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Court Rules “Bad Tow, Bad Search”

Posted Wednesday, February 15, 2017 by Andrew Charles Huff

Police officers are authorized to order a vehicle towed under certain situations such as after an arrest for DUI. But what about in cases where the driver is not under arrest and being transported to the hospital after an accident?

The scope of this “towing” authority was challenged in a case before the Court of Appeals-Division II after Ms Martha Froehlich’s vehicle was towed by police and her purse subsequently searched, resulting in drugs being found. In defending the search, the State argued that the search was a lawful “inventory search” following the impoundment of Froehlich’s vehicle.

Both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit warrantless searches unless one of the narrow exceptions to the warrant requirement applies. One exception to the warrant requirement is a non-investigatory, good faith inventory search of an impounded vehicle. However, an inventory search of an impounded vehicle is lawful only if the officer lawfully impounded the vehicle. Law enforcement may lawfully impound a vehicle for three reasons: (1) as evidence of a crime, (2) under the community caretaking function, or (3) when the driver has committed a “traffic offense for which the legislature has expressly authorized impoundment.” But even if one of these reasons exists, an officer may impound a vehicle only if there are no reasonable alternatives.

The “community caretaking” function allows law enforcement to lawfully impound a vehicle when, for example, it impedes traffic or threatens public safety and no one else is available to move the vehicle. But the issue here involves the second requirement, whether Froehlich, her spouse, or her friends were available to move the vehicle.

The Court found that for impounding Froehlich’s car to be lawful under the community caretaking function, the officer was required to at least consider whether Froehlich, her spouse, or her friends were available to move the car from the scene. But there is no evidence the officer asked Froehlich about arranging to have someone else remove the car as an alternative to impoundment.

Therefore, the Court found that the impoundment was not lawful and the resulting search was improper because under the community caretaking exception because the State did not prove that the officer did not consider all reasonable alternatives to having the vehicle towed.

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Traffic Tickets in Washington

Posted Friday, February 10, 2017 by Andrew Charles Huff

Questions and Answers about Traffic Tickets

I have been representing people cited for traffic violations for over 18 years and regularly asked by friends and associates various questions on our traffic laws, which I am always happy to answer.Traffic tickets on your record in Washington will most likely increase your insurance premiums…period. That is, of course, if your insurance company doesn’t drop you. But you can minimize the damage to your driving record and personal finances by recognizing your options and taking appropriate steps. The best way to protect your driving record and fight off higher premiums is to keep tickets off your driving record. This can be done with either a straight dismissal or if your ticket is amended to a “non-moving” violation that won’t appear on your record.

What to Do If You Get a Traffic Ticket

You need to act quickly if you are ticketed because of the 15 day requirement to mail your citation to the court. The three specific actions are: 1) Make a payment. This will result in the ticket going on your record. 2) Request a mitigation hearing. Again, your ticket will go on your record but the fine will be lowered. 3) Request a Contested Hearing. Besides a deferral, a Contested Hearing is the only way to keep the ticket off your record.
If you forget to take action, or ignore the ticket your situation is likely to get worse. If you do not respond, the Washington State Department of Licensing (DOL) will mail to you a suspension notice, giving you 45 days to respond. Failure to respond to this notice will result in the DOL suspending your license.

Is a Court Appearance Required?

If you get a traffic ticket, you normally do not have to appear in court because it is a civil matter and your attorney can appear on your behalf.

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Warrantless vehicle search? Court says “Where’s the Nexus?”

Posted Friday, January 27, 2017 by Andrew Charles Huff

Mr. Livingston was on probation with the Department of Corrections (DOC) for an offense and required to maintain compliance with conditions. But did this fact authorize DOC to search Mr. Livingston’s vehicle based on his arrest for an outstanding warrant?

In reviewing this appeal, the Court found the warrant against Mr. Livingston stated only that there was reason to believe he had violated probation. But this violation was not stated in the warrant, nor established by the trial court. Further, when the DOC Officer conducted the search of Livingston’s car, he and his fellow officer had no information as to the basis for the warrant.

The Court found that DOC did not have authority to search Mr. Livingston’s vehicle based on this separate warrant because there was not a nexus between the probation violation and the searched property. To support a search, the property searched must relate to the specific violation that the officer believed had occurred. This was not the case here and therefore search was improper.

Division II Court of AppealsState v. Livingston:

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Negligent Driving in the 2nd Degree-What it is and what it’s not?

Posted Monday, January 16, 2017 by Andrew Charles Huff

I have represented hundreds of people for various traffic infractions over the years and no violation creates more questions than “negligent driving,” in this case Negligent Driving in the 2nd Degree.

Negligent Driving in the 2nd Degree is a traffic infraction and not a criminal offense. This means there is no jail time, it will not appear on your criminal record and the maximum fine allowed for this infraction is $550.

There are essentially two parts to RCW 46.61.525, the “Negligent Driving in the 2nd Degree” statute. It means driving “in a manner that is both negligent and endangers or is likely to endanger any person or property.” Being “negligent” means the “failure to exercise ordinary care, and is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do something that a reasonably careful person would do under the same or similar circumstances.” Additionally, these actions must “endangers/likely to endanger persons or property.” Both elements of the infraction must be proven or the court cannot find the infraction committed.

In my experience, actions alleged to be negligent include excessive speeding in heavy traffic or weaving in and out of traffic or driving extremely fast in the pouring down rain. An officer must articulate what the person did that was outside of reasonable behavior.

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Seattle Police Officers Using Body Cameras

Posted Wednesday, January 4, 2017 by Andrew Charles Huff

A small group of Seattle police officers have stepped up to the visual future by adding cameras to their uniforms with an additional 800 more officers outfitted by the end of next year.

The body-cameras, about the size of a pager, will be worn by a dozen members of the West Precinct bike squad. All officers’ duties will be recorded – from crime scenes, to protests to on the street conversations.More than 50 police departments across the state have experimented with body cameras, but only a handful actually use them daily.

As a defense attorney, these cameras are a useful tool to reviewing evidence and verifying the credibility of an officer’s actions versus my client’s explanation of events.

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