Kannin Law Firm P.S. Case Summary
City of Lynwood vs P. Howe*
How can you prevent DUI charges being filed against a client who breathed a .21 during a blood alcohol test at the police station? Just ask attorney John Kannin.
Mr. Kannin’s client Mr. Howe had spent the evening at a friend’s house in Redmond, where he allegedly drank about five beers. He was driving home when he was pulled over by a police officer from Mountlake Terrace police department. The officer said he had seen Howe swerving in and out of his lane. Howe pulled into a Jack in the Box parking lot and waited for 20 minutes until the Lynwood DUI police squad arrived.
After failing the sobriety tests given on the side of the road, Howe was arrested for DUI and taken to the police station for a blood alcohol concentration (BAC) test. Howe breathed a .214 and a .185, respectively, both well over the legal limit of .08.
According to Washington State Administrative Code (WAC) 448-16, a code that has force of law and lays out the state toxicologist’s standards for analysis of blood samples for alcohol, the police are required take two BAC readings within minutes of each other in order to have a valid breath test, and both results must be over the legal limit of .08 for proof of DUI. An additional requirement stipulated by WAC 448-16-060 is that in order for the two breath samples to be valid, the mean of a calculation involving the upper and lower parameters of accuracy for each reading must fall within acceptable discrepancy limits (see WAC 448-16-060 for the exact language determining agreement of duplicate breath samples). From previous cases, Kannin was aware of this margin of error for the machines. He asked the prosecution to secure a copy of the uncertainty measurements for the BAC machine from the State police and give it to him.
Kannin discovered that applying the WAC calculation to Howe’s two breath tests showed the mean of the two readings lay barely within the acceptable parameters for a valid test.
When Kannin subsequently used the uncertainty measurement chart to factor the margin of error for the original readings into his calculations, he discovered that the final number was no longer within the accepted discrepancy parameters. This meant that the BAC reading was unreliable.
Kannin told the prosecution that their case didn’t follow the WAC requirements and that the BAC test readings could not be used as evidence in proving the prosecution’s DUI charges against Howe.
The prosecution agreed to reduce the DUI greater than .21 BAC charge to negligent driving with no jail time and an $800 fine. The maximum sentence for negligent driving is 90 days in jail and a $1,000 fine. The DUI charge – a gross misdemeanor – would have resulted in a minimum sentence for Howe of two days in jail, a $2,000 fine, loss of driving privileges for one year and the required use of an ignition interlock device on his car for a year at a cost of $100/month.
People sometimes ask attorney John Kannin why he would seek to have the charges dropped against someone charged with a crime that they most likely committed. His response is that as an attorney, he sees justice on a big-picture level. “It’s not just a case of crime and punishment,” he said. “If the rules of criminal procedure, rules of evidence, and the rules of the Washington State criminal code haven’t been followed; if the prosecution doesn’t adhere to the rules, then how can they justify throwing the book at someone else?”
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Did you know that if you refuse to take a Blood Alcohol Concentration (BAC) test at the police station after being arrested for DUI, you are presumed to have a guilty conscience and have thus broken the law? Under Washington State’s Implied Consent law, all persons carrying a WA State Driver’s License are considered to have impliedly consented to taking a BAC test if they are arrested for DUI.
In City of Seattle vs. Phillip Howe*, a recent DUI case successfully litigated in the defendant’s favor by Kannin Law Firm P.S., a violation of the Implied Consent law was used by the prosecution as the primary evidence against the defendant.
In this case, defendant Howe refused to take an alcohol breath test, either at the side of the road or at the police station after being arrested for DUI.
The consequences for being found in violation of this law can be severe: a two-, three-, or four-year revocation of your driver’s license by the Department of Licensing in the civil case filed against you, and a longer mandatory minimum jail sentence by the court in the criminal case, along with further driving license revocations.
In Howe’s case, Mr. Kannin was able to successfully argue that because the arresting officer did not have sufficient probable cause to arrest Howe in the first place, his refusal to take the BAC test was inadmissible at trial as evidence of guilt. After the judge agreed, the case was dismissed as the prosecution had no additional proof that Howe’s driving had been impaired by alcohol.
