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.

Felony Malicious Harassment (Hate Crime) versus Misdemeanor Harassment

The Seattle Times recently reported on a 48-year-old White Center woman who is charged with a hate crime for allegedly posting a video of a racist tirade on Facebook as she followed her neighbor in her car. The story indicates that at the woman’s arraignment (her first court hearing before the judge), her attorney argued that the allegations did support a hate crime because the woman’s alleged comments about victim’s immigration status and deportation don’t fall into a protected category under state’s hate crimes statute. The State’s hate crimes statute, RCW 9a.36.080, changes a misdemeanor level assault, harassment, or property destruction (maximum penalty 364 days in jail) into a Class C felony (maximum penalty 5 years in prison) if the crime was committed “because of [the suspects] perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap.” The woman’s attorney argued that woman’s threats were not based on one of the classes protected by the statute and therefore, the most the prosecutor could charge her with was misdemeanor level harassment under RCW 9a.46.020. The judge disagreed and found that at least preliminarily, the woman’s’ comments about the victim’s immigration status did fall within the protected categories of “race” and “national origin.” Of course, the woman can take her case to trial and make the same argument to the jury. Interestingly, Seattle Municipal Code 12A.06.115 expands the list of classes protected under the City’s hate crime ordinance to include “homelessness, marital status, political ideology, age, or parental status.” The Seattle Municipal Code only covers misdemeanors committed in the city, and does not elevate the hate crime to a felony the same way the state statute does. But the Seattle Municipal Code does define an act as a “hate crime” that would not be a hate crime outside of the city.  If the woman is convicted of a hate crime under the State statute, which again, is a class C felony, her sentence would be determined by applying her criminal history to the crimes’ standard sentencing range. You can view that sentencing range here, and see that even without any criminal history, she will be facing 3 to 9 months in jail.

Court upholds prosecutors’ ability to use a breath test refusal as evidence of guilt in DUI trials

Shortly before Christmas, the Washington Supreme Court decided State v. Baird (consolidated with State v. Adams), which upheld the ability of prosecutors to argue that a person is guilty of DUI because they refused to take the voluntary breath alcohol test (BAC test). This was a big case in the world of DUI law. Had the court ruled for the defense, it would have completely altered the way DUIs are investigated and prosecuted in the State of Washington. The issue was important enough that the King County Prosecutor’s Office sought a writ of review from Superior Court while the cases were still pending in District Court, and the Superior Court sent the case directly to the Washington Supreme Court (skipping the Court of Appeals).

The defense argument relied on two cases, the US Supreme Court case Missouri v. McNeely and the Division I case State v. Gauthier. In McNeely, the court ruled that with advancements in technology, the police must get a warrant (or consent) in order to take a blood sample (not breath sample) in a DUI investigation. The old argument was that it takes too long to get a warrant, and that this, therefore, is an “exigent circumstance” allowing the search without a warrant. McNeely concluded smart phones and 4G internet negates this old argument. In Gauthier, the defendant refused to provide the police with a  voluntary DNA swab, and the prosecutors used that refusal to convict the defendant of rape at trial. On appeal, the court held that since the police did not have a warrant for the DNA swab, the defendant had a constitutional right to refuse to consent to the police’s search (providing a DNA swab for testing is a search). And because the defendant was exercising a constitutional right by refusing the DNA swab, it is not fair for prosecutors to argue that he is guilty because he exercised his rights.

The defense in Baird argued that drivers arrested for DUI had a constitutional right to refuse the breath test, just like a person has a constitutional right to refuse to let the police enter and search their home without a search warrant. Just like Guathier, it would not be fair to use the refusal to take the breath test as evidence the driver is guilty of DUI.

This argument makes logical sense, and three of the nine Supreme Court justices agreed. However, if the court ruled for the defense, it would make investigating DUIs more costly and difficult. If the defense prevailed, police could still request breath tests, but if a driver refused, the jury would not be informed of this fact and the prosecutor would have to rely on other evidence to prove impairment (driving, performance on the field sobriety tests, ect.). Police can always request a search warrant to take a blood sample to prove blood alcohol level. While advancements in technology make requesting a warrant for a blood sample a more cost effective route, it is not as easy and quick as a breath test. So it is not surprising the court’s majority wanted to find some way to uphold implied consent law’s ability to coerce drivers into taking the breath test.

