Fundraiser and Memorial for Four Slain Officers’ and thier Families

Four officers were brutalied murdered in Lakewood, Washington, last week while having coffee and preparing for their shifts.   A friend, who also happens to be the mother of a Washington State Patrol Officer, sent me this:

IF you live near a Papa John’s Pizza place, PLEASE consider having a meal there on Tuesday (December 8), or Wednesday (December 9), as all profits from all Papa John’s nationwide will go to take care of the 4  families who have lost a parent.  There are a total of nine children in these families.

 If going to have pizza cannot be in your plans, please remember in your prayers, and hold in your heart, the families of these Lakewood, Washington officers who were slain in a senseless massacre last week. The memorial service will be held in the Tacoma Dome on Tuesday:

Mark Renninger.

Tina Griswold

Ronald Owens

Greg Richards.

Thank you sincerely. 

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Brandon Norton story update…

Here are a couple of photos of the memorial at the crash site. Included in the array of items were multiple soccer balls, Norton’s High School jersey, several Seattle Sounders items and lots of photos and other personal items.

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Brandon Norton

Brandon Norton

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This particular post hits a little closer to home than most.  Those of you who know me are aware that I’m involved in the Seattle soccer scene as a referee, administrator, player and coach.  I’m also the proud parent of a soccer player and referee.  It is sad when one of our soccer family passes.   Even more tragic is that this story involves someone so young, who apparently was trying to do the right thing by keeping his friends off the road and out of trouble.

The Daily Herald’s story, written by Katya Yefimova and printed on November 16, 2009 is contained below:

Friends mourn two killed in crash

LYNNWOOD — Brandon Norton was the designated driver Friday night.

The Meadowdale High School graduate, 21, had already taken a car full of people home from a party he attended and was driving three of his other friends.

They were northbound on North Road in unincorporated Snohomish County just past 2 a.m. on Saturday when the car went off the road and smashed into a tree.

He died instantly. So did Ehlo Blacknall, 20, who sat behind Norton.

Tyler Gilbert, 20, and Trevor Moore, 21, were rushed to Harborview Medical Center in Seattle with serious injuries.

Gilbert was allowed to go home on Sunday evening. Moore was in serious condition.

Detectives from the Snohomish County sheriff’s Collision Investigation Unit on Saturday determined that the car was traveling at 70 to 80 mph when it left the road. The speed limit in the area is 35 mph. The turn is posted at 25 mph.

“He was so young and had such a good life ahead of him,” said Laurie O’Donnell, Norton’s mom, on Sunday evening.

She recalled how her son’s face would light up when he smiled, ear to ear.

A memorial of flowers and candles surrounding a makeshift cross marked the place of the crash on Sunday afternoon. More than a dozen friends and family members looked on, many choking back tears.

A poster placed against a tree read “Proud to be Meadowdale Maverick.”

Norton was a star athlete, said Lizzi Mohs, 18, of Lynnwood.

Mohs and Norton struck a friendship in middle school and were close friends in high school.

“Brandon had a great laugh,” said Mara Eberth, 19, who also came to honor her friends’ memory.

Norton wanted to play soccer professionally. He had playoffs scheduled for Saturday morning, Mohs said. She said nobody saw him drink at the party on Friday night.

On Saturday, the sheriff’s office said in a press release that it is investigating whether alcohol may have been a factor in the crash.

Temperatures in the area dipped below freezing Friday night, and there could have been ice on area roads, according to the National Weather Service.

“They were the most fun-loving, outgoing people,” Mohs said about her friends.

Blacknall lost his father as a child and went through some rough times, Mohs said. He loved skateboarding and loved life.

Mohs and other friends drove to Seattle later on Sunday to visit Moore and Gilbert in the hospital.

She said Moore was a “guardian” to his loved ones.

“It’s all about family for him,” Mohs said.

When Moore was younger, he got into a bike accident and skinned one side of his face. He now has a white eyebrow, Mohs said. It made her smile.

Mohs learned from Moore’s family that he needed surgery. She and others just hoped he would get better soon.

Gilbert spent Sunday evening with his loved ones.

He and Blacknall were always together, always making friends laugh. They even shared a home, she said.

Kim Matzen watched from her porch on Sunday afternoon as friends came and went in a steady stream, bringing more flowers, balloons and candles.

Matzen’s house is on 176th Place SW, a cul-de-sac right before North Road makes the turn where Norton and Blacknall died. She’s seen many wrecks over the years; mostly cars in a ditch, but serious crashes too.

