Today is the big day in Washington State. Twenty-two state-licensed marijuana stores will open, including two in Bellingham, Washington. But before traveling south, there are important things Canadians need to know about the complicated legal landscape surrounding marijuana in Washington state.
1. Crossing the Border
Telling the border agents that you are coming to buy marijuana will not be well-received and will likely get you turned around, if not banned from the U.S. for life.
The possession of any marijuana in the U.S. still violates federal law, and explaining the details of your trip will essentially mean you are admitting to entering with the intention of breaking federal law. It is important not to lie either. The border officials can usually pick up on the dishonesty, particularly if you and your travel companions are separated for questioning. The fact is, coming to Washington just to visit a pot store is highly inadvisable until the federal officials change their policy.
2. Marijuana is Expensive, and There Will Be Long Lines
The novelty of legally buying marijuana may lose its fun after you have stood outside in the sun for 10 hours. Remember that every marijuana enthusiast in the state will be out to commemorate the occasion, and the lines could be very long, and supplies are likely to run out. Marijuana is expected to sell at a minimum of $25 per gram.
3. Don’t Forget Your ID
Washington marijuana is only for sale to people over 21 years old, and most stores are planning on “carding” everyone lest they run afoul of the Liquor Control Board. The stores have invested huge sums of start-up capital, and they don’t want to risk lose their license the first week.
4. No Anonymity
Remember as a first-day customer you are being a part of history. This means the TV cameras will be rolling, and the journalists will be out in droves. If you are standing on a public sidewalk in Spokane or Seattle, you are fair game for any AP photographer that wants to syndicate the photograph all over the world.
5. No Place to Smoke
It is illegal to smoke marijuana in public, and almost all hotels do not allow smoking. The law intends for customers to bring the marijuana home to smoke. If your home is in Vancouver, you cannot legally bring the product across the border.
6. Intent to Deliver
Remember that only a store is allowed to sell marijuana. It is against state law for a customer to then sell the marijuana even with his or her friends to spilt the expense. This activity was not decriminalized under I-502, and an intent to do so amounts to possession with intent to deliver.
7. Marijuana DUI
Part of the initiative that decriminalized marijuana was a provision that made it illegal to drive with over 5 nano grams of THC in their blood. It is hard for someone to know exactly what their THC level is at any particular time. It is likely the police will be out in a show of force the first week the stores are open to make arrests for marijuana DUI.
8. Be Wary of Marijuana Edibles
As with Colorado there will be stories of infrequent marijuana users ingesting too much THC in edible form. The drug can take three hours to take effect when ingested orally, and 8 or 10 hours to wear off. For example, when columnist Maureen Dowd visited a dispensary she ingested a marijuana candy bar that contained 16 doses and ended up “curled up in a hallucinatory state for the next eight hours” and was “panting and paranoid” and convinced that she had died. No stores will be selling edibles this first week because the state hasn’t issued any such licenses yet.
As we all know the 6th Amendment of the U.S. Constitution grants a defendant the right to a “public trial.” This means we don’t convict people in secret trials in this country. Everyone is welcome to go down to a courthouse and watch the jury trials being conducted. But what happens when a jury trial is running late, and the courthouse doors automatically lock? Does that violate a defendant’s right to a public trial?
The answer is “yes” according to a decision of a trial court, and one appellate court.
In July of 2012, I was defending a man on a DUI charge in Okanogan County District Court. The trial ran late, and the closing arguments continued until about 5:30 p.m. The courthouse doors in Okanogan County District Court locked automatically at 5 p.m. After the defendant was convicted, I filed a motion for a new trial. The district court judge granted the defendant a new trial. This decision was upheld by a Superior Court, and the Court of Appeals in Spokane, Washington did not accept review of the matter.
