Marijuana Legislation Dies in Colorado

In November, Washington voters will have their say on a referendum which designates a quantifiable standard (regardless of impairment) for marijuana in the bloodstream above which an individual is considered legally guilty. Currently, any trace of marijuana that is discovered in a driver’s system is grounds for a DUI charge in our state and the question at trial is, “was the driver impaired?”

It’s probably a good thing that the issue will be decided by the citizens of Washington – because if it were up to politicians, it’s likely that nothing would ever get done.

Just look what happened in Colorado this week. Lawmakers in that state failed to reach agreement on a similar measure, marking the third time that the proposal has failed there. After clearing the Colorado House on Tuesday, the bill stalled later that day in the state Senate, which deadlocked at 17-17. (Ironically, one of the senators who had supported the bill the last time it was debated was out of town this week, rendering her unable to cast her vote in Denver).

The measure would have established a level of 5 nanograms per milliliter of blood of THC, the main ingredient in marijuana, that would have defined whether an individual was legally impaired. That’s similar to the standard which will be in the November referendum in Washington.

There were many reasons why the proposal did not have the support it needed to pass. Opponents expressed reservations about the measure’s effectiveness, questioned the breadth of the bill, bickered about where the actual standard should be set, and argued about whether to exempt medical marijuana users. In the end, the stalemate was just enough to prevent the bill from reaching the Colorado governor’s desk.

There is a referendum pending in the Centennial State concerning marijuana legalization. However, the initiative specifically designates lawmakers as the people who decide on the actual DUI standard. Given this week’s political discord, it’s hard to be optimistic about any progress on that issue – even if Coloradoans do approve the measure on the ballot.

Darold Stenson

In theory, death penalty cases should be handled just like any other criminal trial – with both requiring evidence “beyond a reasonable doubt” in order to gain a conviction. But in actuality, all aspects of a death penalty cases must be able to pass thorough scrutiny because of the severity (and irreversibility) of the sentence. This reality is a big reason why a man will receive a new trial almost 20 years after being arrested for murder.

In March of 1993, Darold Stenson told a 911 operator that his wife and his business partner had been shot. But after police arrived and examined the evidence, they suspected that Stenson was the one who had shot them – so they arrested him on a pair of aggravated first degree murder charges. Prosecutors contended that Stenson, who was dealing with financial problems, shot his wife for the life insurance money and killed his partner because of a large debt that Stenson owed him. After hearing testimony and viewing forensic evidence, a jury convicted Stenson and sentenced him to death.

Then in 2009, lawyers working on Stenson’s appeal requested and received evidence from the original trial – and discovered two inconsistencies involving gunshot residue that was reportedly found on the inside of a pocket of a pair of jeans that was worn by Stenson on the day of the shooting. One was the fact that a person other than the man who supposedly ran the gunshot residue tests actually performed those tests at the FBI lab. The other was a previously undisclosed photograph of a sheriff’s detective wearing Stenson’s jeans; in the photo, the pockets were turned out and the detective was not wearing gloves.

Stenson’s lawyers contended that these two issues undermined the authenticity of the claim that residue from the murder weapon was found inside the pocket of Stenson’s jeans. So a reference hearing was conducted involving the original trial judge, who concluded that the new information warranted exclusion of the gunshot residue from the trial evidence. However, the judge said that even without the gunshot residue evidence, Stenson would have still been convicted at trial.

But the Washington Supreme Court disagreed with the judge and said the new developments would indeed have prejudiced Stenson’s trial outcome. In an 8-1 decision, the conviction was overturned and the case remanded back to Clallam County court for a retrial.

It remains unknown what the probability of conviction will be some 18 years later for Stenson’s new trial. What this case stands for though is the duty of the prosecutors to play fair and seek the truth and not to solely focus on conviction. The prosecutor has a duty to disclose to defense attorneys inculpatory and exculpatory evidence regardless of their believed theory of the case.

The Seattle Post-Intelligencer reports that two men were arrested over the weekend near the intersection of South Graham Street and Beacon Avenue South in Seattle. The SPD officers were responding to what they thought was a report of a stolen car early Sunday morning.

