The staff and attorneys at Horwath Law are outraged by the horrendous
actions of the Minneapolis Police Department this week. On Monday
evening, George Floyd, a 46-year-old African American man, died after
being handcuffed and pinned to the ground by a white police officer’s
knee. Mr. Floyd pleaded with officers for several minutes, repeating
over and over that he could not breathe. The incident was recorded by
a bystander and shared on social media early Tuesday, inciting
Minneapolis Mayor Jacob Frey stated that the pinning technique used by
the officer was not permitted and was not a technique that officers
are trained on. Mr. Floyd’s death at the hands of the MPD is eerily
similar to the death of Eric Garner, who died in 2014 as a result of
a New York officer’s chokehold. Both men uttered the same words to law
enforcement prior to their deaths.
While the Minneapolis officers involved have been fired, the tragic
result of their actions cannot be undone. Police violence, harassment,
and assaults on persons of color happen far too often in our
communities. Just two months ago, officers in Louisville, KY stormed
the home of Breonna Taylor, an African-American EMT, and murdered her
in a botched investigation. In 2017, Kent Police stopped African-American man Giovann Joseph-McDade for having expired tabs. When Mr. Joseph-McDade attempted to drive away, officers shot and killed him. The department is currently being sued.
This level of tragedy and police racism may not make the news every
day, but it is ever-present in the daily lives of many people in our
community. As Criminal Defense Attorneys we are in a unique position to investigate and bring to light issues of police racism, brutality, and dishonesty. Over the years our investigations have discovered officers who have been disciplined for making racial slurs, for racial profiling during their
shifts, and for ignoring reports of bias incidents. Any racial bias on
the part of an officer is unacceptable, and as defense attorneys, our
job is to bring any type of discrimination to light. We must hold
officers accountable and push police agencies to reform. This must stop.
In all criminal cases, prosecutors are required to turn over any evidence that might help exonerate a defendant. This requirement exists because of a U.S. Supreme Court decision known as Brady v. Maryland. Exculpatory evidence that falls under this category is referred to as “Brady” material. An example of this type of evidence would be if a law enforcement officer involved in a case has a history or dishonesty, bias, or internal investigations. Despite the Brady rule, prosecutors often do not comply with turning exculpatory evidence over. A criminal defense attorney should always investigate whether the officer involved in a case has a record that could call into question evidence presented by the prosecution.
It is not uncommon for police officers to face discipline for questionable practices. In February, a Seattle police officer was terminated after he was found to have regularly engaged in recreational drug use and had a history of using slurs related to race, sexual identity and gender. In January, another Seattle police officer was fired for posting threatening rhetoric on social media. In 2019, the Aberdeen Police Department’s official statement about an officer involved shooting was questioned when surveillance video emerged contradicting the officer’s account. Last week, the Seattle Times reported that two Snohomish County deputies that were on the prosecutor’s list of officers with credibility problems were recently reinstated by the new sheriff.
Recent investigations by Horwath Law have discovered an officer with a history of lying under oath and an officer who was reprimanded for making racially biased traffic stops. Other officers in the area have been disciplined for cheating on an exam, fabricating police reports, abusing an informant, making false statements, and coercion. Some prosecutors keep lists of “Brady” officers who have sustained instances of lying on the job, but the majority do not. Defense attorneys must remain vigilant in obtaining Brady information through their own investigations.
With Horwath Law Attorneys working on your case, relevant and exculpatory evidence will not fall through the cracks. Put your trust in a defense team that goes above and beyond in fighting your case.
The Tacoma News Tribune has reported that Officials in Pierce County are currently investigating how to implement social distancing during the many jury trials that take place in the County’s courtrooms. The State Supreme Court has postponed all jury trials until July as a result of the COVID-19 pandemic. Maintaining social distancing when court resumes could prove to be a challenge. Officials have even considered off-site locations for jury selection, including the nearby Armory building, the Greater Tacoma Convention Center, and the former Kmart building in central Tacoma. Currently, there are about 1,500 criminal trials and 500 civil trials pending. The County-City Building can typically handle 12 trials at a time. With social distancing in place, that number may drop as low as 5.
Safety is a top priority in implementing any social distancing plan. Any new location would need metal detectors and other screening measures to allow entry. The County will be looking at the overall physical security of the buildings, the security of each converted courtroom, and the security of all entrances and exits. Additionally, there have been discussions of testing and screening jurors for the virus, and also requiring that everyone where a mask.
In order to comply with the public’s right to access courtrooms, the County is looking at broadcasting trials online or creating a viewing room at the courthouse, so that the public can watch proceedings and still socially distance.
