March 25 Shelter in Place—Distance sharing is caring. So Zoom video conference to continue with your essential legal services while keeping you, your family and your community safe. Smith & White is open as an essential service because courts remain open to address safety issues. So contact us in the secure manner you think best.

Articles Posted in Evidence

It is a common misconception that assault involves actual bodily harm. Under Washington law, however, there are multiple acts that constitute assault, most of which do not require proof of physical contact. Thus, a defendant may be convicted of assault even if he or she never touches the alleged victim, as shown in a recent Washington appellate court case, in which the court affirmed the defendant’s assault conviction. If you are charged with an assault offense in Washington, it is crucial to speak with a trusted Tacoma assault defense attorney to discuss your options for seeking a successful outcome.

Facts Surrounding the Alleged Assault

It is alleged the defendant and his wife, who were married for eleven years, got into an argument. The wife left their home and began running away, after which the defendant got into his car and drove next to her. The wife eventually went behind construction barriers to avoid the defendant, after which the defendant struck the barriers with his car. The wife testified that she did not believe the defendant was trying to run her over, but she was scared and was asking for help. The defendant was charged with numerous crimes, including first and second-degree assault. He was found guilty of the second-degree assault charge, after which he appealed, arguing the State did not present sufficient evidence to obtain a conviction.

Proving Assault Under Washington Law

Under Washington law, a person commits second-degree assault by intentionally assaulting another person, inflicting serious bodily harm. Further, there are three definitions of assault in Washington: unlawful touching, an attempt to place a person in fear of harm, or an attempt to inflict bodily injury on another person. When an assault charge arises out of an attempt to harm another person or place a person in fear of harm, the State must establish that the defendant acted with specific intent. In other words, the State must show that the defendant acted with the intention of bringing about a specific outcome.

Continue reading

When a defendant is charged with a crime, the State is tasked with proving each element of the crime to prove the defendant’s guilt. If the State cannot meet this burden, the defendant should be found not guilty. For example, many crimes require the State to prove a defendant had actual intent to commit the crime with which he or she is charged. In a recent case in which the defendant was charged with assault, the court explained when the State is required to establish an intent to harm and when a defendant may be convicted despite the lack of evidence of intent. If you are a Washington resident charged with an assault offense, it is wise to confer with a dedicated Tacoma assault defense attorney to discuss what defenses you may be able to assert.

Facts Regarding the Defendant’s Arrest and Trial

It is reported that a police officer arrested the defendant for a suspected violation of a no-contact order. When the officer searched the defendant, he found drugs on the defendant’s person, after which the defendant attempted to flee the scene. The officer tackled the defendant, who then began kicking at the officer, eventually making contact. The defendant also stated that he should have kicked the officer in the head. The defendant was charged with third-degree assault.

Allegedly, during the trial, the defendant’s attorney stated in his opening and closing arguments that the State could not prove the defendant had the intent to harm the officer, as required to obtain a conviction. The defendant was convicted, after which he appealed.

Continue reading

Many people who have previous convictions have lost the right to own a firearm. Thus, a person subject to firearm restrictions may be convicted of a crime if the State can prove that the person willfully possessed a weapon. In a recent Washington appellate case, the court discussed what evidence the State must produce to obtain a conviction for unlawful possession of a firearm. If you reside in Washington and are charged with unlawful possession of a weapon or any other firearms charges, it is in your best interest to meet with a trusted Washington gun crime attorney to discuss what evidence may be used against you.

Factual and Procedural History

Allegedly, police officers searched the home of the defendant pursuant to a search warrant that covered narcotics and firearms. The officers asked the defendant if there were any firearms in the home. He replied that there were, indicating that there were .380 and .45 caliber guns. During the search, the officers found both guns. The defendant was transported to the police station, where he advised the police of a storage unit that held additional guns. The police obtained a warrant to search the unit, and during the subsequent search, they found six firearms. The defendant was charged with multiple crimes, including two counts of possession of a stolen firearm and eight counts of unlawful possession of a firearm.

It is reported that during the trial, the court advised the jury that for each count of unlawful possession, the jury must find that the defendant knowingly had a firearm, and provided the serial number, make, and caliber of each firearm. The jury found the defendant guilty of all counts of unlawful possession of a firearm, and one possession of a stolen firearm count. The defendant appealed on numerous grounds, including the assertions that the State failed to show beyond a reasonable doubt that he possessed the firearms and that the State was required to prove that he knew the serial number of each firearm to obtain a conviction.

Continue reading

Although all DUI charges should be taken seriously, felony DUI charges can result in significant penalties, including jail time. Most DUIs are charged as misdemeanors, but they can be elevated to felonies in certain cases. Recently, the Supreme Court of Washington clarified the essential elements for escalating a DUI charge from a misdemeanor to a felony in a case in which the defendant appealed his felony DUI conviction. If you reside in Washington and are currently charged with a felony DUI, it is important to speak with a seasoned attorney to discuss your options for seeking a favorable outcome.

