Seattle DUI Attorney | Guns and Burglary Cases
A different week, an additional post reviewing the key DUI law case decisions from the Court of Appeals and the Supreme Court of the State of Washington. Although last week there was an important 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 slight.
To give you a concise preview, 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 print any fresh cases of import. The Division II case concerns something Seattle DUI attorneys will run into from time to time, or at least face questions on – the restoration of weapon rights after a driving under the influence conviction. The Division III case concerns the fundamentals of residential burglary and whether or not obstructing a law enforcement officer counts as the predicate crime necessary for a conviction of residential burglary. Let’s get going!
Restoring Fire Arms Rights – State v. Mihali
Facts – State v. Mihali is a case about restoring fire arms rights to an entity 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 fulfilled the terms of her judgment, was discharged from DOC supervision, and had all of her civil rights restored (right to vote, etc.) not including the privilege to be in possession of and/or have a firearm. In 2008, her DUI attorney 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, quarrelling 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 have a firearm restored?
Analysis – firearm restoration rights are governed by RCW 9.41.040(4). It states that a person with no a guilty verdict for a sex offense or a Class A felony may plead the court to have their right to own 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 person has no prior felony convictions that prohibit the possession of a gun counted as part of the offender score under RCW 9.94A.525
The state’s line of reasoning that two conditions must be met before firearms will be restored is a sound one: (1) five or more years in the area without being found guilty or currently charged with a misdeed; and (2) no earlier felony convictions in her dui history that would be included in her offender score calculation that make illegal possessing a firearm. The matter in examination here is the date from which the second prong of the examination is measured from. The state contends the ten year look back era goes from the date of the petition for restoration of weapon rights. Mihali argues the ten year look back period should be from the date of the last guilty verdict. 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 preceding 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 absolutely on point because they weren’t discussing this law expressly, the analysis is parallel. In addition, this is reflected in the Legislative history of the law.
Holding – The trial court’s determination reinstating Mahili’s weapon rights is reversed. Mahili must delay ten years from the date of her last guilty verdict before the court can contemplate firearm right restoration.
Tacoma DUI defense 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 decided the way that it should have, even though it forces Mihali to wait five more years to have her weapon rights restored (this is no way to do any law firm internet marketing, by the way). It was most likely worth a shot from Mihali’s DUI lawyer 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 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 crime mandatory for a conviction of residential burglary. The case starts with the cops thinking Devitt stole a car and was mixed up in a hit and run. The cops spotted him close to the accident and Devitt took off and ran from them. He ended up hiding in an apartment complex, in the end finding himself in the apartment of a woman. While there Devitt conversed to the woman, had a goblet of iced tea, made a phone call (with her consent), and just hung out waiting for the officers to leave. The lady said she wasn’t in fear for her well being. After a bit she went outside to take out the trash and let the officers know Devitt was in her dwelling.
Devitt was charged with residential burglary (first degree dui 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 prove all of the essentials, namely that Devitt intended to commit a crime 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 found guilty of all the charges.
Issue – Is obstructing a police officer sufficient to meet the underlying misdeed prerequisite 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 vehicle with intent to commit a offense against a person or property therein. To support his position that obstructing a law enforcement officer should not be important 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 misdeed against a human being, much less anyone other than the cop.
The words of the residential burglary law requires a definite transgression (against a being or possessions) in a detailed place (inside a home) and with a detailed intent (to go in the lodging to commit the transgression). Because of this, more than just the intent to commit a offense usually is mandatory.
The condition that the offense intended to be committed be done “therein” or inside the dwelling, is also notable. In this case there was no law enforcement officer in the house, making it hard for Devitt to have entered the abode to commit that detailed crime.
Holding – the state failed to provide evidence the elements of the residential burglary law. The case is dismissed with prejudice.
Kirkland DUI 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 unreasonable view to the court of appeals? And why would the trial court judge not read the statute and realize the elements of the offense had not been met? I am a Bellevue DUI attorney, so I am a little biased. But I am not the type of driving under the influence 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 criminal 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 conclusion right.
That’s my two sense for today. Stay tuned next week for another installment of the latest drunk driving decisions from Washington State. Hopefully there will be more exciting news.
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