Another law that worked in the defendant’s favor in this instance was what is commonly referred to as the Brady decision. This is a shorthand way of referencing the landmark 1963 Supreme Court case Brady vs Maryland, which ruled that the prosecution must release any evidence they have in their possession that may prove favorable to the defense and thus have a bearing on the ultimate ruling by the court as to the defendant’s guilt or innocence. The legal term for this kind of evidence is exculpatory evidence. In this case, the City of Seattle Prosecuting Attorney’s office released exculpatory evidence to attorney John Kannin that brought into question the credibility of the arresting officer.
A thorough working knowledge of the finer points of law is often the crucial factor in successfully litigating a DUI defense. With over 100 DUI cases under his belt, and 15 years of experience as a criminal defense attorney, Mr. Kannin is ideally positioned to provide you with the effective, aggressive legal representation you need to get the best possible results in your case. Call 206-574-0202 or fill out the contact form on this website for a free initial consultation with Mr. Kannin.
* client’s name has been changed
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Voters in the State of Washington were dealt a blow on March 8, 2012, when the Washington State Supreme Court ruled that citizens do not have the right to use the initiative process to ban local legislative bodies, such as city councils, from hiring private companies to install red light cameras and speed cameras in their city. The ruling invalidates the 2010 ballot initiative, Proposition 1, put forth by residents of the City of Mukilteo, in which 71 percent of voters chose to ban the “robo-cop” cameras from their city.
Mukilteo Citizens for Simple Government was responsible for drafting the legal arguments which led to the court’s ban of the right to an initiative vote. The special interest group was created and funded by the traffic enforcement camera vendor American Traffic Solutions (ATS) and consisted of a single member. ATS was compelled to create the group in order to obtain the private standing necessary to file the argument for limiting the range of initiative power.
The ruling reads, in part:
We hold that because the legislature expressly granted authority to the governing body of the city of Mukilteo to enact ordinances on the use of automated traffic safety cameras, the subject matter of Proposition 1 is not within the initiative power.
A copy of the full ruling can be found here.
“Our Supreme court has ruled that you can’t have a say in whether or not your city has these cameras,” said Mr. Kannin of Kannin Law Firm P.S. “But don’t worry. Even if you can’t vote for or against them, you can still fight a robo-camera ticket. I recommend hiring an attorney to fight your ticket in order to assert your right to not be subjected to government video recording.”
Despite government claims that in addition to enforcing traffic laws, the cameras help keep the intersections safe, “calling these traffic ‘safety’ cameras is a misnomer,” Mr. Kannin said. In fact, studies have shown that the cameras are making some intersections more dangerous. Researchers at the University of South Florida Public Health published a study in 2008 in which they showed that traffic cameras used to stop red-light runners actually caused an increase in accidents as drivers slammed on their breaks at the intersections, causing tailgaters to rear-end their vehicles. An article in an online auto blog (http://www.wired.com/autopia/2008/03/new-study-says/) states that studies in Virginia, North Carolina and Ontario have showed a similar increase in accidents at intersections where traffic cameras have been installed. The article also notes that studies showing decreases in accidents have generally been funded by auto insurance companies, which stand to make a lot of money by upping the insurance rates of the motorists who receive traffic tickets generated by the cameras.
“The reality is, the cameras are being installed as a way for private camera vendors, cities and insurance companies to make money,” Mr. Kannin said. “In this era of dwindling government revenues, it’s seen as an important revenue source.”
Mr. Kannin, who has won every traffic camera case he has handled, said that some cities have installed the cameras in places where it isn’t legal to do so.
To contest a ticket for a traffic infraction based on traffic camera surveillance, call Kannin Law Firm P.S. at 206-574-0202 for effective, aggressive legal representation.
