Some Native-Americans have issues with autopsies for deceased tribal members.  Although death rituals and burial practices vary from tribe to tribe, I have heard this concern raised a lot in my work as a lawyer, and in my previous work as a coroner.  A new case from Pierce County has addressed the rights of family members to stop autopsies on cultural grounds.   The case involved an orthodox Jewish man, but the same legal principals could be applied to Native Americans or other cultural groups who oppose autopsies on cultural grounds.

Factual background of Pierce County case

Here is a little background on the Pierce County case:  Dr. Brian Grobois, of New York, took a trip to Washington State, and attempted a day hike in Mount Rainier National Park on December 11^th, 2011.  He died of hypothermia.  When his body was located, he was then transported to the office of Dr. Thomas Clark, the Pierce County Medical Examiner.  Dr. Grobois’ family explained that they didn’t want an invasive autopsy performed because the family is of the Orthodox Jewish faith.   When it appeared that the medical examiner was still going to proceed, the deceased’s wife hired a lawyer to seek to prohibit an autopsy.

Legal procedures involved

The lawyer Dr. Grobois’s widow filed a lawsuit seeking an injunction.  The lawyer attached a declaration by a local Washington Rabbi who explained the religious and cultural reasons why an autopsy should not be done.  The suit was filed on December 14^th at around 1 p.m., and an ex parte order was signed about 90 minutes later.  The court order prohibited the autopsy until a hearing could be held the next day at 3 p.m.  The judge who signed the order was Commissioner Mark Gelman.   The case was continued until the next day, and the attorney for the medical examiner wrote a lengthy legal memorandum citing the powers of coroners and medical examiners.  On December 16^th, Judge Brian Tollefson ruled against the medical examiner, and ordered the body to be returned.  No appeal was filed.

How this case might apply to Native Americans.

I ordered a copy of the court file in this case, and took a close look at it.  The plaintiff’s lawyer had a rabbi draft a declaration regarding religious practices.  The rabbi sited Deuteronomy 21:23 and 12:23, but not a lot of sources or citations to other religious texts were needed to stop the autopsy in this case.  It seems to me that other cultural groups (including Native Americans) could bring a similar case in a court in Washington State.  A plaintiff would want to track down cultural leaders to explain the issues with autopsies in as much detail as possible.  To prevent an autopsy, the plaintiff needs to make it clear that they are acting out of cultural beliefs, not just an individual views or preferences on the subject of autopsies.

The balancing test

Although it is not really clear from the record in Grobois v. Pierce County, a superior court in Washington will do a balancing test when faced with a request for an injunction.  In other words, the judge will balance why the pathologist feels he needs an autopsy versus why the family is opposed to it.  Was there suspicion of foul play?  Is the cause of death apparent without an autopsy?  Is the family member opposing the autopsy a suspect?

Death investigations in Washington.

Here is how the death investigation system works in Washington State.  If a person dies unexpectedly outside the care of a physician, the county coroner (or medical examiner) has jurisdiction to investigate the cause of death.   In metropolitan counties like Spokane, King and Pierce County, the county commissioners appoint a “medical examiner” to perform this function.  The medical examiner is a board certified forensic pathologist.  However, in mid-size counties like Stevens County, Yakima County, Grant County, etc., an elected coroner conducts death investigations.  These coronors might by retired nurses, retired police detectives etc, but they are not usually doctors.  In counties with populations under 40 thousand people, the job of coroner falls on the elected prosecutor.  In these counties (such as Ferry, Okanogan, Lincoln, etc) the elected prosecutor might attend a class or two, but more extensive formal training is not too common.  In these counties, the coroner investigates the death, but sends the bodies down to forensic pathologist for the actual autopsy.  For example, the Ferry County and Okanogan coroner contract with Dr. Gina Fino of Wenatchee  In Stevens and Lincoln counties, the bodies are sent to Dr. Sally Aiken or Dr. John Howard of Spokane.  There is a reason that it is important to know how the system works in different areas.  A party seeking an injunction needs to know who to serve, and needs to act fast.

The nature of an autopsy

While we often think of an autopsy as the cutting open of a body, the term “autopsy” simply means to examine the body.  However, in cases of unattended or suspicious deaths, usually the autopsy means a full examination.  In such an examination the brain is removed and dissected, and the internal organs are removed and weighed.  Samples are taken and viewed microscopically, and often sent for tests.  The parts are them put back together and the torso is sewn back up.  I had the opportunity to observe such an autopsy at Holly Family Hospital once in Spokane.  It is not pleasant to watch, of course, but the body is treated with respect and care.  Sometimes a forensic pathologist is able to tell the cause of death and sometimes not.   Sometimes an autopsy yields surprising results.  On occasion, a person who takes his or her own life will be found to have had a brain tumor that was causing the depression.  This is the type of thing that families like to know.  Many of the unattended deaths in this country are due to strokes or heart attacks.  It is possible to do a limited autopsy to address the cultural concerns or traditions of groups such a Native Americans or Orthodox Jews.  For example, Judge Tollefson did allow the Pierce County Medical Examiner to do an x-ray of Mr. Grobois.   I can recall that years ago the Spokane County Coronor would authorize such limited autopsies for Native Americans.

