Washington DUI Center

Its that time of year.  Halloween, Thanksgiving, and yes, caselaw updates!  Its time to sit back and reflect on what the Honorable Judges around the State of Washington have been telling us about the law this year.  We have started summarizing various cases of interest to Washington DUI attorneys and will be posting more a www.trombolddui.com.  Soon we will post a spreadsheet with all the cases listed on one spreadsheet here at the Washington DUI Center.  For now please refer to www.trombolddui.com.

The following state caselaw update was published by WACDL and prepared by the David Donnan. It is reproduced as written by David with great appreciation for his efforts toward keeping us all informed of the courts decision law.  Thank you to WACDL for producing David’s great work.

August 1-15, 2011

Prepared by David Donnan

State v. Oppelt, No. 84573-5 (8/11/11) SCt (9-0) holds that due process may be violated by pre-accusatorial delay even if the charges are filed within the statute of limitations. The issue turns on whether fundamental conceptions of justice would be violated by the prosecution.

A.R. reported in 2001 that she had been sexually assaulted twice by Oppelt in May of that year. Police were notified and the report was submitted, but nothing was done by the prosecutor’s office until they were re-contacted in 2007. Before trial, Oppelt moved to dismiss because the great-grandmother to whom A.R. first reported the abuse could no longer remember what kind of lotion she gave A.R. when she reported she was in pain, thereby precluding Oppelt from arguing definitively that the redness and swelling observed in A.R. subsequent examine was caused by a reaction to a particular brand of lotion. The judge found actual prejudice, but denied the motion because the prejudice was not severe enough.

SCt rejects the prosecutor’s contention that negligent delay can never violate due process, but Court also holds that delay without justification does not demand automatic dismissal. SCt reiterates a test which requires (1) the defendant show actual prejudice from the delay; (2) if the defendant shows prejudice, the court must determine the reasons for the delay; (3) then weigh the reasons and the prejudice to determine whether fundamental conceptions of justice would be violated by allowing prosecution. In its own de novo review, the SCt concludes the prejudice was slight because Oppelt could make the argument anyway, so it wasn’t too unfair relative to a potential sex offense going unprosecuted.

State v. Zillyette, No. 40401-0 (8/9/11) CoA holds there was sufficient independent evidence of the delivery of the methodone and Xanax which resulted in the death of Zillyettes’ acquaintance (corpus delicti) to permit admission of her incriminating statements. CoA also holds that the failure to allege the specific controlled substance in the information was not fatal to controlled substance homicide prosecution when challenged for the first time on appeal.

Zillyette was charged with controlled substance homicide after she shared her methadone and Xanax with the decedent and he died of an overdose. The decedent’s cell phone had a picture of the pills in his hand and Zillyette was the last person he called before he died. When contacted she admitted giving him the pills. When charged she moved to dismiss arguing the State would not be able to prove the corpus delicti of the crime because there was no evidence independent of her statements that she delivered the drugs to the decedent.

CoA holds the independent evidence need only establish prima facia corroboration of the crime described in the defendant’s incriminating statements, e.g. delivery of controlled substance that results in death. CoA distinguished Bernal, 109 WA 150, where State lacked evidence to prove the corpus delicti of controlled substance homicide in the absence of any other evidence of the defendant delivered the drugs. Here there was evidence from others that Zillyette and decedent ingested drugs together previously and were going to do so before he died; before he died victim sent a picture of himself holding the drugs; he didn’t have a prescription for them, but defendant did; and although she filled her prescription the day before the prescription bottles were almost empty the next day after decedent’s death. CoA finds this was sufficient independent evidence of delivery to corroborate her incriminating statements. CoA also holds the corpus delicti rule does not apply to statements made before or during the course of an offense, so earlier statements Zillyette was going to meet the decedent and ingest drugs were always admissible. (!?)

