Seattle DUI Attorney – Firearm Rights and Burglary Cases
A different week, a different post on the DUI Attorney Seattle Blog reviewing the important DUI law case decisions from the Court of Appeals and the Supreme Court of the State of Washington. Although last week there was an key determination that affects a lot of Seattle DUI prosecutions, this week, the actual effect of the cases on the practice of law for your average Seattle DUI attorney is small.
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 publish any up-to-the-minute cases of significance. The Division II case concerns something DUI attorneys in Seattle will run into from time to time, or at least face inquiries on – the restoration of weapon rights after a driving under the influence conviction. The Division III case concerns the elements of residential burglary and whether or not obstructing a law enforcement officer counts as the predicate transgression essential for a conviction 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 individual convicted of a misdeed. Mihali, in 2000, was convicted of conspiracy to manufacture a controlled substance (i.e. drugs – probably methamphetamine). In 2004 Mihali received a certification from the Department of Corrections that she had finished the terms of her prison term, was discharged from DOC supervision, and had all of her civil rights restored (right to vote, etc.) not including the privilege to be the owner of and/or possess a gun. 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 complete, 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 devoid of a conviction for a sex offense or a Class A felony may plead the court to have their right to possess a firearm if:
(b)(i) If the conviction 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 entity 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 line of reasoning that two circumstances must be met before firearms will be restored is a sensible one: (1) five or more years in the area without being found guilty or currently charged with a offense; and (2) no previous felony convictions in her criminal defense history that would be incorporated in her offender score calculation that prohibit possessing a weapon. The matter in scrutiny here is the date from which the second prong of the study is calculated from. The state contends the ten year look back period goes from the date of the petition for restoration of gun 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 previous case decisions. There we determined that the Legislature intended the look back phase to be from the date of the petition for firearm restoration. Although the decisions in these cases were not unequivocally on point because they weren’t discussing this statute particularly, the scrutiny is parallel. In addition, this is reflected in the Legislative history of the statute.
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.
Tacoma criminal defense lawyer’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 firearm rights restored. It was almost certainly worth a shot from Mihali’s driving under the influence attorney 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 gun right restoration, Mihali had a felony guilty verdict 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 law enforcement officer counts as the predicate misdeed required for a conviction of residential burglary. The case begins with the cops believing Devitt stole a car and was mixed up in a hit and run. The cops spotted him near to the accident and Devitt took off and ran from them. He ended up hiding in an apartment complex, eventually finding himself in the apartment of a woman. While there Devitt conversed to the woman, had a glass of iced tea, made a telephone call (with her permission), and just hung out waiting for the officers to leave. The woman said she wasn’t in anxiety for her security. After a bit she went outside to take out the trash and let the cops know Devitt was in her high-rise.
Devitt was charged with residential burglary (first degree criminal trespass as an alternative), obstructing a law enforcement officer, and resisting arrest. At the end of the state’s case, Devitt moved to dismiss the burglary charge for failing to establish all of the fundamentals, namely that Devitt planned to commit a misdeed against the person or belongings in the home. The court said obstructing a law enforcement police officer was enough, and let the case go to the jury. Devitt was convicted of all the charges.
Issue – Is obstructing a police officer enough 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 private residence other than a car with intention to commit a transgression against a human being or possessions therein. To substantiate his position that obstructing a law enforcement officer should not make a difference as the underlying transgression, Devitt pointed the court to the prosecutor’s standards for charging crimes. Obstructing a law enforcement officer is not characterized anywhere as a transgression against a person, much less anyone other than the officer.
The language of the residential burglary law requires a exact misdeed (against a self or property) in a detailed place (inside a dwelling) and with a exact intent (to go into the abode to commit the transgression). Because of this, more than just the intent to commit a offense normally is obligatory.
The condition that the misdeed intended to be committed be done “therein” or within the abode, is also important. In this case there was no law enforcement officer in the house, making it hard for Devitt to have entered the house to commit that precise offense.
Holding – the state failed to corroborate the essentials of the residential burglary law. The case is dismissed with prejudice.
Seattle criminal defense Lawyer’s Analysis – Really? Are you freaking kidding me? Why would the prosecutor even charge this offense, much less see it through to a jury trial and then claim their completely awkward view to the court of appeals? And why would the trial court judge not read the statute and realize the elements of the transgression had not been met? I am a DUI lawyer in Seattle, so I am a little biased. But I am not the type of drunk driving 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 driving under the influence 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 requisite to get this conclusion right.
That’s my two sense for today. Stay tuned next week for another installment of the latest criminal decisions from Washington State. Hopefully there will be more exciting news.
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