Category Archives: Criminal Procedure

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.

Proving DUI with a blood test

Most DUI arrest involve a breath alcohol test using a breath testing machine. However, some DUIs involve a blood test for a variety of reasons. For one, breath tests only test for alcohol and will not show the presence of drugs, such as marijuana. Also, if there is a collision, the suspect may not be in a condition to provide a breath sample, where as a blood test can be taken even if the suspect is unconscious. However, if the police want to take a blood sample from a suspect, they must obtain a search warrant signed by a judge. The reason for this is that the court believes a person has a privacy interest in the contents of the their blood, just like a person has a privacy interest in the contents of their home. The only exception to the warrant requirement, in the blood test context, would be if there are “exigent circumstances,” which means based on the particular case, it would not be possible to obtain a warrant prior to the evidence disappearing (in other words, there is just not enough time for a warrant). In the modern world of cell phones, and smart phones with email capabilities, there is rarely an “exigent circumstance” that would allow the police to take a blood sample from a suspect without first obtaining a search warrant.

For any warrant (blood test, search of your home, or search of your vehicle) the Fourth Amendment of the US Constitution requires the police to have “probable cause” that the item searched will contain evidence of a crime. So, in a DUI case, in order for the police to convince a judge to grant a search warrant for a person’s blood, the police must be able to convince the judge that there is “probable cause” that the blood will show that the person is guilty of DUI (because there is enough alcohol and/or drugs in the blood to show that the person is under the influence of alcohol and/or drugs). Probable cause is not a very high standard, and only requires sufficient facts to lead a reasonable person to conclude that there is a probability that the suspect is involved in criminal activity. In a DUI case, odor of alcohol, slurred speech, or being uncoordinated, could be enough to get a search warrant for a blood test, particularly when the suspect also crashed their car. So it is pretty easy for the police to get a warrant for a blood test if they want to get one.

If the police get a search warrant from a judge to take a blood sample, they will take the suspect to a hospital where a nurse at the hospital will take the blood sample. If the suspect refuses to allow the blood test, the police will hold the suspect down and forcibly take the blood test (because they believe the search warrant gives them the authority to do so). The police will eventually transfer the blood sample to the Washington State Patrol’s Toxicology laboratory to have the sample tested for the presence of drugs and alcohol.

So what if, for some reason, the police do not bother getting a search warrant for their own blood sample but a blood sample is taken by the hospital in order for the hospital to treat the suspect’s injuries as a result of a vehicle collision? For instance, what if the police do not initially suspect drugs and/or alcohol are a factor in a collision, but the hospital later concludes that drugs and/or alcohol did play a role. Or what if the police arrive to the scene of a collision late and never have an opportunity to investigate the suspect to determine if there is probable cause to support  a search warrant. For both of these situations, the key to the DUI case would be held by the suspect’s doctors and not the police.

Although these situations rarely occur, Washington courts have addressed this issue. In State v. Smith, 929 P.2d 1191, 84 Wn.App. 813 (1997), the police initially thought the passenger in a collision was the driver of the vehicle (because the true driver was blaming the passenger). Eventually, the police figured out who the real driver was, and charged this driver with DUI. At the scene, the police observed that all the occupants in the vehicle were drunk, so the police had probable cause for DUI for whoever the true driver was. But since the police did not initially know who the true driver was, they never sought a breath or blood test from this driver. The driver was treated at the hospital, and the police believed these hospital records would help prove the driver was guilty of DUI. After charging the driver with DUI, the prosecutor obtained a court order directing the hospital to provide the actual blood sample (not the results, but the actual sample that the police would later retest) and the driver’s medical records from the hospital. The driver attempted to block the prosecutor’s efforts, arguing that Washington’s physician-patient privilege law, found in RCW 5.60.060(4), prevented the hospital from releasing the records.

The court pointed out that Washington’s physician-patient privilege law prevents a physician from testifying in a civil action (but not criminal) about information the physician acquired when treating the patient, unless the patient consents. The privilege has been extended to criminal actions, but “only so far as practicable” and “requires a balancing of the benefits of the privilege against the public interest of full revelation of the facts.” In this particular case, the court ruled that the public’s interest in holding people accountable for DUI outweighs the benefits of the privilege and accordingly, the privilege did not apply to the blood sample taken by the hospital, nor to any report of its alcohol content. So the court ruled that the hospital should release both the blood sample, and the results of any blood testing, to the prosecutor. While the court ruled the privilege did not apply to the blood sample, the court believed the privilege would prevent the release of other medical records besides the blood sample.

In State v. Charley, 136 Wn.App. 58, 147 P.3d 634 (2006), the driver in a serious motor vehicle collision was rushed to the hospital where the hospital took two samples of the driver’s blood. The hospital tested one of the samples for medical purposes, showing a result of .11 (above the .08 legal limit). The police obtained a search warrant and obtained this information from the hospital. The search warrant also allowed the police to obtain the other blood sample, which the police had tested by the WSP Tox Lab and produced a result of .19. Both the samples contained an anticoagulant (which keeps the blood sample from clotting), but neither sample contained an enzyme poison (which preserves the blood sample from spoiling). Without an enzyme poison, it is possible for the blood sample to produce its own ethanol, particularly if the sample is not kept cold. So the much higher .19 blood sample could have been the result of not properly preserving the sample.