Kannin Law Firm P.S. was a Piper Level sponsor of the 4th annual Cove to Clover race, which took place March 9-11, 2012. The race began in Normandy Park and ended at Mick Kelly’s restaurant in downtown Burien, WA. Mr. Kannin ran the 5K race along with his family. About 1900 people registered for the race this year, an all-time high. On its website, Cove to Clover advertises itself as a race “unlike any other 5K or 10K. For one thing, it is very hard. So hard in fact that it is fast becoming a test piece for NW runners. For starters, ‘Snake Hill’ rises nearly 1000′ in the first mile of the course. Around mile 2 you’ll encounter ”The Uprising”, a runner obstacle that has been constructed in the middle of a live Celtic battle reenactment. For your suffering, you will be rewarded with on-course Celtic pipers, a Celtic band and a finish line festival that delivers the goods (large tented charity beer garden, a main stage with much live entertainment, free root beer garden and free hot dogs for the kids).” Cove to Clover is a nonprofit, volunteer-run organization, and all proceeds are distributed to local charities, including the Highline Food Bank, Highline Schools Foundation, Hospitality House, and Girl Scouts and Boy Scouts, among others. “Kannin Law Firm was proud to sponsor the race this year, which benefits so many worthwhile charities in this area,” Mr. Kannin said. ”We hope to see you all next year at the finish line!”
“We find that SPD engages in a pattern or practice of using unnecessary or excessive force, in violation of the Fourth Amendment to the United States Constitution and Section 14141.”
Excerpt from Investigation of the Seattle Police Department, a 67-page report issued by the United States Department of Justice’s Civil Rights Division and the United States Attorney’s Office for the Western District of Washington (collectively, “DOJ”), following a joint investigation of the Seattle Police Department. The full report is available at http://www.justice.gov/crt/about/spl/documents/spd_findletter_12-16-11.pdf
John Kannin has become well-known in the Seattle area for his success in representing civil rights clients in their contentious legal battles with the SPD. “Finally, after years of being shrouded in secrecy, the veil covering the institutional hypocrisy of the Seattle Police Department is being torn away,” he said in reference to the DOJ report. “And what’s behind the curtain is not a pretty sight.”
Over the past 13 years John Kannin has represented many clients in their civil rights claims against the SPD.
“A culture of disregard for civilians’ constitutional rights has been a part of the SPD for as long as I’ve been a lawyer in this city,” Kannin said. His involvement with these cases began when friends in the Public Defenders Office asked whether he could help indigent clients they were representing in criminal cases pursue their civil rights claims against the SPD. “At the time, I was naïve. I thought the police were supposed to help, not hurt,” he said.
Shoot First, Ask Questions Later
“SPD officers escalate situations and use unnecessary or excessive force when arresting individuals for minor offenses. This trend is pronounced in encounters with persons with mental illnesses or those under the influence of alcohol or drugs. This is problematic because SPD estimates that 70% of use of force encounters involve these populations.”
In Kannin Law Firm’s first case against the SPD, attorney John Kannin represented Mr. William Robert Smith, a 52-year old homeless black man with mental health issues and cognitive disabilities who was shot in the face with a plastic bullet by officer Rudy Gonzales and Sergeant Rolf Towne in 1999. (see Seattle Times article “City Settles Plastic Bullet Lawsuit” and case summary). This is the same year that a WTO protestor accused the SPD of shooting her in the face with a rubber bullet, causing severe and permanent loss of vision.
Budweiser or Bowie Knife?
Police claimed Smith was carrying a 12-inch bowie knife when they shot him in the face with their Arwen 37 riot control weapon from a distance of 15 feet. The Arwen fires a plastic round that weighs approximately 50 grams and travels at a speed of 145 miles per hour. The bullet knocked out five of Mr. Smith’s teeth and severely injured his lips and gums. After shooting him the police arrested Smith for assault, obstruction and resisting arrest. Time and again, SPD officers use this triumvirate of charges as a means of covering up their own illegal actions and constitutional violations. I have become so used to seeing these charges in the police reports of the civil rights clients I represent that I refer to them as “the Holy Trinity” of false accusations.
After the ambulance and paramedics came, the police said they looked around and picked up all Mr. Smith’s teeth for him and put them in a plastic bag. Whether this disclosure was intended to demonstrate their humanity I do not know. However, the image has stuck with me.
The police eventually conceded that the foot-long Bowie knife they thought Smith was holding was in fact nothing more dangerous than a can of Budweiser.
In defending their use of deadly force against an unarmed, mentally unstable, indigent black man, officer Towne claimed Smith caused his own injuries when the round which had been aimed at his arm was somehow deflected by Smith onto his mouth.
Gonzales described an equally absurd scenario in his testimony, claiming that Smith’s belt buckle must have somehow redirected the bullet into his mouth. Both denied aiming at Smith’s head.
