Monday, January 19, 2009


By: Dena Alo-Colbeck

The following cases of note were decided recently in Washington's high courts:

Division Three Court of Appeals:

State v. Bainard: The Court held that the defendant should have been sentenced to a two-year deadly weapons enhancement to his conviction on two counts of second degree murder rather than the five-year firearm enhancement, as the jury found that he was armed with a deadly weapon, not a firearm. The Court also upheld the trial court's vacation of the first-degree arson charge against the defendant, holding that, as the victims were already deceased when the defendant set fire to the building in which they were found, they were not human beings within the definition of the statute requiring a human being to be present in a building to elevate a charge to first degree arson. A copy of the decision may be viewed online at:

State v. Francisco: The Court held that the evidence was insufficient to establish the defendant's conviction for minor in possession of alcohol as the State established only that the defendant was inebriated, which is insufficient, without other coorborating evidence, such as proximity to alcohol, to establish an MIP charge. However, the court rejected the defendant's other assignments of error, including error assigned to the court's fialure to grant his motion for a directed verdict, admission of testimony that drug users typically do not give away drugs, failure to sustain his objection to the State testifying about matters not in the record during rebuttal, and the denial of his motion for a mistrial based on prosecutorial misconduct and judicial comments on the evidence. The court found that the detective's comments that drug users generally do not give away drugs was supported by experience and was not prejudicial, as it was countered by subsequent testimony that drug users do sometimes give away drugs. The Court further found that the prosecution's comments that the State must have a court order to obtain a U.A. from the jail were made in response to defense arguments that no dirty U.A. had been produced, and that the trial court's statement supporting the prosecution's assertion that the State must have a court order to obtain a U.A. from the jail was not a comment on the evidence and, even if it was, was not prejudicial to the defendant. A copy of the decision may be found online at:

In re Detention of C.M.: The court found that the defendant's trial was timely even though not held within thirty days of the time of the defendant's commitment petition as required by statute, holding that the court rule governs over the statute with regard to procedural issues, such as the timing of a commitment trial, and the court rule allowed for extentions for multiple reasons, which extensions were excluded from the time for trial. The court further held that even if the subsequent delays challenged by the defendant were inappropriate, those delays did not prevent the case from being held within the time for trial. A copy of the decision may be found online at:

In other news, as you know, many clients charged with DUI can now continue to drive with Washington's new Ignition Interlock Device license (IIL). Defendants who have a valid license at the time of the proposed suspension for a pending DUI will qualify for the IID license provided they are not charged with Vehicular Homicide or Vehicular Assault, or have not been convicted of either of these offenses within the past seven years. There is a fee to apply for the license, as well as a $20 monthly fee that goes to assist indigent licensees. Clients are eligible for an IIL even after losing an administrative hearing contesting the suspension of their license. Note that the time to request an administrative hearing has now been shortened from 30 to 20 days. Applications for IILs are available online through DOL at:

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