington State Patrol Identification and Criminal History Section’s database. This database is often used by background check companies, employers, and landlords, to check a person’s criminal history in Washington state. The Washington State Patrol is stingy about removing records from this database when a case is dismissed for any reason other than the person is actually innocent of the offense. For instance, if an offense is dismissed pursuant to a deferred sentence, the Washington State Patrol will still typically report that the person was arrested for the offense, and that the offense was dismissed pursuant to a deferred sentence (so the employer or landlord who uses this database is still aware of the offense and could use this information against the person). I would hope that Pete Holmes and Jenny Durkan insist that the cases they are dismissing are completely removed from this database.

And finally, even after the case is dismissed, the record of the conviction can still easily be found online, for free, at the Seattle Municipal Court’s online case information database. So even if the case is dismissed, and even if the case is removed from the Washington State Patrol’s database, an employer or landlord can search the court’s case information and find out that the person is a pot head.

 

Details on Seahawk Jeremy Lane’s DUI arrest

Seahawk cornerback Jeremy Lane was arrested for DUI by a Washington State Patrol trooper on January 14, 2018, in King County, Washington. Lane said on Twitter that, “[a] fail DUI is 0.08 right? I blew 0.03 why was still arrest!!!! I’ll leave it at that.” I have obtained the police report, but due to the fact it contains Lane’s driver’s license and home address, I will not post it on the internet. But I can provide some details on the case:

Lane was stopped for speeding on Interstate-90 Eastbound near Mercer Island. He was issued a speeding ticket for traveling 20 mph over the 60 mph zone. The trooper indicated he observed burnt marijuana smell coming from the vehicle, which was occupied by Lane and other occupants. The trooper indicated Lane agreed to perform Standardized Field Sobriety Tests (SFSTs). Lane agreed. The trooper contends Lane performed poorly on these tests (Lane would probably object to this). Following the SFSTs, Lane was asked to provide a Preliminary Breath Test (aka, a PBT), which is the alcohol breath test that troopers ask people to submit on the side of the road (the one back at the police station is the breathalyzer, or BAC). Lane provide a sample of .039 on the PBT. So as he stated on Twitter, his blood alcohol reading was well below the per se BAC level of .08. But the trooper claims that Lane was arrested for the combined effects on alcohol and marijuana. Lane admitting to smoking marijuana three hours earlier. The trooper arrested Lane for DUI and obtained a search warrant to take a blood sample from Lane. The results of that sample are currently pending.

The results of the blood sample will be the key piece of evidence in the case. Lane hopes that the sample shows no active THC in his blood. THC metabolizes to carboxy-THC. If only carboxy-THC is present in Lane’s blood sample, that would confirm Lane had smoked marijuana. But carboxy-THC, alone, is not impairing. So it would be impossible to say when exactly Lane had smoked and when he was no longer under the influence of marijuana. It certainly doesn’t help that Lane exhibited the effects of having consumed alcohol. I expect the prosecutor to wait for the results of the blood test to make a charging decision, probably within the next thirty days. Stay tuned.

Court overrules judge who thinks he is a prosecutor

Out in the wheat fields of Ritzville, Washington, an Adams County Superior Court judge refused to dismiss a case after a prosecutor told the court they did not have enough evidence to prosecute and wished to dismiss the case. In the case, State v. Agustin, a juvenile defendant was charged with possession of marijuana. At a suppression hearing, the court suppressed key evidence in the case. Following the suppression hearing, the prosecutor filed a motion to dismiss with the court, and notified the defense attorney that they would not be proceeding to trial and would be dismissing the case (note, in juvenile court, one has a right to a bench trial, but not a jury trial). The defense attorney showed up on the morning of trial expecting the case to be dismissed, as the prosecutor had stated. Instead, the judge indicated he had reviewed the request for dismissal and disagreed that there was not enough evidence to prove the offense. The judge denied the prosecutor’s motion to dismiss, and ordered the prosecutor to call witnesses and proceed to trial. At the conclusion of the trial, the judge found the defendant guilty.