“Officers lack adequate training or policies on when and how to report force and when and how to use many impact weapons (such as batons and flashlights).”
The Arwen was developed by the British to be used in standoff situations with the Irish Republican Army. It was supposed to be used at a distance of more than 180 feet, at which point the force would be sufficient to knock someone over. It was never intended to be aimed at the face. The way the gun was used in this instance was contrary to the SPD’s own rules of engagement and constituted an improper use of force.
A Mock Mediation
Kannin Law Firm, P.S. sued the police officers for assault and battery, excessive force, false arrest and Federal Civil Rights violations. Mr. Smith couldn’t afford a mediator, so Mr. Kannin agreed to use an inexpensive mediator suggested by Stafford Frey Cooper Law Firm, the law firm for the police at the time. He did not learn until later that the mediator they recommended, David W. Soukup, was a former Deputy Prosecuting Attorney for the King County Prosecutor’s Office and used by Stafford Frey so they could nominally comply with the court’s ruling that a mediation should take place prior to trial. The disingenuous nature of the so-called mediation became apparent when Soukup informed Mr. Kannin that opposing counsel was willing to offer $0 to settle the case.
When the court learned of this sham mediation, they determined that a new and impartial mediator should be assigned to conduct a proper mediation. The court assigned federal magistrate Judge John L. Weinberg to serve as a mediator.
The second mediation took place at the Federal Courthouse in Seattle. Mr. Smith showed up late and clearly intoxicated. When Stafford Frey’s attorneys showed up, they tried once again to turn the proceedings into a mere formality. Under questioning, they conceded that they had not been given any authority from the city to make a settlement agreement. The judge stopped the mediation and insisted that Stafford Frey bring in an attorney from the city with settlement authority. Finally, a city attorney with real negotiating power showed up and the mediation resumed. Ultimately, the case settled at mediation for a five-figure sum.
Rather than being fired or disciplined, Officer Rudy Gonzales has since been promoted. We believe that Sgt. Towne has retired from police work.
Mr. Smith’s case was only the first in a long string of lawsuits brought by Kannin Law Firm P.S. against the SPD for excessive force. Over the years, Mr. Kannin has noticed a pattern developing in these cases. “The police routinely exaggerate reality in order to cover up their own mistakes and intentional brutality,” he said.
Mr. Kannin has seen Mr. Smith once or twice over the years. Smith often appears disoriented and does not always recognize him. It is doubtful that he ever will have the extensive and painful surgery necessary to repair his mouth.
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This week, the Kannin Law Firm blog offers a summary of a recent criminal case that it hopes will give readers some insight into the criminal defense process.
Happy Holidays to all and best wishes for a safe and successful 2012!
WA State vs S.D.
S.D. and his wife had been caring for their step-niece, J.P., since she was six, as her mother was in prison and her father unknown. When J.P., now age 13, started visiting inappropriate websites and using her cell phone to send pictures of herself to strangers, S.D. and his wife tried to limit her computer and cell phone usage. J.P. ignored their new rules, prompting S.D. and his wife to further restrict her screen time. In an angry response to the new limits imposed on her, J.P. told her step-mother, “You’ll be sorry!”
The next day, J.P. told a friend that S.D. had been molesting her since she was eight years old. She and her friend told a teacher’s aide, who in turn told the principal of J.P.’s private school in Tacoma. The principal called the police. An officer from the Pierce County Sheriff’s Dept. came to the school and talked to the principal and the aide. He also spoke with J.P. for two or three minutes before leaving and writing his report. CPS came to the school and placed J.P. into foster care. Eventually, Detective Johnson of the Pierce County Sheriff’s Department was assigned to the case.
Three days later, on April 15, 2010, J.P. was given a 45-minute forensic interview by a specialist from MaryBridge Hospital. Detective Johnson observed this interview through a two-way mirror. The girl told the interviewer that she was raped and molested on a regular and ongoing basis from the age of eight until the present time.
The interview was reviewed by a sexual assault nurse from the hospital. The nurse also examined J.P. and found no signs of physical entry or injury. She found that J.P.’s hymenal tissues and anal tissues were intact, despite the victim’s allegation that she was anally raped by a cone.
