Evidence

Court Discusses Refusal of a Preliminary Breath Test in a Washington DUI Case

Published on: October 21, 2019 | By The Law Offices of Smith & White, PLLC

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.

Washington Court Discusses Self-Defense in Assault Cases

Published on: October 15, 2019 | By The Law Offices of Smith & White, PLLC

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

Washington Court Discusses Out of State Convictions in Calculating Offender Scores

Published on: October 8, 2019 | By The Law Offices of Smith & White, PLLC

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.

Washington Court Discusses the Independent Source Doctrine

Published on: September 20, 2019 | By The Law Offices of Smith & White, PLLC

In many cases in which a person is charged with unlawful possession of a firearm, the evidence in support of the charges was obtained without a warrant. Evidence obtained without a warrant may be unlawful, and the State may be precluded from introducing it at trial. In some cases, however, unlawfully obtained evidence may be admitted under the independent source doctrine, as recently discussed by a case decided by a Washington appellate court. If you are a Washington resident charged with unlawful possession of a firearm it is essential to retain a zealous Washington weapons charge defense attorney to assist you in setting forth a strong defense.

Facts of the Case and Procedural Background

It is alleged that police officers responded to a report of a burglary at a business, by the owner of the business. The police then stopped the defendant outside of the business. The owner reported that the defendant was a prior employee who had been fired a week earlier. The defendant admitted he had been living in a room in the business. The owner and the defendant then became involved in a verbal argument and entered into the room.

It is reported that the police followed the men, and observed a handgun near the defendant. The defendant was handcuffed, and one of the police officers opened a cabinet to ensure no one was hiding inside. The cabinet contained two guns. The police then obtained a search warrant and found multiple firearms and amphetamines. The defendant was charged with four counts of unlawful possession of a firearm and unlawful possession of a controlled substance.

Court Discusses Sufficiency of Evidence to Obtain a Washington DUI Conviction

Published on: August 28, 2019 | By The Law Offices of Smith & White, PLLC

Washington criminal defendants have numerous rights under the law, that aim to prevent unjust convictions. For example, the State must prove each element of a crime beyond a reasonable doubt, and if a defendant is convicted despite insufficient evidence to support a finding of guilt, his or her conviction may be reversed. A Washington court recently discussed what constitutes sufficient evidence in a case in which the defendant appealed his DUI conviction. If you live in Washington and are faced with DUI charges it is imperative to retain a trusted Washington DUI defense attorney to help you protect your rights.

Facts Regarding the Defendant’s Arrest

Reportedly, the defendant was stopped by a police officer after he crossed the center line on a road. The officer observed that the defendant had bloodshot eyes and an odor of alcohol. The defendant admitted to consuming two drinks, after which the officer asked to the defendant to exit the vehicle and undergo field sobriety tests. The defendant agreed and underwent field sobriety tests that he performed poorly. He was subsequently arrested and transported to the sheriff’s office. When he arrived at the sheriff’s office, he refused to submit to a breath test. The officer then obtained a warrant for a blood test.

Allegedly, the defendant was transported to a nearby hospital where his blood was drawn, approximately three hours after his initial stop. The test revealed the defendant’s BAC to be .23. he was charged with felony DUI. A toxicologist testified at trial that typically a person’s BAC would begin to decrease an hour after his or her last drink. The jury found the defendant guilty of DUI and specifically found that he had a BAC of .15 or higher within two hours of driving. The defendant appealed, arguing in part that the State failed to prove his guilt beyond a reasonable doubt.

Washington Court Analyzes Sufficiency of Evidence in Weapons Charge Cases

Published on: June 25, 2019 | By The Law Offices of Smith & White, PLLC

Although in some cases a person will be arrested during the commission of a crime, in many cases a person will be arrested after the alleged crime is committed, based on circumstantial evidence. While circumstantial evidence is admissible to prove guilt, the State must nonetheless produce sufficient evidence to obtain a conviction. Recently, a Washington appellate court analyzed the sufficiency of the evidence, in a case in which the defendant was convicted of unlawful possession and theft of a firearm. If you are charged with unlawful possession of a firearm or any other weapons charge it is essential to retain a skilled Washington criminal defense attorney to develop persuasive arguments in your defense.

