In State v. Mecham, the Washington Supreme Court issued a fractured opinion in a DUI prosecution in which the state entered into evidence the defendant’s refusal to perform field sobriety tests (FST). Although the court stated in its June 16 ruling it was affirming the defendant’s conviction, the actual result appears to reverse the conviction in a 5-4 vote, with the reasoning behind the outcome ending up in a 4-1-2-2 split. Read more
The 9th Circuit Court of Appeals ruled June 9, 2016, in Peruta v. County of San Diego that the Second Amendment does not include the right to concealed carry. The court heard the case en banc and decided 7–4. Read more
If you are unfamiliar with tribal courts, you may be surprised to hear they apply tribal customs and traditions to resolve legal disputes. Indeed, I find this is one of the most interesting parts of working for a tribal court. This tribal common law is the foundational law of tribes, and may also govern certain disputes in state court, see RCW 36.12.070. It is critical to understand a particular tribe’s customs and traditions to effectively represent a client in tribal court.
Because tribal common law is not derived from European roots, it can provide a different perspective on common legal principles, and can lead to results differing from those reached under state law. Understanding a particular tribe’s customs and traditions can breathe life into an otherwise failing argument. It can also allow for legal arguments not existing under state law. Below are some examples of how customs and traditions have been applied. Read more
Defense attorneys have argued for years that a breath or blood test constitutes a search and that without a warrant, citizens should have the right to refuse the search without consequence. Washington courts have finally agreed with this argument, and the Court of Appeals recently issued an opinion on the issue in the case of State v. Gauthier.
The court held that a blood test should be considered a search and that, unless presented with a warrant, citizens have the right to refuse such a search. The court also held that the prosecution cannot use the right to refuse against a defendant at trial. The ruling changes the landscape of criminal litigation and not only protects defendants from unreasonable searches and seizures, but also from prejudicial evidence at trial. Read more
Remember that your children are not your own, but are lent to you by the Creator.
— Native American Proverb
The story of 4-year-old Baby Veronica in Adoptive Couple v. Baby Girl, 2013 WL 3184627 was lost amid other SCOTUS decisions last week. The case juxtaposed state adoption law with provisions of the Indian Child Welfare Act (ICWA), 25 USC §1901. Previously, I argued that the Supreme Court should affirm the rights of the father, partially based on a best interest of the child analysis. However, in a narrow 5-4 opinion, the Court essentially held that the father’s actions to block the adoption of his biological child were too little, too late.
Majority: No physical custody, no relationship, no ICWA relief
The majority reasoned that Father could not be granted relief under two major provisions of ICWA. First, under §1912(f) of the act, parental rights can only be terminated by providing additional evidence to demonstrate that “serious harm… will result from continued custody of the child by the parent.” Id. The court reasoned that in order to trigger the heightened standard of review under §1912(f), there must be a “pre-existing” state of custody by the parent. Construing the term “custody” by its strict dictionary definition, the majority held that because Father never had actual custody, ICWA was inapplicable. Read more