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Court: Power Point Went Too Far

Posted Monday, January 15, 2018 by Andrew Charles Huff

Does the use of Power Point in trial have its limits? This issue was before the Washington State Supreme Court where the primary question was whether convictions must be reversed in light of a Power Point presentation the prosecuting attorney used during closing argument.

During closing, the prosecutor’s presentation to the jury repeatedly expressed their personal opinion on guilt-over 100 of its approximately 250 slides were headed with the words “DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER,” and one slide showed Walker’s booking photograph altered with the words “GUILTY BEYOND A REASONABLE DOUBT,” which were superimposed over his face in bold red letters. Two slides had the heading “DEFENDANT WALKER GUILTY OF ASSAULT IN THE FIRST DEGREE,” and three have the heading “DEFENDANT WALKER GUILTY OF SOLICITATION TO COMMIT ROBBERY.”

It’s certainly common for attorneys to use multimedia resources in closing arguments to a jury. In fact, such techniques are taught in most trial advocacy classes and I always try to use some visual aids when I’m in trial. Closing arguments are the attorney’s opportunity to argue reasonable inferences from the evidence.

However, the Court in this case found that such advocacy has its limits and a prosecutor has the duty to “subdue courtroom zeal,” not to add to it, in order to ensure the defendant receives a fair trial. Ultimately, the Court ruled that the prosecutor’s conduct in this case was improper. The Court explained that closing argument does not give a prosecutor the right to present altered versions of admitted evidence to support the State’s theory of the case, to present derogatory depictions of the defendant, or to express personal opinions on the defendant’s guilt. Therefore, the convictions were overturned.

State v. Walker, No. 89830-8

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Prosecutor Can Dismiss a Case, Says Court of Appeals

Posted Thursday, January 4, 2018 by Andrew Charles Huff

Can a judge order a criminal case to proceed forward even when the prosecutor wants to dismiss it for insufficient evidence?

That was the situation in Adams County Juvenile Court when the prosecutor decided there was a lack of evidence available to proceed with prosecuting a juvenile for possession of alcohol and marijuana. After a hearing, the prosecutor moved to dismiss the case, citing insufficient evidence. However, the judge overruled the prosecutor and ordered the case forward.

The Division III Court of Appeals found the Court’s discretion to deny a prosecutor’s dismissal motion exists as a check on abuse of prosecutorial discretion, not to usurp or interfere with the good faith exercise of prosecutorial discretion. And in this case, the prosecutor decision was a good faith exercise of their charging authority. The trial judge’s decision was overruled and the case was dismissed.

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What Can I Do and Not Do under the New Distracted Driving Law?

Posted Friday, December 22, 2017 by Andrew Charles Huff

Many clients and friends ask me about this year’s new law aimed at reducing distracted driving collisions but also causing some confusion about what exactly is prohibited and whether one can be pulled over.

The new Distracted Driving Law forbids virtually all use of handheld gadgets such as phones, tablets, laptop computers and gaming devices while driving. This new law also prevents handheld uses, including composing or reading any kind of message, picture or data. Photography while driving is also illegal. Drivers also cannot use handheld devices while at a stop sign or red-light signal.

However, drivers may still use a smartphone mounted in a dashboard cradle, for instance to use a navigation app, but not to watch video. The new law permits “minimal use of a finger” to activate an app or device. Built-in electronic systems, such as hands-free calling and maps, remain legal. Calls to 911 or other emergency services are legal, as are urgent calls between transit employees and dispatchers. Amateur radio equipment and citizens-band radio remain legal. Also, handheld devices may be used if the driver has pulled off the roadway or traffic lanes, where the vehicle “can safely remain stationary.”

This new law is also a primary offense, meaning a police officer can pull someone over just for using a handheld device. These violations will be reported on a motorist’s record for use by the insurance industry.However, miscellaneous distractions such as grooming or eating will be a secondary offense, meaning a ticket may be issued if a law-enforcement officer pulls you over for some other offense, such as speeding or a dangerous lane change. The penalty will be an extra $30.