Factual Background

It is reported that the victim, a 79-year-old man owned over two dozen guns that he stored in a locked gun cabinet. The victim’s neighbor noticed that a female acquaintance visited the victim on occasion. On a day in June 2017, the victim left the female acquaintance alone at the home. The neighbor then observed the defendant park a red minivan near the victim’s home, and subsequently run out of the back of the home with a large bundle. The neighbor called the police, who detained the defendant, and entered the home and observed several guns lying on the bed.

Allegedly, the victim returned home during the investigation but refused to enter the home and inspect his gun cabinet. The police released the defendant, but after the victim entered his home and realized several guns were missing, they located and arrested the defendant, who had a single round of ammunition in his pocket. Upon searching the defendant’s minivan, the police found a .22-caliber pistol, ammunition, and several gun cleaning supplies. The defendant was charged with and convicted of unlawful possession of a firearm and theft of a firearm. He appealed, arguing there was insufficient evidence to support either conviction.

Court Analyzes Dating Relationships in Washington Domestic Violence Cases

Published on: June 20, 2019 | By The Law Offices of Smith & White, PLLC

It is well-established that to prove a person committed a crime, the State is required to produce evidence adequate to establish each element of the crime. A defendant can attack the State’s case, by arguing that the State has not met its burden regarding the sufficiency of the evidence. This was demonstrated in a recent Washington domestic violence case, in which the defendant argued that the State failed to offer sufficient evidence to prove he was in a “dating relationship” with his alleged victim. If you live in Washington and are charged with a domestic violence crime it is essential to retain a diligent Washington domestic violence defense attorney who will assert any available defenses on your behalf.

Factual Background

It is reported that the defendant and his alleged victim met through an online dating website and communicated for two weeks before deciding to meet. They met at a restaurant, where they ate and had drinks together. They then traveled to a second bar, where they had another drink, and stopped at the defendant’s house where the defendant introduced the victim to his mother. The couple then proceeded to a waterfront area, where they kissed and went to additional bars where they consumed alcohol, before returning to the defendant’s home. They had intercourse and then fell asleep.

It is alleged that the victim awoke to find the defendant urinating on the floor. The victim attempted to rouse the defendant, who became irritated and began punching and strangling the victim. The victim left the house and called the police, who took the victim to the hospital and arrested the defendant. The defendant was ultimately charged with assault in the second degree and felony harassment, both of which included domestic violence allegations. The defendant was convicted on both charges, after which he appealed.

Washington Court Analyzes the Rule of Corpus Delecti

Published on: May 21, 2019 | By The Law Offices of Smith & White, PLLC

In any Washington criminal case, there are procedural and evidentiary rules with which both the State and the defendant must comply. If a defendant is convicted based on evidence introduced by the State at trial that lacks a proper foundation or was improperly obtained it can result in a reversal of a conviction. A Washington Court of Appeals recently addressed the issue of whether the evidentiary rule of corpus delecti applies in a case in which the defendant entered a guilty plea for robbery in the first degree with a firearm enhancement. If you are a resident of Washington and are currently charged with a crime that includes a firearm enhancement it is important to meet with a skillful Washington weapons charge defense attorney to discuss the impact the firearm enhancement may have on your case and what evidence the State needs to obtain a conviction.

Factual Background of the Case

Reportedly, in November 2015, the defendant and another person broke into the home of an elderly man with the intent of robbing the man. Upon entering the home, one of them forced the elderly man to the ground, pointed a gun at him and demanded he relinquish his property, while the other person searched the property. The defendant and his co-conspirator ultimately left the elderly man’s home with a substantial amount of property, after which they were arrested. The defendant was charged with first-degree robbery with a firearm enhancement, first-degree burglary, and unlawful imprisonment.