Despite the lack of any physical evidence, the Pierce County prosecuting attorneys charged S.D. with one count of Child Molestation in the First Degree, two counts of Rape of a Child in the First Degree, and two counts of Rape of a Child in the Second Degree. If convicted, S.D. faced a sentence of imprisonment for the term of his natural life.
S.D. hired Kannin Law Firm and attorney John Kannin to defend him in the criminal proceedings. He entered a plea of not guilty to all the charges filed against him.
During the discovery investigation, the defense learned that shortly after making her allegations of sexual assault, J.P. had posted a message to her more than 600 friends on Facebook, saying, “I’ve finally done something about my parent problem.”
The defense requested her Facebook postings, but the request was summarily denied by Facebook, which cited the Federal Stored Communications Act and claimed a Facebook privilege equal to that of a priest and penitent, lawyer and client, or a doctor and patient.
KLF drafted a motion for an order to compel J.P. to provide her Facebook login codes to KLF so that KLF could have access to the Facebook postings. J.P. refused. Subsequently, KLF submitted a briefing to Judge Culpepper, who was assigned to the case, outlining the defense’s arguments for obtaining the complaining witness’ Facebook postings. The State objected to KLF obtaining J.P.’s postings, claiming it was a ‘violation of her privacy.’ However, the judge agreed with the defense’s position and signed an order compelling J.P. to give KLF her Facebook login codes. While perusal of her postings revealed no smoking gun, KLF did find material that was used to construct S.D.’s defense at trial.
The jury trial began on November 7, 2011. The State called witnesses and put on its case for three days, after which the defense presented its case. Witnesses included S.D.’s wife, community members, and S.D. himself, who vehemently denied he had committed these felony sex crimes. Detective Johnson told jurors that his role in the case was limited to about 4.5 hours, most of which was spent trying to set up the forensic interview and observing the interview itself. Johnson himself conducted no interviews, and admitted on the witness stand that he didn’t know what the word forensic actually meant.
During closing arguments, the prosecution claimed it had proved its case and that S.D. was guilty beyond a reasonable doubt. In rebuttal, Mr. Kannin argued that a three-minute interview with police and a changing story from an unreliable source, as well as J.P.’s robotic court testimony and a complete lack of physical evidence, was far from sufficient proof to convict S.D. of the charges filed against him, thereby ruining his life and branding him as a felony sex offender.
The jury deliberated for over a day. In the end, they returned a verdict of ‘not guilty’ on all counts. S.D. was overjoyed to have his life back and all charges against him cleared. Justice was served when the court signed an order entering the not guilty verdict into the court files.
At the age of seven, inspired by lawyer Atticus Finch and his ‘quest for justice’ in the novel To Kill A Mockingbird, Lisa decided she wanted to be an attorney when she grew up. Unlike most resolutions made in childhood, however, this one never wavered. Almost twenty years later, Lisa’s ambition was realized when she was admitted to the bar by the Washington State Supreme Court in June 2011.
After working at Kannin Law Firm as a Rule 9 intern and contract attorney, Lisa was hired full-time in October of this year. She does a little of everything, including drafting motions and complaints, analyzing claims, and appearing at pre-trial hearings.
Lisa grew up in Colorado on the front range between Denver and Boulder. Her mother is a home health care worker and her father is a yardmaster at Union Pacific Railroad. She also has a younger brother. “I always liked going to hang out in [my father’s] office because he works in a tower above the yard and you can see all the tracks laid out below,” she said.
Lisa earned her B.A. in Political Science from the University of Northern Colorado and her law degree from Seattle University School of Law. In law school, she quickly gravitated toward a focus on criminal law. “I like being in the courtroom, the arguments, and reading the constitution,” she said. “That’s what really matters. It’s about people’s lives, not just money.” Her favorite part of practicing law is writing motions, which she considers one of the most effective ways to provide good representation for her clients. Her least favorite? “Sometimes dealing with the other attorneys. Some of them are very arrogant,” she said, admitting that “all trial attorneys have a huge ego.” It irks her that certain prosecutors seem more concerned with ‘winning’ than with thoughtfully considering the facts presented to them in each individual case.
