To give you a short 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 fresh cases of importance. The Division II case concerns something a Seattle criminal attorney will run into from time to time, or at least face questions on - the restoration of gun rights after a criminal conviction. The Division III case concerns the elements of residential burglary and whether or not obstructing a law enforcement officer counts as the predicate crime requisite for a guilty verdict of residential burglary. Let’s get started!
Restoring Fire Arms Rights - State v. Mihali
Facts - State v. Mihali is a case about restoring fire arms rights to an human being found guilty of a misdeed. Mihali, in 2000, was found guilty of conspiracy to manufacture a controlled substance (i.e. drugs - possibly methamphetamine). In 2004 Mihali received a official recognition from the Department of Corrections that she had fulfilled the terms of her sentence, was discharged from DOC supervision, and had all of her civil rights restored (right to vote, etc.) except the right to own and/or have a firearm. 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, disagreeing that the mandatory 10 years had not elapsed since her guilty verdict was finished, which is a necessity 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 entitled to have her right to own a weapon restored?
Analysis - firearm restoration rights are governed by RCW 9.41.040(4). It states that a person with no a conviction for a sex offense or a Class A felony may petition 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 found guilty 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 argument 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 prior felony convictions in her DUI history that would be included in her offender score computation that disallow possessing a gun. The subject in scrutiny here is the date from which the second prong of the analysis is measured from. The state contends the ten year look back time 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 conviction. If the state’s view is adopted, Mihali is not eligible. If Mihali’s view is adopted, she is.
This issue has been raised and answered in earlier case decisions. There we determined that the Legislature intended the look back phase to be from the date of the petition for gun restoration. Although the decisions in these cases were not completely on point because they weren’t discussing this law particularly, the breakdown is comparable. In addition, this is reflected in the Legislative history of the law.
Holding - The trial court’s conclusion reinstating Mahili’s weapon rights is overturned. Mahili must delay ten years from the date of her last conviction before the court can think about firearm right restoration.
Seattle DUI attorney’s Analysis - In cases such as these, whether or not the law appears to be fair, it is the law. I think the court ruled the way that it should have, even though it forces Mihali to wait five more years to have her firearm rights restored. It was probably worth a shot from Mihali’s drunk driving lawyer because the matter 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 essentials of residential burglary, namely whether or not obstructing a law enforcement officer counts as the predicate offense necessary for a guilty verdict of residential burglary. The case starts with the officers believing Devitt stole a car and was implicated 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, sooner or later finding himself in the apartment of a woman. While there Devitt talked to the woman, had a schooner of iced tea, made a phone call (with her permission), and just hung out waiting for the cops to leave. The female said she wasn’t in fear for her safety. After a bit she went outside to take out the trash and let the officers know Devitt was in her apartment.
Devitt was charged with residential burglary (first degree criminal trespass as an alternative), obstructing a law enforcement officer, and resisting arrest. At the close of the state’s case, Devitt moved to dismiss the burglary charge for failing to provide evidence all of the fundamentals, namely that Devitt planned to commit a transgression against the person or belongings within the residence. The court said obstructing a law enforcement officer was enough, and let the case go to the jury. Devitt was found guilty of all the charges.
Issue - Is obstructing a police officer adequate to meet the underlying crime obligation of residential burglary?
Analysis - Residential burglary is defined in RCW 9A.52.025(1) as: entering or remaining unlawfully in a house other than a vehicle with intent to commit a offense against a human being or goods therein. To corroborate his stance that obstructing a law enforcement officer should not count as the underlying misdeed, Devitt pointed the court to the prosecutor’s standards for charging crimes. Obstructing a law enforcement officer is not characterized anywhere as a crime against a person, much less anyone other than the officer.
The words of the residential burglary law requires a definite crime (against a self or possessions) in a exact place (inside a dwelling) and with a specific intent (to go into the apartment to commit the misdeed). Because of this, more than just the intent to commit a crime normally is requisite.
The condition that the transgression intended to be committed be done “therein” or inside the home, is also crucial. In this case there was no law enforcement officer in the abode, making it hard for Devitt to have entered the apartment to commit that exact offense.
Holding - the state failed to corroborate the elements of the residential burglary law. The case is dismissed with prejudice.
Kirkland criminal lawyer’s analysis - Really? Are you freaking kidding me? Why would the prosecutor even charge this crime, much less see it through to a jury trial and then make a case their completely irrational opinion to the court of appeals? And why would the trial court judge not read the law and realize the elements of the transgression had not been met? I am a Seattle DUI attorney, so I am a little biased. But I am not the type of criminal defense defense 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 dui defense 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 required to get this determination right.
That’s my two sense for today. Stay tuned next week for another installment of the latest driving under the influence decisions from Washington State. Hopefully there will be more exciting news.
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