It is alleged that the defendant’s attorney advised the defendant that he would probably lose if the case proceeded to trial and would receive a substantial sentence. Thus, the defendant pleaded guilty, advising the court that he entered his plea knowingly and voluntarily. The defendant subsequently appealed his conviction, arguing in part that his conviction violated the corpus delecti rule.
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Court Discusses Requirement for Unanimity in Alternative Means Crimes in Washington

Published on: May 14, 2019 | By The Law Offices of Smith & White, PLLC

In Washington, a unanimous verdict is required to convict a defendant of assault. Thus, if less than all of the jurors agree as to whether a defendant committed the crime of assault, the defendant cannot be convicted. Although unanimity is required for a conviction, in cases where the defendant is charged with an alternative means crime, a unanimous finding as to the manner in which the crime was committed is not required to uphold a conviction. This was elucidated in a recent Washington appellate court case, in which the court affirmed the defendant’s conviction for assault in the second degree despite no unanimous finding as to how the assault was committed. If you live in Washington and are facing assault charges it is critical to confer with a trusted Washington assault defense attorney to discuss the facts of your case and what evidence the State may use against you.

Facts Regarding the Alleged Assault

Reportedly, the police met with the defendant’s wife who had bruises, black eyes, a disfigured nose, and a cauliflower ear. The defendant was subsequently charged with two counts of assault in the second degree, which is an alternative means crime, to which he pleaded not guilty. During the trial, numerous witnesses testified regarding the defendant’s alleged assault of his wife on several occasions, including the wife, the child of the defendant and his wife, and the wife’s treating physicians. The defendant was ultimately convicted of both charges. The defendant appealed, arguing that he was deprived of his right to a unanimous jury verdict because there was insufficient evidence of each of the charged means of committing assault in the second degree.

Jury Unanimity

Assault in the second degree is an alternative means crime, which means that although the statute defining the crime sets forth a single criminal offense, it delineates seven subsections as to how the offense may be committed. In the subject case, the defendant was charged with assault in the second degree committed by three alternative means. The defendant argued that the jury was required to agree unanimously as to the means used to commit the crime to support a conviction.
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Court Discusses What Constitutes a Seizure in a Washington Weapons Crime Case

Published on: May 1, 2019 | By The Law Offices of Smith & White, PLLC

It is the duty of the police to ensure the safety of the public as a whole. In performing their job duties, however, the police are not permitted to violate the rights of individual citizens. One of the rights afforded individuals is the right to be free from unlawful seizure. If a person is unlawfully stopped, anything found during the seizure, such as a weapon, should be precluded from evidence in any trial for charges arising out of the seizure. A Washington appellate court recently addressed what constitutes a seizure in a case in which the defendant was convicted of unlawful firearm possession due to evidence found during an unlawful seizure. If you are charged with a weapons crime it is important to know how a conviction may impact your liberties and to engage an assertive Washington weapons charge defense attorney to help you present a strong defense.

Facts Regarding the Stop

It is alleged that the police received a call at 2:00 am regarding a suspicious vehicle in an alley. The caller stated that an unfamiliar vehicle was parked at the end of a dead-end street with its lights off. Two police officers responded to the call, each in his own patrol car. The patrol cars drove down the alley, but the police did not activate the cars’ overhead lights. The officers parked their cars and by doing so blocked the vehicle. The officers then approached the vehicle with flashlights and found the defendant and a woman in the vehicle. The defendant and his companion provided the police with identification, and the defendant informed the officers that he owned the vehicle.

Reportedly, the officers were informed by dispatch that the defendant was a convicted felon but that he did not have any outstanding warrants. The officers then spotted a gun in the backseat of the vehicle and made the defendant exit the vehicle. The officers subsequently obtained a search warrant and removed a loaded gun from the back seat. The defendant was charged with unlawful possession of a firearm. Prior to the trial, he moved to suppress all evidence and statements due to unlawful seizure. Following a hearing, the trial court ruled that the seizure was based on a reasonable suspicion of criminal activity, and therefore, was lawful. The defendant was convicted and sentenced to thirty-six months imprisonment, after which he appealed.