According to Seattle Police spokesman Detective Jeff Kappel, the auto theft report was called in earlier that morning by a man who claimed that his 2009 Audi has been stolen. The caller told a 911 dispatcher that the car was last seen traveling northbound on Swift Avenue South, which is just west of where police located the Audi.

But a different story emerged when the officers began questioning the two men inside the car. Apparently, the passenger had phoned in the report in an effort to prevent his buddy from driving the Audi, which was actually owned by the 911 caller. Inexplicably, the “victim” decided to allow his friend to drive the car home anyway.

The driver was arrested on suspicion of driving under the influence. The passenger was booked on a charge of filing a false police claim.

Why did the Audi owner choose not to drive his own car in the first place? The article doesn’t say, but the logical answer would be because the vehicle’s owner was also intoxicated. That would certainly explain the baffling decision-making process that was executed by the owner of the car.

State Liquor Store Closures

Over the objections of many “drunk-driving prevention” advocacy groups, Washington residents passed Initiative 1183 last year which permitted the sale of liquor at private establishments in the state. That transformation is expected to officially begin on June 1. However, changes are already taking place in preparation of that date.

The Washington Liquor Control Board has announced that it is closing 14 state-run liquor stores today. Staff depletion is being cited as the reason, though the board did take pains to reduce service disruptions in a given area.

Here is a list of the 14 state liquor stores which are shutting their doors today:

15100 Southeast 38th Street, Bellevue (Eastgate)

19111 Bothell Way NE, Bothell

3332 Cedar Street, Everett (Cedar Street)

1203 N Southeast Everett Mall Way, Everett (Everett Mall)

34512 16th Avenue S Suite A, Federal Way (South)

8205-C Martin Way E, Lacey (Hawks Prairie)

3210 Ocean Beach Highway, Longview (West)

2459 76th Avenue SE, Mercer Island

1201 2nd Avenue, Seattle (2nd & Seneca)

14343 15th Avenue NE, Seattle

1847 South 120th Street, Seattle (Boulevard Park)

3310 West McGraw Street, Seattle (Magnolia)

1415 East 72nd Street Suite B, Tacoma (Portland Avenue)

2612 Northeast 114th Avenue Building M, Vancouver (Burton Road)

Close out sale?  Sorry.  Bargain-hunters will be disappointed to learn that products at these stores will not be discounted. Instead, any unsold inventory will be bid on by private retailers who will soon be selling spirits in Washington. Last week, over ten dozen entities successfully bid on licenses to sell beer, wine, and hard liquor at private establishments.

But one dispute you rarely hear about is the variance between state law and city laws. People tend to assume that if Washington has passed a law, then every city in the state automatically has to follow it – right?

Not necessarily. And a state Supreme Court decision this week highlighted this very issue.

In the City of Auburn v. Gauntt, the high court dismissed a conviction for marijuana possession because even though a man violated a state law, the city of Auburn has not officially adopted the statute under which the man was charged. Dustin Gauntt was pulled over and arrested after an Auburn Police officer noticed him smoking marijuana while driving. He was convicted and sentenced to 90 days in jail. But he appealed the verdict, and an appellate court sided with him. The state Supreme Court upheld the dismissal of the charges in Thursday’s decision.

It’s unclear why Auburn still has not officially adopted the laws of the state. Ironically, had the Auburn Police Department turned the case over to King County authorities, the charge would have been upheld in court.

One woman from Toppenish is apparently not very good at following officer orders. As a result, she will spend more time in prison than she otherwise would have.

This week, Shawntay Dull was ordered to spend three years in prison on charges of Eluding police and DUI. For the fourth time.

The conviction stems from a police chase on March 12 where Dull tried to elude police for almost a half hour. During the incident, Dull topped speeds of more than 100 miles per hour before authorities were able to use spike strips to flatten her tires and force her to stop. As I said, it was the fourth time that Dull has been convicted of eluding police. She led them on a similar chase six years ago which also broke the 100 mph mark.