Ever since colonial days, American courts have not allowed prosecutors to conduct trials in secret. The point of public trials is to keep everyone honest, and to let the public know what is going on in their government. But what if courthouse was only locked for a few minutes, and the closure was inadvertent? This is what was argued by the deputy prosecuting attorney of Okanogan County, David Gecas. I was the trial lawyer, and wrote the motion for new trial. The attorney handling the appeal was attorney Anthony Martinez, an associate with my firm. The first appeal was heard by Judge Small of Chelan County Superior Court. He ruled that under Washington state legal precedent, the right to trial is so strong that even a closure of a trial for a brief period was unconstitutional. Lawyer David Gecas pointed it out that the defense counsel knew the doors were locked and sat on this issue intentionally to raise it later on appeal. The court found that a closed trial is a constitutional violation of such magnitude that it does not require the defendant to object. The written decision by Judge Chip Small is here. His decision was appealed to the Court of Appeals in Spokane, but the court did not grant review of the case. See here. This issue has arisen because many courthouses have computerized locks on their doors that are set to close at a certain time. The timing of the locks can be difficult to change. This is definitely an issue for other lawyers to be on the look out for statewide. It is likely that other Okanogan trials were held past 5 p.m. In this case, we documented the matter when a private investigator explained by text message that he couldn’t come in to watch a trial.
Generally, misdemeanor crimes committed solely within the borders of a State are governed by the State’s criminal code and resolved by the State’s court system. However, when misdemeanors are committed within the boundaries of federal land, located within a State, federal agencies are the primary policing authority. Additionally, these types of misdemeanors are also subject to the jurisdiction of the federal court located in that particular district. These particular offenses are known as petty offenses.
18 U.S.C. § 19 defines a “petty offense” as either a Class B misdemeanor, Class C misdemeanor, or an infraction. Each of these classes of misdemeanors carry with it the chance of incarceration and also subjects the individual to a monetary penalty. Class B misdemeanors are punishable by up to 30 days in jail and/or a $5,000.00 fine. Finally, federal infractions are subject to a maximum penalty of five days in jail and/or a $5,000.00 fine. In short, there is nothing petty about a petty offenses as they can lead to incarceration, a substantial monetary fine, and a criminal record.
At first glance, when an individual is cited by a federal agent on federal land it may not be obvious to that individual that they are being charged with a crime. However, that couldn’t be further from the truth. Petty Offense citations can range anywhere from speeding, feeding wildlife, driving under the influence, and so on. Consequently, some of the most minor actions can lead to a federal citation and subsequent federal prosecution.
It is important if ever faced with a citation issued by a federal agency to contact an attorney to discuss your options. Although the first issue is determining whether it is actually a federal petty offense you’re being charged with. If you receive a ticket from federal law enforcement the ticket will have printed across the top U.S. DISTRICT COURT VIOLATION NOTICE. If this language is printed across the top, you are dealing with a federal petty offense allegation. Once a federal citation has been issued, a copy will automatically be filed with the Central Violations Bureau (CVB).
Additionally, after a citation is issued a court date will be designated on the ticket. In the event that a court date is not listed on the citation, the CVB will notify you through the mail of the scheduled court date.
This is where petty offense citations can be misleading. Not all petty offense citations mandate that an individual appear in court before the Federal Magistrate. In instances where court attendance is not mandatory, an individual may opt to pay the monetary fine, according to the Schedule of Collateral Forfeiture and also the complement Code of Federal Regulations, by submitting payment to the CVB either by way of mail or an online transaction. It is important to note, automatically paying the fine associated with the petty offense ticket is an admission of guilt.
In instances where court attendance is mandatory, it is important to abide by that schedule. Failure to do so could lead to a warrant, an arrest, and severely inhibit an individual’s ability to resolve the alleged violation in the most favorable manner.
We have all seen the ads online? But is it legal to buy drugs from these online pharmacies? Let’s hear from my lawyer friend Rand Mintzer.
The medicine sold by online pharmacies is often less expensive than the medicine sold at the neighborhood drugstore. Under certain circumstances, it is legal to purchase prescription drugs from online pharmacies, but patients should avoid any Web sites that are unlicensed or that dispense drugs without requiring a valid prescription.