The Defendant’s Driving History and Charges

Reportedly, the State charged the defendant with numerous driving-related offenses, including felony DUI. The DUI was charged as a felony due to the fact that the defendant had four prior offenses, as defined by Washington law, within ten years of his current arrest. The court bifurcated the trial so that the jury heard evidence of the defendant’s conduct on the date he was arrested prior to hearing evidence of his prior acts. Thus, the jury convicted the defendant of misdemeanor DUI, after which evidence of the defendant’s prior offenses was introduced. Specifically, the prosecution advised the jury that the defendant had previously been convicted for DUI, negligent driving, and two counts of reckless driving. The reckless and negligent driving offenses were originally charged as DUIs.

It is alleged that after the prosecution rested, the defendant filed a motion to dismiss the felony DUI charge on the grounds that the prosecution failed to present adequate evidence that his convictions for reckless driving involved alcohol. The jury issued a verdict finding that the defendant had four prior offenses. The defendant was sentenced within the felony DUI range, after which he appealed, again arguing there was insufficient evidence that his prior reckless driving convictions involved alcohol. The court of appeals affirmed, after which the defendant petitioned the Supreme Court of Washington for review.

Continue reading

When a person is arrested and charged with a DUI, it goes without saying that the person will not be able to drive his or her vehicle home. The issue of what the police are permitted to do with the vehicle following a defendant’s arrest, however, was recently presented to the Supreme Court of Washington. Specifically, the court addressed whether it was unconstitutional to impound a DUI suspect’s vehicle, in a case in which impoundment resulted in the discovery of evidence that led to additional charges for a DUI defendant. If you live in Washington and are faced with DUI charges, it is in your best interest to consult a capable Washington DUI defense attorney to discuss what you can do to protect your rights.

Facts Surrounding the Defendant’s Arrest

It is reported that the defendant was stopped by a police officer for exceeding the speed limit. When the officer spoke with the defendant, he smelled alcohol on the defendant’s breath. The officer requested that the defendant submit to a field sobriety test, but the defendant declined. As such, the officer arrested the defendant on suspicion of DUI and impounded the defendant’s vehicle pursuant to RCW 46.55.360.

Allegedly, the officer searched the vehicle after it was impounded, during which he found drug paraphernalia. The defendant was subsequently charged with DUI and possession of controlled substances with intent to distribute. The defendant then moved to suppress the evidence found during the search of his vehicle, arguing that the search was unlawful. The trial court granted the motion concluding that RCW 46.55.360 was unconstitutional. The State then submitted a motion for direct review by the Supreme Court of Washington.

Continue reading

In many cases in which a person convicted of a crime is a juvenile, the court will consider the person’s youth and impose a more lenient sentence. Even if the court takes a person’s youth into consideration, however, it does not always result in a lesser sentence. Recently, the Court of Appeals of Washington, Division 2, discussed the weight that a person’s age should be granted when determining an appropriate sentence in a case in which a juvenile defendant convicted of multiple weapons charges sought extraordinary relief. If you are a resident of Washington currently facing weapons charges, it is advisable to consult a proficient Washington gun crime attorney to assess your options for protecting your rights.

Background of the Case

It is alleged that the defendant was in the process of illegally purchasing prescription drugs when he fired a gun several times into the vehicle of the person selling the drugs. One of the rounds the defendant fired hit a person in the vehicle in the jaw. The defendant was subsequently charged with first-degree assault, with a firearm enhancement, and unlawful possession of a firearm. The defendant entered a guilty plea to both charges.

Reportedly, prior to sentencing, the defendant requested an exceptional sentence due to his youth and the difficulties he faced as a child. Specifically, the defendant requested a sentence of 35.6 months in confinement, which is the sentence he would receive if he was sentenced as a juvenile.

Continue reading

Under Washington law, some crimes may be designated as crimes of domestic violence if the State can produce sufficient evidence that the offense meets the criteria set forth under the law. If the State cannot prove each element of a domestic violence crime, a domestic violence designation may be stricken, however, as evidenced by a recent Washington appellate case. If you live in Washington and are charged with a crime of domestic violence, it is prudent to meet with a capable Washington domestic violence defense attorney to discuss your case.

Factual and Procedural Background of the Case

It is alleged that the victim received a phone call from an unidentified number. The victim recognized the caller as the defendant, even though the defendant did not identify himself. The caller stated that he was glad that the victim had a brain tumor and that he hoped the victim would die, and used profanity. The caller also called the victim offensive names.

Reportedly, the victim had a restraining order against the defendant at the time of the call. The victim called the police to report that the defendant had violated the restraining order and harassed the victim via telephone. The defendant was charged with violating the restraining order and telephone harassment, both of which were designated crimes of domestic violence. A jury convicted the defendant of both offenses. The defendant appealed on several grounds, including that the State failed to produce sufficient evidence that the crimes were acts of domestic violence.