To obtain an injunction a person needs to find an attorney that can work fast.  When I have head to seek an injunction in the past, it usually means working all day and night to prepare the legal paperwork, and sometimes contacting a judge after hours.

Marijuana laws in the U.S. are so complex, so contradictory, at at some times so baffling, that lawyers love to write about the subject.  Since I started my blog 3 years ago, the subject of marijuana laws has been a frequent topic.  We have discussed the “green tongue” phenomenon, the science of “marijuana dui“, the taxation,  what not to say when you are stopped, why it sucks to go to court for marijuana possession, what to do if you are caught at the border with marijuana, and attempts to reform the laws, and I-502.  Geesh, thats kind of a lot.  But I am not the only one.  Here is a list of 10 of the best marijuana law-bloggers in the 50 states.  They have great stuff, so go check out their sites.  (They are in no particular order – they are all good.)

1.   New Jersey Marijuana Blog.  Jef Henninger takes on New Jersey marijuana laws and explains the fight to more narrowly construe the state’s school zone enhancements, and the battle to prohibit “expert” witnesses from telling the jury that their “expert” opinion is that the defendant is guilty.

Dozens of law bloggers write on the subject of marijuana - here are some of the best.

2.  Rose Law Group Blog. The staff at Rose Law Group attempts to make sense of the byzantine legal structure of medical marijuana in Arizona while the state wrangles with threats from the federal government.

3.   L.A.’s Dopest Attorney.  Fresh out of Harvard, lawyer Allison Margolin shared her views on the drug war, pushy DA’s, and various celebrities.  We are still waiting for her to update her blog though.

4.  Rose Law Texas.  Jeremy Rosenthal offers thoughtful, in depth, legal explanations on how marijuana laws work in Texas.  When several people are in a car, and marijuana is on the floor, it is always a gray area as to who “possesses” it, and Jeremy has a good post on that subject.

5.   Philadelphia Criminal Law Blog.  Attorney Brian Zeiger has a nice collection of posts on marijuana in a question-and-answer format, including the question all lawyers get about the defendant who skipped town on a pot charge, and then needs advice on what to do.

6.   Paul C. Youngs Blog.  Paul has blogged on the efforts by the IRS to remove any business expenses as tax deductible.  Additionally, he has commented on  the fairly liberal marijuana policies of Ann Arbor Michigan compared to the rest of the state.  Sound like Seattle anyone?

7.   Sammis Law Blog.  The Sammis law firm covers the efforts toward decriminalization of medical marijuana in Florida.  A 3/5th margin of the legislature is required to get the the measure on the ballot.  Polls show broad support for medical marijuana, and Florida might be joining the 17 other states in the US that recognize it.

8.   The Marijuana Lawyer Blog.   This blog is written by the Law Office of Glew and Kim of California.  They have written lately of the efforts by state governors to have the DEA re-classify marijuana from being a Schedule I to a Schedule II drug, thus permitting the drug for medicinal purposes.

9.   Criminal Attorney St Petersburg Blog. Attorney Melinda Morris takes a look at criminal issues in Florida including a trend among teens in the Tampa Bay area to adorn themselves with the hose of a water pipe in the form of a bracelet.

10.  Ambrose Law Group Blog. Attorneys from this law firm tackle the subject of canine “sniff” searches, the disturbing trends on marijuana arrests, and the loss of housing subsidies by medical cannabis patients.

What are your favorite blogs?  Let me know what I have missed, and maybe I will include them in 2013.
 

Schapelle Corby is a 34-year-old Australian woman who was convicted of smuggling marijuana into Bali in 2004.  The Indonesian police claim to have found the drugs in a bag she and her friends had with them that contained a boogie board.   Schapelle Corby claimed to have no knowledge of the drug’s presence.

http://www.freeschapelle.net/

She has maintained her innocence, and her trial was plagued by irregularities.  The Indonesian police ordered the destruction of the physical evidence in the case, and destroyed the CCTV video of her arrest and questioning.  There was no comparison of the bag’s check-in weight at the Brisbane airport compared to the weight of the bag upon arrival.   The bag was not tested for fingerprints. Corby was sentenced to 20 years in prison.  (In comparison, Abu Bakar Bashir (convicted of conspiring to kill 200 people in the Bali night club bombing) received only a couple years).  Corby has exhausted all her appeal rights in the Indonesian justice system, but she is still petitioning for clemency.  Much like the Amanda Knox trial captured the attention of the American public, Schappelle Corby caused many Australians to wonder how fairly she was treated.

But unlike the happy ending that Knox received, the abuse of Schapelle Corby continues.  Check out the latest nonsense that Corby had to put up. (See story)  The prison apparently has some sort of Christmas Mass for the inmates every year, where they drag the inmates out in front of the media, and announce any remissions (or slight reductions in the sentence due to good behavior).  When Corby saw all the media, she asked to be brought back to her cell.  Apparently, she did not want to be a part of this charade of the warden’s showy beneficence.  This is what the warden said to the press: “This will be a special point against her [getting future sentence cuts] and I will report it to the Australian Consulate. … She has failed to meet all the requirements for a remission. … She is a naughty child and unappreciative of Kerobokan Penitentiary.”  What a nut.