During that time, the state legislature passed a new law which stiffened sentences of people who placed other people’s lives in danger when trying to evade police capture. Since several motorists were seen trying to swerve when Dull ran stop signs, she was given an additional one year onto her prison sentence to go with the two years she earned on the DUI charges.

The moral of the story? Fleeing police is never a good idea – and now, you can get locked up for longer periods of time if you try it.

In a recent court decision, a court ruled against a KOMO news reporter who wanted to gain access to dashcam videos. The judge sided with SPD’s policy of keeping the videos hidden from public view for at least three years.

The department has long said that state privacy laws prevent it from releasing these videos. SPD claims that it doesn’t have the right to allow images of suspects (and their activities at traffic stops or crime scenes) to become public record. But SPD is floating the idea of using technology to blur the faces of the suspects before the tapes are released to the public. (That idea was one of 20 initiatives formulated by the department in the wake of a damning U.S. Justice Department report on police brutality within SPD.)

Seattle PD said this week that it plans to gather a group of people which might have a stake in the release of the dashcam videos. This consortium will likely include privacy advocates, legal experts, community members, and media personnel. These individuals would discuss the idea of making the dashcam videos public and come up with a plan to implement a solution to the problem.

I look forward to seeing the results of this gathering.

In a recent court decision, a court ruled against a KOMO news reporter who wanted to gain access to dashcam videos. The judge sided with SPD’s policy of keeping the videos hidden from public view for at least three years.

The department has long said that state privacy laws prevent it from releasing these videos. SPD claims that it doesn’t have the right to allow images of suspects (and their activities at traffic stops or crime scenes) to become public record. But SPD is floating the idea of using technology to blur the faces of the suspects before the tapes are released to the public. (That idea was one of 20 initiatives formulated by the department in the wake of a damning U.S. Justice Department report on police brutality within SPD.)

Seattle PD said this week that it plans to gather a group of people which might have a stake in the release of the dashcam videos. This consortium will likely include privacy advocates, legal experts, community members, and media personnel. These individuals would discuss the idea of making the dashcam videos public and come up with a plan to implement a solution to the problem.

I look forward to seeing the results of this gathering.

This second exception was the focus of a case which was heard by the Washington Supreme Court. In this unique opinion, which consolidated several with similar issues, the Supremes of Washington again distinguish the higher protections under Washington’s constitution than that under the Federal Constitution.

One of the fact scenarios in this opinion involved a man, Roger Wright, who was pulled over while driving in Seattle in November of 2006. SPD officer Chris Gregorio noticed that the car the suspect was driving did not have its headlights on even though it was dark outside. While talking with the driver, the officer detected an odor of marijuana. Gregorio then noticed that Wright appeared to be nervous about opening the vehicle’s glove box; and when it was finally opened, the officer saw a large roll of money inside.

Gregorio immediately arrested Wright and called for backup. During interrogation in an SPD car, Wright admitted that he had been smoking marijuana earlier in the day, but said nothing about having any of the drug in his car. Gregorio then called for a K-9 unit to search the vehicle (without getting a warrant); and eventually, four baggies of marijuana, a scale, and $1,300 in cash were found in the car’s cabin. After a warrant was obtained to open the trunk, the officer found a bag of ecstasy there. Wright was eventually convicted on drug charges.

Wright appealed the conviction last May on the grounds that the search was illegal. On April 5, the state Supreme Court ruled that even though there was “probable cause” that evidence could be found in the vehicle, this was not the same as a “reasonable belief” that it would be found. Therefore, the court deemed that the exception to the warrantless search did not apply, and quashed all drug evidence in the case. Subsequently, all of the drug charges against Wright were dismissed, and his case will now be remanded to a lower court.  Confusing language?  Yes.  And the lawyering will go on for years fighting about what these words mean.  But thats the fun of it.

As confusing as this case is,  it’s another reminder that police in the state of Washington cannot cut corners when it comes to securing the right to search a vehicle for evidence under our Washington Constitution.

The latter phrase can be applied to a police stop back on August 4, 2008. A state trooper pulled over a car driving erratically and noticed that the driver appeared to be under the influence of drugs. The trooper conducted four field sobriety tests on the driver, three of which the suspect “failed.” The driver was also observed to have pinpoint pupils and needle tracks on his forearms, which, to the officer, were signs of recent drug use. So the trooper arrested the man, handcuffed him, and placed him in the back of the patrol car.