“Rarely do people go the speed limit,” she said.

The road is narrow and curvy, and there is little room to walk on the side of the road. The traffic, however, is always heavy and Matzen is worried about kids walking to school.

“There is no room for error here,” she said.

Norton was recently acquired by Starfire Premier Soccer League’s Big Daddy Hogslayer.   The premier division team played for the league championship on Sunday night at Starfire Stadium in Tukwila, Washington.  A memorial was held for Norton prior to the game.  Romania won the match 2-1.

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Third Chicago officer accused of falsifying DUI reports

Illinois State’s Attorney’s Office is invetigating Chicago Officer Richard Fiorito for drumming up false DUI charges. 

A federal lawsuit was filed against Fiorito by 21 people that allege they were roughed up and called anti-gay slurs by the Chicago police officer.  As many as 20 more indivudals are expected to join the suit.

A video released Tuesday appears to show Fiorito bullying a DUI suspect during a June arrest.  There are a number of problems with the way the field sobriety test were conducted.  Despite the officer’s inability to conduct the tests correctly the driver seems to do fine.  Despite his performance he is arrested for DUI. 

A second video does not appear to support Fiorito’s allegations that the driver was swerving from lane to lane and narrowly missing parked cars. 

On Novmeber 12, 2009, NBC Chicago reported:

Fiorito has been honored by Mothers Against Drunk Driving for the 313 DUI arrests he made between Jan. 1, 2007 and June 6, 2008.

He said that if he’s called to testify in these cases, he will assert his 5th Amendment rights.

Fiorito is the third Chicago cop accused of trumping up DUI charges. Last year, prosecutors dropped more than 50 cases after accusing Chicago officer John Haleas of perjury. Earlier this year, dozens of DUI arrests by officer Joe Parker came under scrutiny.

I previously practiced in a jurisdiction where all police vehicles were equipped with cameras.  The videos above demonstrate why they should be mandatory in every jurisdiciton.  Not only do offer unbiased evidence, they can be used to deter (or at least catch) police misconduct. 

As the push to arrest more and more DUI driver’s continues, these type of incidents will become more prevelant.

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Hit and run may be resolved by civil compromise.

Some imporant DUI-related rulings were handed down in Washington in October.  State v. Stalker, decided October 19, 2009 by Division I involves a DUI and Hit and Run.  This case is relevant to DUI Defense because of the significant number of Hit and Run charges that accompany DUIs. The trial court dismissed the Hit and Run on a showing of civil compromise. [A civil compromise, under RCW 10.22, allows the court to dismiss most misdemeanors if the victim declares that he or she: (1) has been paid back for all damages; and (2) does not wish to pursue criminal charges.]

In Washington, restitution cannot be ordered on a Hit and Run because the damages are not a result of the crime. The crime is leaving the scene of an accident, not the act of getting into the accident. On appeal, the Prosecution argued that the same reasoning should apply to a civil compromise of a Hit and Run. Payment for damages should not be considered restituion for the crime because the damages were not the result of any crime. In making this argument the prosecution urged the court to overturn prior precedent which specifically allowed for civl compromise of a Hit and Run.

The court of appeals agreed with the trial court and upheld the dismissal. Thus, civil compromise remains a great tool in resolving Hit and Run and many other crimes by taking discretion out of the prosecutor’s hands and placing it with the victim.

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Arrested in Lynnwood?

Arrested in Lynnwood?

If you have been arrested and/or cited in the City of Lynnwood you may have received a yellow slip of paper directing you to report to jail for formal booking.  The notice states: “Prior to your scheduled arraignment you must report to the Lynnwood Police Department jail to be fingerprinted and photographed.  You must report on Tuesdays, Thursdays or Saturdays between 11:00 am. and 3:00 pm.  Bring your citation with you.” 

When an individual is arrested the police may record identifying information of the suspect, such as a physical description, fingerprints or “mug shots.”  However, once you are released from custody you cannot be compelled by the police to return for the purpose of providing this information.  That doesn’t mean they can’t ask.  If you want to spend your time going to the police station to submit to these invasive procedures no one can stop you.  But, in my opinion, there are better ways to spend a day. 

If the police approach you about this you should immediately ask to contact your attorney.  On the other hand, under certain circumstances, a court may issue an order compelling you to provide fingerprints, or other evidence.  Again, contact your attorney if you are served with such an order.