Patients Need a Prescription to Buy Drugs Online
It is illegal to purchase prescription medication without a prescription. Online pharmacies that do not require a valid prescription may be severely penalized for breaking the law.
Doctors Who Write Prescriptions Must Meet Their Patients in Person
A physician must see a patient in person in order to write a valid prescription. Some online pharmacies try to circumvent this law by creating their own prescriptions for patients based upon information provided over the Internet. This practice is illegal and has the capacity to greatly harm patients.
An Online Pharmacy Must be Licensed in a Patient’s State
Patients who want to legally purchase drugs online must locate a pharmacy that’s licensed in their state. For example, a pharmacy that is based in New York and licensed only in that state cannot legally sell to patients in New Jersey. Patients can find out if an online pharmacy is licensed in their state by contacting the state’s Board of Pharmacy.
Buying Drugs from Foreign Countries is Illegal
Many websites offer drugs from foreign countries. The drugs sold by foreign pharmacies are often inexpensive, and some drugs are only available oversees. However, it is illegal to purchase medicine from a foreign pharmacy.
Patients Should Avoid Illegal Online Pharmacies
There are many legitimate pharmacies on the Internet. Unfortunately, some online pharmacies have practices that are illegal and unethical. Some of the signs that an online pharmacy is operating illegally include:
- The pharmacy offers to prescribe drugs based upon a questionnaire filled out by a patient
- The pharmacy operates solely in a foreign country
- The pharmacy does not have a licensed pharmacist on staff
- The pharmacy does not allow patients to speak to the staff pharmacist
- The pharmacy claims to sell prescription drugs without a prescription
Patients Who Illegally Purchase Drugs Online Face Problems
Patients who want to save money on prescription drugs may purchase drugs online illegally. The pitfalls that these patients can encounter include:
- An arrest
- A hearing in a criminal court
- A possible criminal sentence
Additionally, the drugs provided by an illegal online pharmacy may conflict with medicine that a patient is already taking. The drugs sold by illegal online pharmacies may be expired, untested or unsafe.
Patients can buy drugs online legally if they meet certain conditions. An online pharmacy must be licensed in a patient’s state to dispense medicine without violating the law. To buy drugs online legally, a patient must visit a physician’s office and obtain a valid prescription.
Although their popularity has waned somewhat in recent years, brass knuckles remain a recognizable weapon that occupies a prominent place in the American cultural canon. These implements have been depicted in a wide variety of novels, movies and television programs from the beginning of the 20th century through to the present. Depending upon the nationality, age and regional identity of the speaker, brass knuckles may be known by several other names. These include:
- Brass knucks
- Knuckle dusters
In their simplest form, brass knuckles are hardened implements that can be secured to the first segments of their wearers’ digits and made to face outwards during the fist-clenching process. In other words, brass knuckles are used primarily to increase the effectiveness of punches thrown during a fight. They have been known to cause the following injuries:
- Skull fractures
- Broken noses and facial bones
- Facial and body lacerations
- Serious bruising
- Internal bleeding
- Broken bones
On rare occasions, brass knuckles have been implicated in fighting deaths.
There is a considerable amount of controversy over the place of brass knuckles in “polite society.” Since they can be used for both offensive and defensive purposes, many believe that brass knuckles are a legitimate self-defense tool that should be freely available to the public. Others argue that these implements are mainly used by individuals who wish to “send a message” by inflicting serious pain on their adversaries. Some even believe that brass knuckles are implements of torture. In some countries, it is completely illegal to possess brass knuckles.
The American legal code is somewhat more lenient. However, there is significant state-to-state variation in the statutes that govern the use and possession of brass knuckles. Most states have taken one of the following three legal approaches:
Some have made it a misdemeanor to use, possess or sell them. These include California, Vermont, Illinois and Massachusetts.
Some have made brass knuckles illegal for “offensive purposes.” In these jurisdictions, they can only be possessed by individuals who use them exclusively for self-defense. Obviously, this can create some nebulous legal situations.