I don’t think we have heard the last of this case.  There seems to be some increased attention to her case, and according to @freeschapelle on twitter, there is a new documentary coming out about her case.

What do you think of this case?  Share your thoughts in the comment section below.

–Steve

The ignition interlock in Washington is here to stay.  Once, the ignition interlock was required only for DUI repeat offenders.  Now the devices are sometimes even required for offenses like negligent driving.

Think of the ignition interlock as a tech gadget.

The Department of Licensing often requires the instrument as a condition of license re-instatement after a DUI conviction.  Many experts predict that soon the ignition interlock device will be required in all new vehicles, alongside seatbelts and airbags. If you are required to use one, think of it like it is a new tech gadget, and you are a new adapter.  If they sold them at the Apple Store, there would be a line around the block.

There are many advantages to the new technology.  A driver with an alcohol-related license suspension can often legally drive with an Ignition Interlock License.  Such a license is granted to suspended drivers once they have a device installed.  The devices do sometimes malfunction and it is important to find a reputable installer of an ignition interlock.  An installation service can also assist you in getting the paperwork needed to DOL.  In my practice as a DUI lawyer, I have found that the best ignition interlock installer  is Interlock Northwest Inc.  They have locations all across Washington, and they are the best technically at maintaining the equipment error-free.  They also promptly handle the paperwork and get the job done quickly.

My clients who appreciate the devices the most are the ones who live in rural areas, and who don’t have the option of taking a bus to work.  Avoiding the ignition interlock requirement, and driving while suspended is not really an option.  The penalties for such an offense are severe and also lead to probation violations.  Suspended driving can also lead to the revocation of a deferred prosecution.  The Ignition Interlock License is really a win-win, because community safety is protected but defendants are still allowed to drive to work and keep making a living.

Hit and Run laws in Washington are hard even for lawyers to understand.  Lately, I have had the opportunity to defend a lot of hit and run cases, both in the Spokane area, and elsewhere.  The laws are complex, and there is a lot of confusion about the laws on this subject so I figured the subject might make a good blog post.

Different Levels of Hit and Run

Like a lot of crimes in Washington State, Hit and Run has different levels. But unlike most other crimes (like assault for example) the levels of hit and run are not broken up into 1st, 2nd, 3rd, and 4th degree.  Rather, Hit and Run is broken into the four different levels:

Hit and Run – Unattended

Hit an Run – Unattended is the lowest level of Hit and Run, and is a misdemeanor under Washington law.  The crime occurs when a driver collides with an “unattended” parked car or other property of value on the side of the road, and then leaves without notify the owner or leaving a note.

Hit and Run – Attended

Hit and Run -Attended is committed when a driver strikes another vehicle that is occupied, and flees the scene.  This offense is a gross misdemeanor. The law imposes a duty on the driver to stop and provide his or her name and address, and his or her insurance information.

Hit and Run – Injury

Hit and Run – Injury applies when a driver strikes another vehicle and injures an occupant of that vehicle and flees the scene.  This offense is a class C felony. The law imposes a duty on the driver to render assistance to the injured party, including making arrangements for transportation to the hospital.  This last requirement doesn’t apply in circumstances when the driver himself is unable to do so due to his or her own injuries.

Hit and Run – Fatality

Hit and Run – Injury applies when a driver strikes another vehicle and injures an occupant of that vehicle and flees the scene.  This offense is a class C felony. A Hit and Run involving any occupied vehicle will result in a 1 year license suspension.

Occasionally, a driver or defendant will explain to the police that he or she was not aware that they collided into another vehicle.  This does not arise too often, and is obviously more plausible when the damage to the vehicles is minimal and in circumstances, perhaps, were the driver is elderly, or distracted.  Usually Hit and Run charges are proven by eyewitness testimony, or by a forensic analysis of paint scrapes.  Under Locard’s theory of “transfer and exchange” a close examination of each vehicle would leave trace evidence on the other in the form of paint scrapes or metal scrapings.  The height of the markings on each vehicle can also be considered.  In practice, busy police departments don’t always closely examine the damage done.  Photographs are usually taken, and it is common for paint chips to be collected but not immediately tested.

A conviction for Hit and Run on a person’s criminal record sometimes creates confusion.  When employers are doing a background check, they don’t often know what to make of a Hit and Run charge, and they are apt to assume that the conviction involves the most serious type.  Background checks often yield inaccurate results, and even FBI or Washington State criminal records are spotty or incomplete.  It is not uncommon for a criminal record to refer to a “Hit and Run” conviction without spelling out the level, type, or nature of the offense.  Criminal defense lawyers typically file public records requests for the police reports that underlie the offense for more information.

Hit and Run charges can stand on their own, or they can be coupled with other offenses such as DUI, Negligent Driving, Reckless Driving, or even Vehicular Homicide.  When a person flees the scene of an accident, it is sometimes just a panic reaction, but sometimes a person makes a more deliberate decision to leave because they have no insurance, are intoxicated, or have pre-existing warrants for their arrest.

For more information on Hit and Run, and the penalties, visit our website.

Back on June 3, 2010, I warned about the possible (mis)uses of inexpensive drone technology and how such gadgets might eventually be harnessed for civilian law enforcement purposes, possibly spying on a pot dealer’s back yard. Turns out I was right. Well, not about the pot, at least not yet.