If there is an exception to the warrant requirement, such as an exigent circumstance or search incident to arrest, then the person does not have a constitutional right to refuse the search and therefore, the refusal to consent to the search can be used against the person. So what warrant exception could the court use to justify a search (i.e. a breath test) in a DUI investigation?

The State tried the same failed logic rejected by the McNeely decision; that dissipation of alcohol in the blood makes the delay in obtaining a warrant impracticable in DUI cases. As in McNeely, the court rejected this and ruled that the dissipation of alcohol in the blood was not an exigent circumstance to justify a breath test without a warrant.

Needing another exigent circumstance to hang their hat on, the court relied on the recent Supreme Court decision Birchfield v. North Dakota, which upheld North Dakota’s and Minnesota’s increased penalties for breath test refusal. Birchfield also held that a breath test is a valid search incident to arrest under the 4th amendment of the US Constitution. A search incident to arrest is a valid warrant exception and as noted above, if the State can establish a valid exception to the warrant requirement, a person has no right to refuse the search and refusal to consent to the search can be used to establish guilt. The court also ruled that in exchange for driving in Washington, drivers agree and have notice that their refusal to take a BAC test after being arrested for DUI will be used against them at trial.

The dissent in Baird agreed that a breath test was a search, that the dissipation of alcohol in the blood is not an exigent circumstance in breath tests cases, that Gauthier is still good law, and that prosecutors cannot use a refusal to consent to a search if the person has a constitutional right to refuse. However, the dissent disagreed that Birchfield’s holding that a breath test is a search incident to arrest is binding on Washington because Birchfield was analyzing the US Constitution where as Washington’s Constitution’s offers greater privacy protections.

The end result is that breath tests are considered a search requiring a warrant, but that the search incident to arrest exception to the warrant requirement applies requiring breath tests following all DUI arrests. So if a driver refuses to submit a breath test, the prosecutor can continue to tell the jury that only a guilty person would refuse a breath test.

DOL proposes new rule creating binding “significant decisions”

The Washington State Department of Licensing (DOL) handles administrative license hearings stemming from several scenarios, including administrative license suspension hearings following DUI arrests. You can read more about these DUI administrative license suspension hearings on my other website. DOL can modify the rules of these DUI administrative license hearings by proposing new rules and taking into consideration comments from the public. Recently, DOL has proposed one such rule of interest to DUI defense attorneys. Currently, when a person arrested for DUI (the petitioner) requests a DUI administrative license suspension hearing, and pays the $375 fee, their case is assigned to one of eighteen DOL hearing examiners. Technically, a DOL hearing examiner does not need to be an attorney, but most are. The petitioner can subpoena the police officer if they want, and submit other evidence. The DOL hearing examiner reads the police report, takes into consideration evidence submitted by the petitioner, makes a written decision, and mails the written decision to the petitioner. The hearing is typically conducted over the telephone. If the petitioner loses the hearing (which is most often the case), the petitioner can appeal the written decision to Superior Court and the Superior Court Judge has the power to either or affirm or overrule the DOL hearing examiner’s decision.

DOL has proposed a new rule, WAC 308-104-350, which would allow anyone to recommend that a DOL hearing examiner’s written decision be deemed a “significant decision.” If a ruling is deemed a significant decision, it would be indexed and made available to the public. The idea being that one could read through the significant decisions and get an idea of how DOL hearing examiners rule on a particular legal issue. None of this part of the rule is particularly controversial. What is more controversial is that under the proposed a new rule, WAC 308-104-350 subsection (7), the significant decisions would be binding authority in any future hearing. In other words, once a significant decision is made and categorized on a particular legal issue by one hearings examiner, that ruling would be binding on all other hearing examiners. The argument against this rule is that if the legal issue is important to your case, you would be stuck with the ruling made by another hearing examiner on a case you are not a party to and did not have a chance to present argue on. Of course, if you believe the significant decision ruling is legally incorrect, you could always lose the DOL hearing and then appeal the matter to Superior Court. If passed, it appears this rule is an attempt by DOL to make it easier for hearing examiners to rule against drivers challenging their administrative license suspension. The rule is currently pending public comment.