Finally, some states have adopted a hands-off approach to the use and possession of brass knuckles. Of course, individuals who use brass knuckles during the course of an assault in these states are liable to face felony charges.
Unfortunately, individuals who legally possess brass knuckles may unwittingly find themselves at odds with the law. These misunderstandings often revolve around the “intent” of the individual who possesses or uses these implements. For instance, an arresting officer might incorrectly assume that an individual who wields knuckles in an altercation was responsible for instigating it. In reality, the opposite might be true. As such, anyone who is accused of using brass knuckles in an assault should contact an attorney. An experienced lawyer may well be able to clear up any lingering misunderstanding and secure a reduction or dismissal of these serious charges. For more information about weapons, visit http://brettpodolsky.com/guns-weapons.
Action, intrigue, and romance are the only words to describe The Spark, a novel by John Kenny. As a firefighter for 25 years, Kenny uses his expertise to create an exciting look into the life of a firefighter, as well as a thrilling detective story.
After an action-packed first scene, The Spark starts off more slowly, following Donald Robertson, the main character, after a serious injury from a fire. However, as the story progresses, interesting events occur and interesting facts come to light. These facts consist of complex information about fires, explosives, and covering up crime trails, which add to the believability of the story.
The characters came to life from their individual personalities and authenticity. They seemed like real people taken from a firehouse, the CIA, and the United States Navy. Each character had their own personality, and their personalities fit the careers Kenny assigned them. Donny Robertson is a tall, thin, quiet man and seems an unlikely firefighter. He has a determination and ambition to save people, though, that makes him perfect for the role. Kenny created one character so believable it was almost scary: a psychotic murderer turned assassin, trained by the Navy SEALs and the CIA.
Kenny included information about how fires behave and what it is like to be in a real fire. His descriptions of a firefighter’s thoughts during a fire and of the emotional scars a fire can cause make the situations in this book so real one can almost feel the heat from the flames. He also incorporates interesting information about the tools firefighters use.
The most interesting element of this book is the sophisticated methods of the assassin who started the initial fire and caused Donny every problem he faced afterward. The techniques used to start the seemingly accidental fire and the techniques used for every crime following were mysterious. The way every crime was set up seemed impossible. When the methods were revealed, however, the cleverness and expertise of the assassin, though crazy, were actually appreciated.
All in all, The Spark is an excellent novel. It is an easy read with some technical aspects that make one think, and it is fun to figure out how the crimes were committed. A blossoming romance between Donny and a character he initially goes to when investigating the fire adds a lighthearted, uplifting aspect to a dark and mysterious story.
Colorado Dispensaries Struggle with Legal Issues Post Legalization – Criminal Defense Lawyer’s Perspective
I have blogged in the past about Washington State’s marijuana decriminalization. However, our stores are not slated to open up until later this year. Colorado’s marijuana stores opened last week on January 1st, thereby giving us a glance of what is to come. Here is what we have learned:
The federal government allowed the stores to open.
Because marijuana is still illegal under federal law, many wondered if the federal government would permit the stores to open in Colorado. The federal government could have sought injunctive relief through the courts, or could have simply raided the stores and made arrests.
However, the Colorado stores have been open a week, and over 5 million dollars worth of marijuana has been sold. In 2013 the federal government hinted that they would not take action if the state of Colorado kept marijuana out of the hands of minors. The Colorado law prohibits possession by minors and limits the ability of stores to advertise in publications read by minors. Time will tell if this satisfies the federal government. The stores currently sell marijuana infused products such as brownies or cookies. This raises the possibility of accidental ingestion by minors.
Stores struggle with access to banks.
Despite the fact that the marijuana stores have brought in over 5 millions dollars in the first week, they still do not have access to commercial banks as any other legal business would have. That is because under federal regulations, banks cannot legally process the proceeds of an “illegal” enterprise. This leaves the stores to pay their taxes in cash, compensate their employees in cash, and only accept payment from customers in cash. Maintaining their assets in cash makes the stores vulnerable to robbery and poses innumerable practical problems. The federal government has warned armored car companies to not work with marijuana stores. Either the federal government will loosen their restrictions or the marijuana stores will have to develop alternative economies. It is possible the stores would seek to open their own credit unions, would accept alternative currencies such as bitcoin, or work with overseas banks.