Regardless of the trajectory of the virus, the County has a huge task in front of it to ensure that court personnel and jurors remain safe in the future. As Presiding Judge Garold Johnson said this week, “We have to have our jurors safe. They are absolutely essential to justice.”
At Horwath Law, we continue to stay up to date on any developments related to court operations during the current health crisis – client safety is our top priority.
Marked as “ground zero” of the Coronavirus pandemic, nearly every Washingtonian has been impacted, to some degree, by the effects of this deadly virus. Amid this unprecedented time, if you or a loved one has been arrested for a DUI, the added stress can be overwhelming and terrifying. If you are unsure about the best way to handle your arrest in the midst of this outbreak, you are not alone.
The criminal justice system is not immune to pandemics and the virus has had sweeping effects on how Washington courts operate. These effects include statewide court closures, delays in charging decisions, and an increased backlog of DUI blood testing at the toxicology lab. These added complications mean that now more than ever, it’s critical to be informed on what to expect after you are arrested for a DUI and how to be prepared for the best possible defense.
Following your arrest for a DUI, one of the first impacts of COVID-19 that you may experience is a delay in the prosecutor’s decision to charge you with the crime. In Washington State, when the police arrest you for a DUI, they refer their report to a prosecutor who then decides if you should be charged with the crime. Under the Washington State Statute of Limitations, the prosecutor has two years from the date of your arrest to charge you with a DUI. Therefore, beginning on the date you are arrested, a clock starts ticking and just one day after this two-year mark, a prosecutor loses all power to charge you with this crime. While prosecutors typically only take 4-6 weeks to make this decision, holding them accountable to this deadline and ensuring they get no additional time to charge you is a critical aspect of your rights. However, as a result of COVID-19, this law and timeline has been changed.
On April 14, 2020 Governor Jay Inslee suspended the Statute of Limitations for all criminal charges for one month, until May 14, 2020. This means that if you were arrested for a DUI but have not yet been charged, the clock ticking towards the two-year deadline has been stopped until May 14, 2020. This gives prosecutors a 30-day extension on their deadline to charge you with a crime. This extension also means that if you have not yet been charged, you will likely experience a months-long delay before your first court date. For example, Seattle Municipal Court recently released an Order mandating that unless you are in-custody, all court hearings will not occur until after July 31, 2020. Further, if your blood was drawn to determine your potential alcohol or drug levels, the only toxicology lab that tests these samples will almost certainly experience backlogs and delays in testing.
While COVID -19 has slowed down many aspects of a DUI, there is a critical component that continues to operate at its regular pace. This aspect of a DUI is the administrative licensing process. In Washington State if you blow over .08 on a formal breath test at the station or you refuse a formal breath test, the DOL will take your license away within 30 days of the date of your arrest. You only have one chance to stop this suspension and that requires you to request a hearing within 7 days of the date of your arrest. COVID-19 has not slowed or paused this 7-day deadline and if it passes, you will have no chance to stop the possible suspension of your license. You also have almost no chance to prevail at your licensing hearing without the assistance of an experienced attorney.
As you process these COVID-19 updates, we would like to remind you of 3 key steps to take after you are arrested for a DUI that have not changed:
- If your breath test result was over the legal limit of .08, or you refused to take a breath test at the police station, then you only have 7 days to try and save your license with the Department of Licensing. If you do not request a DOL hearing within 7 days of your arrest, then you will automatically lose your license within 30 days.
- As soon as possible following your arrest, write down everything you remember about this experience. This includes your memories of what you were doing in the hour(s) leading up to getting in the car, the moments prior to police pulling you over or interacting with you, the roadside tests you performed, if any, and what occurred at the police station. While these memories may seem vivid now, they will likely fade quickly and it’s essential to your defense that they be preserved as many successful DUI defenses rely on small, technical details.
- Contact an attorney as soon as possible to receive advice on your very specific case, the status of your license, and the steps to take in order to ensure you have the best defense possible.
Here at Horwath Law, we offer free consultations and if you have been arrested for a DUI, please call us right away at 253-649-2641.
On Monday, Governor Jay Inslee and Department of Corrections Secretary Steven Sinclair announced that they would release almost 1000 inmates amid the Covid-19 pandemic. This unprecedented move is aimed at protecting the most vulnerable inmates within the prison population.
The announcement comes after a lawsuit was filed to release inmates who have serious medical conditions, are over 50, or are within 18 months of release. The lawsuit alleges that the Governor and Corrections Secretary are violating the state constitution by failing to act swiftly to protect the health of inmates. On Friday, the State Supreme Court issued an emergency ruling directing officials to report on all the steps being taken to protect inmates from the virus and to outline their emergency plan.