A scary report in the Los Angeles Times told of how local police in North Dakota used a Predator B drone to apprehend three men; the first known arrests of U.S. citizens with help from a Predator. The incident occurred when the suspects refused to turn over several cows that had wandered on to their property. Police showed up, the suspects brandished some shotguns and a pretty tense standoff ensued. The police left and got themselves a warrant and then called in a Predator drone to fly over the suspect’s land, hovering for four hours, transmitting video and thermal imaging all the while. The next day, police called the drone back for more spying and finally made their move when the drone determined the men were unarmed.

The Predator drones used in this incident are based at the Grand Forks Air Force Base, located in Emerado, North Dakota, and are owned and operated by the U.S. Customs and Border Protection agency. Though the FBI, DEA and a plethora of other federal agencies have used Predator drones on U.S. soil for years for surveillance purposes, this is the first reported incident where local police forces have made use of a Predator drone to watch and then apprehend suspects.

The Los Angeles Times quotes a retired U.S. General who acknowledges that drones are being used “in many areas around the country, not only for federal operators, but also for state and local law enforcement.” The Customs and Border Protection agency responsible for the apprehension in the North Dakota incident claim they have a legal authorization to use the drones in such a way. Officials insist that they indicated in their budget requests to Congress that one purpose of purchasing the Predators was for “interior law enforcement support.”

Jane Harman – former Chair of the House Homeland Security Sub-Committee – insists that “no one ever discussed using Predators to help local police serve warrants or do other basic work.” The argument from Customs is that the drones can be used on U.S. soil for law enforcement purposes not because of a new law or regulation, nor because of any Congressional mandate or Executive Order, simply because they inserted the phrase “interior law enforcement support” into their purchase order.

This “interior law enforcement support” hasn’t been limited to North Dakota. A recent article out of Houston discussed the local law enforcement excitement following their acquisition of several drones: “It’s an exciting piece of equipment for us,” Chief Deputy of Montgomery County Sherriff’s Office said. The Sherriff’s Office recently used $300,000 from a federal homeland security grant to purchase a ShadowHawk drone which they hope to take to the air in the coming months. “We envision a lot of its uses primarily in the realm of public safety – looking at recovery of lost individuals and being able to utilize it for fire issues.” However, the police aren’t willing to say the drones might not do more in the future. McDaniel said that one day they may decide to equip the drones to carry nonlethal weapons such as Tasers or a bean-bag gun.

Kirsten Bokenkamp, spokeswoman for the Houston-based American Civil Liberties Union of Texas, warned of the danger the drones pose. She sensibly pointed out that there are not enough safeguards currently in place to protect citizens from unreasonable search and seizure. The complaint has so far fallen on deaf ears.

The manufacturers of these unmanned aircraft aren’t stopping to worry about such issues; instead they’re pushing forward and aggressively courting local law enforcement. In their 2011 Annual Report, AeroVironment, Inc. (AV), the nation’s leading manufacturer of small drones, hammers home the message that future growth lies in non-military applications of their product:

As we explore opportunities to develop new markets for our small UAS, such as border surveillance, law enforcement, first response and infrastructure monitoring, we expect further growth through the introduction of UAS technology to non-military applications once rules are established for their safe and effective operation in each country’s national airspace.

The company manufactures drones so small they can be transported in the trunk of a car and launched within minutes. A single police officer could deploy and monitor such a drone. These small drones could help usher in an “Era of Surveillance,” cheap and easy access to drones capable of hovering without detection for far longer than police helicopters.

The drones are vastly different and more powerful than standard police helicopters, the current method of choice for police surveillance from above. A great example is one new type of drone already in use by the U.S. military in Afghanistan – the Gorgon Stare, named after the Greek creature of legend whose unblinking eyes turned those who looked at it to stone. According to the Washington Post, it’s “able to scan an area the size of a small town” and is able to “use artificial intelligence [to] seek out and record certain kinds of suspicious activity.” One proud U.S. General went on to declare that the “Gorgon Stare will be looking at a whole city, so there will be no way for the adversary to know what we’re looking at, and we can see everything.” No police helicopter that I’ve ever run across has such capabilities and the prospect of the Gorgon Stare making its way to America should give everyone cause for concern.

Beyond such domestic law enforcement missions, the drones are being used everywhere, silent eyes in the sky. According to a recent report, a group dedicated to the abolition of whale hunting, the Sea Shepherd Conservation Society, used an unmanned aircraft to follow suspected Japanese whalers. Drones are everywhere and apparently have unlimited potential uses. Monitoring by law enforcement, border patrol, whale watching, what’s next? Given new technology whole cities can be kept under surveillance by one tiny drone. Where does this end? Likely with your civil liberties being violated. It’s only a matter of time before a civilian law enforcement agency realizes that the contraptions would be great for checking up on marijuana growing operations. Launch a Predator and have it spend hours noiselessly circling farms, searching for telltale signs of pot production. Police can watch the stream from the comfort of their desk and swoop in after the drone has done the leg work.

