Seattle Criminal Attorney – Firearm Rights and Residential Burglary
Another week, another column reviewing the significant DUI law case decisions from the Court of Appeals and the Supreme Court of the State of Washington. Though last week there was an key decision that affects a lot of Seattle DUI prosecutions, this week, the actual effect of the cases on the practice of law for your average Seattle criminal attorney is slight.
To give you a brief 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 publish any fresh cases of consequence. The Division II case concerns something DUI defense defense attorneys in Lynnwood will run into from time to time, or at least face inquiries on – the restoration of firearm rights after a criminal guilty verdict. The Division III case concerns the fundamentals of residential burglary and whether or not obstructing a law enforcement officer counts as the predicate transgression essential 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 person convicted of a transgression. Mihali, in 2000, was convicted of conspiracy to manufacture a controlled substance (i.e. drugs – possibly 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.) with the exception of the entitlement to possess 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, arguing that the necessary 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 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 without 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 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 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 gun 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 misdeed; and (2) no prior felony convictions in her criminal history that would be included in her offender score calculation that forbid possessing a weapon. The subject 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 era 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 earlier case decisions. There we determined that the Legislature planned the look back era to be from the date of the petition for weapon restoration. Although the decisions in these cases were not unequivocally on point because they weren’t discussing this law exclusively, the examination is analogous. Also, this is reflected in the Legislative history of the law.
Holding – The trial court’s conclusion reinstating Mahili’s gun rights is overturned. Mahili must delay ten years from the date of her last guilty verdict before the court can contemplate weapon right restoration.
Seattle 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 ruled the way that it should have, even though it forces Mihali to wait five more years to have her gun rights restored. It was in all probability 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 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 basics of residential burglary, namely whether or not obstructing a law enforcement officer counts as the predicate transgression necessary for a guilty verdict of residential burglary. The case begins with the officers thinking Devitt stole a car and was caught up in a hit and run. The cops witnessed him nearby to the accident and Devitt took off and ran from them. He ended up hiding in an apartment complex, eventually finding himself in the apartment of a woman. While there Devitt conversed to the woman, had a glass of iced tea, made a telephone call (with her permission), and just hung out waiting for the officers to leave. The lady said she wasn’t in concern for her safety. After a bit she went outside to take out the trash and let the cops know Devitt was in her dwelling.
Devitt was charged with residential burglary (first degree driving under the influence trespass as an alternative), obstructing a law enforcement officer, and resisting arrest. At the conclusion 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 misdeed against the person or belongings within the house. 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 crime requirement 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 car with intention to commit a misdeed against a human being or possessions therein. To corroborate his position 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 offense against a individual, much less anyone other than the cop.
The language of the residential burglary statute requires a specific transgression (against a person or possessions) in a exact place (inside a dwelling) and with a specific intent (to go in the dwelling to commit the crime). Because of this, more than just the intent to commit a crime generally is required.
The requirement that the offense intended to be committed be done “therein” or inside the house, is also important. 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 exact misdeed.
Holding – the state failed to provide evidence the essentials of the residential burglary law. The case is dismissed with prejudice.
Seattle criminal attorney’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 argue their completely unreasonable view to the court of appeals? And why would the trial court judge not read the statute and realize the elements of the misdeed had not been met? I am a Seattle criminal 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 drunk driving decisions from Washington State. Hopefully there will be more exciting news.
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