On appeal, the appellate court noted that while a judge does have discretion to deny a prosecutor’s motion to dismiss, this discretion only exists if the prosecutor’s reason for dismissing was inappropriate. An example of an inappropriate reason to dismiss would be a prosecutor who is up against a speedy trial deadline who dismisses a case and then refiles (dismissing and refiling adds speedy trial time to a case; i.e. the prosecutor would be gaming the system). In this case, the court noted the prosecutor had not just expressed doubts about their ability to prove the charge but had actually filed a written motion to dismiss and notified the defense of their intention. The appeal court found the defendant’s separation of powers argument persuasive, and dismissed the case. No wonder some judges are referred to as prosecutors in a black robe.

Washington’s Privacy Act does not apply to Defendant’s inadvertant recording

In the recent Washington Supreme Court decision, State v. John Garrett Smith, the defendant was convicted of seriously injuring his wife. During the assault, the Defendant used the home’s land line phone to call his cell phone in an attempt to locate the cell phone (which the defendant had misplaced). Unbeknownst the defendant, when he called his cell phone and did not answer the cell phone went to his voice mail and started recording a message (because the land line phone was still on). The voice mail message recorded his wife screaming and also contained other key pieces of evidence. Eventually, the prosecutor obtained this voice message and used it against the defendant at trial.

The defendant was convicted at trial but appealed, arguing, among other things, that the prosecutor’s use of the voice mail message violated Washington’s privacy act, which is found in RCW 9.73.030. In a nutshell, that statute requires a person’s consent to record a private conversation.

The court held that this voice message did not contain a “conversation” within the meaning of the privacy act. Since the privacy act did not apply, no consent was needed. Furthermore, the court added that even if the voice message was a “conversation” under the privacy act, the defendant implicitly consented to the recording since he was the one who initiated it (and despite the fact the defendant did not intentionally record the conversation or was even aware of the recording). And while he did not obtain his wife’s consent prior to making the recording, there is an exception to the consent rule in the privacy act for conversations that contain threats or are an emergency in nature. Accordingly, the court allowed the use of the voice message at trial and upheld the conviction.

A person’s immigration status is inadmissible at trial

The Seattle Times had an article today outlining a case that was the impetus for the Washington Supreme Court’s new evidence rule making a person’s immigration status inadmissible at trial regardless of whether it is a criminal or civil trial. You can read the new rule here. The person’s immigration status is generally inadmissible unless the party trying to introduce this evidence can show that it is essential to prove party’s cause of action, an element of the criminal offense (or defense to the charge), or to show bias or prejudice of a witness. The new rule is listed as ER 413.

Civil case is not always stayed for criminal case to resolve

King v. Olympic Pipeline stands for the position that if there is both a civil and criminal case stemming from the same incident, the defendant may request that the civil matter be stayed until the criminal case is resolved. This can occur in a domestic violence incident where criminal charges are filed, and there may also be a civil protection order or personal injury law suit pending that was filed by the victim. In a criminal case, a defendant has a 5th amendment right to not testify and incriminate themselves, so the logic being resolve the criminal case first, and then turn to the civil case second. However, in the recent decision of Smith v. Smith, the court ruled that this is not always the case. In the decision, the court denied the Defendant’s request to stay the civil case until the criminal case was resolved because the court found that the Olympic Pipeline factors weighed against the defendant.

New trial after no award for pain and suffering

In a recent decision stemming from the Pierce County Superior Court case, Meinhart v. Anaya, the plaintiffs prevailed at a jury trial and the jury awarded the plaintiffs nearly all of their requested medical expenses, but for some reason, the jury declined to award the plaintiffs any noneconomic damages (pain and suffering). The plaintiffs’ attorney requested a new trial based on this unusual verdict, but the court denied the request. On appeal, the court held that because “[t]here was no evidence from which the jury could have concluded that [the plaintiffs] suffered no pain and suffering” that the “trial court abused its discretion in denying the [plaintiffs’] motion for a new trial.”

With higher car-tab fees, will more drivers be stopped for expired vehicle tabs?

The Seattle Times had an article today about whether the Sound Transit 3 (ST3) increased vehicle registration fees in the greater Puget Sound region would cause drivers to skip renewing their vehicle registration when due and instead continue to drive on expired tabs. The article points out that while illegal, financially, this could make sense. While the article correctly points out that driving on expired tabs is an infraction, punishable by a fine (and not jail) another thing to consider is that driving with expired tabs would give police the power to pull you over anytime. Police can lawfully stop a vehicle when there is reasonable suspicion that the vehicle is committing an infraction. This legal stop can then turn into a criminal investigation say, for instance, the officer observes an odor of alcohol or marijuana coming from the vehicle.

