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.

This was illustrated this week in Georgia, where DUI charges were dropped against a man despite the fact that he tested positive for having illegal drugs in his system. Roderick Tolbert was arrested last March by a Richmond County sheriff’s deputy after Tolbert was observed driving erratically.  The arresting officer, Erik Norman, felt that a subsequent field sobriety test indicated that marijuana was present in Tolbert’s system.

But since the day that Tolbert was pulled over, the arresting deputy has resigned from the force after he admitted that he had altered the results of two DUI breath tests in other cases. As a result, Erik Norman’s actions have cast doubt on the legality and validity of every other DUI arrest that he made in his 31 months on the county’s DUI task force.

Erik Norman

In Tolbert’s case, his DUI charge was dismissed and he was sentenced to five years of probation for driving with a suspended license. This is the fourth time that Tolbert was found guilty of that offense.

It isn’t known how many other pending DUI cases may be affected by Norman’s misconduct. But it is estimated that he made somewhere between 250 and 400 DUI-related arrests during his time on the task force. This unfortunate incident is a perfect example of how a single inappropriate act on the part of law enforcement could influence the outcomes of many other similar cases.

Swerving To Be Corrected By Technology?

Automotive technology continues to make steady advances in safety for vehicles’ drivers and occupants. But unfortunately, some of these features may have some unintended consequences.

Case in point: lane-keeping technology.

This new package will be available as an option on two Ford vehicles in 2013: the Fusion sedan and the Explorer SUV. The goal is to alert the driver when the vehicle starts to move out of its current lane.

Here’s how it works: a camera is mounted to the rear-view mirror which can detect the lane markings in front of the vehicle. If the car or SUV is traveling more than 40 miles per hour and starts to drift toward one of the sets of lane markings, an alarm will sound if the turn signal has not been activated. The idea is to prevent motor vehicle collisions caused by drowsy drivers.

However, this lane-keeping technology has not fully impressed the National Highway Traffic Safety Administration, which has declined to give this feature its endorsement. For one thing, there are questions as to whether the technology will function properly in all situations (like on curves or during heavy rains, for example). But another worry is that the public will treat lane-keeping technology as a feature that is supposed to protect the driver (like an airbag), rather than a guidance system that’s only designed to assist the driver (which is its actual intent.)

Lane-keeping technology (and other systems like it) may ultimately benefit motorists and the driving public as a whole.  But, ironically, this technology could cover one of the classic signs that NHTSA associates with drunk driving and may play a role in whether a person chooses to drive after consuming alcohol.  He or she may think, “Since my car has lane-keeping technology, it will prevent me from losing control and causing an accident or being detected by police.”  I think we should consult Pris Stratton from  Blade Runner (Darrell Hannah’s character that was an indistinguishable-from-human organic robot).

Pris Stratton. Human Driver or Organic Robot?

For instance, all DUI suspects arrested in Washington must be advised of their rights in a manner in which they understand. They also have the right to enlist a qualified individual of their choice to conduct additional blood alcohol tests in addition to the mandatory test administered by law enforcement officials. These two requirements help assure that people accused of a crime fully understand their rights and can seek independent testing if they want to.

Officers Failed To Properly Advise Of Rights

In a decision released last week, the state Supreme Court determined that these two conditions were not met in the November 2004 arrest of a man in Lewis County, so his DUI conviction was overturned. Jose Morales was involved in a collision while driving near Centralia, and a woman and her mother were injured as a result. A state trooper subsequently arrested him for driving under the influence. Because Morales had difficulty speaking English, the trooper enlisted the assistance of a hospital employee where Morales was being treated for his injuries. The trooper told the “interpreter” (with the aid of a preprinted form) to read Morales his Miranda rights as well as inform him of his right to have additional blood tests conducted.

