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City of Kennewick v. Day

Citation. City of Kennewick v. Day, 142 Wn.2d 1, 11 P.3d 304,
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Brief Fact Summary.

Defendant was stopped by a police officer for suspicion of driving under the influence. Defendant was arrest and his car was searched. The officer found marijuana and a marijuana pipe inside the car. Defendant was arrested. At trial, Defense Counsel sought to produce evidence of Defendant’s character regarding his reputation of sobriety in the community. Prosecution objected, and the trial court sustained the objection. Defendant was subsequently found guilty of possession of drug paraphernalia.

Synopsis of Rule of Law.

Character evidence is relevant for a drug possession charge, a strict liability criminal charge, when the defendant’s defense is unwitting possession.


Doug R. Day, Defendant, was stopped by a police officer for suspicion of driving under the influence when Defendant drove around a police barrier that was set up to facilitate an investigation of a separate incident. Defendant claimed he had not been drinking. Nevertheless, Defendant refused to take a field sobriety test or portable “BAC DataMaster†test. Subsequently, Defendant was arrested and his vehicle was searched. The officer found marijuana and a marijuana pipe in the center armrest console. Defendant alleges that the items did not belong to him. Further, Defendant states that just picked up his vehicle from a repair ship. Moreover, Defendant’s BAC reading was .04, below the level of driving while intoxicated, therefore, Defendant was only charged with negligent driving in the first degree. Defendant offered Don Simmonson’s, the owner of the repair shop, testimony to prove his defense that the items found in his vehicle were not his. Mr. Simmonson’s testified that a former employee at the repair shop was fired because he was suspected to be using drugs outside of work. Likewise, the former employee had a prior incident at the repair shop with another customer, which the customer complained that drug paraphernalia was left found in her car when she picked up her car from the shop. Further, while Mr. Simmonson’s was testifying, Defense Counsel asked if he was aware of Defendant’s reputation in the community regarding his sobriety. At once, Prosecution objected to the question, and the trial court sustained the objection. Overall, the jury acquitted Defendant of reckless driving, but found him guilty of possession of drug paraphernalia.


Whether the trial court erroneously precluded Defendant from presenting evidence of his reputation for sobriety of drugs and alcohol by sustaining the Prosecution’s objection.


Yes, the trial court erred in sustaining the Prosecution’s objection and failing to introduce Defendant’s character evidence because it is pertinent to his defense of unwitting possession.


The majority has created an intent element in the charge of possession of drug crime, where the legislature did not intend for the defendant’s to have the ability to assert an affirmative defense to the strict liability criminal charge.


The court noted that in a typical strict liability case, character evidence is irrelevant because no affirmative defenses are available. Defendant does not contest this point, however, Defendant claims that he should be able to assert character evidence under the “unwitting possession†defense. The Washington Court adopted this defense to “ameliorate [ ] the harshness of the almost strict criminal liability our law imposes for unauthorized possession of a controlled substance. If the defendant can affirmatively establish that his ‘possession’ was unwitting, then he had no possession for which the law will convict[“] . . . [Washington v. Cleppe, 635, P. 2d 435 (1981).  To prove the defense, Defendant must prove that “(1) he did not know he was in possession of the controlled substance, or (2) that the defendant did not know the nature of the substance.†The Court found that the character evidence has the probability of assisting Defendant in proving his defense because if a person does not have a reputation of using drugs, the person is less likely to possess drugs. Therefore, the evidence of Defendant’s sobriety is pertinent to his charge of possession of drug paraphernalia due to the element “intent to use.â€

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