News

Following a series of statements critical of medical and recreational marijuana in states, US Attorney General Jeff Sessions formally rescinded guidance documents issued during the Obama administration.  AG Sessions explained the former policy guidance was unnecessary.  

Formally rescinding the Cole memo and other guidance documents issued during the Obama administration signals an about-face on the marijuana experiment.   Federal courts will undoubtedly affirm the federal government's authority to enforce federal law.    To the extent state laws conflict, they will be struck down.   Absent a change in federal law, AG Sessions and the US Attorneys have the authority to quickly shut down medical and recreational marijuana sales.  

The full memo is here:   Sessions Recind's Cole Memo Jan 5 2018.pdf

On October 16, 2017, the Georgia Supreme Court held in Olevik v. State that the privilege against self-incrimination found in Georgia's Constitution is more protective than the Federal Fifth Amendment privilege against the same.  The Georgia Constitution includes prohibitions against giving physical evidence and consequently that compelled breathalyzer tests violate the Georgia privilege against self-incrimination. The court interpreted Paragraph XVI of the Georgia Constitution ("No person shall be compelled to give testimony tending in any manner to be self-incriminating.") through a historical lens, saying that the paragraph in question is not coterminous with the scope of the Fifth Amendment, but must be interpreted in light of prior Georgia case law regarding similar language in earlier versions of the Georgia state constitution. The court cited a long line of judicial precedent back to 1879 interpreting the Georgia privilege against self-incrimination as applying to acts, not just verbal testimony. Under this interpretation, the court held that the act of asking the defendant to "breath[e] deep lung air into a breathalyzer," is providing evidence against himself, and violates Georgia's privilege against self-incrimination, overturning the Georgia Supreme Court's 2000 ruling in Klink v. State.   

However, the court rejected the defendant's facial and as-applied challenges to the state's implied consent statute.  The court rejected the facial challenge to the statute because it found that Georgia's implied consent statute is not per se coercive.  The court also rejected the as-applied challenge because it found no basis for a finding of coercion beyond the language of the police notice mandated by the statute. 

In light of these additional findings, Georgia breath test results are admissible--while refusals of a breath test may not be.  That issue was not before the court and will need to be litigated in a future case.   The consequence in Georgia is that more refusals are likely to arise, until the issue is decided. 

In State v. Salgado-Mendoza the State Supreme court affirmed the trial court decision to allow the forensic scientist to testify at the breath test trial even though the name of the scientist was not disclosed until the day of trial.  The prosecutor explained she provided all the information she had, when she had it, but still could not know who would be available from the lab until the day of testimony.   Each court that reviewed the case concluded the failure to provide the name prior to the day of trial was misconduct.  However, while the trial court concluded that five months of preparation on an alcohol case, where the expected testimony was not unique and no prejudice was shown--refusing to suppress the testimony of the forensic scientist disclosed on the day-of-trial.   Both the Superior Court and the Appeals Court disagreed, concluding the defense was prejudiced.   The State Supreme Court disagreed, concluding the defense had not shown prejudice by demanding a continuance, and in light of the findings by the trial court.   Prosecutors are expected to diligently pursue the names of expert witnesses, and maintain documentation showing their efforts if the issue arises at trail.   Ultimately, the trial court has great discretion when and under what circumstances it will sanction late disclosure. 

In Blomstrom v. Tripp several DUI defendants challenged the trial court's authority to order random Urinalysis while released on bail pending resolution of the DUI charges.  The defendants objected to the pre-trial testing and sought a Writ of Review in Spokane Superior Court.   The Superior Court denied review by writ--forcing them to wait until convicted and proceed by appeal.  The defense appealed the denial of the writ ruling to the State Supreme Court and that court reversed with a 5-4 split. 

While the State Supreme Court ruling is actually a procedural decision:  "Should the Superior Court have issued a writ and considered the issue?"  it is much more influential because the decision as to whether or not to grant a writ involves deciding whether or not the trial court plainly erred.   The State Supreme Court decided the trial court had plainly erred--and the Superior Court should have issued a writ to correct that error.  The State Supreme court reasoned that Washington's State Constitutional right to privacy was violated by the testing, there is no exception to allow it, and they refused (again) to adopt the Federal "Special Needs" exception. 

That means that even though the matter will be remanded, the Superior Court must follow the analysis provided here--leaving little mystery as to the outcome. 

The full case is here:  Bloomstrom v Tripp Urinalysis Pre Trial 2017.pdf

The Court of Appeals concluded earlier this year that blood seized under a search warrant does not require the Implied Consent Advisory regarding the right to an independent test.  State v. Sosa, 198 Wn. App. 176 (2017).  The court also concluded that refusal of the Portable Breath Test (PBT) was admissible and it was not ineffective assistance for the defense attorney not to object.

The State Supreme Court denied review on August 2, 2017.  

Congratulations to Theresa Chen (Walla Walla DPA) for her fine work on the appeal.    

In a surprise line item veto, Governor Inslee struck the January 1, 2019 effective date of HB 1614 and signed it into law.  That makes the new law effective 90 days after his signature--approximately July 26, 2017!  

The new law expands the scope of existing prohibitions on using electronics while driving.  In general, use of any handheld device is severely restricted anytime a vehicle is on a roadway.  That includes stop lights, intersections, and stopped traffic.    The hope is that we can deter some drivers (particularly young drivers) from using electronics and reduce the massive increase in roadway collisions due to distracted driving.   The full text of the legislative bill (without veto language) is here  

Bravo! 

In a thoughtful opinion, Division I of the Court of Appeals affirmed the King County RALJ court finding a driver who consents to a blood test is not required to receive the implied consent warnings.   Citing to both Division III (State v. Sosa) and the state supreme court (State v. Murray), the court rejected the defense argument that the implied consent warnings apply to blood tests after the September 2013 legislative amendments to RCW 46.20.308.  The trial court had concluded the warnings were required, suppressing the blood test results.  The City of Kent obtained a Writ of Review and the trial court decision is now reversed.   Congratulations to Michelle Walker for her work!

The slip opinion is here: Kent v Kandler 2017 Voluntary Blood Legal.pdf 

In State v. Sosa (Div. III, filed March 16, 2017) the court put to rest an argument that a search warrant for blood requires the officer to provide the defendant with any advice of rights.   In particular, the defense argued the officer must advise the defendant of the right to an independent test.   The Sosa court disagreed, concluding that prior cases explicitly held that such rights are statutory, and the requirement to provide them flowed only from the statutes.  With those provisions now repealed in the face of the search warrant requirement--the need for warnings is gone.  

The defense has filed a notice of appeal on the case.  Likely based on the secondary ruling in the case, that the PBT refusal was admissible in light of the implied consent statute and State v. Baird.   While the refusal is likely admissible, that reasoning is not likely to be affirmed.   

The full case may be viewed here: State v Sosa COA 2017.rtf

Utah is poised to become the first state to move to a 0.05 alcohol per se level.  The legislature passed the bill and it is headed to the Governors desk, where he states he wills sign the bill into law.  The full story is here: News Story 

The Colorado State Supreme Court was asked to decide what law enforcement officers must do with marijuana after it is seized. In the specific case herein, the defendant was acquitted of charges and state law required officers to return the marijuana.   Under federal law, this is "distribution" and illegal.

The Colorado Supreme Court concluded the federal government intended to preempt state law on controlled substances--which compels a finding that it is illegal to return marijuana.  The full case is here:  Preemption 2017 CO.pdf