But after his conviction, Morales alleged that he never understood his right to supplementary blood tests. Since the prosecution had not introduced any signed statement of understanding into evidence nor had called the hospital worker to testify that Morales had been read his rights properly (and because the trooper admitted that he didn’t understand Spanish and couldn’t state for certain whether the reading of his rights was properly administered), the Supreme Court ruled that the results of the blood alcohol tests should not have been admitted into evidence. As a result, Morales’ DUI conviction was vacated (although a dissenting opinion was written as well).

It may seem odd that a case would be thrown out just because a prosecutor neglected to obtain testimony from the hospital worker. Some might call that a “technicality;” but the law sees that as a violation of the agreement we all have with the state regarding our drivers licenses.  We have consented to a breath sample when arrested for DUI if we are read a simple set of warnings and advisements.  Its not much but people are to be told that they can get an independent test.  Mr. Morales wasn’t and so the trial should not have allowed the test into evidence.

An accused must be apprised of the 308 warning so that the accused has the opportunity to gather potentially exculpatory evidence, regardless of the fact that there is no right to refuse the mandatory blood test. State v. Turpin, 94 Wn.2d 820,826, 620 P.2d 990 (1980). This “statutory requirement demonstrates an important protection of the subject’s right to fundamental fairness which is built into our implied consent procedure.” State v. Bartels, 112 Wn.2d 882, 886, 774 P.2d 1183(1989) (quoting State v. Canaday, 90 Wn.2d 808, 817, 585 P.2d 1185 (1978)).

To the State’s credit here there was a colorable argument that Mr. Morales did not have the right to withdraw his consent to a blood draw, but since that section of the statute still lies within the implied consent statute the full advisement must be read to the individual.  It was not here.   In short, the officer had some stranger at the hospital interpreting the Implied Consent Warnings.  No one could testify to exactly what was read to Mr. Morales.  So he was not properly advised of the warning.

Interestingly, the Supreme’s found that such a statutory violation did not rise to the level of a constitutional violation.  So suppression was the appropriate remedy.  The case was remanded on the felony charges that were based on the blood sample that was over the legal limit.

Rule of Morales – Officer must assure that Implied Consent Warning is read in language of driver.

State v. Jose Matilde Morales, Washington State Supreme Court, filed 1/26/12, Docket #84197-7

Slevin Before and After Two year Nightmare

There are some who believe that draconian measures are appropriate for DUI suspects. These people may have no problem taking citizens who are simply accused of driving while intoxicated, locking them up, and throwing away the key.

Well, that’s essentially what happened to a man in New Mexico.  Yes, thats New Mexico, a state in the Union of the United States of America.   Not only was this man incarcerated without a hearing – let alone convicted of a crime – but he was also kept in solitary confinement. For two years.

This week, that man was awarded $22 million by a federal jury in Santa Fe, which is among the largest settlements for prisoner civil rights abuse in the nation’s history. The case stems from the arrest of Stephen Slevin on DWI charges back in August of 2005 in Dona Ana County, New Mexico. Slevin was thrown into solitary confinement and never saw a judge throughout his incarceration.

During those two years, Slevin’s requests to see a doctor about his depression were repeatedly refused by prison officials. He claimed that his toenails grew so long that they were curling around his toes and feet. In fact, Slevin says he had to pull his own tooth because guards would not allow a dentist to visit him.

The DWI charges against Slevin were eventually dropped, and he was released. But now Slevin says that he suffers from post-traumatic stress disorder and will have to be on medication for the rest of his life.

This story is one you might hear about in China, North Korea, Russia, or other countries who are known for their questionable judicial systems. Which is why Slevin’s case should make every American feel just a little bit disgusted.

Dashcam Video Cameras

Police vehicle dashboard camera video systems are among the most important technological advancements in modern law enforcement. The footage recorded by these in-vehicle video cameras can help officers provide evidence of criminal activity during traffic stops – and they also serve to expose inappropriate behavior by the officers themselves.

The installation and maintenance of dashcam video systems, servers, and computers are often paid for with taxpayer dollars. So wouldn’t it stand to reason that the public has a right to know what’s on these videotapes?