The criteria for inmates to be released are: nonviolent prisoners set to be released within 75 days, nonviolent and vulnerable offenders scheduled for release in eight months, nonviolent prisoners incarcerated for low-level probation violations, and nonviolent offenders who are on work release. Some prisoners will be freed through the commutation process, while others will be released through a graduated reentry program.
As COVID-19 concern sweeps the nation, especially in the national hot-spot of the virus here in Horwath Law’s home in the Pacific Northwest, many of us legal-minded people are considering the impacts COVID-19 will bring to our criminal justice system. We are seeing state-wide closures in most courts. The Washington Supreme Court just ordered that all out of custody criminal matters will be continued until after April 24th. Many State and Municipal Court have postponed out of custody court dates and jury trials until after May 1st. The effects of this viral outbreak are being felt by our clients as their speedy-trial rights are temporarily put on the back burner to support the slow of this virus.
How are courts treating our clients who are in custody and unable to post bail during the viral outbreak? Jails are notorious breading grounds for disease and infection, so we are especially concerned about the impacts this partial shutdown has for those unable to post bail and now unable to set their cases for a jury trial in the very near future. Attorneys are and should be arguing for bail reductions, especially for the clients whose health conditions are already fragile, putting them at greater risk of complication from a potential infection of COVID-19. The COVID-19 outbreak does represent a material change for purposes of conditions of release. Additionally, others have called for prosecutors and police departments to take action against the spread of COVID-19 by not arresting those being referred for charges on low level, non-dangerous offenses and not making requests for bail on the same low-level offenses. Social distancing is frankly not something that can be promoted well in a jail, meaning there is a huge need to keep our jails as empty as possible.
From an international perspective, COVID-19 has sparked Italy to consider criminally charging those who breach the lockdown in place. Offenders could be charged with intentional murder punishable by up to a 21-year sentence if they display symptoms of COVID and refuse to self-isolate, and who then end up needlessly passing on the virus. While an interesting thought, we don’t believe there has been any discussion of this level of action in the United States, although Governor Inslee did mention the potential for Washington state to seek injunctions against those who violate any of the COVID-19 bans in place, if the need arose to that, but he also added that he is optimistic that Washingtonians will abide by the bans because as a whole Washington is a science-minded state and understands that social-distancing and isolation is the biggest defense against this viral outbreak, we at Horwath Law are also optimistic.
At Horwath Law, while we are taking every precaution to promote social distancing and isolation, we are open, available, and on call to help our clients in any way we can, as we know that COVID-19 will not end the need for our thorough representation. We hope each of our client’s are able to stay safe and get through this crazy time and know that we will help see them through this time.
If you’ve ever been arrested for DUI, you might be familiar with the machine that awaits you back at the police station. This machine measures the blood alcohol concentration in a person’s breath when they blow into the machine. These devices play a huge role in prosecutors’ cases against people charged with DUI.
For every person driving in Washington State, a refusal to take a breath test after an arrest for DUI has serious consequences such as license suspension and/or jail time (see RCW 46.20.308). However, once a person takes a breath test, the measurement can be used against the person in a court of law.
The NY Times recently wrote about the issues surrounding breath test machines nationally, calling into question their reliability. The article highlights errors—both human and programming—that have led several states around the country to find the results unreliable. Even more concerning, companies producing the breath test machines have kept the machines’ software under wraps and nearly impossible for defense attorneys to examine.
The article dives into Washington State’s use of the Dräger Alcotest 9510—one of the common breath test machines used. In 2015, a local court granted defense attorneys the ability to look into the underlying software used in the machines. Two programing and security experts were hired for the job, issued a report, but reluctantly backed down after a demand by the powerful company it was investigating.
The report never made it to court, however some copies survived, detailing the ways in which the Alcotest 9510 is “not a sophisticated scientific measurement instrument” and “does not adhere to even basic standards of measurement.” For example, the machines did not have a breath temperature sensor—a financial decision made in purchasing the machines. Without verifying breath temperature, the machines could inaccurately inflate alcohol concentration readings.
And not only does the article call into question the reliability of the tests, it also speaks to the serious consequences of police departments becoming dependent on them. Not only can people be wrongfully convicted on flawed evidence, but serious offenders can walk away scotch free when a flaw is detected and the results are thrown out. In both Massachusetts and New Jersey, more than 40,000 convictions are at risk of being overturned given their reliance on faulty tests.
At Horwath Law, we continue to stay educated and aware of any developments with the reliability of breath test machines. We understand the important role these machines play in DUI cases and aren’t afraid to challenge their use in court.
The Clashing of Hailey’s Law and the WA State Constitution
In a recent unanimous decision from the Washington Supreme Court, Hailey’s law was ruled unconstitutional. Hailey’s Law required the mandatory impoundment of a car driven by someone arrested for DUI.