Marijuana sells for a rate above the black market.
The stores in Colorado have been selling marijuana at a price of about $500 per ounce, when marijuana on the black market sells for about $300 per ounce. A lot of the customers to the stores seem to be people interested in the novelty of buying marijuana at an actual legal store. Many of the customers in Colorado are visitors from out of state. But is it realistic that people will pay such a high rate long term? Unlike Washington State, Colorado law still permits residents to grow small quantities of marijuana for personal use.
Although the stores in Colorado have answered some of our questions about the practicalities of legalization there are still a lot of unanswered questions. Will consumption increase about minors? Will the local officials crack down on the black market? Will the IRS allow deductions for business expense surrounding the sale of marijuana? Will medical patients still be forced to pay the same taxes on marijuana as recreational users?
Plot twists of court drama, witness tampering, and shocking evidence make Margaret McLean’s novel Under Oath an exciting portrayal of the trial process, while bringing to light the sordid world of criminals and the people who keep their silence in Boston’s oldest neighborhood, Charlestown.
McLean begins the story of an infamous crime boss on trial for murdering a local artist with part of the key witness’s testimony to the grand jury. The mystery hooks readers from the start when the witness says, “But, he’ll kill me because he knows.” The story continues four months later, showing the detective and prosecuting lawyer preparing a witness to take the stand.
The best part about this novel is that it shows the trial process from different points of view. The reader is able to follow the prosecuting and defense lawyers, detective, jury, key witness, and even the defendant, getting inside their thoughts and emotions. This makes for a more accurate picture of how a trial works. One sees the frustration of the jury as the trial drags on. One can understand the struggle of the detective and defense lawyer as they work for justice and are repeatedly thwarted by hidden evidence and uncooperative witnesses. The fear and desolation of the key witness, who has to go into hiding to keep her life, is palpable as she sits in her safe house with nothing to do but chain smoke and mourn the loss of her friend, while her guilt and misery gnaw on her like a dog gnaws a bone. These insights into the lives and minds of the different players in a trial help the reader understand the complicated and exhausting process.
Underneath the drama and mystery, readers can see how a real trial might work. While court is in session each day, the process of questioning and cross-examining a witness is shown, with objections from both sides and orders from the judge peppering the procedure.The procedures for adding witnesses and evidence, when a witness does not show up in court, and the role of the jury are depicted clearly among the increasingly intense plot. Actual law reasoning is used throughout the whole book. When a lawyer objects they explain why, and when the judge either sustains or overrules it, he gives the reason. The lawyers use past cases to justify what they do, and the process for using witnesses and what constitutes a fair trial is interspersed throughout the story.
Along with the actual trial, the blatant, yet silent, crime and violence of Charlestown is shown. Many reasons why the defense team is obstructed in their pursuit of justice is because of the “code of silence” Charlestown is known for. This adds an interesting element, depicting what it means to be a resident of Charlestown and how that can affect the justice system. This turns an ordinary trial story into a moral conflict between doing what is just and protecting loved ones, and what justice actually means. The novel ultimately ends with a surprising turn of events, answering the question of what justice should be in Charlestown.
I would recommend Under Oath for anyone who is interested in the crime fiction genre.
What will the marijuana stores in Washington State really be like? The stores as authorized by Initiative I-502 are scheduled to open in June of 2014. Here is a discussion of some of the unknowns.
1. Will people really pay $12 per gram?
The State Liquor Control Board has indicated that marijuana will be sold at $12 per gram by state licensed stores. Who will pay that? At first the marijuana stores will be a novelty, but then only yuppies and tourists would pay that much. The bulk of marijuana is not consumed by the infrequent casual user. Many heavy users smoke 3 grams per day. They won’t be willing to pay $1000 a month to continue their habit; they will just continue their home gardening or will buy it in bulk on the black market.