Lisa enjoys working at Kannin Law Firm. “I like John [Kannin], he’s smart and he has really good ideas and good strategy. I like that it’s kind of small, with a good mix of cases and clients. Some of my other friends who are working for big firms only do one thing, like writing interrogatories. I think that would be boring.”
When asked how she handles the stress of practicing criminal defense, Lisa says that as a Type A personality, she thrives on it. “The pressure motivates me to do better work.” Running and doing yoga helps her to unwind after a hard day in court. This past June Lisa completed her first half-marathon, the Rock n’ Roll in Seattle, in just three hours. Before suffering a minor hip injury, she used to run four to five miles every other day, in all kinds of weather. After the snows of Colorado, she said, running in the Seattle rain is fun.
In her free time, Lisa enjoys trying out new places to eat in the Ballard neighborhood of Seattle where she lives. She loves Thai food and other spicy cuisine, a legacy of growing up in a house where jalapenos and banana peppers were a staple on the dinner table. She also likes reading crime fiction, particularly books by Jonathan Kellerman and Stephen White, whose novels are set in Boulder, CO.
Lisa was drawn to Seattle by the lush greenery. “Ever since I saw Sleepless in Seattle with my mom I always wanted to live in Seattle on a houseboat,” she said, adding that she’s not as excited by the idea now as she was then. “It rocks back and forth a lot, so I’d probably get sick.’
Lisa is a member of the American Bar Association and the Washington State Bar Association, the Washington Association of Criminal Defense Lawyers and the King County Bar Association’s Judicial Selection Committee. You can contact her at Kannin Law Firm by calling 206.574.0202.
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After a summer hiatus, the Kannin Law Firm blog returns with an extended case summary involving a DUI trial that took place in August of this year.
Below, DUI defense attorney John Kannin shares the details of his client’s recent victory in the State of Washington vs D.S. in order to reveal some of the twists and turns a DUI defense case can take during trial. As this case illustrates, a trial rarely goes exactly according to plan. DUI attorneys must be quick on their feet, creative, and ready to change their arguments should new evidence come to light. Mr. Kannin is known for his aggressive and innovative DUI defense tactics, which he has used to argue and win DUI cases throughout Washington State. For more examples of DUI cases handled by Kannin Law Firm, see our DUI Case Summaries page on this website. For tips on what to do if you get pulled over on suspicion of DUI, visit Kannin Law Firm’s Know Your Rights web page.
D.S. hired Kannin Law Firm to represent her after she was arrested for DUI by a state trooper in Eastern King County. D.S. is a 58-year-old woman who immigrated to the United States from Vietnam in 1975. Prior to her arrival in the United States, D.S. was injured in a Viet Cong rocket attack on her village when she was 14. Her leg was almost severed near the knee. This fact became important during the course of her DUI trial.
D.S. was pulled over after making a “California stop” at a rural intersection. The trooper who stopped her claimed that he noticed an odor of alcohol on her breath.
D.S. failed the Standardized Field Sobriety Tests which the trooper instructed her to perform by the side of the road. He arrested D.S. for DUI and gave her a breath test at the police station. Her BAC (Blood Alcohol Concentration) was found to be .07, which is under the legal limit of .08. However, D.S. was still charged with DUI.
In WA State, you can be convicted of DUI in two ways. One is to have a blood or breath test showing a greater than .08 BAC. In this case, you are automatically guilty of DUI.
The second way is for the government to show that your driving was affected by alcohol, regardless of the quantity you have consumed. Even if your BAC is below the limit, you can still be convicted of DUI if the government can prove that your driving was impaired by drinking alcohol.
In King County, you will be prosecuted vigorously under each of these legal theories.
At the arraignment hearing, Mr. Kannin was able to have the BAC breath test evidence suppressed on the grounds that it did not conform to the Washington State Standards for a valid breath test. This was significant, because it made the state’s case much more difficult to prove. Nonetheless, the state proceeded to prosecute.
Prior to the trial date, Mr. Kannin met with the prosecuting attorneys and pointed out the weaknesses in their case. These included a lack of bad driving on D.S.’s part, other than a roll-through stop at an empty intersection, the fact that the defendant’s physical injuries were likely the cause of her poor performance on the roadside coordination tests, and the defendant’s compliance with all the trooper’s instructions. John asked the prosecution to dismiss the case or, failing that, to agree to a lesser charge. The prosecutors refused to dismiss the case and refused to negotiate a reduced charge.
