Category Archives: News

Lakewood Police first in state to be permitted to draw blood from DUI suspects

City of Lakewood Police recently announced that a number of their officers have received certifications so the police officer (rather than a nurse at a hospital) can draw blood from a DUI suspect. One may wonder how, legally, a police officer can forcibly take a suspects blood against their will? RCW 46.61.506(5) defines who may take a blood draw following a DUI arrest and states the blood draw may be “performed only by a physician licensed under chapter 18.71 RCW; an osteopathic physician licensed under chapter 18.57 RCW; a registered nurse, licensed practical nurse, or advanced registered nurse practitioner licensed under chapter 18.79 RCW; a physician assistant licensed under chapter 18.71A RCW; an osteopathic physician assistant licensed under chapter 18.57A RCW; an advanced emergency medical technician or paramedic licensed under chapter 18.73 RCW; until July 1, 2016, a health care assistant certified under *chapter 18.135 RCW; or a medical assistant-certified or medical assistant-phlebotomist certified under chapter 18.360 RCW.” So, anyone on earth may conceivably perform the blood draw, so long as they meet the requirements under the statute. Lakewood Police indicate that they have received a $50,000 grant from the Traffic Safety Commission that was used to allow six officers to obtain medical phlebotomy certification through Bates Technical College and the state Department of Health.

While in theory, a person could voluntarily consent to a blood draw, or an exigent circumstance could exist that permits the blood draw without a search warrant. However, in reality, for most situations, the police must obtain a search warrant approved by a judge before they conduct a blood draw. In this day and age, this is not difficult for the police to do as judges are on call at all hours of the day. Once a search warrant is obtained, the police may take the blood draw regardless of cooperation from the suspect. They may strap the person to a table to do so, if necessary. Police typically choose to request a search warrant for a blood draw if a person refuses to submit to the less intrusive breath alcohol test (i.e. blowing into an instrument). However, even if a person submits to a breath test, police could still obtain a search warrant to  draw a person’s blood for a variety of reasons. For one, blood tests are generally viewed as a more accurate reading of a person’s blood alcohol level and only blood tests can detect drugs, such as marijuana, in a person’s blood.

As some have noted, just because one has obtained the proper certification to draw blood does not mean that a person is good at it. Anyone who has ever provided a blood sample at a hospital can appreciate a technician, who takes blood samples all day long, and is good at finding a vein and drawing blood with minimal discomfort. Also, it seems only a matter of time before a DUI suspect claims the Lakewood officer who drew their blood screwed up in some way, causing damages, and sues the officer and City of Lakewood for damages. For now, City of Lakewood seems willing to take this risk because allowing officers to take blood will speed up the entire DUI arrest process.

More details on the drone pilot’s 30 day sentence

The Seattle Times recently reported on the pilot of a drone that struck woman at Seattle’s Pride Parade being convicted of Reckless Endangerment, and being sentenced to thirty days of jail. As the defendant’s attorney pointed out in his sentencing memorandum filed with the court, there is no statute or ordinance that specifically prohibits one from flying a drone in public. Instead, the prosecutor chose to charge the defendant with Reckless Endangerment under Seattle Municipal Code 12A.06.050, which mirrors RCW 9a.36.050. The statute and ordinance state, “[a] person is guilty of reckless endangerment when he or she recklessly engages in conduct . . . that creates a substantial risk of death or serious physical injury to another person.” When I try to describe the crime of Reckless Endangerment to my clients, I often describe it as a catch-all crime that prosecutors use when they want to charge someone for doing something stupid, but there is no other specific crime that prohibits the conduct. For instance, if a fan at a Mariners game decides to throw a baseball up in the air for no good reason, and the ball comes down and hits another spectator in the head, what crime has that person committed? An assault would be difficult to prove because for assault, the prosecutor must prove the defendant acted intentionally. Reckless Endangerment may fit because although the act may not have been done intentionally, it certainly was done recklessly.

At sentencing in the drone case, according to the defense’s sentencing memo, the prosecutor was recommending 90 days in jail. The defense was arguing for standard court fines, 80 hours of community service instead of jail, 24 months jurisdiction, and a deferred sentence (which would mean the charge would be dismissed by the court in 24 months if the defendant completed the terms of his sentence). The defense pointed out that in negotiations prior to trial, it appears some form of resolution was reached between defense and the prosecutor but that resolution was vetoed by City Attorney Pete Holmes. The defense contended Mr. Holmes did this for political reasons, and not because the proposed resolution was inappropriate given the facts and circumstances. The defense even pointed out that rather resolve the matter without trial, Mr. Holmes was willing to use tax dollars to fly in an expert witness from out of State.

Ultimately, the court declined to follow the recommendation of both the prosecutor, and the defense, and instead fell in the middle with a sentence of thirty days of jail. Despite the fact that the King County Jail is directly adjacent to Seattle Municipal Court, defendants in Seattle Municipal Court typically serve their jail time at the Snohomish County Jail (in Everett), most likely because it is a cheaper option for the city. Also, as I have previously discussed, jails will typically award one-third off in good time so a thirty day jail sentence is actually a twenty day jail sentence. The court did not agree to allow the defendant to serve the jail on Electronic Home Monitoring or Work Release, but imposed actual jail time. While the court ordered the Defendant to check into the Snohomish County Jail by April 11, 2017, the court also indicated that the jail time and court costs were stayed upon posting of a $10,000 appeal bond. The Defendant has until March 3, 2017 to post this bond. RCW 10.73.040 permits the court to impose an appeal bond where a sentence may be stayed (i.e. postponed) if the defendant posts the bail amount and files a notice of appeal, appealing the conviction to the higher court. Assuming the defendant in this case posts the appeal bond and appeals, he would only have to serve the jail time, and pay the fines, if the higher court upholds the jury’s guilty verdict.

