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  • Friday, November 13, 2020 9:13 AM | Anonymous member

    On October 23, 2020 the WSP Toxicology Laboratory received written notification from Millipore Sigma/Cerilliant informing customers of an issue impacting one of its products. An additional follow-up notification was received October 26, 2020. Both notification letters are attached.

    Cerilliant_THC Qual Notice_20201015.pdf

    The product in question is the Delta-9-THC (THC) Certified Reference Material, lot #FE08221804. Millipore Sigma/Cerilliant confirms that the certified concentration of this THC Certified Reference Material remains the same; however, the measurement uncertainty value for this lot has increased

    The WSP Toxicology Laboratory has used this product multiple times from July 31, 2019 to date for the preparation of THC calibrators and controls, which are in turn used for the identification and quantitation of THC in forensic casework. The WSP Toxicology Laboratory has concluded that THC measurement uncertainty ranges for results reported from testing performed from July 31, 2019 to date, will be impacted by this change

    The WSP Toxicology Laboratory needs additional time to calculate and validate the revised measurement uncertainty value for THC results reported since July 31, 2019. In the meantime, the WSP Toxicology Laboratory has purchased new THC Certified Reference Materials with different lot numbers and has prepared replacement THC calibrator and control materials.

    The revisions will not afffect any THC result.  The revisions relate only to the measurement uncertainty, which will expand to address the above revision.  

    If you have any questions regarding a THC result, contact the analyst in your case.

    Although this revision is expected to have little or no effect on case dispositions, prudent prosecutors will notify defense attorneys in affected cases.   Expect a listing of cases from the toxicology laboratory to be posted and distributed. 


  • Wednesday, November 04, 2020 9:13 AM | Anonymous member

    Through Measure 110, which has captured more than 58% of the vote so far, Oregon will decriminalize the possession of small amounts of some hard drugs, including heroin, LSD, and psilocybin. Instead of criminal prosecution, people in possession would face a fine, which can be waived if the person agrees to pursue treatment.

    Oregon Story   

  • Tuesday, April 14, 2020 2:00 PM | Anonymous member

    The Court of Appeals (Div. II) agreed the Superior Court trial judge did not abuse their discretion by denying the defendant’s motion to bifurcate in a Felony DUI trial.  The defense wanted to hide the prior DUI offenses from the jury prior to the jury's decision on whether the defendant committed their most recent DUI.   If the jury convicted on the DUI, the jury would then get the evidence on the priors to decide whether the new DUI was a "felony" DUI.  The Court of Appeals agreed that because the existence of the defendant’s prior offenses was an element of the charged crime, the trial court did not abuse its discretion in denying the motion to bifurcate.

    The Court of Appeals also affirmed that the prosecution need not call the blood-draw person to establish "foundation" for the blood draw.  The officer in the case noted the relevant facts and these were sufficient for the court to conclude---under a prima facie standard--that foundation was satisfiled.

    Congratulations to DPA Jeremy Morris!  

      State v. Tysyachuk, COA No. 52448-1-II (Apr. 14, 2020).

    Full Text of Case

  • Tuesday, March 10, 2020 11:17 AM | Anonymous member (Administrator)

    Read it here: http://www.courts.wa.gov/opinions/pdf/362680_unp.pdf

    State v. Stenberg (Consolidated with Shergur); Division III, decided 3/10/2020

    Issue Presented: Whether law enforcement must offer a breath test prior to obtaining a SW for blood.

    Answer: No

    Author’s Notes: We already had Entzell that held similarly. However, this is a solid win for us. Even though it is unpublished, we may attach it to briefing and cite to it under GR 14.1. Do not abuse this holding however; advise officers to explain the reason they went outside ICW; there is always a reason; e.g., thought it was drugs, serious injury to others, child in the car, language barriers, impairment inconsistent with blow, noncooperative (although easy to offer breath if know they will refuse), serious property damage, IID required, sophisticated defendant/priors, refused FSTs, need for medical treatment, etc.

    Facts:

    Stenberg stopped for traffic violation, LEO smelled odor of intox from breath, conducted FSTs, and obtained a SW for blood. Results were BAC of .18 g/100mL. Stenberg moved to suppress arguing 4th A and Art 1, Sect 7, and ICW.

    Shergur stopped for traffic infraction, odor of into from breath, conducted FSTs, and obtained a SW; BAC of .16. Shergur moved to suppress for same reasons.

    Analysis:

    • ICW (RCW 46.20.308)) section (4) clearly contemplates allowing a search for blood; Seattle v. St. John- “an officer may obtain a blood alcohol test pursuant to a warrant regardless of the implied consent statute.”
    • Defense argued that both Schmerber and Birchfield required the LEO to offer a breath test first; Court held that LEOs complied with state and federal constitutional requirements by obtaining warrants for the blood draws.


  • Monday, February 17, 2020 8:36 AM | Anonymous member

    In State v. Jieta, the defendant was charged with malicious mischief in district court.  Over the next 15 months that court attempted 14 different pretrial hearings.  The problem was the Marshallese interpreter failed to appear by phone or in person repeatedly.  Of the 14 pretrials, the interpreter failed to appear 10 times.  On the defense motion, the trial court found CrRLJ 8.3 applied to the court as well as to the prosecution and that the mismanagement affected the defendant's rights.  The trial court dismissed the charges.  On appeal, the Superior Court affirmed and the Court of Appeals agreed.  The court is subject to CrRLJ 8.3 for mismanagement along with the prosecution.   