Lawmakers seem to think so. That’s why Seattle and Washington officials are trying to pass legislation that makes it easier for citizens and media outlets to access the footage that has been recorded by these dashcam systems. The move follows a lawsuit filed by Seattle TV station KOMO against the Seattle Police Department which alleges violations of the Public Records Act. KOMO news personnel claim that their repeated requests for dashcam video footage have been denied by SPD.

Seattleites have also run into resistance when trying to obtain video footage recorded by police cruiser cameras. Many people have been told that they are not allowed to view the footage or that the footage itself does not exist due to an error with the dashcam system. (Often, these requests are part of lawsuits against SPD for illegal arrests or unlawful behavior.)

Advocates hope that a new law will be enacted sometime this year that will codify and simplify the process of accessing video footage from police dashboard cameras.

In Bullcoming the Supremes found that the lower court erred in admitting a report of chemical blood test report.  They reasoned that the report was created solely for the evidentiary purposes and was made in aid of the police investigation.  Here, Indiana appellate judges uniquely recall Bullcoming and distinguish it as not defining “testimonial”.

 The actual issue before the Court was whether the defendant’s confrontation right was satisfied by live testimony from a surrogate analyst who was generally familiar with the laboratory’s procedures but was not the person who tested the blood, not whether the definition of “testimonial” needed to be reconsidered. Id. at 2710, 2713. Therefore, the case did nothing to alter the definition of “testimonial” evidence as set forth in Crawford and Melendez-Diaz. Rather, the Court held that Melendez-Diaz forecloses any argument that the laboratory test report was nontestimonial. Id. at 2716-17. Because the decision in Bullcoming does not alter the definition of “testimonial,” it does not change our analysis of whether DataMaster inspection certificates fit within that definition. Indeed, in Justice Sotomayer’s concurrence, she repeated the language from Melendez-Diaz that not every person whose testimony may be relevant to establishing the “accuracy of the testing device” must appear in person. Id. at 2721 n. 2.

 To be sure, neither Melendez-Diaz nor Bullcoming specifically state that routine calibration records are always nontestimonial. See Ramirez, 928 N.E.2d at 219. However, we echo the Ramirez court in holding that “at a minimum [the Supreme Court] leaves the question unresolved and demands the same type of scrutiny that we have undertaken since Crawford.” See id. In short, under Ramirez and similar cases, the trial court did not violate the Sixth Amendment when it admitted the DataMaster inspection certificates into evidence.

 

 

Daniel Minnick v. State of Indiana, UNPUBLISHED,  No. 92A03-1106-CR-228,  Court of Appeals of Indiana, January 3, 2012.

The Testing Toxicologist Must Testify Says New York

Yet another court follows the U.S. Supreme Court decision in Bullcoming.  Here, a DUI matter with a blood test (interestingly requested by the defendant) required the actual toxicologist who performed the tests to testify.  The supervisor who reviewed everything wasn’t able to answer all of the pertinent questions under cross examination.

In People of New York v. Micah Goodreau we see yet another judicial opinion demanding that the charged persons constitutional right to cross examine his or her accusers is more important than the logistical daily operations of the toxicology lab. Here’s what the court said, starting with their review of Bullcoming.

In Bullcoming v New Mexico, ___ US ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011), a DWI defendant’s blood was analyzed for blood-alcohol concentration. The forensic analyst did not testify at the trial, being unavailable because he had been placed on unpaid leave for an unrevealed reason. Instead, a scientist at the testing facility, who had not observed or reviewed the certifying employee’s analysis, testified for the People concerning the report which was then admitted into evidence at the DWI trial. The trial court determined that the report was testimonial in nature, citing Melendez v Massachusetts, 557 US ___, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) and Crawford v Washington, 541 US 36 (2004). Nevertheless, the trial court admitted the report, finding the admission did not violate the Confrontation Clause because the certifying analyst “was a mere scrivener” transcribing the results generated by the gas chromatograph machine, and because the testifying analyst qualified as an expert witness regarding the gas chromatograph machine.