Thus, as D.S. maintained her innocence to the crime of DUI, Mr. Kannin prepared the case for a jury trial.
In response, the state moved to continue the trial, alleging that their star witness, the state trooper, had to guard the I-90 bridge for four days during the Blue Angels air show as a matter of public safety. The government used this excuse as a reason to overcome D.S.’s constitutional right to a speedy trial. The judge granted this request.
After doing some research, Mr. Kannin learned that the state trooper was not in fact guarding the bridge on all the days he had told the court he would not be available due to bridge guard duty.
Mr. Kannin promptly scheduled a hearing with the court in order to bring the trooper’s error to their attention. After being notified of the hearing regarding the errant testimony, the prosecuting attorney obtained a retraction statement from the state police and submitted a new statement informing the court that their previous sworn testimony was mistaken. At the hearing, the judge accepted the state police’s retraction and explanation of their mistaken testimony and denied the defendant’s request to dismiss the case. However, she did agree that the case should now proceed to trial at the next available court date and that no further continuances would be granted to the prosecution. The court also admonished the state for not bringing the corrected testimony to the court’s attention at an earlier date.
On August 16, 2011 the case went to trial before a jury in King County District Court.
At trial, the state was represented by two attorneys. The trial lasted one and a half days and included the trooper testifying as to his certainty that D.S. was under the influence of alcohol at the time of her arrest. While under cross-examination, however, he conceded that D.S.’s injuries may have been responsible for her lack of coordination on the sobriety tests.
D.S. testified as well, explaining her movements during the day and the injuries she suffered in Vietnam and after her arrival in the United States.
She also told the jury that she had never been in trouble with the law before, referring to her time in Vietnam and Florida before moving to Washington State. However, D.S. did have two prior DUI convictions in the state of Washington which Mr. Kannin had managed previously to have suppressed. Based on D.S.’s testimony, the court ruled that she had now opened the door to having her prior WA State conviction record used to bolster the prosecution’s DUI charge against her.
One of the things the prosecutors emphasized to the jury as particularly damning was that D.S. had told the police that she drank beer for breakfast at nine a.m. on the morning prior to her arrest. “What kind of person has a beer for breakfast?” they repeatedly asked.
In his closing arguments, Mr. Kannin turned this offensive move into a strong defense. He told the jury that D.S., who works the night shift doing inventory and comes home hungry and ready for bed after a hard night’s work, is exactly the “kind of person who has a pizza and beer for breakfast.”
Mr. Kannin also used D.S.’s earlier convictions to the defendant’s advantage by pointing out that on both of the prior occasions, D.S. plead guilty to DUI, but in this, the “world’s weakest DUI case,” she was insisting on her innocence because she was, in fact, innocent of the charges against her.
He told the jury that the troopers’ proof – a rolling stop and the odor of alcohol – was not evidence beyond a reasonable doubt that D.S. was under the influence and should be convicted of DUI.
Mr. Kannin also had D.S. show her physical injuries to the jury.
After the closing arguments, the jury deliberated for half a day before returning a verdict of not guilty.
If you or someone you know has been charged with DUI, call Kannin Law Firm: “Seattle’s Best DUI Defense,” at 206-574-0202.
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Attorney John Kannin was featured in a May 17 television news report about a potential civil rights violation. Q13 Fox News interviewed Kannin regarding a Tacoma case in which a 13-year-old boy was pulled out of his middle school class and interrogated by Secret Service police after posting an article on Facebook about president Obama. The boy’s parents were not informed of the interrogation by school officials and were not present during the questioning.
“Children in a school do have a right to have their parent present during questioning by police or government agents, but it depends on the age of the child and severity of what the charge against the child is,” Kannin told Fox News reporter Dana Rebik. “They could invoke their rights under the Fifth Amendment to remain silent or further invoke their rights under the Sixth Amendment to have an attorney present during any questioning.”
Kannin Law Firm has represented many clients in cases involving civil rights violations by the Seattle Police Department and other law enforcement agencies. For more information, see our civil rights Case Summaries.