To be clear, this is much different than your Sixth Amendment right to an attorney and your Fifth Amendment right to remain silent.  If you are contacted by the police you should always ask if you are free to leave.  If you are, then leave.  If not, then assume you are under arrest.  If you are under arrest you should always exercise your right to an attorney and never answer questions or take tests without consulting an attorney first. 

Also, if you are under arrest the officer may conduct a search of your person and belongings.   Do not obstruct the search.  Never consent to any search (Did I say never? I meant never, ever, ever…).  If the officer has authority to search he or she will do so with or without your permission.  On the other hand, if the officer lacks authority to search (and you have not consented) it may lead to the exclusion of any and all evidence.

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Changes in the Washington State time for trial rules in 2003 have caused many criminal defense attorneys to comment “there is no such thing as ’speedy trial’ anymore.”  Fortunately, that is not entirely true. 

The Washington State Supreme Court, in State v. Kenyon, recently addressed the question of whether the lack of an available judge is good cause to continue a case beyond the speedy trial period.  Certain time periods are excluded when computing “speedy trial.”  Continuances granted for “unavoidable” circumstances beyond the control of the court, qualify as one of these excluded periods.  CrR 3.3(e)(8).  In general, the court is given wide latitude in deciding whether good cause exists for a continuance.   A trial judge’s decision will only be overturned if the ruling was “manifestly unreasonable, or exercised on untenable grounds, or for some untenable reasons.”

After several continuances Keyon refused to further waive his right to speedy trial and demanded a trial.  In the two department Mason County Superior Court, one judge was already scheduled for trial and the other judge was unavailable due to a pre-scheduled vacation.  The trial court continued Kenyon’s case based on judge unavailability. 

The Court of Appeals upheld the lower court’s decision.  The appeals court recognized “court unavailibity” was similar to ”court congestion” and, under the previous time for trial rules, court congestion was not ”good cause” for a continuance.  However, this court questioned the continuing viablity of this view under the post-2003 version of CrR 3.3.  Ultimately the trial court’s decison and Kenyon’s conviction were upheld.

The Supreme Court disagreed.  The court did agree that judge uanavilibilty was identical to court congestion and, under the current rule, a court may grant a continuance due to congestion.  However, it must make a record of the unavailability of judges and courtrooms and the availability of judges pro tempore.   Thus, a court must take affirmative steps to address court congestion.  In the present case the trial court made no such record. “Here, the trial court should have documented the availability of pro tempore judges and unoccupied courtrooms.  The failure to do so violated Kenyon’s right to a speedy trial.”

Judge unavailibilty alone is not sufficient to allow a continuance.  Because Keyon’s right to a speedy trial was violated the court dismissed all charges. 

The bottom line is that courts must make reasonable efforts to alleviate roadblocks to speedy trial, at least as they relate to court or judge unavailibility.  In the era of sweeping budget cuts overburdened courts are going to be forced to decide between finding a courtroom and a pro tem or dismissing your case. 

Click here for a complete version of State v. Kenyon.

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13 Ways to be in Physical Control of a Vehicle

Safely off the Roadway?

Safely off the Roadway?

 Did you know you can be found guilty of “DUI” simply by sitting behind the wheel of your car while over the legal limit? “Physical Control” is essentially the same crime as DUI without the driving element (.08% or higher within 2 hours of being in control of a vehcile).  The potential and minimum punishments are identical to DUI. 

In Washington there is a defense to Physical Control.  The burden of proof is on the defendant to show he or she ”moved safely off the roadway prior to pursuit by law enforcement.”  Sounds pretty straight forward.  However, juries are given little guidance as to what exactly this means.

In a recent case, the Arizona Supreme Court addressed the problem of defining “Physical Control.”   While the physical control laws in Washington and Arizona are not identical, and Arizona does not appear to offer the same statutory defense, some of the analysis may be helpful in arguing Physical Control in Washington.  Arizona v Zaragoza, 209 P.3d 629 (2009)  announced thirteen factors for a jury to consider when deciding whether an individual is in physical control of a vehicle.  

Arizona applies a “totality of the circumstances” test to the question of whether the defendant is in physical control of the vehicle.  Specifically, the jury is to consider the totality of circumsatnce shown by the evidence and whether the defendant presented a real danger to any person.  The thirteen factors are as follows: 

  1. Whether the vehicle was running;
  2. Whether the ignition was on;
  3. Where the ignition key was located;
  4. What position the driver was found in the vehicle;
  5. Whether the person was awake or asleep;
  6. Whether the vehicle’s hedalights were on;
  7. Where the vehicle was stopped;
  8. Whether the driver had voluntarily pulled off the road;
  9. Time of day;
  10. Weather Conditions;
  11. Whether the heater or air conditioner was on;
  12. Whether the windows were up or down;
  13. Any explanation of the circumstances shown by the evidence. 