It’s quite possible that the trooper had already taken the necessary steps to assure an eventual DUI conviction. However, the trooper decided to search the suspect’s vehicle for drugs instead of waiting for a warrant – and he found a bag of heroin inside the car. The trial judge allowed the heroin into evidence, and the man was convicted of DUI.

But the man appealed his conviction, and District III of the Washington Court of Appeals ruled unanimously in the man’s favor in March. In State v. Tamblyn, the appeals court determined that there was no danger either to the safety of the trooper or of the evidence being destroyed or concealed while waiting for a warrant to search the vehicle. As a result, the court reversed Mr. Tamblyn’s conviction.

Therefore, if the trooper had simply waited for a warrant to search the vehicle – or had done nothing at all – the chances were good that the suspect would eventually be convicted of DUI. Instead, by searching the vehicle without permission or probable cause, the trooper essentially “snatched defeat from the jaws of victory.”

This point was illustrated last week in the sentencing of a teenager last week in connection with a deadly drunk driving accident. In November of last year, Kaylee Souza crashed her car on Whidby Island, killing three men (ages 19, 20, and 22) who were in the vehicle with her.

On March 19, Souza agreed to plead guilty to three counts of vehicular homicide in exchange for the prosecution’s recommendation of a prison sentence of 54 months. But when it came time to formally sentence Souza on March 30, Superior Court Judge Vickie Churchill chose to toss out the plea agreement reached between the defense and the prosecution. Churchill then ordered Souza to serve the maximum sentence of 68 months in prison. In issuing her ruling, the judge said that she was bound by the sentencing limits, but not the plea agreement.

Certainly, Souza should have been given a harsh punishment considering that she ended the lives of three young men because of her decision to drink and drive. But one could argue that a judge’s rejection of a plea agreement might do more harm than good in the long run. After all, if a defense attorney can’t trust a judge to recognize a plea agreement, what’s the incentive for a lawyer not to forgo a lengthy, emotional trial and  take his or her chances with the jury?

But House Bill 2443 also had other provisions which would affect the sentencing requirements for those convicted of DUI. Specifically, those provisions pertain to how ignition interlock devices are installed and used.

An ignition interlock device is a mechanism placed in the vehicle of a DUI offender. It requires the driver to blow into a tube which measures his or her blood alcohol content. If alcohol is detected on the offender’s breath above a certain level, the vehicle’s ignition won’t start.

The new law calls for increased usage of ignition interlock devices equipped with facial recognition systems. This would prevent DUI offenders from having a sober person blow into the tube to start the vehicle, then getting behind the wheel and driving drunk.

Of course, the law calls for increased fees to pay for this added technology. That means drivers will be hit with an extra $20 on top of the thousands of dollars (on average) that they will wind up paying to fight a DUI charge.

But the most controversial aspect of the new legislation may have to do with the broadening of the pool of candidates who are subject to ignition interlock devices. Whereas these devices were only mandated for offenders convicted of DUI, the new law expands those drivers who will be required to have these expensive device.

The relevant facts in Mr. Tamblyn’s case are that he was arrested for DUI, handcuffed, and stuffed in the back of the officer’s squad car.  No further danger to the officer existed but the officer searched Mr. Tamblyn’s car anyway and found drugs.  He was then charged with felony possession of Heroin and DUI.

The State failed to meet its burden to show that the officer was in danger or a risk existed evidence could be concealed or destroyed while awaiting a warrant.  Tamblyn was handcuffed and locked in the patrol car when the officer searched his car.  The record indicated that Tamblyn could not conceal or destroy evidence while a warrant was obtained nor that the officer did not fear for his safety.

The Washington Supreme Court clarified the issue when it said in the Afana case, ”if a police officer has disturbed a person’s `private affairs,’ we do not ask whether the officer’s belief that this disturbance was justified was objectively reasonable, but simply whether the officer had the requisite `authority of law.’ If not, any evidence seized unlawfully will be suppressed. With very few exceptions, whenever the right of privacy is violated, the remedy follows automatically.”  Afana, 169 Wn.2d at 180.