State v. Parris, No. 40236-0-II (8/9/11) CoA holds a warrant was not required for a CCO to search memory cards found in Parris’ room after he was arrested for a number of community custody violations.

Parris was on community custody as part of a sentence for failing to register. He was prohibited from (1) having contact with minors, (2) possessing sexually explicit materials, (3) possessing or using drugs or alcohol, and (4) was required to participate in drug and alcohol treatment, (5) stay employed and (6) follow a curfew. Still he managed to have a dirty UA, failed to participate in treatment, didn’t provide proof of work, was arrested for DWLS after his curfew with a minor in the car. Parris’s mom reported he was “out of control” and he threatened to get a gun if DOC tried to arrest him. The CCO went to pick him up and found him hiding in the small room off the side of his mother’s garage with a 17-year-old girl. They searched the room and found syringes, vodka, and porn in a variety of formats. The CCO also found two USB memory cards which included a 17 minute video of Parris having sex in various forms with the 17-year-old. Parris’ motion to suppress the evidence from the search was denied.

CoA affirms because probationers have diminished privacy rights “to the extent ‘necessitated by the legitimate demands of the operation of the parole process.’” Convicted sex offenders in Washington have even less privacy because “the public’s interest in public safety” and the effective operation of government. RCW 9.94A.631 authorizes a warrant exception for CCO searches of probationers’ residences and “other personal property” when there is reasonable cause to believe the probationer has violated release conditions. The warrantless search requires a well founded, articulable suspicion and the CCO had that based on mom’s report about this threat to get a gun and the fact that “oftentimes, for some strange reason, offenders will put their guns in a photograph or a video or a DVD.” (Who knew he’d also have a video of himself having sex with a minor.) CoA rejects the argument that the “memory card is equivalent to a closed container” and subject to heightened protections here because Parris was a probationer and the CCO had ample reason to suspect she might find evidence of violations.

State v. Dillon, No. 40085-5-II (8/9/11) CoA reverses conviction for first degree kidnapping based on insufficient evidence where 13-year-old, posing as 18, went willingly to Dillon’s apartment for sex and there was no evidence he had any intent to restrain him.

L.M. registered with a Portland telephone chat service and was contacted by Dillon. L.M. agreed to go to Dillon’s apartment. Dillon picked him up, drove them there, they have some oral sex and a threesome with Dillon’s girlfriend, then Dillon takes L.M. home. L.M.’s mom calls the cops after he gets home and he eventually tells them what he’s been up to. Dillon is charged (and convicted) of ROC 2 and Kidnap 1 with sexual motivation.

CoA finds evidence of restraint insufficient to sustain the conviction. The State had to prove (1) he restricted L.M.’s movements and (2) the action was taken without consent. Restraint must be a substantial interference with the victim’s liberty. If a child victim agrees to being taken somewhere by a defendant there must be additional evidence the defendant in fact limited the victim’s liberty. Here the State proves lack of consent by virtue of L.M.’s age, but there was no evidence from which to infer that L.M.’s liberty was compromised or that Dillon intended to restrict L.M.’s movements, so the kidnapping is reversed. CoA also remanded the ROC2 because the trial court failed to make and enter Findings of Fact and Conclusions of Law on whether the “knock and announce” rule (RCW 10.31.040) was violated.

State v. Applegate, No. 64100-0-1 (8/8/11) CoA holds defendants can waive the constitutional right to public trial and consent to in-chambers questioning of prospective jurors.

Applegate was tried in late-2004 for sex offenses that occurred in 1988 and 1989. The exceptional sentence was reversed after because of the absence of statutory authority to charge the jury on the aggravators at the time. On remand a jury was selected to hear the evidence on the aggravating factors. During pretrial motions the judge announced he would speak to any jurors privately if they wished and defense counsel, after conferring with Applegate, affirmatively indicated they had no objection to the procedure. One juror was questioned in chambers, with the door to the courtroom open.