To see the Q13 Fox News TV News Report, click here.
by Josefin Kannin
The saying, “one man’s misfortune is another man’s gain” could certainly be applied in the wake of recent confusing legislation regarding the use and sale of marijuana in Washington state. In this instance, it’s the courts and prosecutors who suffer, as they wade through reams of conflicting laws while trying to argue their cases. Defense attorneys, on the other hand, can use this confusion to their client’s advantage, as evidenced by one of criminal defense attorney John Kannin’s recent victories in court.
Mr. Kannin was defending a young woman – for the purposes of this blog I’ll call her Ms. M – who had been charged with possession of marijuana, less than 40 grams. After litigation regarding the lawfulness of the government’s search of her vehicle, the court ruled that the marijuana could be admitted as evidence, but the pipe could not. Ms. M subsequently plead guilty to the possession charge.
Under current Washington State law, the mandatory minimum penalty in a case of this kind is one day in jail (a 90-day jail sentence with 89 days suspended) and a $250.00 fine. A special sentence known as a deferred sentence also exists, under which the client’s guilty plea is withdrawn and the case is dismissed. At the end of the deferred period, the client’s criminal conviction may be vacated, or erased from the books. This deferred sentence is usually only given to someone with no prior criminal record of any kind and even then is entirely up to the court’s discretion. As Mr. Kannin’s client had prior convictions, a deferred sentence in this case was practically unheard of.
In a decision that was as much as surprise to Mr. Kannin as to his client, the judge in this case broke with convention. Citing the current state of confusion over the marijuana laws in our state, the King County District Court, on its own volition, decided to grant Ms. M a deferred sentence.
In Washington state, possession of marijuana is illegal. However, if you have a prescription from a doctor for medical marijuana, you are entitled to what’s known as an affirmative defense if you are accused or charged with possession. Typically this means you have to go to court and show your medical marijuana prescription (known as a ‘green card’) and then the charges against you will be dropped. Alternatively, during the investigation phase before you are charged, the prosecuting attorney may choose not to prosecute you. This does not mean, however, that you will not be arrested. The police will still arrest anyone they find in possession of marijuana. It is then at the discretion of the City Attorney’s office whether to file charges or not.
Unless, of course, you are caught in Seattle, in which case Mayor McGinn has made enforcing simple possession of marijuana the Seattle Police Department’s lowest priority. This means the likelihood of the City Attorney’s office pressing charges against someone for possession of pot in Seattle is very low.
Medical marijuana dispensaries are another grey area. In April 2011, the state passed a Senate Bill 5073, titled “An ACT Relating to medical use of cannabis,” that was intended to amend and clarify existing laws regarding medical marijuana and medical marijuana dispensaries. On April 29, the 45-page bill was partially vetoed by Governor Christine Gregoire. An interesting article posted online by the Cannabis Defense Coalition breaks down which aspects of this bill passed and which were vetoed.
On top of all this, federal laws regarding marijuana use supersede state laws, essentially voiding whatever laws the state has enacted. As Gregoire noted in her veto, regardless of the medical marijuana laws passed here, “absent congressional action, state laws will not protect an individual from legal action by the federal government.” However, it is up to federal government agents – such as the Drug Enforcement Agency – to enforce the law of the land. Under federal law, it is illegal to use, sell or possess marijuana in any amount. This April, in a show of force, federal DEA agents raided several medical marijuana dispensaries in Spokane.
Given the current confusion, how does Kannin Law Firm help clients facing criminal charges for marijuana use, sale or possession?
“We analyze each case individually based on the facts of that case and we pay particular attention to the jurisdiction of where the case is being prosecuted,” says Kannin. “It’s a patchwork quilt of laws. If you’re in Seattle, they’re not going to prosecute you. If you’re in Bellevue, they will. Any time the courts and prosecutors are not consistent in how they carry out the law, it’s to the defense’s advantage.”
If you have been charged with possession of marijuana or any other drug-related offense, contact Kannin Law Firm at 206-574-0202 or email@example.com for a free initial consultation.
attorney John Kannin, Cannabis Defense Coalition, criminal defense, criminal defense attorney, drug possession, Federal and State law, Governor Christine Gregoire, Kannin Law Firm, medical marijuana, medical marijuana dispensaries, Seattle Mayor Mike McGinn, vacating a criminal record