2. Will the State prosecute home gardens?
For the State to maintain its monopoly, they will have to prosecute home marijuana gardens just as vigorously as they did pre-I-502. Except now, the State won’t be jailing you to prevent the scourge of drugs, they will prosecute you to protect their monopoly. Will the public accept this? Will jurors accept this when I-502 supposedly made marijuana “legal.” Will local prosecutors jail backyard marijuana growers just to protect the state run cartel? Wasn’t part of the motivation behind Initiative 502 to end the incarceration?
3. Will the State allow dispensaries to still exist?
It is not likely that the State will tolerate the marijuana dispensaries once the dispensaries become their main business competitors. Will the medical cannabis doctors cease to exist? Will the collective gardens likely cease to exist? Will medical cannabis have any meaning when the I-502 stores open up? Should patients be asked to spend the same for marijuana as recreational users? State legislator Chris Hurst has stated: “These dispensaries are absolutely illegal, criminal operations…What’s it going to take to shut all these down?”
4. Who will give the store’s legal advice?
Up until now the lawyers who have advised marijuana sellers or dispensaries have done so at their peril. The bar association frowns on lawyers assisting with the functioning of an illegal enterprise, and up until now the lawyers who have assisted are a few daring individuals who have assisted more on ideological grounds then business acumen. While it sounds exciting, the work of such a lawyer consisted mainly of reviewing business contracts, leases, assisting in payroll, personnel issues, taxes, copyrighting logos, and reading tea leaves to discern when the next federal bust might occur. Will the legal work now go to more mainstream corporate attorneys that have previously turned their nose up at such clients?
5. Will the stores sell to out-of-state users?
Will the I-502 stores attract tourists? How will Idaho feel about cars full of kids driving back from Pullman and Spokane with marijuana? Will Canadians come to Seattle to buy marijuana. Will the proximity of legal marijuana change the way the neighboring states handle marijuana criminal cases? Should the stores only sell to people with Washington drivers licenses or identification (similar to the way firearms are sold)? Will Idaho resent Washington not supporting
6. How will the marijuana stores function on the financial side?
There has been much discussion in the news about the fact that banks will not receive proceeds of a marijuana store out of fear of violating federal banking laws. Will this change? Will the stores really need to function on a cash basis? They can’t accept credit cards, or order items online? What has not been discussed is the effect of IRS section 280e. This code section means that persons in the “drug trade” cannot take business deductions for any business expenses. Think of it like this: If you run a retail store, you might sell $250,000 worth of goods in one year. However, you may just pay taxes on $50 because you have $200,000 worth of expenses from inventory, personnel, rent, supplies, and rent. IRS section 280e says that you cannot take any such deductions for selling marijuana.
7. Will all stores open on the same date?
Many local jurisdictions are imposing moratoriums on marijuana stores in their jurisdiction. These cities include Vancouver, Richland, Issaquah, Pasco, Kent, and Pullman, Washington. Other cities, like Seattle, are asking for more stores. The end result is that the first stores to open their doors could be flooded with customers from neighboring jurisdictions that prohibit the sale. After novelty of legalized cannibis wears off, the second waive of entrepreneurs could face a different market place.
8. Who will apply for licenses?
On November 18th, 2013 the State of Washington will begin accepting license applications for marijuana stores. Who will apply for these licenses? There are many backyard gardeners who have spent their lives hiding from the law and have dreamed about finally legally growing and selling marijuana. However, I-502 and the implementing regulations of the Liquor Control Board make it clear that entrepreneurs with business experience and large financial back will have the advantage. And a criminal record will hurt the chances of those applying for licenses. Will these small-time growers turn to the black market for sales? People with the marijuana grow know-how are in long supply. It is clear that these people will be working for corporations (if they are to be involved at all).