Passed by the state legislature in 2011, Hailey’s Law stemmed from an incident in 2007 where a person was arrested for a DUI. After the arrest, the person was released back to her car, drove, and severely injured another person. Hailey’s Law stripped officers of the discretion to decide whether to impound a person’s car after such an arrest, even if other passengers are present to take the car or if the car is parked safely off the roadway. Considering the costs associated with retrieving one’s car after impoundment, the law had a significant impact on those arrested for DUI.
In the case before the Court, Joel Villela challenged Hailey’s Law, arguing that impounding his car after arrest for DUI, without simply releasing the car to one of his passengers, violated his constitutional rights.
The Fourth Amendment to the US Constitution protects against unreasonable searches and seizures. Washington’s Constitution provides further privacy protections under Article 1 Section 7—the right to not be disturbed in one’s private affairs without authority of law.
The Court recognized that the impoundment of a car is an intrusion into one’s private affairs, and so the issue before the Court was whether authority of law justified the intrusion. The State relied on Hailey’s Law for providing the authority of law required. However, the Court noted that a statute can only provide such authority if it is consistent with constitutional protections.
Writing for a unanimous Court, Justice González emphasized that the legislature can’t legislate away constitutional protections.
The Court recognized that, under Article 1 Section 7, authority of law to impound a vehicle after the driver has been arrested exists where (1) there is probable cause that the vehicle contains evidence of a crime or (2) there is no reasonable alternative to impoundment. Since Hailey’s Law took away the discretion of an officer to consider reasonable alternatives to impoundment, the statute clearly violated constitutional protections.
So, what is the practical effect for those now arrested on suspicion of DUI?
Where an officer does not have probable cause to impound a car, the officer is required to make an individualized consideration of any reasonable alternatives to impoundment. Reasonable alternatives include whether a passenger is able to drive the car, or whether the car can be safely left where it is, to be picked up later. This means less costs imposed on many people arrested for DUI.
Bottom line—each case is unique and, without probable cause, an officer must first consider any reasonable alternatives before impounding a car driven by someone arrested for a DUI.
“Self-defense is Nature’s eldest law.” – John Dryden.
Self-defense is a term that most people know, even those people who are not in the legal field. If someone hits you, you are justified to hit them back. What does self-defense means in terms of criminal law though?
Self Defense as an Instruction to a Jury at Trial
Self-defense is an affirmative defense. This means that a person is not simply denying their conduct, but that they are offering evidence as to why they did that criminal act. A defense attorney’s goal is to avoid a conviction to the crime. In many courts, clients will claim self-defense to assault charges. If the case were to go to trial, the jury would be instructed that it is a defense to the charge of assault that the force used was lawful. When the Court allows the jury to hear this instruction, the prosecutor then has the burden to prove beyond a reasonable doubt that the force used by the defendant was not lawful.
What is lawful force? This can get tricky. It’s usually easier to give an example of what is likely NOT lawful. Let’s say that you get into a fight with a friend. The friend slaps you in the face, and then you pull out a gun and shoot them. This would likely not be lawful. Let’s say, though, that after that friend slaps you, then you punch them two times. Is that lawful? You can see how this gets tricky.
Defense of Others or Property
We have been talking about self-defense regarding individual people, but what about defending others or defending your property? State v. Mierz illustrates that you must be in lawful possession of something to try to claim self-defense over that object or animal. State v. Bland illustrates that you can use necessary force against a “malicious trespass” even though you do not reasonably believe that you are going to be injured.
Recent Case Involving Self-Defense
The Washington Court of Appeals Division III just released a case on June 11th, 2019, that discusses a unique area of self-defense. This case is State v. Tullar. In Okanogan County Jail, Johnathan Cook was assaulted by Brandon Tullar. Mr. Tullar did not testify, but two inmates testified that Mr. Cook hit Mr. Tullar first, put him in a chokehold, and then Mr. Tullar defended himself. The trial court did not allow Mr. Tullar to use a self-defense jury instruction because he did not testify about his own subjective fear regarding the assault. The Court of Appeals ruled that “the law allows Tullar to establish his subjective fear by circumstantial evidence through the testimony of others.” This helps defendants who do not want to testify, but have witnesses who can testify for them.
How We Can Help
If you have gotten into an altercation with someone, but it was out of self-defense, contact us immediately. We stay up to date on the law and the cases surrounding self-defense, and we will use this to help you avoid a conviction. In fact, Attorney ALISON GANEM just obtained (on 09/10/19) a not guilty verdict for our client charged with Assault in the 4th degree in King County where self defense was presented. In that case the jury even awarded attorney’s fees requiring the State to compensate the Defendant for the cost of hiring our firm.