CoA holds that moving individual questioning of prospective jurors from the courtroom into chambers acts as a closure and requires prior compliance with Bone-Club. The fallacy of keeping the door open did not satisfy the constitutional requirement of public trial. Defendants may waive their right to public trial, however, and the fact that it is a “structural error” does not preclude defendants from knowingly and voluntarily foregoing the right. Since Applegate waived the right, he can not obtain relief on appeal asserting the public’s right. CoA distinguishes cases where the defendant merely failed to object from this case where he affirmatively asserted through counsel, after consultation, he had no objection to the procedure used.

State v. Chambers, No. 40899-6-II/41082-6-II (8/5/11) CoA holds that Chambers guilty pleas to nine counts were all part of an indivisible agreement and the trial court erred in allowing him to withdraw his guilty pleas to some but not all of the charges.

Chambers was charged in February 1999 with four crimes (VUCSA x 2 + VUFA x 2), and pled guilty in July 1999. A second information in November 1999 charged five crimes (VUCSA, VUFA, PSP x 2, & failure to remain a at an injury accident) and the state’s plea offer encompassed a recommendations for both the February and November offenses and a promise not to pursue a vehicle homicide charge. After sentencing, Chambers filed several appeals and PRPs claiming sentences for two of the February offenses were unlawful. Supreme Ct agreed and remanded for Chambers to withdraw his plea. Chambers moved to vacate the judgment, withdraw his guilty plea, and sought specific performance as to the four February crimes only. The State argued the pleas and sentencing were indivisible and he had to withdraw his pleas to all. The trial court found the plea agreements to be separate and entered an order granting Chambers’ motion to withdraw his pleas to the February crimes. Because the State had destroyed the evidence to support the February crimes, the trial court dismissed.

CoA holds the pleas were indivisible even though they were entered at different times based on “the interconnectedness of the agreement” which was referenced in the offer letter from the prosecutor laying out the specifics of the deal including an agreed sentencing range based on consideration of all the offenses and a threat to add the uncharged felony murder if the deal was not accepted.

State v. Enquist, No. 40364-1-II (8/5/11) CoA holds that the transient sex offender registration statute does not violate ex post facto or right to travel.

Enquist served 30 years for rape and robbery, and acknowledged knowingly failing to register for two years after his release from prison.

CoA rejects an ex post facto challenge, relying on Ward, 123 Wn.2d 488, to conclude that the burdens of registration are not punishment; “such burdens are an incident of the underlying conviction and are not punitive for purposes of ex post facto analysis.” As to the right to travel, CoA found that impeding travel was never the statutes “primary goal,” Enquist’s claims the statute deterred his travel were unfounded, and his claims it interfered with his ability to hold a job were “speculation.” CoA holds the registration statute was neither facially invalid, nor unconstitutional as applied. CoA also rejects Enquist’s pro se argument that the statutory restoration of civil rights overrode the registration statute.

State v. Dash, No. 64409-2-I (8/8/11) CoA reverses Dash’s theft conviction because the “to convict” instruction permitted the jury to convict him based solely on acts committed outside the statute of limitations.

Dash befriended an old woman and over a number of years managed to squander her entire estate including two apartment buildings, investments of $300K, a $120K life insurance policy and a $72K stamp collection. He defended on the theory they were all part of a series of gifts and poor business decisions.

CoA notes the statute of limitations for theft is three years, so the State is barred from prosecuting Dash for the conduct outside the statute unless his “criminal impulse continued until at least three years prior to the date on which he was charged.” The jury was instructed, however, that it could convict if it found he committed theft “during a period of time intervening between January 1, 2000 and March 31, 2005.” They were not instructed that the State had to prove that Dash committed the crime during the entire period, nor that they had to find the continuing criminal impulse had to extend into a period within the statute. As a result, it cannot be established that the jury did not convict Dash based on conduct occurring entirely outside the statute of limitations.

