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 consequence. The Division II case concerns something driving under the influence defense attorneys in Bellevue will run into from time to time, or at least face inquiries on - the restoration of firearm rights after a criminal conviction. The Division III case concerns the elements of residential burglary and whether or not obstructing a law enforcement officer counts as the predicate crime for a conviction of residential burglary. Let’s get started at the Seattle Criminal Attorney Blog!
Restoring Fire Arms Rights - State v. Mihali
Facts - State v. Mihali is a case about restoring fire arms rights to an person found guilty of a crime. Mihali, in 2000, was convicted of conspiracy to manufacture a controlled substance (i.e. drugs - probably methamphetamine). In 2004 Mihali received a official recognition from the Department of Corrections that she had finished the terms of her judgment, was discharged from DOC supervision, and had all of her civil rights restored (right to vote, etc.) excluding the privilege to hold and/or own a weapon. 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, quarrelling that the mandatory 10 years had not elapsed since her guilty verdict was complete, which is a prerequisite because she was convicted of a class B felony. The court settled with Mihali and restored her firearms rights - the State appealed.
Issue - Was Mihali qualified to have her right to own a weapon restored?
Analysis - weapon 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 petition the court to have their right to hold a gun if:
(b)(i) If the guilty verdict 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 convicted 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 argument that two circumstances must be met before firearms will be restored is a reliable one: (1) five or more years in the area without being found guilty or currently charged with a crime; and (2) no prior felony convictions in her criminal defense history that would be incorporated in her offender score computation that bar possessing a gun. The issue in scrutiny here is the date from which the second prong of the analysis 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 guilty verdict. If the state’s view is adopted, Mihali is not suitable. If Mihali’s view is adopted, she is.
This issue has been raised and answered in earlier case decisions. There we determined that the Legislature intended the look back period to be from the date of the petition for firearm restoration. Although the decisions in these cases were not precisely on point because they weren’t discussing this law particularly, the examination is comparable. Furthermore, this is reflected in the Legislative history of the law.
Holding - The trial court’s decision reinstating Mahili’s firearm rights is reversed. Mahili must wait ten years from the date of her last conviction before the court can think about gun right restoration.
Seattle criminal defense attorney’s Analysis - In cases such as these, whether or not the law appears to be rational, 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. It was most likely worth a shot from Mihali’s attorney because the topic 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 weapon 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 basics of residential burglary, namely whether or not obstructing a law enforcement officer counts as the predicate offense requisite for a guilty verdict of residential burglary. The case begins with the cops believing Devitt stole a car and was concerned in a hit and run. The cops saw him near 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 permission), and just hung out waiting for the cops to leave. The lady 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 apartment.
Devitt was charged with residential burglary (first degree drunk driving trespass as an alternative), obstructing a law enforcement officer, and resisting arrest. At the close of the state’s case, Devitt moved to dismiss the burglary charge for failing to provide evidence all of the fundamentals, namely that Devitt planned to commit a offense against the person or property in the home. The court said obstructing a law enforcement 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 requirement of residential burglary?
Analysis - Residential burglary is defined in RCW 9A.52.025(1) as: entering or remaining unlawfully in a home other than a automobile with intention to commit a crime against a person or possessions therein. To support his position that obstructing a law enforcement officer should not be important as the underlying crime, 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 statute requires a exact misdeed (against a being or goods) in a exact place (inside a dwelling) and with a exact intent (to go into the dwelling to commit the crime). Because of this, more than just the intent to commit a transgression usually is requisite.
The condition that the crime intended to be committed be done “therein” or within the abode, is also main. In this case there was no law enforcement officer in the dwelling, making it hard for Devitt to have entered the abode to commit that precise transgression.
Holding - the state failed to provide evidence the elements of the residential burglary law. The case is dismissed with prejudice.
Seattle driving under the influence Lawyer’s Analysis - Really? Are you freaking kidding me? Why would the prosecutor even charge this misdeed, much less see it through to a jury trial and then maintain their completely awkward take to the court of appeals? And why would the trial court judge not read the law and realize the elements of the crime had not been met? I am a Kirkland driving under the influence attorney, so I am a little biased. But I am not the type of criminal 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 dui 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 driving under the influence decisions from Washington State. Hopefully there will be more exciting news.
Related Posts:
Seattle Criminal Attorney | 10/25/09 Decisions
Seattle Criminal Attorney | The Arraignment
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