The increasing use of drones for an ever-growing list of activities on U.S. soil is troubling and potentially dangerous. This is the definition of a slippery slope and little exists to stop the creep of this surveillance into every facet of law enforcement. Small marijuana growers will have to fear a silent watchman in the sky. Jane Harman, a military hawk by any definition, told the Los Angeles Times that she’s worried, saying “There is no question that this could become something that people will regret.” The use of drones by civilian law enforcement is important and the issue warrants some real attention by legislators and the public alike.

What do you think about this issue?  How long before these drones are out looking for local marijuana gardens?   As the wars wind down in Iraq and Afghanistan, will the defense contractors focus more on marketing these drones to your local police department?  Share your thoughts in the comment section below.

When Proposition 19 was rejected by the voters of California in 2010, I figured that would pretty much mean the end of any legalization initiatives in Washington.  However, a group called New Approach Washington was created, and they are now gathering signatures for a legalization initiative for the November ballot in 2012.  The group is challenging the assumption that California is the only testing ground for such proposals.  How can this possibly pass in Washington?  The groups campaign director, attorney Alison Holcomb pretty much explained her thinking recently at Hempfest in Seattle.  (See video below) She explains that there is polling data that supports the idea that such an initiative could win.  “We are in this amazing moment of opportunity and also precariousness – there is no state (other than Washington) in the country that has a 55% …percent majority support for legalizing marijuana.”  The problem that happened in California, Holcomb explains, is that right before the election, voters started to get scared by concerns like “stoned drivers”, and that moderate voters like centrist democrats, independents, and college-educated women, got nervous and abandoned their support.  Holcomb explains:  “With I-502 we spent a lot of time figuring out the most conservative, safe, secure sounding, marijuana legalization initiative that we can draft, and that will get us closest to what our public opinion data tells us people will hang on to and pass.”  Her vision is that once we get such an initiative passed, that voters nationwide will “see that the sky doesn’t fall” and it will snowball to broader legalization and reforms throughout the U.S.   Alison Holcomb explained:

We have to be as disciplined as possible, and pulling together, for example, the sponsers that signed on to it.  Seattle city attorney Pete Holmes, former US Attorney John McKay, Rick Steeves, two medical doctors, two former Washington state bar presidents, a Washington state legislator.  We need all the main stream messengers possible, because I think a legalization initiative  that looks like it is coming from the choir, that looks like it is coming from the usual suspects, has a much harder row to hoe then one that is coming from a former US attorney, for example.

Is it ironic that she explains the need to gather “mainstream messengers” when she is speaking at Hempfest?  I guess a little.  I did note that you can hear the psychedelic rock of the festival playing in the background as she speaks.

I-502 has some detractors.  Some question the proposed law’s provision that drivers (even medical patients) cannot driver a motor vehicle with a THC level over 5 nanograms per milliliter in their blood.  Others question why drivers under 21 would be defined as committing DUI if they have THC in their system in any amount over .000.  One such critic is Edward Agazarm, who started a Facebook page entitled Patients Against I-502.  He sent a press release out last week excoriating the sponsors of I-502.”  See article.  But Alison Holcomb fired back in the comment section of that article accusing Edward Agazarm of being disingenuous in his criticisms of I-502.  Agazarm is a professional signature-gatherer, and president of Citizen Solutions, Inc.   Holcomb explained that Agazarm called her and pitched his company (to collect signatures) after she held a press conference in June.  Holcomb writes: “When I told him we had already contracted with PCI Consultants, Inc., he insulted them and hung up on me. Now, Eddie’s spamming people with emails equating I-502 to rape.“  Agazarm isn’t the only critic.  Steve Elliot, a writer for Tokeofthetown.com also is very critical of the proposed law.

I guess the million-dollar question is whether the initiative will pass.  Can New Approach Washington gather enough moderate voters to off-set the critics?  We will have to see.

One of my disappointments in observing the marijuana reform movement over the last 10 years is how egos and dollar signs seem to damage any real chance of reform.  If I had the energy to collect 100,000 signatures, I would first seek a simple initiative removing the mandatory 24-hour jail time for all marijuana.  I blogged about this here last year. As a practicing criminal defense lawyer, I do have concerns about I-502.  I do worry that a driver under 21 could be convicted for DUI even for trace amounts of marijuana in his or her system.  I also don’t believe that all drivers would necessarily be impaired at .05 nanograms per milliliter, as I addressed here.   I do believe that the law would likely contribute to patient harassment, and an increase in unwarranted marijuana DUI charges.  The “probable cause” that an officer would have to establish an arrest for marijuana DUI is often based on subjective and spurious observations, such as the “green tongue” phenomenon.  I am already seeing an increase in marijuana DUI charges in my practice.  The problem with enforcement with these new laws isn’t going to be in King County; the problem will be greatest in the hick towns of eastern Washington (where I live and practice law).  In these towns the judges are often hostile to even medical marijuana, and the jury pools are conservative.  The prosecutors are less susceptible to public pressure and bad publicity, and  the defense lawyers often lack the specialized training and resources to defend such charges.

What do you think?  Will you be signing the petition for I-502?  Is it worth the restrictions on driving to get a marijuana reform law passed?  Does I-502 ask for too much of a sacrifice from medical cannabis patients?  Leave your thoughts in the comment section below.