At trial, the prosecutor attempted to introduce both tests (the .11 and the .19 test). The court ruled that the sample tested by the WSP Tox Lab was not admissible because it did not comply with WAC 448-14. WAC 448-14 lists the procedures the WSP Tox Lab must follow in order to introduce a blood test in at trial. One of the requirements is that the sample have both an anticoagulant and an enzyme poison. Since the sample did not have an enzyme poison, the court ruled that the sample tested by the Tox Lab could not be admitted for any purpose.

Turning to the sample tested by the hospital (the .11 sample), the court ruled that since this test was conducted by the hospital for medical purposes, and not by the WSP Tox Lab, that the test did not have to comply with WAC 448-14. However, the court ruled that the sample could not be used to prove that the driver had a blood alcohol level above .08, but only be used to show that the driver was under the influence of alcohol. For DUIs, you can be guilty if you are above .08 (the per se prong) or if you are under the influence of alcohol (regardless of what your alcohol reading is, or even if there is no alcohol reading). The court reasoned that it would not be fair to allow the prosecutor to use the .11 hospital test to prove the driver was above .08 when that test did not comply with WAC 448-14. However, the court ruled that RCW 46.61.506 did allow “other competent evidence” to be admitted in addition to blood tests that strictly comply with WAC 448-14. But this “other competent evidence” could not be used to prove a “per se” (above .08) violation of the DUI law. So in the end, the .11 was allowed to be introduced at trial, which would most likely get the driver convicted regardless of whether the jury considers the evidence for the per se .08 prong of the DUI statute, or the under the influence of alcohol prong of the statute.

It should be noted that the federal Health Insurance Portability and Accountability Act (HIPAA) prevents the unauthorized release of medical records. However, if the police are seeking medical records for a DUI case they are most likely doing so pursuant to a search warrant and court order. So the safeguards provided in HIPAA would most likely not prevent the police from obtaining the medical records.

Will the prosecutor retry state Auditor Troy Kelley?

News broke a few days ago that a federal jury in Tacoma had found state Auditor Troy Kelley not guilty of lying to IRS, and had  deadlocked on the other fourteen remaining charges. The question now becomes will the prosecutor (the US Attorney’s Office) decide to make Kelley go through another trial on the fourteen charges that the jurors could not agree on.

You may be wondering why a prosecutor has this option. Kelley was found not guilty on one count, and double jeopardy prevents retrial on this count. But since the jury could not decide on the other fourteen counts, double jeopardy does not prevent the prosecutor from retrying Kelley on these counts.

The legal basis for all of this stems from the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution, which states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.”  It protects against being (1) prosecuted a second time for the same offense after acquittal, (2) prosecuted a second time for the same offense after conviction, and (3) punished multiple times for the same offense. Article 1, §  9 of the Washington State Constitution has a similar Double Jeopardy Clause, which provides that no person shall “be twice put in jeopardy for the same offense.”

So while it appears the prosecutor may have the option of retrying Kelley, that does not necessarily mean they will exercise this power. Typically, the prosecutor will re-analyze their case to determine if they believe they can still get a conviction on any of the remaining fourteen counts. Occasionally, at the conclusion of the trial, the judge will poll the jurors, which means find out how many were in favor of guilty versus how many were in favor of not guilty (the jury must be unanimous to return a verdict of guilty or not guilty). This could play a factor in the prosecutor’s decision to retry, but ultimately, the prosecutor can retry the charges even if eleven jurors voted not guilty and there was only one hold-out juror who was adamant Kelley was guilty.

What crimes can be used against a witness at trial?

While generally, a prior criminal conviction or prior bad act cannot be used against a witness in trial, there are some exceptions. One is detailed in Evidence Rule (ER) 609, which allows a witness to be impeached by convictions of certain crimes. ER 609 states:

“For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted . . . but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment.”

Whether a crime “involved dishonesty or false statement” is not always obvious on its face. For instance, the crime of Burglary in the Second Degree can be a dishonest crime if the offender enters a building to steal something. But if the offender enters a building to commit an assault, the crime is still a felony, and still a burglary, but it is not a crime of dishonesty under ER 609.

ER 609 also lays out other requirements, including time limits, effect of a pardon, and whether juvenile convictions can be used against a witness. This rule applies to both criminal and civil trials. This means that a crime of dishonesty conviction years ago could potentially factor in a totally unrelated civil case years down the road. The crime of dishonesty could be enough to convince a jury to believe one witness over another. Before pleading guilty to any crime, make sure your attorney adequately advises you on whether the crime is a ER 609 crime of dishonesty, and how that conviction will be used in future legal proceedings.