State v. Meredith, No. 38600-3-II (8/9/11) CoA finds Meredith failed to establish a prima facie case of purposeful discrimination in violation of Batson, 476 U.S. 79, or that he would be entitled to relief under the new bright-line rule outlined by a plurality in Rhone, 168 Wn.2d 645. Under this bright-line rule, a prima facie case of discrimination is established when the sole remaining venire member of the defendant’s constitutionally cognizable racial group or the last remaining minority member of the venire is peremptorily challenged.

CoA finds that although the challenged venire member in this case was African-American, Meredith is not and the record failed to establish whether another sticken juror was the last remaining minority member of the venire. His claim fails under the new standard, and under the old standard, there was not “something more” from which to ascribe a discriminatory motive to the challenge. CoA concludes that although the trial court applied the incorrect legal standard, its determination with regard to Meredith’s Batson challenge was not clearly erroneous.

State v. Hahn, No. 40062-6-II (8/3/11) CoA reverses Hahn’s conviction for Solicitation to Commit First Degree Murder because the trial court failed to give a lesser included offense instruction for Solicitation of Fourth Degree Assault.

Hahn had initially been charged with multiple counts of ROC3, sexual exploitation of a minor, possessing depictions of minor in sexually explicit conduct and stalking after a multiyear sexual relationship with S.M. While in jail he started shopping around for someone to make S.M. “disappear.” When contacted by detectives Hahn adamantly denied wanting S.M. killed, he just wanted the faux hitman/undercover cop he had been working with to “maybe just scare her.”

CoA (and prosecutor on appeal) agreed that solicitation of assault satisfied the legal prong of the Workman test because each element of the lesser offense is a necessary element of the offense charged. As to the factual prong, “disappear” could mean a number of things depending on the circumstances including fourth degree assault. Hahn maintained throughout police questioning and at trial that he never intended to have S.M. murdered and that he only thought his contact would “scare S.M.” The evidence, viewed in the light most favorable to Hahn, supports an inference that only the lesser included offense was committed. CoA reverses.

Blair Russ 206-382-9200

In virtually every DUI defense, the question becomes: at what point was the officer permitted to make the arrest and ask the suspect to submit to a breath test? The answer turns on two simple words that are much easier said than understood: probable cause. The officer may arrest the suspect when he had “probable cause” to believe that the suspect has driven under the influence. So what constitutes probable cause? Our Courts have said that “probable cause to arrest exists where the totality of the facts and circumstances known to the officers at the time of arrest would warrant a reasonably cautious person to believe an offense is being committed.”

In other words, after looking at the big picture and not rushing to judgment, it is clear enough to our level headed officer that the nervous guy or gal in front of him was driving after having too much to drink. Yet, in practice, it is very difficult to apply this framework. Perhaps the difficulty arises from using the word “officer” in the same definition as the phrases “totality of the circumstances” and “a reasonably cautious person.” As anyone who has ever defended a DUI case should attest to, officers routinely ignore facts which are wholly inconsistent with impairment and belabor, if not butcher, common sense to suggest impairment from neutral facts. Indeed, with the sensory perfection akin to a shark detecting a drop of blood in the ocean, any officer that smells a hint of alcohol immediately forgets every fact that initially negated any prior suspicion of drunk driving and the focus quickly turns to perfecting probable cause to get that breath test.

Even our Court decisions highlight the difficulty in applying probable cause to the real world. Two cases, State v. Gillenwater and State v. Avery, both decided within a year of each other, analyze the issue of probable cause in the DUI context. In Gillenwater, the defendant was the non-faulting driver in a three car fatality accident. While tending to the injured defendant and his deceased passenger, paramedics detected the odor of alcohol on both individuals. A responding officer also noticed three open beer cans and a cooler full of beer on the floor of the backseat. Defense counsel moved to suppress the eventual blood draw on the basis that the arresting officer lacked probable cause. In affirming his conviction, Division 2 of the Court of Appeals relied upon the existence of the alcohol odor, the cooler full of beer, and the observation of the open beer cans as the basis for the probable cause.