What are your rights with respect to canine searches of your car?

One minute you are driving down the road without a care in the world, and the next minute you have been pulled over for a broken tail light.  Well, if the police officers have a drug dog with them, the next minute they could be tearing your car up while you wait on the side of the road.   Doesn’t sound like too much fun, especially if there are people you know driving by.

Even for people who know their rights, the laws on drug dog searches can get a little tricky.  When I think about drug dog searches, I think of the song “99 Problems” by Jay-Z describing an incident in 1994 when he was pulled over for speeding when he had drugs in his trunk.  The police ask Jay-Z to consent to a search of his car.

“Well, do you mind if I look round the car a little bit?”
Well my glove compartment is locked so are the trunk in the back
And I know my rights so you’re going to need a warrant for that
“Aren’t you sharp as a tack, you some type of lawyer or something’?”
….
Nah, I ain’t pass the bar but i know a little bit
Enough that you won’t illegally search my shit
“We’ll see how smart you are when the K9 come”

I got 99 problems….

What stumped Jay-Z is that he didn’t know his rights on the subject of a canine search, and this became one of his “problems.”    O.k. so here is how canine searches work.  First the bad news, and then the good news.

The bad news is that generally, a canine sniffing the outside of your car is NOT a search.  The U.S. Supreme Court reasons that the little molecules of marijuana (or whatever) that are wafting away from your car are in the public space, and the police are free to have their dogs everywhere the police are free to be.  It used to be that the police needed an “articulable suspicion” in order to bring their canine up to your car.  This was the rule in New York State in 1994 when Jay-Z was stopped.  However, in 2005, in Illinois v. Cabelles, the U.S. Supreme Court ruled that the police needed no such articulable suspicion to bring a police dog up to your car at a traffic stop.  So if the police officer is writing you a ticket for broken tail light, he or she can have the drug dog right up beside the car (but not inside).  If the dog indicates that it smells drugs, the police may then search your vehicle.

The good news is that there are ways to fight drug dog searches.  While the law does allow a canine to accompany an officer on a routine traffic stop, the officer is not allowed to delay the traffic stop unnecessarily while the dog searches.  In many rural areas such as Lincoln County, Grant County, or Okanogan County, the delay in a drug dog arriving can be substantial.  In urban areas such as Spokane, the dog can arrive in a matter of minutes.  If your ticket has been written, the officer cannot require you to keep your vehicle on the side of the road while they wait for the dog to arrive without just cause.  Additionally, it does not seem permissible for the officer to put the writing of the infraction “on hold” while a canine search is done.   For an officer working alone, this may pose a problem.   Also, it may be that the Washington State Supreme Court might rule differently than the U.S. Supreme Court.  The Caballes issue has never been squarely before our Washington supreme court, and are justices in Washington could construe the right of privacy in our state constitution more broadly.

How to Challenge a Drug Dog Case

Training a dog to recognize the smell of marijuana or other drugs is relatively easy.  One simple way is to stuff a toy with the substance and to use the dog’s “fetch instincts” to learn how to find the toy.  However, to have a judge accept the dog as reliable in court is very difficult.  Dog handlers have extensive training for their dogs and must keep extensive records.  If the dog “alerted” to a car, and no drugs were found, the dog handler will record this error.  Because of the prevalence of cocaine and marijuana in our society, trace amounts of these drugs can be found all over, particularly on paper currency.  It is not unusual for a drug dog to “alert” on a car only to find money.  Some studies, such as one cited in the Cabelles case, show that dogs in artificial testing situations return false positives anywhere from 12 to 60% of the time, depending on the length of the search.  In my practice as a criminal defense lawyer, I often use the publication A Guide To Canine Interdiction as a reference.  This DEA manual recommends that the canine and the handler both be trained at the same time, and that the two be paired for life.   The dog should be certified by an independent agency with no financial stake in the outcome.   The manual recommends that every use of the dog to screen luggage, vehicles or houses be documented.  Courts generally require that all these records be turned over to the criminal defense lawyer if he or she makes the request.

Hiding the Odor of Marijuana

It is next to impossible to hide the odor of marijuana or other drugs.  People have sealed marijuana in ziplock bags, inside tupperware, inside coffee grounds, and wrapped it with animal fat, and the canines have still detected the drug.  People have also attempted to hide the drugs by submerging them in a fuel tank.

For more information on marijuana laws in Washington State, see here.

What do you think?  Should the police be able to approach your vehicle at a traffic stop with a drug dog?  What are some of the ways you have heard that people attempt to hide the odor of drugs?  Are drug dogs sufficiently reliable to justify searches of our personal belongings?

The search for Indiana University college student Lauren Spierer has involved social media in a way that we have never seen before.  Lauren Spierer, the Indiana University fashion major, went missing after a night out with friends on June 3rd of this year.  Her family has launched a nation-wide effort to keep the case in front of the largest possible audience. Their efforts have included the traditional “missing” flyers, but they have also used YouTube, QR codes, Twitter, Facebook, RSS feeds, and e-bay auctions.  Some of their efforts seem to be born out of frustration – the case largely took a back seat to the Casey Anthony trial last summer.  But some of their efforts are surely motivated by a belief that no effort is ever enough.