9. Not enough marijuana?
The State of Washington plans on authorizing the sale of 40 metric tons of marijuana the first year. The problem is no one knows if this is enough or too much marijuana. The black market marijuana trade was always a result of supply and demand. Marijuana became scarce, there were “dry spells” in specific locales, prices arose accordingly, and the market corrected itself when new dealers moved in. However, the new State regulated marijuana cartel (under I-502) will be operate through central planning rather than market forces. Think Soviet Russia with its 3 hour lines for bread or potatoes. When the State finally recognizes it is running short, the stores will have to order more marijuana from State licensed farms, and those crops could take a year to grow. Just look at how much bureaucracy there is in implementing I-502. The law pass almost a year ago, and the State hasn’t even printed the applications for the marijuana stores.
What do you think? Will the stores run smoothly? Will people be willing to pay $12 per grams. Will the State be able to consistently meet the supply? The truth is nobody knows just how the implementation will play out, but it will certainly be interesting to watch.
Seizures or forfeitures of property by the Washington Department of Fish and Wildlife (WDFW) are on the increase in Washington State. The motives of WDFW seem to be: 1) revenue generation, 2) increasing punishments beyond what the legislature will approve, and 3) punishing sportsmen who “hamper” investigations by exercising their right to remain silent. Either way, the law isn’t being applied fairly.
WDFW forfeiture Law
Department of Fish and Wildlife Forfeitures are governed by RCW 77.15.070. This statute provides that Fish and Wildlife agents may seize boats, airplanes, vehicles, and other articles they have probable cause to believe have been used to violate fish and game rules and regulations.
The statute does not apply to “inadvertent” violations. This statute comes to a surprise to many sportsmen, and if the statute is read literally, the Fish and Wildlife Department could seize a yacht for someone fishing without a correct license. Unfortunately this is just the kind of overreaching criminal defense lawyers are seeing around Washington State.
Who is targeted by WDFW
As a lawyer defending WDFW violations in eastern Washington, I have seen good people lose their pickup trucks and boats for minor violations. The game agents do not seize all such vehicles. For now it is usually just few select cases. If the matter is a minor violation and the person is cooperative usually their property is not seized or forfeited. Unfortunately, in the mind of WDFW agents, being “cooperative” means waiving your right to remain silent, ratting out your friends and family members, and allowing the agents to search your vehicle or home without a warrant. Being an outspoken critic of the Washington State Department of Fish and Wildlife certainly doesn’t help either.
Entrapment and undercover agents
When we think of undercover investigations we normally think of the FBI or DEA investigating major criminal networks. However, the Dept. of Fish and Wildlife has increasingly used this tactic to investigate even minor violations of the Fish and Game code in RCW title 77. More disturbingly, many of these investigations are what we call “reverse stings.” A reverse sting operation is when the government agents approach a citizen and offer them money to commit a crime. The department claims they are narrowing in on people they believe are already breaking the law. In my experience defending people accused of fish and wildlife violations, the undercover agents will go to great lengths to pose as a law-breaker, often breaking the law right in front of the citizen to try to seem convincing. For example, I have cases where an WDFW agent will drive up with an open container of beer in his car. Some of the behavior amounts to entrapment.
Fighting a forfeiture or seizure
Fighting a forfeiture usually means hiring an attorney. Often times the game department will not follow the correct procedure when seizing the property and a person can fight the forfeiture on technical grounds. The lawyer for the game department is the Attorney General’s office. Through emails I have received through public records requests, it appears that WDFW has to pay for the time of the attorney general that assists with the forfeiture, and this can be a lot of money. However, the game department will usually spend large amounts of money to wear down the owner of the property. This is a common theme in WDFW cases. The department seems to have limitless resources even when investigating a misdemeanor. When an defense attorney is hired, he or she will usually request that the matter be heard in a court of law rather than have the matter heard by a WDFW administrative law judge. If an attorney prevails on a forfeiture case, the citizen can seek to have his or her attorney’s fees reimbursed if the court finds that the seizure was not “substantially justified.”
Although a fish and wildlife attorney may help in individual cases, it may be that the state legislature should address this matter. Should the state legislature in Olympia try to curtail the power of the Washington Department of Fish and Wildlife to seize property? What do you think? For further information see here and here.