One year later, State v. Avery was decided by the same court. In Avery, officers responded to a report of a vehicle pedestrian collision. Upon contacting the driver, the officer noticed a faint odor of intoxicants emanating from the defendant’s breath. Once the defendant was arrested for leaving the scene of an accident, he was asked to submit to the BAC without the benefit of the statutorily mandated implied consent warnings. Based on a violation of his informed consent rights, defense counsel moved to suppress the breath test arguing that defendant was entitled to an advisement of his right to refuse the test and the consequences of a refusal. In affirming his conviction, the Court found that the existence of odor in the absence of other circumstances tending to show intoxication was insufficient to establish probable cause. As such, the implied consent statute was not triggered and defendant’s submission to the breath test was absolutely voluntary.

How can we distinguish these two cases? In both cases we have odor of alcohol and a collision. Even the Gillenwater opinion expressly acknowledges that it is not illegal to drink and drive; rather, it is illegal to drink too much and drive. Thus, the presence of odor, in and of itself, does not necessarily mean that a crime has been committed and probable cause cannot be derived solely from that observation. Factually, there is one distinction between the two cases, the presence of beer and empty beer cans in the vehicle. Can this be the determinative factor? Absent facts suggesting the contrary, how can we assume that the beer was opened and consumed in the vehicle or around the time of driving? How can we rule out the possibility that the passenger was responsible for opening the beer cans and consuming the beer? If the officer is looking at the totality of the circumstances and being cautious in his judgment, then presumably the officer should discount the non-criminal possibilities before assuming the worst. Plainly, probable cause requires some nexus between the defendant driver and the beer other than mere proximity. After reading these opinions, one wonders how one scenario equates to probable cause while the other one does not. At the risk of sounding cynical, this may be a clear case of result oriented reasoning.

The Court of Appeals told us this week that its lawful to visit with our neighbors even though it could be the coldest July on record.  Please see the summary of Diluzio.

Past State Toxicologist Dr. Barry Logan

Casey Anthony was found not guilty when forensic science evidence was shown to not meet the beyond a reasonable doubt standard.  By now you probably know the story of the trial and the tragic death of a beautiful child, which I won’t repeat.  It seems that many news stories simply want to repeat the gory details of the death of innocence.

What’s news for Washingtonians is that Dr. Barry Logan, our celebrated State Toxicologist who resigned in shame in 2008 after the fraud scandal at our own state lab, testified for Casey Anthony in favor of the not guilty verdict.  You may remember that bad protocols was part of the problem at the lab in Washington.

Dr. Logan, now a defense expert, testified essentially to two things:  1) bad protocols, and 2) other sources of chloroform.  His report indicates that the chloroform source could have been the drinking water or a pool.  Here are parts of his report:

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Summer trips to the Great White North?

Seattle Municipal Court publishes a nice concise 1/3 page handout on traveling to Canada with a DUI on your record.  We just posted a summary of it.  Enjoy your trip!

http://www.trombolddui.com/2011/06/crossing-the-canadian-border-with-a-dui-on-your-record/

Seattle Municipal Court appears to be inching closer to SCRAM use on DUI cases.

http://www.trombolddui.com/dui-blog/

Please find a new article highlighting alcohol consumption and screening at Lake Washington High School prom.

http://www.trombolddui.com/2011/06/breath-testing-at-seattle-area-high-school-prom/

Judge Garrow recently ruled on the admissibility of the Standardized Field Sobriety Tests on a motion before her in NE District Court of King County. Most importantly Judge Garrow found that a jury may be confused if an officer testifies to a belief of impairment based solely on the SFSTs.  In english what that means is that the SFSTs alone don’t establish impairment.  Read the Court’s ruling here.  Court’s Order on FST Motion