Their efforts at distributing “missing” posters even lead to one anonymous letter sent to her parents that there were “too many” posters to the point of “littering”.  If other missing-person campaigns are looking for a benchmark of success, there you have it: hate mail from the callous and selfish.  It makes me think of Grant Cardone’s goal of marketing: omnipresence.

Some of Lauren Spierer’s parents’ efforts seemed to be aimed at keeping pressure on witnesses who might not have come forward, or who might not be telling the truth.  So far some of the witnesses have told inconsistent stories, claimed memory loss, or hired celebrity attorneys.  In some states prosecuting attorneys have procedures available to compel these reluctant witnesses to either tell what they know, or to take the fifth.  Such processes, such as grand juries or special inquiry proceedings, can help narrow down lists of suspects. And no one wants to be nationally known as the person who “took the fifth” in a case such as this.  Defense lawyers can assist the investigatory process by brokering deals where witnesses gain immunity for secondary concerns like underage drinking that occurred that night.

We will hope for some leads for Lauren Spierer’s family, and in the meantime, keep checking out this story on Twitter @NewsonLaurenS, and @FindLaurenS, and in Facebook here.

For some of my past blog posts on missing persons, see here and here.

Lastly, check out this awesome youtube video of a song her supporters wrote.

Minor in Possession of Alcohol

They say it is a rite of passage for young adults to try alcohol.  So I suppose parents shouldn’t be surprised when their kids get caught, and they receive “the phone call” from police or school officials. Our society sends kids mixed messages on the subject of alcohol.  Our justice system makes it a criminal offense to consume alcohol until someone is 21 years of age.  However, it is almost as if no one expects literal compliance with this law.  Most parents seem to accept some level of occasional “social drinking” when the child is 19 or 20 years old, and sometimes even when the child is still in high school.  This is usually no different for parents in law enforncement; it is just not discussed openly.  Despite the prevalence of underage drinking, many parents are still caught off guard and baffled as to how to react when their child comes home at night accompanied by a police officer.  It helps to know what to expect from the criminal justice system.

Courts and Minor in Possession of Alcohol

What occurs when your child is caught with alcohol depends largely on the child’s age.

For youths under 18

Children under 18 go to juvenile court, but if they have no prior offenses, they are sent to pre-trial diversion.  When the police detain your child for Minor in Possession (MIP), they rarely are taken to jail and booked.  Rather the police usually give the child a ride home or more likely will call you to come pick up the child.  The police can’t cite a juvenile with a “ticket,” rather the officer will inform you that paperwork will be coming in the mail.  This can often take several weeks, leaving parents confused about the delay.  The notice in the mail often comes from the juvenile court probation officer who will invite you and your child in for a meeting.  At that point, your child will be invited to sign a “diversion agreement.”  Rather than go to court the charge will be “diverted” away from the court system and over to the local community diversion board.  The diversion board will meet with the child and parent and decide on a punishment.  The punishment could be an essay to write or community service hours.  The diversion board will sometime refer your child for an evaluation for chemical dependency.  Accepting a diversion agreement will suspend your child’s driver’s license or learner’s permit (or ability to obtain one) for 12 months.  However, early re-instatement is possible after 3 months.  A child has a right to confer with a criminal defense lawyer prior to accepting the diversion agreement, but this usually means finding a private attorney.

If diversion is rejected

If your child rejects diversion, he or she will be charged and sent through the juvenile court system.  If your teen is innocent or denies having possessed or consumed alcohol, he or she can reject the diversion agreement and have the case sent to court.  Once the case is sent to juvenile court, the prosecutor will have to prove the crime beyond a reasonable doubt to the satisfaction of a juvenile court judge.  Your child can apply for a public defender. Parents may obtain a private lawyer for their child as well. There are no juries in a juvenile court, so the judge will decide the case based on the testimony of the officer.  Occasionally the prosecutor will call other witnesses such as school officials or other juveniles, but the trials are usually pretty brief. Parents can be called as witnesses against their own children, but this is less common.  If the judge finds your child guilty of MIP, the judge will impose a sentence requiring your child to do community service hours and maybe have your child do an alcohol evaluation to make sure he or she is not chemically dependent.  The conviction will cause your child’s license to be suspended for 1 year as with a diversion agreement, but your child may be eligible for early reinstatement.

In juvenile court, the terminology is different than adult court.  In juvenile court a defendant is called a “respondent”, a trial is called a “fact finding” or “adjudicatory hearing”, and a sentencing is called a “disposition hearing.”  In the juvenile court system the parents or guardians are also summoned in and required to appear for court hearings.

For defendants over 18

A young adult (age 18-20) charged with MIP goes through adult court.  The adult courts that handle such offenses are the district courts of Washington or local municipal courts.  There is no formal diversion program in Washington State for these sort of MIPs, however prosecutors will sometimes make offers to resolve a case where it is dismissed after one year if the defendant stays out of trouble.  A defendant is sometimes asked to obtain an alcohol / drug evaluation or asked to attend an 8-hour Alcohol Drug Information School.  Unlike juvenile court, parents are not involved when a MIP defendant is over 18.  This is true even when the 18 year old is still in high school and living at home.  An 18 year old is entitled to a jury trial, and unlike a defendant under 18, he or she will not face a license suspension.  However, an adult defendant convicted of MIP will have a criminal conviction that is public record.