Continue reading

In many cases in which a person is arrested due to suspicion of DUI, the arresting officer will ask the person to submit to a blood or breath test. If the person refuses to undergo chemical testing after he or she is arrested, evidence of the refusal can be submitted at trial to establish the defendant’s guilt. Notably, however, as recently explained by a Washington Court of Appeals, a defendant has a constitutional right to refuse to submit to a breath test prior to an arrest, and evidence of such refusal is not admissible at trial. If you are a resident of Washington and are charged with DUI, it is important to speak with a knowledgeable Washington DUI defense attorney regarding your rights.

Facts and Procedure of the Case

It is alleged that the defendant was stopped for driving five miles over the speed limit and for failing to use a turn signal before changing lanes. When the police officer approached the defendant’s vehicle, he did not observe any signs of intoxication. He ran the defendant’s registration and learned that there was a warrant for her arrest. He arrested the defendant on her outstanding warrant, and then noted an odor of alcohol on the defendant, and that the defendant’s eyes were slightly bloodshot and her eyelids were slightly droopy.

Reportedly, the officer transported the defendant to jail, where he asked her to submit to a preliminary breath test, a tool he uses to establish probable cause. The defendant refused to take the test or to undergo field sobriety testing. She was charged with DUI. Prior to trial, she filed a motion to preclude evidence of her refusal to submit to the preliminary breath test, which the court denied. Evidence of her refusal was introduced at trial, and the defendant was convicted. She appealed, arguing that evidence of her refusal was improperly admitted.

Continue reading

In certain cases, even if criminal defendants committed the alleged acts out of which their charges arose, they may be able to argue an affirmative defense to avoid a conviction. For example, defendants charged with assault may be able to persuade the judge or jury that their actions were undertaken in self-defense and therefore were justified. Recently, a Washington appellate court discussed what jury instructions are appropriate regarding self-defense in a case in which the defendant argued he was unjustly convicted of assault. If you are a resident of Washington charged with assault, it is prudent to consult a skillful Washington assault defense attorney regarding your available defenses.

Facts of the Case

It is reported that the defendant’s wife became involved in a dispute with their next-door neighbor over landscaping fabric that was encroaching on the neighbor’s yard through a wooden fence. The argument continued for several days, and the defendant and his wife began to take down the fence. At that point, the defendant alleges that the neighbor came outside and swore at the defendant while carrying a pickaxe. The police came to the defendant’s home in an attempt to diffuse the situation. The defendant continued to take down the fence with his wife, who suddenly stated that the neighbor was approaching them with a gun. In response, the defendant pointed a pistol at the neighbor. The defendant was subsequently charged with and convicted of second-degree assault.  He subsequently appealed, arguing the court provided inadequate instructions to the jury regarding self-defense.

Self-Defense Under Washington Law

In part, the defendant argued that self-defense is an element of second-degree assault, and therefore, it should have been including in the jury instruction regarding what was needed to convict the defendant. The court rejected this argument, finding that advising the jury regarding self-defense in a separate instruction was appropriate. The court conceded that the Washington Supreme Court previously held that the State must disprove self-defense to prove that a defendant that is charged with second-degree assault committed unlawful acts. The court stated, however, that the State’s burden could be met even if a separate instruction was provided to the jury regarding self-defense. Continue reading

In Washington, if a defendant is convicted of a crime of domestic violence, the court may consider numerous factors when sentencing the defendant. For example, if the defendant has prior convictions, those convictions are used to calculate a defendant’s offender score, which is then used in determining an appropriate sentence. In a recent case in which the defendant pleaded guilty to numerous crimes, including fourth-degree assault domestic violence, the Court of Appeals of Washington discussed how out of state prior convictions should be assessed when determining an offender score. If you reside in Washington and are charged with one or more domestic violence crimes, you should speak with a trusted Washington domestic violence defense attorney about what actions you can take to protect your rights.

Factual and Procedural Background

It is reported that the defendant was charged with numerous crimes, including fourth-degree assault, domestic violence. He pleaded guilty to the charges. Prior to sentencing, both the defendant and the State submitted briefs regarding the defendant’s Florida criminal history. Following argument on the matter, the court found that five of the defendant’s twelve prior convictions were equal to misdemeanors or gross misdemeanors, and treated two of the convictions as the same course of conduct. Thus, the defendant was given an offender score of 6 on the harassment charge and was subsequently sentenced to 56 months of imprisonment. He then appealed.

Scoring of Out of State Convictions

On appeal, the defendant argued that the trial court committed an error in calculating his offender score. Specifically, he argued that the 6 Florida convictions the court counted towards his score were only comparable to misdemeanor offenses.

Continue reading

Contact Information