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When is a dwelling a "dwelling" for burglary conviction?

Posted Thursday, December 13, 2018 by Andrew Charles Huff

To commit the crime of Residential Burglary, you must have burglarized a “dwelling.” So when is a “dwelling” truly a “dwelling?”

Mr. Nathan J. Hall argued to the Court of Appeals-Division II that the unoccupied house he broke into was not actually a “dwelling” for purposes of burglary. The house at issue had been standing empty for some time and others had broken windows and doors to gain entry. Mr. Hall pointed out that no one had lived at the house for over 15 months with no indication anyone was planning to move in soon.

The Appeals Court admitted that no prior cases had ever discussed in detail whether a building is a “dwelling” for purposes of this law. But the Court found no indication the house had been used for anything else but a dwelling and it was still partially furnished. Further, the previous owner left a number of her possessions in the home while it stood empty. Finally, the Court held that although the house stood empty, the prior owner never actually abandoned the house and had taken steps to keep others out.

Therefore, the Court found that although standing empty, the house was a “dwelling” for purposes of the burglary statute and upheld Mr. Hall’s conviction.

State of Washington v. Nathaniel J. Hall, No. 50543-6-II

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Wheels over the line when driving? You can be stopped for this

Posted Thursday, December 6, 2018 by Andrew Charles Huff

Is it a traffic violation when the wheels of your car briefly cross over the travel lane one time? It is when cited for “Driving with Wheels Off Roadway” in violation of RCW 46.61.670, according to the Washington Court of Appeals-Division Three in a recent decision.

Ms Erica Alvarez was stopped by a Washington State Patrol trooper after her car wheels briefly traveled over the fog line and into an area not designated as a roadway. Even though this was a brief and minor incursion, the Court held that under the “Driving with Wheels Off Roadway” statute, this was sufficient to justify a traffic stop.

State of Washington v. Erica Magallon Alvarez, No. 34711-7-III

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Vacate Marijuana Conviction in Seattle? Not So Fast

Posted Sunday, November 4, 2018 by Andrew Charles Huff

Recently the Seattle City Attorney and the Mayor announced that the City would vacate the conviction records for hundreds of misdemeanor marijuana convictions and has petitioned the Municipal Court directly to take this action. One reason is the recent legalization for persons over age 21 in our state. However, it’s important to note that not all misdemeanor marijuana convictions in Seattle Municipal Court will be vacated. This has led to some believing their records have been cleared but in reality they have not been.

Vacating a misdemeanor conviction is clearly laid out in RCW 9.96.060 and the Seattle City Attorney cannot change these rules. Any person who has a misdemeanor marijuana conviction in Seattle Municipal Court who does not qualify under the law cannot have their conviction vacated.

The eligibility requirements to vacate a prior conviction are listed in RCW 9.96.060. A person may not have the record of conviction vacated if any one of the following are present:

1) The person has a pending criminal charge in any court.2) Less than three years have passed since the person completed the terms of sentence, including payment of financial obligations.3) The person has been convicted of a new crime since the date of conviction.4) The person has vacated a prior conviction.5) The person is either currently subject to a DV protection order, no-contact order, anti-harassment order, or civil restraining order, or has been subject to such an order in the last five years.

Since marijuana became legal in our state, the Legislature has considered changes to the laws governing vacating convictions to allow all misdemeanor marijuana convictions. But these attempts have gone nowhere and we are currently stuck with the law described above. But the City Attorney’s actions should begin the needed dialogue for changes to occur.

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How Radar Measures Speed

Posted Friday, October 26, 2018 by Andrew Charles Huff

If you’ve ever been pulled over for speeding, you know that your vehicle speed was probably measured by either a laser or radar Speed Measuring Device (SMD). Most police agencies in the state use both types of technologies to determine speed.

How “Radar” Really Works

RADAR stands for Radio Detection And Ranging. It is a general term for the process of determining the range, angle, or velocity of objects. Modern traffic radar uses the Doppler effect, which is an increase or decrease in the frequency of waves traveling between an observer and an object.

An example of the Doppler effect in everyday life is when you hear a high-pitched ambulance siren approaching, and then it gets lower-pitched when driving away from you. The Doppler effect doesn’t just apply to sound. Light also travels using wavelengths and this is how officers measure speed.

How do Police Use Radar for Speed Testing?

When measuring for speed, an officer will typically use an SMD to direct a beam of light toward an object. The SMD measures the time it takes for the beam to be reflected back to the device. This split-second measurement is incredibly precise, and estimates the object’s speed.

If an officer is stationary sitting in their patrol car, they will aim the SMD at the vehicle to measure the speed. If the officer is moving while using the SMD, the device will measure the difference in speed between the moving police or patrol car and the suspect vehicle. The device will then calculate the true groundspeed of the suspect vehicle.

Vehicle speed can also be measured and enforced by a stopwatch or GPS mapping system in overhead planes.

Every SMD used by law enforcement is tested and certified for accuracy at least once every two years.

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The Draeger Alcotest 9510 Breath Machines-A History of Problems

Posted Wednesday, October 10, 2018 by Andrew Charles Huff

Many know by now that our state has now implemented the new breath-alcohol testing machine Draeger AlcoTest 9510 to replace its aging fleet and DataMaster machines that have been used for the past 30 years. However, this device illustrates the latest case of technology having real life consequences on those accused of crimes. This is because these machines have raised significant issues about their source code, calibration process, law enforcement agencies, and the German manufacturer of the Draeger.

Draeger Aloctest 9510

A person arrested for DUI in Washington will most likely be asked to submit to a breath test on the new Draeger. What was shocking to learn was that State Toxicologist Fiona Couper had sent an email in early 2009 stating that the State should “throw caution to the wind” and deploy the Draeger without independent testing. This “throw caution to the wind” approach doesn’t encourage confidence when deciding on a machine that could add to the fate of so many citizens.

The dispute began 10 years ago when Washington state police awarded Draeger, a German medical technology maker, the contract to sell the Alcotest 9510 across the state. Two experts later wrote in a preliminary report that they found flaws in the source code that could produce inaccurate breath test results. Soon after, these experts presented their early findings to attendees at a conference for defense lawyers. However Draeger said this was a violation of a court-signed protective order the experts had agreed to, so the company threatened to sue. Due to the lawsuit, the research and final report was never completed. In response, Draeger claimed the company was protecting its source code and intellectual property, not attempting to hinder research.

This initial report revealed several issues in the code that they said could impact the result of an alcohol breath test. The Alcotest 9510 uses two sensors to measure the alcohol content in a person’s breath sample. An infrared beam measures how much light goes through the breath, while a fuel cell measures the electrical current of the sample. If the results of the two samples are too far apart, the test will be rejected. However, this report said that under some conditions the machine can return an inflated reading that might push a person over the legal limit. The report also uncovered issues with the way the device adjusts for the temperature of a person’s breath.

If you have been arrested for Driving Under the Influence, call my office at 206-729-3477 so we can discuss your case today.

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