The Supreme Court reversed, holding that the blood-alcohol analysis reports were testimonial in character, citing Melendez-Diaz, and finding that the Confrontation Clause prohibits “the testimonial statement of one witness to enter into evidence through the in-court testimony of a second person.” Bullcoming, 131 S. Ct., at 2710.[1], [2]

Here, the analyst that performed the test of defendant’s blood did not certify the blood test report that was admitted into evidence. Instead, the supervising Chief Toxicologist, certified in Exhibit 4, pursuant to Criminal Procedure Law Sections 180.60(8) and 190.30(2) that the copy “is a true and accurate report concerning the results of tests and examinations which were conducted at the Monroe County Medical Examiner’s Office, Forensic Toxicology Laboratory under my direction and recorded in this Report number T2010-022.” The document was acknowledge before a notary on February 21, 2010. The Chief Toxicologist, Dr. Beno, then testified at the trial. She testified that she reviewed the raw data and “anything that analyst has completed”, including a summary of the results, and the chromatograms. She reviewed that data and signed off after the analyst completed the sampling. Beno also testified as to how the testing is accomplished by “headspace gas chromatography” using an instrument called a PerkinElmer Clarus 500 Gas Chromatograph and a Turtle Matrix 40 Headspace Analyzer. She also testified about the lab’s procedure on chain of custody, including the assignment of a bar code and case number when a sample is received, but she did not receive the sample and examine it when it arrived at the lab. On cross examination, Dr. Beno testified that she did not individually watch this particular case.

Beno certified Exhibit 4. But, as in Bullcoming, as the testifying witness, she is not the person who performed on the sample “a particular test, adhering to a precise protocol.” Bullcoming at 2715. Thus, she could not answer questions posed by defense counsel about whether the sample was clotted or unclotted or whether the tubes delivered to the lab appeared to be in normal condition when blood was drawn from a tube for the test.

The Supreme Court notes in Bullcoming, that surrogate testimony by a qualified analyst “could not convey what Caylor [the analyst that did the testing] knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed. Nor could such surrogate testimony expose any lapses or lies on the certifying analyst’s part. With Caylor on the stand, Bullcoming’s counsel could have asked questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for Caylor’s removal from his work station.”

Bullcoming at 2715.

2011 NY Slip Op 21466,   THE PEOPLE OF THE STATE OF NEW YORK v. MICAH GOODREAU, County Court, Yates County,  December 22, 2011.

Law enforcement agencies will always answer with an emphatic “no,” saying that any traffic citations are only issued in response to the actions of drivers. But the real answer is a bit more complicated than that – at least in some cases.

Here’s why: in addition to their normal sources of funding, police departments, sheriff’s offices, or other municipal agencies often receive federal or state grants to finance certain law enforcement initiatives. One such initiative with which Washington residents might be familiar is the Target Zero campaign, which aims to arrest drivers who are under the influence of drugs or alcohol. Target Zero is funded in part by some of these grants.

Of course, grants aren’t limited to law enforcement. They are established to fund a wide variety of endeavors in fields ranging from medicine and environmental science to entrepreneurism and social causes. But there is one thing that all grants (worth their salt) have in common: a list of goals and objectives. After all, the entities that fund grants want to make sure that the money they are giving away is being spent wisely and relevantly; and establishing goals and objectives is a way to do just that.

Many times, a grant’s goals and objectives might be spelled out in terms of specific outcomes. For instance, an entrepreneurial grant might call for the money to be used to form a small business that provides at least 100 new jobs in a given county. A medical grant for an expansion of an oncology center might stipulate that the upgraded facility be able to boost its patient load by 25%.

Or… a grant to fund a drunk driving prevention task force might call for a police department to write between two and four citations per hour during a given crackdown period.

Does that sound like a quota to you?

