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 make public any fresh cases of consequence. The Division II case concerns something DUI defense lawyers in Tacoma will run into from time to time, or at least face questions on - the restoration of gun rights after a driving under the influence guilty verdict. 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 guilty verdict 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 human being found guilty of a misdeed. Mihali, in 2000, was found guilty of conspiracy to manufacture a controlled substance (i.e. drugs - almost certainly methamphetamine). In 2004 Mihali received a official recognition 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.) except the entitlement to have possession of and/or possess 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, disagreeing that the obligatory 10 years had not elapsed since her conviction was finished, 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 have a gun restored?
Analysis - weapon restoration rights are governed by RCW 9.41.040(4). It states that a person devoid of a guilty verdict for a sex offense or a Class A felony may request the court to have their right to hold a weapon 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 convicted or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the human being has no prior felony convictions that prohibit the possession of a firearm counted as part of the offender score under RCW 9.94A.525
The state's contention that two conditions must be met before firearms will be restored is a sound one: (1) five or more years in the community without being found guilty or currently charged with a offense; and (2) no prior felony convictions in her dui defense history that would be included in her offender score computation that ban possessing a firearm. The matter in scrutiny here is the date from which the second prong of the scrutiny is calculated from. The state contends the ten year look back time 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 conviction. 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 prior case decisions. There we determined that the Legislature planned the look back period to be from the date of the petition for weapon restoration. Although the decisions in these cases were not completely on point because they weren’t discussing this law explicitly, the breakdown is analogous. In addition, this is reflected in the Legislative history of the statute.
Holding - The trial court’s decision reinstating Mahili’s firearm rights is overturned. Mahili must delay ten years from the date of her last guilty verdict before the court can contemplate weapon right restoration.
Everett dui 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 ruled 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 criminal defense 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 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 essentials of residential burglary, namely whether or not obstructing a law enforcement officer counts as the predicate transgression required for a conviction of residential burglary. The case starts with the cops believing Devitt stole a car and was concerned in a hit and run. The cops viewed him close to the accident and Devitt took off and ran from them. He ended up hiding in an apartment complex, ultimately finding himself in the apartment of a woman. While there Devitt talked to the woman, had a schooner of iced tea, made a telephone call (with her authorization), and just hung out waiting for the cops to leave. The woman said she wasn’t in anxiety for her safety. 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 defense trespass as an alternative), obstructing a law enforcement officer, and resisting arrest. At the completion of the state’s case, Devitt moved to dismiss the burglary charge for failing to prove all of the fundamentals, namely that Devitt planned to commit a offense against the person or possessions inside the home. The court said obstructing a law enforcement 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 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 home other than a truck with intent to commit a offense against a human being or belongings therein. To corroborate his position that obstructing a law enforcement officer should not be significant 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 crime against a human being, much less anyone other than the cop.
The language of the residential burglary statute requires a unambiguous misdeed (against a individual or belongings) in a definite place (inside a dwelling) and with a explicit intent (to go in the home to commit the offense). Because of this, more than just the intent to commit a transgression usually is required.
The requirement that the transgression intended to be committed be done “therein” or inside the dwelling, is also critical. In this case there was no law enforcement officer in the house, making it hard for Devitt to have entered the dwelling to commit that precise transgression.
Holding - the state failed to show the essentials of the residential burglary statute. The case is dismissed with prejudice.
Tacoma DUI defense 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 irrational opinion to the court of appeals? And why would the trial court judge not read the law and realize the elements of the transgression had not been met? I am a Bellevue criminal lawyer, so I am a little biased. But I am not the type of 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 justice system, make everyone grumpy, and make Seattle 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 decision right.
That’s my two sense for today. Stay tuned next week for another installment of the latest DUI defense decisions from Washington State. Hopefully there will be more exciting news.
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