To give you a concise sample, we have two decisions, one out of Division II of the Court of Appeals and one out of Division III of the Court of Appeals. It was a slow week for the Supreme Court - they didn’t announce any up-to-the-minute cases of consequence. The Division II case concerns something drunk driving defense attorneys in Seattle will run into from time to time, or at least face inquiries on - the restoration of firearm rights after a DUI guilty verdict. The Division III case concerns the fundamentals of residential burglary and whether or not obstructing a law enforcement officer counts as the predicate crime for a conviction of residential burglary. Let’s get started at the Seattle DUI Attorney Blog!
Restoring Fire Arms Rights - State v. Mihali
Facts - State v. Mihali is a case about restoring fire arms rights to an entity convicted of a transgression. Mihali, in 2000, was found guilty of conspiracy to manufacture a controlled substance (i.e. drugs - probably methamphetamine). In 2004 Mihali received a official recognition from the Department of Corrections that she had finished the terms of her sentence, was discharged from DOC supervision, and had all of her civil rights restored (right to vote, etc.) except the entitlement to own and/or possess a weapon. In 2008 she filed with the court a motion to restore her firearms, alleging that she had met all of the requirements to have her right to firearms restored. The state opposed this motion, arguing that the required 10 years had not elapsed since her conviction was fulfilled, which is a requirement because she was convicted of a class B felony. The court agreed with Mihali and restored her firearms rights - the State appealed.
Issue - Was Mihali eligible to have her right to hold a gun restored?
Analysis - gun restoration rights are governed by RCW 9.41.040(4). It states that a person with no a guilty verdict for a sex offense or a Class A felony may formally request the court to have their right to hold a weapon if:
(b)(i) If the guilty verdict or finding of not guilty by reason of insanity was for a felony offense, after five or more consecutive years in the community without being convicted or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the person has no prior felony convictions that prohibit the possession of a weapon counted as part of the offender score under RCW 9.94A.525
The state's contention that two circumstances must be met before firearms will be restored is a reliable one: (1) five or more years in the community without being found guilty or currently charged with a transgression; and (2) no previous felony convictions in her drunk driving history that would be included in her offender score calculation that ban possessing a firearm. The subject in scrutiny here is the date from which the second prong of the analysis is calculated from. The state contends the ten year look back phase goes from the date of the petition for restoration of firearm rights. Mihali argues the ten year look back period should be from the date of the last guilty verdict. If the state’s view is adopted, Mihali is not appropriate. If Mihali’s view is adopted, she is.
This issue has been raised and answered in previous case decisions. There we determined that the Legislature planned the look back phase to be from the date of the petition for firearm restoration. Although the decisions in these cases were not completely on point because they weren’t discussing this statute explicitly, the breakdown is comparable. In addition, this is reflected in the Legislative history of the law.
Holding - The trial court’s determination reinstating Mahili’s gun rights is overturned. Mahili must wait ten years from the date of her last conviction before the court can think about gun right restoration.
Tacoma DUI attorney’s Analysis - In cases such as these, whether or not the law appears to be reasonable, it is the law. I think the court decided the way that it should have, even though it forces Mihali to wait five more years to have her gun rights restored. It was almost certainly worth a shot from Mihali’s dui defense lawyer because the issue hadn’t been litigated, but it was a long shot to be upheld by the Court of Appeals. The fact is, at the time of her petition for firearm right restoration, Mihali had a felony conviction that would have counted as part of her offender score.
Elements of Residential Burglary - State v. Devitt
Facts - State v. Devitt is a case about the elements of residential burglary, namely whether or not obstructing a Seattle law enforcement officer counts as the predicate misdeed obligatory for a conviction of residential burglary. The case starts with the cops thinking Devitt stole a car and was caught up in a hit and run. The cops witnessed him close to the accident and Devitt took off and ran from them. He ended up hiding in an apartment complex, in the end finding himself in the apartment of a woman. While there Devitt spoke to the woman, had a glass of iced tea, made a cell phone call (with her consent), and just hung out waiting for the officers to leave. The female said she wasn’t in anxiety for her security. After a bit she went outside to take out the trash and let the officers know Devitt was in her residence.
Devitt was charged with residential burglary (first degree criminal trespass as an alternative), obstructing a law enforcement officer, and resisting arrest. At the completion of the state’s case, Devitt moved to dismiss the burglary charge for failing to prove all of the fundamentals, namely that Devitt planned to commit a transgression against the person or possessions inside the dwelling. The court said obstructing a law enforcement official was enough, and let the case go to the jury. Devitt was found guilty of all the charges.
Issue - Is obstructing a police officer sufficient to meet the underlying offense requirement of residential burglary?
Analysis - Residential burglary is defined in RCW 9A.52.025(1) as: entering or remaining unlawfully in a dwelling other than a vehicle with intention to commit a misdeed against a person or property therein. To substantiate his posture that obstructing a law enforcement officer should not count as the underlying offense, Devitt pointed the court to the prosecutor’s standards for charging crimes. Obstructing a law enforcement officer is not characterized anywhere as a misdeed against a human being, much less anyone other than the cop.
The language of the residential burglary law requires a unambiguous transgression (against a human being or possessions) in a explicit place (inside a dwelling) and with a detailed intent (to go in the home to commit the misdeed). Because of this, more than just the intent to commit a offense usually is requisite.
The prerequisite that the misdeed intended to be committed be done “therein” or inside the lodging, is also crucial. In this case there was no law enforcement officer in the abode, making it hard for Devitt to have entered the house to commit that precise offense.
Holding - the state failed to show the essentials of the residential burglary law. The case is dismissed with prejudice.
Tacoma DUI Lawyer’s Analysis - Really? Are you freaking kidding me? Why would the prosecutor even charge this misdeed, much less see it through to a jury trial and then claim their completely unreasonable opinion to the court of appeals? And why would the trial court judge not read the law and realize the elements of the crime had not been met? I am a Tacoma criminal attorney, so I am a little biased. But I am not the type of DUI attorney that is an apologist for my clients. I see the facts and I see the crimes charged and I work from there. Why can’t prosecutors do the same thing?
This is a great example of some of the things we are forced to deal with all the time that gum up the drunk driving justice system, make everyone grumpy, and make defense attorneys think prosecutors are unreasonable and gunning for victories at all times. If this prosecutor would have amended the charges to first degree trespass there would have been no trial, there would have been no appeal, and all of this time would not have been wasted. A first year law student should be able to make the analysis necessary to get this conclusion right.
That’s my two sense for today. Stay tuned next week for another installment of the latest criminal defense decisions from Washington State. Hopefully there will be more exciting news.
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