It did to a judge in Howard County, Maryland. She tossed out a DUI conviction because of perceived quotas stemming from a federally-funded initiative implemented by the county’s police force to reduce drunk and aggressive driving during the first four months of 2011. According to the police chief, the grant “mandated that an average of 2-4 citations must be written per hour on each of these details by each officer or future funding may be withheld.” (That’s another commonality among grants: their funders tend to yank the money from recipients if the goals and objectives aren’t being met.)

The “smoking gun” in the Howard County case was the fact that the language in the grant was copied almost verbatim into internal police department memos which outlined the initiative for officers who would actually be making the stops and writing the citations. The police chief admitted that the wording in those memos could be misinterpreted to give the idea of establishing quotas, and the memos’ language was later revised. But he insisted that his department does not set quotas, noting that it is against Maryland law to do so.

There’s no evidence to indicate that the chief or anyone else in Howard County actively promotes citation quotas. But if a benchmark is established in a grant, and a law enforcement agency wants to keep the grant, wouldn’t it stand to reason that it might (consciously or unconsciously) tailor its procedures to meet that benchmark?

At the very least, it blurs the line between generalized goals and quantifiable quotas. Which is something to think about if you happen to be stopped by a police officer in the future.

Some might remember the issue of quotas hitting the news in 2010 in New York:

New York Police Quotas

In reality, that’s an oversimplified view of the process.

One of the biggest issues deals with the actual testing of DUI suspects. Unless a cop has the proper equipment in his or her vehicle that is designed to accurately measure BAC, you can’t be charged with DUI on the side of the road. What often happens is an officer, deputy, or trooper will arrest a person who appears to have been driving while intoxicated, and then transport the suspect back to the station for blood testing.

Here’s the problem: a person’s BAC changes between the time of arrest and the time of testing.  Elimination of alcohol from the body averages .015 per hour.  As a result, authorities try to estimate an individual’s BAC at the time he or she was pulled over using an approach called retrograde extrapolation. This method basically accounts for factors such as time, the suspect’s weight and gender, and food digestion rates; and calculates the BAC of a suspect at the point in time when he or she was behind the wheel.  Scientifically, pinpointing blood alcohol at the time of driving has proven so difficult that authorities changed the law to allow any reading within two hours for a conviction – the two hour rule.  They also have criminalized breath itself so any relationship to blood is irrelevant but that confusing topic is for another day.

Unfortunately, police often use retrograde extrapolation without all of the data necessary to produce an accurate reading – even to put the reading within two hours of driving. This can potentially lead to erroneous DUI charges being filed against innocent people.

That’s what happened in Nevada. Bruce Armstrong’s 2006 DUI conviction was thrown out recently by that state’s Supreme Court because officials incorrectly applied the retrograde extrapolation approach to compute the suspect’s BAC to a time within the two hours of driving.  In Armstrong’s case, police based the estimate of blood alcohol only on the time between the defendant’s arrest and the subsequent blood test – and ignored the other necessary factors such as weight, food, rate of alcohol intake, tolerance of alcohol.

An experienced DUI attorney will be able to determine whether or not retrograde extrapolation was used correctly in your case. So don’t assume that just because your BAC test result was higher than .08, you’ll automatically be convicted of DUI.

It’s probably lower on the list than you think.

The Daily Beast recently compiled a list of what it called “America’s Drunkest Cities of 2011.” The publication looked at data concerning binge drinking and average number of drinks per month – and then ranked the cities accordingly. The Top 10 cities on the list were Boston and Springfield, Massachusetts; Milwaukee, Wisconsin; Reno, Nevada; San Antonio, Texas; Chicago, Illinois; Austin, Texas; St. Louis, Missouri; San Diego, California; and Tucson, Arizona.

Where did Seattle area rank? All the way down at #19.

The site’s data shows that the average Seattle resident over the age of 21 consumes 14.1 drinks per month. About 16.9% of adults are classified as binge drinkers, while another 6.1% are considered to be heavy drinkers. (Binge drinking is classified as having 5 drinks or more in two hours for men, and 4 drinks in two hours for women). In comparison, Boston (The Daily Beast’s drunkest city) posted binge drinking numbers of 20.1% and 15.5 average drinks per moth per resident.