Here’s how the Tamblyn Court recited the status of the law:

The relevant warrant exception is for automobile searches incident to arrest. Id. at 386. Historically, officer safety and the risk of destruction of evidence of the crime of arrest underpinned this warrant exception. Id. (citing State v. Ringer, 100 Wn.2d 686, 693-700, 674 P.2d 1240 (1983)). The Pattoncourt held the search of a vehicle incident to arrest “is unlawful absent a reasonable basis to believe that the arrestee poses a safety risk or that the vehicle contains evidence of the crime of arrest that could be concealed or destroyed, and that these concerns exist at the time of the search.” Id. at 394-95. Our Supreme Court clarified “the exception applies only when officers are unable to delay their search to obtain a warrant because the arrestee poses a threat to officer safety or the preservation of evidence.” State v. Swetz, 160 Wn. App. 122, 130-31, 247 P.3d 802 (2011) (citing State v. Valdez, 167 Wn.2d 761, 777, 224 P.3d 751 (2009)).

Rule in Tamblyn – Police must get a warrant to search a drivers car after the arrest.

State v. Blake Charles Tamblyn, Court of Appeals, Division Three, No. 30495-7-III., March 20, 2012.

That’s the goal of an effort to place a voluntary ban on certain sales of alcohol in three Seattle neighborhoods. Mayor Mike McGinn is formulating a plan to restrict sales of so-called “fortified” wine and beer in Lake City, Sodo, and Beacon Hill. The ban would be in effect between the hours of 6am and 1pm each day, but would not affect restaurants and bars. The three neighborhoods are being targeted because of the continued presence of what is being referred to as “chronic street drunks” in these area.

On its face, this sounds like a good example of government trying to come up with a solution to a problem without overregulating it. But once you take a closer look, it’s not what it appears to be.

What the mayor is attempting to do is create a voluntary alcohol impact area in the trio of neighborhoods. In theory, that means that retailers can decide to adhere to the proposed restrictions on alcohol sales – or they can choose not to.

But under state law, authorities have the power to deny liquor license renewals if they feel that an establishment is not being a “good neighbor” in its area of operation. A refusal to recognize a voluntary ban could fall into that category.

Furthermore, if a municipality doesn’t feel that a voluntary ban is working, it can appeal to the state Liquor Control Board to turn it into a mandatory alcohol impact area. This would legally prohibit the sale of all fortified beers and wines at all hours, as well as restrict alcohol container sizes and hours of operation.

So as you can see, this “voluntary” effort to restrict alcohol sales is, in reality, anything but optional.

Which is why it’s so refreshing when lawmakers do the opposite.

Recently, I reported on what (I thought) was a perfect illustration of this lack of political will: the Spokane City Council’s intention to rehire a policeman who had been fired after getting a DUI – and pay him $275,000 in back salary. This was apparently part of a deal reached with the officer and his legal counsel.

This week’s vote by the city council seemed like a foregone conclusion. The agreement was brokered by the state’s Human Rights Commission and signed by Spokane’s mayor.

But thank heaven for small miracles: the Spokane City Council voted not to rehire Jim Thoma. This bold move represents a rejection of the settlement reached by all parties – as well as a victory for rational thought. After all, how could the citizens of Spokane trust a police force that refused to terminate an officer for grossly unlawful conduct?

After the vote, Thoma’s lawyer said that his client would sue the city if the previous agreement is not honored.

But now, DUI offenders may possibly be able to do something that they couldn’t do before: travel to Canada.

As of March 1, Canada has eased its limitations on U.S. citizens who want to travel North for pleasure. Under the old rules, Americans who had been found guilty of DUI were usually denied entry into Canada (because DUI in that country is a felony, and felons are routinely denied admittance). But the new guidelines permit U.S. travelers to obtain a Temporary Resident Permit if their DUI conviction is a lessor offense, possibly a  gross misdemeanor – like it can often be under Washington law.  But imposition of jail can destroy all hope of migrating North.