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Can Police Take my Blood if I’m Arrested for DUI?

Posted Friday, December 22, 2017 by Andrew Charles Huff

The answer to this question is….it depends. If you were arrested for an alcohol related DUI, police must ask you first if you would be willing to take a breath test. If you refuse, then they can request a warrant for a blood draw from a judge. However, under the Implied Consent Statute you have only impliedly given your permission to test for breath.

If you decide to decline to provide a breath sample, the officer can contact a judge and request they sign off on a warrant authorizing your blood to be withdrawn. In this scenario, you don’t have a choice in the matter and your blood can be withdrawn without your consent.

Another way police can obtain a blood sample from you is if you agree or consent to provide them a sample. We normally advise that you not consent to a blood draw and call my office at your next opportunity at 206-729-3477.

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Field Sobriety Tests-Perform Them or Refuse?

Posted Thursday, December 14, 2017 by Andrew Charles Huff

“Would you mind performing some voluntary field sobriety tests to make sure you are okay to drive?”

This question is the most inaccurate and disingenuous request an officer can make in a DUI investigation. The reason is that these roadside “field sobriety tests” are administered for one purpose….to gather evidence against you in building a DUI case. These tests have little to do with making sure one is safe to drive. Rather, it’s all about gathering evidence against you. These roadside exercises are extremely difficult to perform regardless of how much alcohol you have consumed. Add to the fact you are nervous from being pulled over and standing alongside a highway with an officer staring at you with a flashlight. In other words, It’s just as easy for a sober driver to fail as an impaired driver.

Despite what police officers may attempt to make you believe, you’re not required by Washington law to submit to a field sobriety test.

What Are Field Sobriety Tests?

Field sobriety tests (FSTs) are nationally recognized tests designed to help law enforcement officers identify drivers suspected of driving under the influence. In theory, these tests are designed for sober drivers to easily pass and for impaired drivers to clearly fail. However, this is not always the case. Throughout each of the tests, law enforcement officers will be looking for slip ups, or clues, indicating impairment. Unfortunately, the line between passing and failing these tests are completely subjective and open to the interpretation of a suspicious officer.

Horizontal Gaze Nystagmus Test

The Horizontal Gaze Nystagmus (HGN) test is used to identify a nystagmus, or involuntary twitch in your eye, as an officer moves a stimulus (such as a pen or finger) across your face. All eyes will have a nystagmus when the eye is at an angle greater than 45 degrees. Those with alcohol in their system, however, can have it happen before 45 degrees.

While the HGN test is the most scientific of all of the FSTs, it is still open to interpretation and highly subjective. While alcohol is shown to cause nystagmus, it’s not the only cause. This makes the reliability of the test shaky at best.

The Walk and Turn Test

The walk and turn test is a divided attention field sobriety test. It is used to determine whether a suspect can complete tasks with divided attention. During this test, an officer will instruct you to walk nine steps heel to toe in a straight line. Once you reach nine steps, you’ll then have to turn on one foot and head back the other direction. The police officer will be taking note if you show the following clues:

Are able to maintain balance while listening to the officer’s instructionsStart before the officer has completed instructions Stop to regain balance while walking in the lineAre maintaining heel to toe walking throughoutAre using your arms to maintain balance Maintain balance while turning half way through Take the correct number of steps

If he notices you do any of these, it will be taken as a “clue” you are under the influence.

The One Leg Stand Test

Like the walk and turn test, the One Leg Stand is designed to test if you’re able to complete tasks with divided attention.

Standing with one foot approximately 6 inches off the ground and your foot pointed, you must keep perfect balance while counting to 30. Your arms are to remain at your side and you must be looking down the entire time. The officer will be on the lookout for if you display the following:
Put your foot down before the test is complete Sway over the course of the 30 secondsHop while attempting to maintain balance Use your arms to help maintain balance

Again, any of these will be taken as a “clue.”

It’s important to remember that field sobriety tests are designed to make you look impaired– whether you are or not.

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