Sometimes the lines between 17 and 18 year olds are blurred.  When a 17 year old is caught with alcohol, he or she still may end up in adult court.  To avoid adult court, the 17 year old must accept a diversion agreement or be formally charged prior to his or her 18^th birthday.  So 17 year olds who offend just before their 18^th birthday often find themselves sucked into adult court simply due to administrative delay.  Once the matter is in juvenile court, the judge can extend the jurisdiction of the juvenile court for a year or more.  However, the department of licensing (in deciding whether to suspend the child’s license) will only look at how old the child was on the date of the offense.

Repeat offenders

As one would imagine, repeat offenders of MIP usually face a tougher time with the court system.  If a child or young adult is on probation and re-offends, he or she may face jail time, or could be ordered to be evaluated for possible chemical dependency.

Selective prosecution

Parents are often concerned that the MIP laws are not being evenly enforced.  Just as parents have differing views on teens and alcohol, so do police officers.  It is not uncommon at all for the police to overlook or ignore cases of MIP.  This is particularly true in instances where the suspect is a bit older or has smaller quantities of alcohol in his or her possession, and does not pose a threat of driving.  However, police can also play favorites, or single out children for arrest due to personal bias.  In my experience as a criminal defense lawyer (and former prosecuting attorney), in small towns the police seem to overlook certain cases where the parents are influential.  In rural counties such as Okanogan or Stevens County, the police officers are more likely to know the kids compared to urban areas like Spokane.

Getting into the military

Many parents of high school kids are worried that an MIP could prevent their son or daughter from getting into the military.  Generally speaking, such a conviction would not prevent a child from entering the Navy, Army, Air Force, Marines, etc.  However, if your child is planning on entering the military, you should certainly mention this to the juvenile probation officer or criminal defense lawyer that your child is working with.  The military won’t accept your son or daughter if he or she still has obligations to the court.  Sometimes it is possible to terminate a diversion or probationary period early to make a child eligible.

Urinalysis

The courts do not make use of urinalysis or UA tests as much as most parents would think.  These sort of tests are more common in cases of marijuana use, or when a juvenile is on his or her second or third Minor in Possession of Alcohol charge.

Criminal defense attorneys and parents

It is important for parents to understand the job of a criminal defense attorney.   The lawyer’s job is to represent the child.  Even if the parents are the ones to pay for the lawyer, this does not change the relationship.  Usually, a criminal defense lawyer will ask the parents to sign a fee agreement explaining that they will not have any control over the representation of the child.  In my experience, parents are often of two minds when their son or daughter has been charged.  On one hand they hope that their child learns their lesson, but they don’t want their child to have a criminal record.  Sometimes a parent thinks it is in the child’s best interest to be held accountable.  However, it is the job of the defense attorney to give the defendant “zealous representation” including researching ways to have the case dismissed on a technicality.  As odd as it may sound, it is not the defense lawyer’s job to do “what is best” for the child.  Rather a defense lawyer is ethically bound to listen to the client and to respect the client’s decision as to whether the case should resolve by plea or be taken to trial.  In my practice as a criminal defense lawyer, I do usually explain the seriousness of the problem of underage drinking to my clients.  If the parents take the incident very seriously, it is certainly not very helpful for the defense lawyer to treat the matter lightheartedly.  Any criminal defense lawyer would admit that 80% of their caseload is related to alcohol and drug abuse.  None of us ever want our teen clients to turn into “repeat customers.”

When your child is called as a witness

A child cannot commit the crime of Minor in Possession of Alcohol without obtaining the alcohol from someone.  Sometimes a child will take the alcohol from a parent without the parent’s permission.  However, usually the child was given the beer or the wine by someone over 21.  If your child identified the individual to the police, it may be that he or she will be called to testify against that adult.  Occasionally, a child will receive immunity on their criminal charge if they testify against the adult.  However, this is not always the case.  I have had cases where parents have complained to authorities about the adult in question, only to have their son or daughter be subpoenaed.   If your son or daughter is subpoenaed to testify in a Furnishing Alcohol to Minor case, he or she should probably speak to an attorney as soon as possible.

Regional differences

MIP cases are often handled differently in different counties.  For example, in Spokane the court systems are more congested then in rural areas such as Stevens County, or Okanogan County.   In Spokane County District Court, the courts have a more active probation department where your son or daughter could be assigned an actual probation officer.  Additionally, it seems like the public defenders have a heavier caseload in more urban areas such as Spokane.

Minor in possession on college campuses

When kids leave for college, it seems as if part of the experience is to use or at least try alcohol.  College campuses and the different residence halls usually have different policies on the subject of involving the police.  The way such cases are handled at Washington State University may not be the way such cases are handled at Eastern Washington University or Gonzaga.  Usually, a first-offense for Minor in Possession will not lead a student to get kicked out of the dormitories.  When the minor is in college, lawyers have to try their best to work a resolution of the case that doesn’t involve a conviction.  No college student wants to hit the job market with a criminal record.

For more information, see our firm’s webpage on Minor in Possession.