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  • Thursday, August 23, 2018 8:04 AM | Anonymous member (Administrator)

    Wisconsin state agencies won a $4.5 million judgment against an east side Milwaukee business and its owner over the sale of synthetic marijuana between 2011 and 2016, Attorney General Brad Schimel announced. Atomic Glass, at 1813 E. Locust St., was one of two businesses sued last year by the state departments of justice and agriculture, trade, and consumer protection over the sale of synthetic THC with such names as "Spice" and "Kush" in violation of a state law prohibiting fraudulent drug advertising. Milwaukee Circuit Judge Timothy Witkowiak last month found Atomic Glass and owner David Kelly of Eugene, Oregon, liable for selling 60,006 packets of synthetic cannabinoid products. General Schimel said the case was pursued as a civil forfeiture, rather than a criminal charge, because "the formula for synthetic drugs changes quicker than lawmakers can outlaw it..

  • Wednesday, March 28, 2018 1:40 PM | Anonymous member (Administrator)

    Division II of the Court of Appeals affirmed a Clark County Ordinance prohibiting recreational sales of marijuana in the unincorporated portions of their County.   Emerald Enterprises challenged the ordinance as unconstitutional, and as preempted by state law.  Both challenges failed.  The ruling is consistent with the prior Attorney General Opinion (2014 Opinion #2).  The ordinance remains in effect until revoked, or until the federal government removes marijuana as a controlled substance.

    The full case can be seen Emerald v Clark County 2018 Ban on MJ legal.pdf

  • Thursday, March 01, 2018 7:39 AM | Anonymous member (Administrator)

    The Governor's Highway Safety Association Report on Pedestrian Safety reports one consequence of marijuana use and fatalities: pedestrian deaths are up sharply in states with recreational marijuana while dropping in other states.   More data mining is needed to establish the connections between marijuana use and pedestrian deaths, but two are obvious:  Marijuana impaired drivers are most vulnerable to the effects of marijuana in low-stress low-speed environments--leading to slow speed crashes that most endanger pedestrians (expect also to see more hit-and-runs, more fender-benders, and more on-the-job injuries), and pedestrians under the influence of marijuana are more likely to put themselves in harm's way. 

    The full report is here:  GHA Report

     

    Pedestrian Fatalities in States with Legalized Recreational Marijuana  

  • Thursday, February 01, 2018 8:19 AM | Anonymous member (Administrator)

    In State v Brooks the defendant was stopped after driving over the wide solid white lines around the physical gore point for an onramp.   The trial court agreed the stop was lawful, but the Superior Court reversed the conviction for Driving with license Suspended based on its conclusion the law was ambiguous and the Rule of Lenity favored the defendant when a law is ambiguous.  The Court of Appeals reversed the Superior Court and reinstated the conviction reasoning that we never reach the rule of lenity because the zone within the wide white lines is not a "roadway" and a driver may not drive in it.   The concurrence would have held it is the "wide white line" that demarks the violation and not the use of the driving surface.  While that analysis is simpler, and supports the result here, it would not support many gore point intrusions because most are plain white lines.  The Brooks case is broad practical ruling that recognizes the neutral zone around gore points is not a travel lane and incursions indicate poor driving.  

    The full case is here:     State v. Brooks

  • Friday, January 05, 2018 9:48 AM | Anonymous member (Administrator)

    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

  • Wednesday, November 15, 2017 8:42 AM | Anonymous member (Administrator)

    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. 

  • Monday, October 16, 2017 8:26 AM | Anonymous member (Administrator)

    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. 

     

  • Thursday, October 05, 2017 8:45 AM | Anonymous member (Administrator)

    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

  • Thursday, August 03, 2017 7:25 AM | Anonymous member (Administrator)

    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.    

  • Thursday, May 18, 2017 9:07 AM | Anonymous member (Administrator)

    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! 

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