While the court imposed restitution to the victim of the offense in an amount to be determined, the defense’s sentencing memo also notes that the civil matter between the defendant and the victim has not yet been settled. Regardless of the outcome of this criminal case, the victim has the right to sue the defendant for damages in civil court. The amount of damages awarded in a civil case may be more than a criminal case because under RCW 9.94A.750, criminal restitution is limited to “easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury” and “shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses.” Under RCW 4.56.250(1)(b), civil damages can include “noneconomic damages, which include ” subjective, nonmonetary losses, including, but not limited to pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation, and destruction of the parent-child relationship.”

Will Josh Brown’s recent admissions get him charged with domestic violence assault?

I previously wrote about why it took so long to hear about former Seahawk and New York Giants kicker Josh Brown’s May 2015 arrest for domestic violence. As I previously explained, the King County Prosecuting Attorney’s Office never did file charges against Brown and based on a May 24, 2016 memo the prosecutor sent to the King County Sheriff’s Office, it appears they will not be filing any charges without receiving statements from additional witnesses (which they were never able to obtain).

Brown recently spoke about the incident on Good Morning America, and according to an article on ESPN, Brown stated, “I mean, I had put my hands on her. I kicked the chair. I held her down. The holding down was the worst moment in our marriage” but “I never hit her. I never slapped her. I never choked her. I never did those types of things.” Because Brown voluntarily agreed to be interviewed, the prosecutor can use his statements against him to prove the offense in trial.

So, will the King County Prosecuting Attorney’s Office change their mind and decide to charge Brown based on his recent statements? Brown could conceivably be charged with Assault in the Fourth Degree-Domestic Violence. In Washington, “assault” is not defined by statute but is defined by case law. The Washington Pattern Jury Instructions-Criminal WPIC 35.50 defines assault as “an intentional touching or striking of another person that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking is offensive if the touching or striking would offend an ordinary person who is not unduly sensitive. An assault is also an act done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.” In other words, under Washington law, assault is defined extremely broadly and would certainly include Brown putting his hands on his ex-wife, kicking a chair, and holding her down.

So in short, Brown just confessed to committing Assault in the Fourth Degree-Domestic Violence, an offense that, if convicted, takes away one’s firearm rights and prevents one from entering Canada, among other things. Moreover, the statute of limitations for Assault in the Fourth Degree-Domestic Violence has not yet expired in Brown’s case. RCW 9A.04.080 defines the statute of limitations on both felony and misdemeanor offenses in Washington and states that Assault in the Fourth Degree-Domestic Violence, which is a gross misdemeanor, must be charged within two years of the date of the offense (May 2017 in Brown’s case). So it is conceivably possible that Brown’s interview on Good Morning America could convince the King County Prosecuting Attorney’s Office to change their mind and charge Brown with a crime. Of course, if the prosecutor does charge Brown, they would have to prove the offense beyond a reasonable doubt. Brown’s statements on the interview would help, but ultimately, the prosecutor would likely need the cooperation of other witnesses. Moreover, Brown did not specify which date he put his hands on his ex-wife, kicked a chair, and held her down, making obtaining a conviction even more difficult.

Has Tacoma illegally entered into an agreement with the Nisqually Indian Tribe to house jail inmates?

Last week, the Seattle Times had an article about a federal lawsuit being brought against City of Yelm over the death of a 19 year old who was housed in a jail operated by the Nisqually Indian Tribe.  Andrew Westling was arrested in the city of Yelm for allegedly being a minor in possession of alcohol and spitting on a customer at a gas station minimart. After being arrested, Westling was brought to the Nisqually Corrections Center because the City of Yelm had entered into a contract to house their inmates in the tribal jail. The article indicates that after being booked, Westling told a jail officer he had a heart condition and that he felt like his heart was thumping out of his skin, but that no one asked a doctor or nurse to check him, nor did jail officers seek medical attention or call 911. 24 hours after Westling was booked into the jail, he was found dead in his cell.

Westling’s parents are suing City of Yelm (but not the Tribe because of tribal immunity) and have hired former Attorney General Rob McKenna, who says the contract between the City and Tribe is illegal because Washington law allows for contracts only between cities and counties for jail services — not with Indian tribes or reservations.

City of Yelm is not the only city to use the Nisqually Corrections Center as a cheap place to house inmates. City of Tacoma also has a contract with the Tribe, where Tacoma agrees to pay the Nisqually Indian Reservation $67.50 a day for each inmate the City sends to the Tribe. The contract references RCW 70.48 and RCW 39.34 for the legality of the arrangement. However, RCW 70.48.090(1) says “[c]ontracts for jail services may be made between a county and a city, and among counties and cities.”

So has Tacoma entered into an illegal contract, just as City of Yelm? The statue says “may” rather than “shall” so is there some wiggle room for the City? Related issues include whether tribes can enter into contracts with cities and counties to house their inmates in city and county jails? Can Department of Corrections (DOC) enter into an arrangement with a county to house DOC inmates in the county jail (for, say, a probation violation)? Some of these issues may be flushed out by the federal lawsuit involving Westling’s death.