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 announce any new cases of significance. The Division II case concerns something criminal defense attorneys in Seattle will run into from time to time, or at least face inquiries on - the restoration of weapon rights after a drunk driving 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 transgression requisite 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 individual convicted of a misdeed. Mihali, in 2000, was convicted of conspiracy to manufacture a controlled substance (i.e. drugs - most likely methamphetamine). In 2004 Mihali received a documentation from the Department of Corrections that she had fulfilled the terms of her sentence, was discharged from DOC supervision, and had all of her civil rights restored (right to vote, etc.) with the exception of the entitlement to own and/or have 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, arguing that the required 10 years had not elapsed since her conviction was finished, which is a requirement 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 entitled to have her right to have a gun 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 plead the court to have their right to have 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 person has no prior felony convictions that prohibit the possession of a weapon counted as part of the offender score under RCW 9.94A.525
The state's contention that two circumstances must be met before firearms will be restored is a good one: (1) five or more years in the neighborhood without being convicted or currently charged with a transgression; and (2) no earlier felony convictions in her dui history that would be incorporated in her offender score computation that disallow possessing a gun. The subject in scrutiny here is the date from which the second prong of the examination 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 appropriate. If Mihali’s view is adopted, she is.
This issue has been raised and answered in previous case decisions. There we determined that the Legislature planned the look back phase to be from the date of the petition for gun restoration. Although the decisions in these cases were not precisely on point because they weren’t discussing this statute specifically, the analysis is parallel. Also, this is reflected in the Legislative history of the statute.
Holding - The trial court’s conclusion reinstating Mahili’s weapon rights is reversed. Mahili must wait ten years from the date of her last conviction before the court can think about weapon right restoration.
Seattle DUI attorney’s Analysis - In cases such as these, whether or not the law appears to be reasonable, 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 firearm rights restored. It was probably worth a shot from Mihali’s drunk driving 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 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 elements of Seattle 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 implicated in a hit and run. The cops spotted him close by 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 officers to leave. The lady said she wasn’t in concern for her wellbeing. After a bit she went outside to take out the trash and let the officers know Devitt was in her high-rise.
Devitt was charged with residential burglary (first degree criminal 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 belongings inside the dwelling. 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 adequate to meet the underlying transgression prerequisite of residential burglary?
Analysis - Residential burglary is defined in RCW 9A.52.025(1) as: entering or remaining unlawfully in a dwelling other than a truck with intent to commit a offense against a individual or belongings therein. To prove his posture that obstructing a law enforcement officer should not make a difference 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 crime against a individual, much less anyone other than the officer.
The words of the residential burglary law requires a specific transgression (against a self or possessions) in a definite place (inside a dwelling) and with a precise intent (to go into the house to commit the crime). Because of this, more than just the intent to commit a transgression generally is obligatory.
The requirement that the misdeed 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 dwelling, making it hard for Devitt to have entered the apartment to commit that detailed misdeed.
Holding - the state failed to prove the essentials of the residential burglary statute. The case is dismissed with prejudice.
Seattle DUI Lawyer’s Analysis - Really? Are you freaking kidding me? Why would the prosecutor even charge this transgression, much less see it through to a jury trial and then contend their completely irrational view 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 Seattle DUI 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 criminal defense justice system, make everyone grumpy, and make defense lawyers 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 obligatory to get this conclusion 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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Seattle DUI Attorney | Plea Bargaining
Seattle DUI Attorney | Know Your Rights
