Kennewick V Doug Day :: 142 Wn2d 1
Category: Strict Liability
Day was stopped while driving, for suspicion of driving under the influence, because of the way he negotiated around an accident scene. He refused a sobriety test. Subsequently, a small amount of marijuana and a marijuana pipe was found in his vehicle. He denied knowledge of the items and claimed he had just picked up his vehicle from a repair shop. The owner of the repair shop testified that his vehicle had been in the shop for four months and that he picked it up two days prior to the arrest. Furthermore, he testified that one of the mechanics working on the vehicle had been fired for drug use and leaving paraphernalia in other clients’ vehicles. [at 3-4]. Additionally, Day had witnesses to his character and his non-use of drugs and alcohol. We are not reviewing his guilt or innocence.
The Supreme Court held that his reputation for sobriety was pertinent to the charge and that intent is an element of the crime of possession. Justice Talmadge concurred, however with a lament. At 15, he claims he agrees with the court, only because he is hooked on precedent, and precedent (an earlier case in which he had dissented) “compels this result.” Bobbe Bridge signed on with Talmadge.
Furthermore, he claims the court is legislating by holding this statute to be without strict liability. “[W]e have imported an intent element into drug possession crimes by our adoption of the unwitting possession defense . . . . This is judicial legislation in its most direct form.” [at 16]. This critique is from the same man who discovered the funding of stadiums to be constitutional, even though expressly forbidden in the State Constitution itself (art 11, §14). Now he views this court to be activist when they hold the law, written by the Legislature, within constitutional restraints. Go figure.
I would like to thank Justice Talmadge for his concise concurrence (less than two pages). Usually he writes as if the goal is to fill volumes rather than instruct the reader. However, because of the content, we are treating his concurring opinion as a dissent. He laments the “trend in our law” [at 17] as if precedent is our law. He only concurs because of precedent, even though he dissented on the precedent opinion, and he attacks, as activist, a court that would uphold due process.
Rating the Usual Suspects:
| pass | Alexander, Gerry | |
| pass | Egan, James | |
| pass | Guy, Richard | |
| pass | Ireland, Faith | |
| pass | Johnson, Charles | |
| pass | Madsen, Barbara | |
| pass | Raekes, Philip | |
| pass | Sanders, Richard | |
| pass | Smith, Charles | |
| fail | Bridge, Bobbe | |
| fail | Brown, Stephen | |
| fail | Kato, Kenneth | |
| fail | Kurtz, Frank | |
| fail | Pratt, Eugene | |
| fail | Talmadge, Phil | |
| fail | Ziobro, John S |