To give you a short 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 new cases of significance. The Division II case concerns something DUI attorneys in Kirkland will run into from time to time, or at least face inquiries on - the restoration of weapon rights after a dui conviction. The Division III case concerns the fundamentals of residential burglary and whether or not obstructing a law enforcement officer counts as the predicate transgression mandatory for a guilty verdict 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 human being convicted 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 documentation from the Department of Corrections that she had fulfilled the terms of her punishment, was discharged from DOC supervision, and had all of her civil rights restored (right to vote, etc.) excepting the entitlement to possess and/or hold a firearm. 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 necessary 10 years had not elapsed since her guilty verdict was finished, which is a requirement because she was found guilty of a class B felony. The court settled with Mihali and restored her firearms rights - the State appealed.
Issue - Was Mihali entitled to have her right to own a weapon restored?
Analysis - firearm restoration rights are governed by RCW 9.41.040(4). It states that a individual devoid of a conviction for a sex offense or a Class A felony may formally request the court to have their right to own 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 found guilty or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the individual 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 argument that two conditions must be met before firearms will be restored is a sensible one: (1) five or more years in the area without being convicted or currently charged with a misdeed; and (2) no earlier felony convictions in her driving under the influence history that would be incorporated in her offender score computation that prohibit possessing a weapon. The matter in scrutiny here is the date from which the second prong of the scrutiny is measured 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 appropriate. 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 intended the look back era to be from the date of the petition for weapon restoration. Although the decisions in these cases were not exactly on point because they weren’t discussing this statute particularly, the examination is similar. Additionally, 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 guilty verdict before the court can consider gun right restoration.
Kirkland criminal 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 firearm rights restored. It was probably worth a shot from Mihali’s dui attorney because the subject 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 transgression mandatory for a guilty verdict of residential burglary. The case begins with the officers believing Devitt stole a car and was implicated in a hit and run. The cops witnessed 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 spoke to the woman, had a goblet of iced tea, made a telephone call (with her acquiescence), and just hung out waiting for the cops to leave. The female said she wasn’t in concern for her safety. After a bit she went outside to take out the trash and let the officers know Devitt was in her apartment.
Devitt was charged with residential burglary (first degree criminal 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 demonstrate all of the fundamentals, namely that Devitt planned to commit a crime against the person or possessions in the residence. 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 adequate to meet the underlying transgression obligation of residential burglary?
Analysis - Residential burglary is defined in RCW 9A.52.025(1) as: entering or remaining unlawfully in a house other than a automobile with intent to commit a offense against a individual or property therein. To hold up his posture that obstructing a law enforcement officer should not be significant as the underlying misdeed, 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 officer.
The language of the residential burglary law requires a precise misdeed (against a person or belongings) in a specific place (inside a residence) and with a explicit intent (to enter the apartment to commit the misdeed). Because of this, more than just the intent to commit a misdeed usually is necessary.
The condition that the transgression intended to be committed be done “therein” or inside the home, is also main. In this case there was no law enforcement officer in the dwelling, making it hard for Devitt to have entered the home to commit that detailed misdeed.
Holding - the state failed to show the elements of the residential burglary law. The case is dismissed with prejudice.
Seattle criminal 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 argue their completely unreasonable position 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 Seattle drunk driving defense lawyer, 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 a Seattle criminal attorney 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 determination 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.
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