So, how does this apply to Washington?  Washington State’s “safely off the roadway” defense, codified in RCW 46.61.504, would seem to implictly include these factors.   They certainly could be helpful when considering both; (1) if a an indvidual was actually in control of a vehicle, and (2) whether that individual can establish the statutory defense necessary to negate the charge.   (Though, I must admit, I’m not sure how factors 11 and 12 contribute to the analysis.)  Arguably these factors should be included in any physical control or “safely off the roadway” jury instruction.   Absent this they form a great structure to craft the theory of your case around.

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Fortunately for the citizens of Mayberry, Barney only has a 6-shot revolver.

Fortunately for the citizens of Mayberry, Barney only has a 6-shot revolver.

Everett police officer Troy Meade, has been charged with manslaughter in the June 10th shooting of Niles Meservey, 51. Snohomish County Deputy Prosecutor Mark Roe indicated that the use of deadly force was not justified in this case.

Meservey was shot seven times from behind while boxed in by three cars. Witnesses indciated that Meservey posed no immediate threat or imminent danger to anyone at the time he was shot.  Mead had first used his tazer on Meservey through the open driver’s window of Meservey’s Corvette. When that didn’t deter Meservey the officer allegedly stated “Time to end this,” then opened fire on the Corvette.

Meade is an eleven year veteran of the Everett Police Department. He was involved in the shooting of another suspect in 2006. That shooting was ruled justified by Roe.

This marks thes first time a Snohomish County officer was been charged in relation to a shooting in the line of duty.

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Washington Supreme Court in Olympia

Washington Supreme Court in Olympia

Scott Winebrenner and Jesus Quezada were on deferred prosecutions in the City of Seattle for seperate DUI offenses.  Both committed and were sentenced on new DUI charges.  The Seattle Municipal Court judge revoked their deferred prosecutions and proceeded to sentencing. 

The Assistant City Attorney argued that the new DUIs should be considered “prior DUIs” for sentencing purposes on the old DUI, becaue the new charges occurred before the date of sentencing on the older charges.  As such, the City argued the defendant’s should be subject to the mandatory minimums for a 2nd DUI on the older charges.  However, if correct, this could potentially set up a situation were an individual is sentenced twice for a second offense. 

The issue for the Washington Supreme Court to decide was whether “prior offense” applies only to offenses that occurred before the current offense or whether “prior offense” includes all offenses the defendant has committed before sentencing. The Court ruled that the offense date is the relevant inquiry. A “prior” DUI is one that occurred prior to the date of the new offense.

To view entire opinion see: http://www.courts.wa.gov/opinions/pdf/812799.opn.pdf

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Man in Breathalyzer Costume Arrested for DUI

James Miller in his breathlyzer costume

James Miller in his breathlyzer costume

James Miller, 18, was arrested for DUI around 2:30 a.m. Sunday morning apparently on his way home from a night of Halloween partying.

Miller was stopped for driving the wrong way on a one-way street in Oxford, Ohio. When officers approached, they found Miller dressed in a Breathalyzer costume. Miller blew into a real breathylyzer and recorded a blood-alcohol level of .158.

Miller was charged with DUI and underage drinking and released.

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Woman Calls 911 to Report Herself for DUI

On November 3, a Wisonsin woman called 911 to report a drunk driver.  This happens often enough that it usually is not a newsworthy event.  What makes this case unusual is the drunk driver she was reporting was herself.

Dui.com reports:

A 911 dispatcher in Neilsville, Wisconsin received a phone call from a woman reporting a drunk driver. When asked if she was following the suspected impaired driver, the woman replied “I am them”.

Mary Strey, 49, admitted being drunk after “drinking all night long” and was concerned about hurting someone. The dispatcher instructed her to pull over and turn on her emergency flashers. Clark County Sheriff’s Chief Deputy Jim Backus said Strey was found about three miles northeast of Neilsville, in central Wisconson. Her phone call, and the fact that she had a blood alcohol content twice the legal limit, lead to charges of driving under the influence in Wisconsin.

Chief Deputy Backus said DUI self-reporting is rare.

Ironically, she might be entitled to a “safely off the roadway” defense in Washington as she moved off the roadway before being pursued by law enforcement officers.