So while Seattleites are far from teetotalers, they don’t imbibe nearly as much as people who live in other American cities.

The Cochrane decision follows the earlier Chambers decision and tells us that the time frame of “ten years” specifically must be included in the charging document.  The Cochrane Court quotes Chambers:

Under RCW 46.61.502(6), driving under the influence (DUI) is elevated from a gross misdemeanor to a felony if the defendant has “four or more prior offenses within ten years as defined in RCW 46.61.5055.” In State v. Chambers, 157 Wn. App. 465, 237 P.3d 352 (2010), we held that while the fact that a person has four prior DUI offenses is an essential element of the crime of felony DUI under RCW 46.61.502(6), the question of whether a prior offense meets the statutory definition under RCW 46.61.5055 is a threshold question of law to be decided by the court.

If the charging document doesn’t say “ten years” then the error is of constitutional magnitude.   Unaddressed by Cochrane but addressed recently by Division III,  is the Sentencing Reform Acts expansion on the ten years rule when defendants fail to “wash” their priors by (see State v. West, Division III, January 2011)

While Cochrane’s arguments succeeded regarding notice of the ten years, he unsuccessfully argued that the charging and the proof of priors must include details of the priors.

The Cochrane decision also follows the earlier Chambers decision with respect to the court having the authority (and not the jury) to compare the prior convictions to local statutes.  The court is the fact finder when it comes to deciding if a prior from another state qualifies as an equivalent “prior conviction” here in Washington Statute.

Rule of Cochrane – The court shall determine the legal status of prior convictions not the jury.  The charging document must allege “ten years.”

State v. Donald H. Cochrane, Court of Appeals of Washington Division I. No. 64126-3-I, January 10, 2011.

New Years Eve Parties Mixed With New DUI Laws

New Year’s Eve is one of those holidays which is heavily associated with drinking and driving. As a result, law enforcement personnel in and around the Seattle metropolitan area will be out in full force throughout this holiday weekend looking for drunk drivers. Then after 2012 begins, lawmakers will consider a measure to toughen sentences for drunk drivers who injure or kill people.

This week, prosecuting attorneys and family members of drunk driving victims held a press conference to promote a bill which will be introduced during the 2012 state legislative session. The proposal calls for strengthening penalties for people who are convicted of DUI crimes which result in the injury or death of another person.

The proposed bill would more than double the minimum and maximum sentences for DUI vehicular homicide in the state of Washington from 2 1/2 to almost 3 1/2 years of imprisonment to between 6 and 8 1/2 years (which is equal to the penalty for manslaughter). Also, the measure would bump up the sentence range for DUI vehicular assault to 6 to 12 months of incarceration from the current level of 3 to 9 months, reports the Seattle Times.  I haven’t seen a copy of the new law so I’m relying on the Times article.

The bill will be sponsored by Representative Christopher Hurst, a Democrat from Enumclaw. Hurst is a retired police officer who also chairs the House’s House public-safety and emergency-preparedness committee. During Wednesday’s news conference, he noted that since DUI offenders can often have their sentences reduced by a third for good behavior, people who drink, drive, and kill someone could conceivably be released after 1 2/3 years.

On that note, please celebrate responsibly this New Year’s Eve weekend and remember to ask for an attorney.  The most valuable word tonight shall be “attorney.” If you are stopped and have alcohol on your breath you can assume you are taking a trip to the station for a breath test so remember to ask for an attorney.  Although not necessarily lawful, there seems to be a presumption by police on evenings like this that everyone with alcohol on breath is intoxicated.  Remember to ask for an attorney.