    Whether the proper remedy for violation is dismissal remains an open question.  The COA declined to review that question.  

    State v. Jieta (2020)

  • Thursday, January 02, 2020 11:39 AM | Anonymous member

    In a unanimous opinion, the State Supreme Court examined the language in RCW 46.61.305 to decide whether the phrase "when required" compels drivers to use their turn signal every time they turn or change lanes on a roadway.  They held it does.  The plain language of the statute requires drivers to ensure turns and lane changes are done safely and with an appropriate turn signal.  

    The opinion reversed the lower court decision in State v. Brown where the Court of Appeals Div. II concluded a driver in a left-turn lane was not required to signal the turn.  Brown was stopped for the failure to signal and arrested for DUI after the stop.   

    See the full case here: State v Brown 2019.pdf

    The decision reversed State v. Brown, 7 Wn. App. 121, 432 P.3d 1241 (2019 Div. II)

    Congratulations to DPA Andrew Clark and the Benton County Prosecutor's Office!

  • Thursday, October 17, 2019 1:06 PM | Anonymous member

    In State v Villela Oct 17, 2019 the Washington State Supreme Court unanimously agreed that the Washington law requiring all DUI arrests result in impounding of the vehicle is unconstitutional.   At issue in Villela was the fact that when a vehicle is impounded, the officer must conduct an inventory search to catalog the contents prior to releasing it to the tow company.  This protects the officer, the tow company, and the defendant from theft and allegations of theft.  

    In Villela, the inventory search turned up strong evidence of drug sales and the defendant has cocaine on his person.  Villela was charged with felony possession with intent to deliver.   At the trial court, the judge agreed the search violated the State Constitution Art. 1 Sec. 7 and suppressed the fruits of the inventory search.   In affirming that suppression, the State Supreme Court concluded that "an impound is lawful under article I, section 7 only if, in the judgment of the impounding officer, it is reasonable under the circumstances and there are no reasonable alternatives. Since the officer did not make that judgment, the impound was unlawful under our state constitution, and the trial court properly suppressed the fruits of the seizure."   

    Having struck down RCW 46.55.360, we revert to having officers decide in each case whether to impound, and whether any reasonable alternatives to impound are available.  The court identified only two broad categories for when an officer may reasonably impound a vehicle:

     (1) as evidence of a crime or; (2) when it is reasonable under the circumstances.

    Once the officer has decided to impound, the court evaluates whether reasonable alternatives to impound existed.  In Villela, the defendant provided the name of a nearby friend and said they lived nearby.  But because impound was mandatory, the officer never called the number.   

    Villela puts law enforcement back into the psychic business.  If officers impound the vehicle, the agency risks liability for the impound costs and the loss of use of the vehicle if a judge doesn't agree.  If the officer doesn't impound the vehicle, the agency risks liability for having the impaired driver hurt someone.  That is what led to Hailey's law in the first place.  In the Hailey French case from 2007--a jury concluded the officer should have done more to prevent a driver from going back to her car and driving after her arrest for DUI.  The impaired driver was a repeat offender but was driven home and given her keys back--with instructions not to drive until sober.   The jury awarded $5.5 million.    After the Hailey French case, repeat DUI drivers are now under a mandatory arrest requirement--that helps, but it still leaves a large number of "first time" offenders.  (out-of-state, tribal, and other DUI convictions are often not known to the arresting officer).   Because repeat offenders are going to see a judge before they drive again, officers can focus on first-time DUI arrests who will likely be back on the street within hours of their DUI stop.  In many cases, those drivers will still be impaired.   Prosecutors and law enforcement will be working to develop policies and training to assist law enforcement in making reasonable assessments regarding impounding DUI suspect vehicles.   

  • Monday, July 15, 2019 11:32 AM | Anonymous member

    Our State Supreme Court decided State v. Baird, concluding breath testing without a warrant is constitutional under the Federal 4th Amendment and Article 1, Sec. 7.   In the Court of Appeals case, State v. Nelson, the court analyzed the state constitution issue more closely and concluded breath testing is constitutionally valid without a warrant.   

    The defense sought review of that decision, but it was denied. State v Nelson - Terminating Review - - 7-11-2019.pdf The validity of breath testing in Washington is now settled law under both the Federal and the State constitutions.  

  • Friday, June 28, 2019 2:38 PM | Anonymous member

    In U.S. v. Gray, a June 26, 2019 unpublished opinion of the 9th Circuit, the court held that a Reno, Nevada search was legal when the officers smelled the odor of marijuana and conducted a search resulting in discovering a firearm in possession of the felon defendant.   Because possession of less than one-ounce of marijuana is legal in Nevada, the defendant argued the odor of marijuana did not justify a search. 

    The court disagreed, noting it is still an infraction in Nevada to smoke or consume marijuana in a public place or in a moving vehicle.  The officer reasonably believed the defendant was lying and could infer this indicated a guilty mind.   Once the drug dog alerted for contraband, the officers were justified in their belief that evidence of a crime was present. 

    The opinion is here:US v Gray Unpub MJ odor 18-10190.pdf

    In Washington, the odor of marijuana would also justify reasonable suspicion for an infraction and possible DUI impairment, but a search warrant would be needed after seizing the vehicle to search absent either consent or an exigent circumstance.       

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