FYI – “don’t call 911 on yourself” is not included in my Top Ten Ways to Avoid a DUI page, but I’m thinking about adding it.

Click here to listen to the entire 911 call.

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Justice Barbara Madsen

Justice Barbara Madsen

Former public defender Barbara Madson has been named Chief Justice of the Washington Supreme Court.  She has served on the court for 16 years and will be the third woman to hold this position.  She  will succeed the court’s longest serving Chief Justice Gary Alexander.

A local product, Justice Madson wass born in 1952 in Renton, Washington.  She graduated from the Universtiy of Washington and attended law school at Gonzaga University.  After passing the bar she worked as a public defender in King and Snohomish Counties before moving on to the Seattle City Attorneys office.  In 1998, Justice Madsen was appointed to the Seattle Municipal Court bench.

For more infomation on Justice Madsen you can check out her biography on the Washington Courts site and the Washington State Supreme Court Blog has compiled a list of some of her more notable decisions.

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Drunk Driver’s Defense: “Dude, I do this every night.”

Zachary DuisAn Indiana Trooper pulled over a Dodge pickup driven by Zachary Duis, 24, based on a citizen’s tip that he was driving erratically.   The aptly named Duis reportedly offered an unusual defense, “Dude, I do this every night; I’m straight up and not drunk!”

Needless to say the trooper was less that impressed and arrested Duis for DUI (and two misdemeanor warrants).  Duis’ was transported to the Portage Police Department where he allegedly blew nearly four times the legal limit of .08.

Mr. Duis, you have the right to remain silent. Use It!

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Police lieutenant charged with Hit & Run and DUI

The Atlanta Journal-Constitution reported on November 4, 2009:

Cobb County police lieutenant was charged with driving while drunk after a hit-and-run crash in Kennesaw.

On Oct. 26, Lt. Robert A. McGee was off duty when he was involved in a minor accident around 5:19 p.m.,on Chastain Road and George Busbee Parkway, police spokesman Sgt. Dana Pierce said.

McGee, 45,  is being investigated by the Cobb Public Safety department’s internal affairs division and has been charged with misdemeanor DUI, hit and run and following too closely, Pierce said.

McGee turned himself in to the Cobb County jail late Monday afternoon, and was released about an hour later on $3,500 bond.

McGee, a 17 year vetran of the department, has been reassigned to the Animal Control Unit.   Apparently this happens more than one would think.  See the following forsome examples:

http://hamptonroads.com/2009/11/va-beach-police-officer-reports-jail-serve-dui-sentence

http://www.toledoonthemove.com/news/story.aspx?id=374746

http://www.roanoke.com/news/roanoke/wb/225745

http://www.duiattorney.com/news/6057-utah-police-officer-resigns-following-dui

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DUI emphasis patrol officer goes to jail for, you guessed it, DUI.

Source: Virginia Beach Police Department

Source: Virginia Beach Police Department

Virginia Police Officer Bryan K. Womble, 37, began serving a five day sentence for hit and run and DUI on Monday. Womble was a member of the Police Department’s Traffic Enforcement Team specializing in DUI enforcement.

Womble was arrested on June 20th after a crash with another vehicle and registering a 0.15 blood-alcohol concentration.

At trial Womble testified that he did not mean to flee the scene, but was disoriented from the crash.  He also stated that he had only started drinking a month before the incident and did not drink before that.

In addition to the jail time, Womble’s driver’s license was suspended for one year, he was fined $500, ordered to attend alcohol safety awareness classes and use an ignition interlock device for the next six months.

Womble was in the news about a month before his own DUI arrest wehn he arrested former NFL player Bruce Smith for DUI.

The Virginia Beach Police Department will now begin the administrative process to decide whether or not Womble will remain with thier agency.

According to WVEC.com, the Commonwealth’s Attorney Office has stated that all cases involving Womble as an arresting officer will go forward and that he would still be called as a witness regardless of whether he is fired.

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Suspected DUI driver shuts down Highway 18 in Auburn

If you were stuck in traffic nightmare South of Seattle this morning it may have been due to the following incident.

The Seattle Times reported:

The Washington State Patrol says a drunken driver went the wrong way for a mile-and-a-half on Highway 18 before colliding head-on with another car.

The crash about 3 a.m. Thursday seriously injured the other driver. The wrong-way driver suffered minor injuries.

Westbound lanes of Highway 18 were closed for two hours.

No other details were readily available as of Thursday night.

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