Justice Is Found In Dessert

My measuring stick for justice isn’t anything I learned from fancy professors at the University of Washington.  It comes from my brothers and my struggle over dessert.  The rule – one person cuts and the other chooses.  That’s it.  Everything was out in the open and we both got a chance to apply our powers of observation and measurement.  The well defined roles of the contestants is paramount though. The fact that the other would choose made the cutter honest beyond any honesty previously known to humankind.  If my mom or dad served after one of us cut the desired sweet then justice would fail at times.  It was crucial that the other chose after applying the best powers of observation and inspection.  With this deep political theory embedded I have watched nearly two decades of justice via the adversarial system in the criminal courts.  My conclusion:  pretty good, when allowed to work.

The adversarial system works most of the time.  But, at times it fails.  When forensic science is involved the failing often comes from the Washington State Toxicology Lab.  State v. Russell may be an example of such a failing.  But we won’t ever know because evidence was destroyed by a lab manager (Ann Marie Gordon) who resigned in shame.  The conviction remains.

State v. Russell is an unpublished opinion.  This vehicular homicide from Division III of the Court of Appeals embodies the problems with the Washington State Toxicology Lab but there was no correction or consequence for bad lab practices.  In short, the lab intentionally destroyed the blood sample that was taken and the prosecution was allowed to present that destroyed evidence.  The lab cut the pie and ate one piece before anyone else got to view the dessert. The Lab was the cutter and the chooser.

The many arguments made by Mr. Russell on appeal were all denied.

1 – His warrantless arrest in an Idaho emergency room was beyond the legal authority of Washington State Patrol.  The Interstate Mutual Aid Agreement (IMAA) and the fresh pursuit doctrine did not provide authority to arrest.

2 – Mr. Russell’s medical records were seized beyond the scope of the warrant issued  by an Idaho Magistrate.

3 – Serum blood draw was taken prior to arrest so not under authority of Washington’s Implied Consent Statute, RCW 46.20.308.   (Here the court agreed but allowed the seizure of blood under Fourth Amendment Law.)

4 – The blood test failed to satisfy foundational requirements of 46.61.506(3) and WAC 448-14-020(3)(b).  (Here the State conceded but offered the blood results under 46.61.502(4) as “other competent evidence” of intoxication under the non per se prongs.

5 – The blood samples were destroyed by Ann Marie Gordon at the Washington State Toxicology Lab in violation of Criminal Rule 8.3(b).  The court ruled that there was no reason to doubt the accuracy or reliability of the Lab’s test that was done in 2001.  (The chief toxicologist, Barry Logan, and the lab manager, Gordon, would both resign in 2007 and 2008 after other judges found the Lab’s work not accurate and reliable.  The Lab later launched a major overhaul under new leadership and a new accreditation campaign to fix its poor work.)

6 – Mr. Russell’s right to public trial under Article I Section 22 of the Washington Constitution and the Sixth Amendment of the U.S. Constitution was violated when juror hardship discussions were held in private.  The appellate court distinguished State v. Irby 170 Wn.2d 874 (2011), which mandates that a defendant be present during all jury selection.

7 – Racial discrimination occurred in jury selection when the state excused jurors based on race.

8 – Challenges for cause were denied.

9 – Prosecutor misconduct occurred when the prosecutor eluded to the blood test result in opening statements in violation of a pretrial motion.

10 – Foundation to admit the blood test results based on lack of testimony of specific amounts of anticoagulant and enzyme poison in blood draw vial.

11- Chain of custody for the blood test was not established.

12 – The jury instruction on a superseding, intervening event was incorrect.

13 – Violation of attorney-client privilege when State called a defense expert to testify as an accident reconstructionist.

14 – One state witness vouched for the others work.

The court here was unmoved by the lack of adversarial process.  Gordon is no longer a threat to our state but her work against the adversarial system continues elsewhere. Here is an article of Ann Marie Gordon’s version of honest cutting of the pie when she moved onto another state.

(05-26) 12:03 PDT SAN FRANCISCO — A San Francisco coroner’s supervising toxicologist vouched for blood-test results in drunken-driving cases for two years before prosecutors told defense attorneys that a Washington state court had labeled her as a “perpetrator of fraud” while running that state’s toxicology lab, The Chronicle has learned.