The main reason for the switch? Money, of course. Canadian tourism officials estimate that their nation has missed out on millions of dollars in vacationers’ revenue. In fact, they claim that this border crossing issue was more costly to Canada than the recent economic recession. Numerous Americans from Washington, Minnesota, and other border states travel to Canada each year to fish, hunt, hike, and explore the countryside.

Americans with Felony DUI convictions, those that have served jail, or who have more serious criminal offenses on their record may still probably be denied access to Canada. And there are other categories for exclusion.  It’s unclear exactly where Canadian officials will draw the line between what is admissible and what is not.  So, best advice is to seek counsel. But, the new regulations are sure to boost tourism in Canadian provinces which cater to American travelers.

The facts:

Two Seattle Police Officers responded to a 9-1-1 call of a suspicious vehicle who may have hit a parked car.  Officer 1 arrived on scene and observed a black truck in contact with a legally parked vehicle.  The black truck was partially blocking the roadway, said the officer in his report.  Officer 1 approached the vehicle and found client passed out in the driver’s seat with seatbelt on.  Officer 1 claimed that the truck’s transmission was in the drive position and engine was running.  Officer 2 arrived on scene and removed client from truck to perform FST’s.  According to the report the FSTs were done poorly.  Officer secured the vehicle.  After arrest, client answered Alcohol Information Report questions and gave two breath samples of .22.  Jury returned verdict of not guilty, finding client safely off the roadway.

Part of any good trial is the accused persons story.  It’s what matters and defines justice in that particular case.  The wonderful client in this case had a very compelling story that the prosecutor choose to ignore when presented prior to the trial.  Blair Russ was able to tell that story to the jury and justice was done.

But the Washington Supreme Court tossed out the murder conviction and ordered a new trial for Monday. Why is that? Because of prosecutorial misconduct.

The high court said that racially inappropriate comments made during the trial by senior King County deputy prosecutor David Konat improperly portrayed African-American witnesses in a negative light. During the trial, Konat was trying to get several black witnesses to testify that they saw Monday (who is black) shoot at Green. But none of them would – prompting Konat to proclaim that “the code is black folk don’t testify against black folk.” Konat also pronounced the word “police” when talking to some of the witnesses as “PO-leece,” which was a reference to the way that some African-Americans pronounced that word

This week, the prosecutor’s office announced that Konat has resigned from his position with King County. He had been on leave after this summer’s announcement from the state Supreme Court.

Some people might debate whether or not Konat’s controversial remarks were racist, politically incorrect, or harmless. But the larger point is why he chose to utter them in court in the first place. He could have made his point without using terms that might be construed as offensive and probably would have gotten the same outcome from the jury (which only needed an hour to reach its original verdict). Instead, the state’s highest court rebuked Konat and overturned the conviction – forcing the state to retry Monday all over again.

So perhaps it is no surprise that the measure was passed unanimously by the Washington State House of Representatives this week. House Bill 2216 will now proceed to the Senate Judiciary Committee. If approved by that body, the bill would be voted on by the full Senate and perhaps signed into law by Governor Chris Gregoire later this year.

HB 2216 calls for a change in the sentencing ranges for the crimes of DUI vehicular homicide.  For DUI vehicular homicide, offenders could be imprisoned for up the same amount of time as the crime of manslaughter 1.  The mandatory range for the offense will change from 31-41 months to 78-101 months.  The minimum would be six and a half years for that offense.

For lawyers and those familiar with the sentencing guidelines, the bill raises the offense of vehicular homicide from a level nine offense to a level eleven offense

XI. Manslaughter 1 (RCW 9A.32.060)

Rape 2 (RCW 9A.44.050)

Rape of a Child 2 (RCW 9A.44.076)

Vehicular Homicide, by being under

the influence of intoxicating liquor

or any drug (RCW 46.61.520)

This bill does not alter the penalties for standard DUI crimes – only for those involving the death of another person. It was inspired in part by the high-profile case of Steve Lacey, a Google engineer who was killed in July of last year by a drunk driver with a alleged blood alcohol level of .29 – which is over 3 1/2 times the legal limit.