Should you take the Field Sobriety Tests?

Should a person agree to perform the Standardized Field Sobriety Tests (SFSTs)? That question has become even harder to answer after the decision of State v. Mecham. In the case, the officer asked Mecham if he would voluntarily agree to perform the SFSTs. Mecham, who was told the tests were voluntary, declined to perform the tests. A blood test was later taken that came back well below .08. At trial, the prosecutor argued that Mecham was guilty of DUI because he had refused to perform SFSTs tests, and only someone who knew they were guilty would refuse to perform the tests. The defense strongly disagreed and argued Mecham’s refusal to submit to a voluntary test should not be used against him, particularly when he was never told that if refused the tests, that his refusal would be used against him at trial.

On appeal, the Washington Supreme Court ruled that SFSTs are not a search and therefore, a person does not have a constitutional right to refuse the test. Because a person does not have a constitutional right to refuse, that a prosecutor can use a person’s refusal to perform the tests against the person at trial as consciousness of guilt. The court added that the SFSTs are a seizure, not a search, and that law enforcement can ask a person to perform the SFSTs after a person is already arrested for DUI (SFSTs are normally used to help an officer decide whether to arrest a person for DUI).

The decision leads to a lot of questions. If the SFSTs are a seizure, and a refusal to submit to the tests can be used against a person, can an officer force someone to submit to the SFSTs against their will, just like an officer can force someone to stand in a suspect lineup against their will? If a person refuses to perform the SFSTs can they be charged with the crime of Obstructing a Law Enforcement Officer similarly to when person refuses to put their hands behind their back when instructed? While the court stated a person does not have a constitutional right to refuse, the court added a person has a common law right to refuse. So presumably, the decision to submit to the SFSTs must still be voluntary and a refusal to submit should not expose a person to an additional criminal charge of obstructing.

Police officers routinely testify that they do not arrest everyone who agrees to perform the SFSTs and occasionally, a person’s performance on the SFSTs convinces the officer to let the person drive home without a DUI arrest. However, it is hard to find statistical evidence to support this. And it is not unheard of for people to perform “poorly” on the SFSTs who end up blowing well under .08 (.02 is the lowest breath test I have seen for a DUI arrest). Prior to having a suspect perform the SFSTs, the police offer instructions and briefly demonstrate the tests. However, this normally occurs on the side of a busy, loud, freeway. Moreover, the instruction does not inform the person what “clues” the officer is looking for. For instance, on the Walk and Turn and One Leg Stand test, the officer instructs the person “to keep their arms to their side.” If a person moves their arms more than six inches from their hip, this is considered a clue (despite the fact that the person may assume having their hands a little more than six inches from their hip is keeping their arms to their side, just as instructed). This is one reason most attorneys advise people to decline to take the the SFSTs regardless of how much or little alcohol they have had to drink. But after the Mechum decision, it appears you are damned if you do, and damned if you don’t.

What crimes can be used against a witness at trial?

While generally, a prior criminal conviction or prior bad act cannot be used against a witness in trial, there are some exceptions. One is detailed in Evidence Rule (ER) 609, which allows a witness to be impeached by convictions of certain crimes. ER 609 states:

“For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted . . . but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment.”

Whether a crime “involved dishonesty or false statement” is not always obvious on its face. For instance, the crime of Burglary in the Second Degree can be a dishonest crime if the offender enters a building to steal something. But if the offender enters a building to commit an assault, the crime is still a felony, and still a burglary, but it is not a crime of dishonesty under ER 609.

ER 609 also lays out other requirements, including time limits, effect of a pardon, and whether juvenile convictions can be used against a witness. This rule applies to both criminal and civil trials. This means that a crime of dishonesty conviction years ago could potentially factor in a totally unrelated civil case years down the road. The crime of dishonesty could be enough to convince a jury to believe one witness over another. Before pleading guilty to any crime, make sure your attorney adequately advises you on whether the crime is a ER 609 crime of dishonesty, and how that conviction will be used in future legal proceedings.