The failure to tell defense attorneys about Ann Marie Gordon’s past problems could prove costly to San Francisco District Attorney Kamala Harris’ office.

Numerous convictions are already at risk because prosecutors lacked a system for learning about police witnesses’ potential credibility problems and informing defense lawyers, which they are required to do under a 1963 U.S. Supreme Court decision. 

The revelations about Gordon’s past show that such problems could extend to agencies other than the Police Department whose employees frequently testify as prosecution witnesses.

Rule of Russell – The cumulative error doctrine doesn’t appear to have survived.

State v. Frederick David Russell, Court of Appeal of Washington, Division III, UNPUBLISHED OPINION, No. 26789-0-III, April 5, 2011.

Here the court distinguished the “disqualification” advisement from the “suspension or revocation” language.  And the warnings, the court said, permit the driver to ask for further details, which Ms. Lynch did not do.

To succeed in such an argument Ms. Lynch would also have to show prejudice but since the warnings were ruled to be accurate, the prejudice argument failed.  The court did address and reject her argument though, which was based on strategy for the criminal proceeding.  That, the court ruled, was not relevant to the administrative proceeding.

Rule of Lynch – The Implied Consent Warnings are not inaccurate nor misleading for CDL holders.

Leesa Marie Lynch v. State of Washington, Department of Licensing, Court of Appeals of the State of Washington, Division II, No. 40041-3-II, July 19, 2011.

Raheem Brock DUI Charge Delayed a Year

As the Seattle Seahawks try to claw their way into the NFL playoffs, one of their players is dealing with an off-the-field distraction.  Raheem Brock has been charged with driving under the influence after his arrest in King County over a year ago. According to police, the defensive end was driving just before 3am on Saturday, November 13, 2010. Washington State Patrol officers pulled him over and administered a breath test after Brock reportedly refused to submit to field sobriety tests. The results from the breath test at the station were .115 and .111, above the .08 legal limit in Washington State.

Officers then took Brock to the University of Washington Police Department for processing, and his vehicle was impounded. But Brock was later transported to his Bellevue residence and released from police custody. He traveled with the team to Arizona later that day or the next day and played in the game on Sunday.

Brock was arraigned in King County District Court yesterday. He entered a not guilty plea, and a pretrial hearing was scheduled for February 6. Prosecutors didn’t give a reason why the case was delayed for over 13 months and its not uncommon for DUI arrestees to have to wait 6 months or more. If Brock is convicted of the DUI charge, it is likely that much or all of his sentence will be carried out in the offseason.

DUI Patrols Out This Weekend in 1000 Stars Program

This weekend will be a popular one for residents, companies, and organizations who are hosting holiday parties. Many of these parties will provide alcohol for their guests, so the potential for impaired drivers on the state’s roadways will be higher than normal.

That’s why various police agencies around the state of Washington will participate in this year’s Night of 1000 Stars initiative, which is scheduled for today and tomorrow. Each star represents the badge of a law enforcement officer on duty and on the lookout for impaired drivers.

As a result, there will be many additional DUI patrols that will be stationed around the Seattle area this weekend with the goal of identifying and arresting drunk drivers. Some of the specific areas to be targeted include:

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King County

Watch for officers Downtown Issaquah – Friday

Interstate 90 – Friday

Downtown Bellevue – Saturday

Pierce County

Fife area – Saturday

Snohomish County

South Snohomish County (including Arlington and Marysville) – Friday night at 7pm through Saturday night at 7pm

North Snohomish County (including Everett, Mill Creek, and Lynwood) – Saturday night at 7pm through Sunday morning at 3am

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Therefore, you should exercise even more caution before taking to the roads this weekend if you have consumed alcohol. You may want to consider hailing a taxi, getting an acquaintance to drive you home, or arranging an overnight stay if you are concerned about getting pulled over for DUI. As always, if you have been arrested and charged with a DUI, you should call our law offices as soon as possible.