Appeal from Thurston Superior Court. Docket No: 11-1-00753-1. Date filed: 09/22/2011. Judge signing: Honorable Gary R Tabor.
Chester L Baldwin III (of Law Office of Chester L. Baldwin ); and Michael R. Frans (of Law Office of Michael R. Frans ), for petitioners.
John Tunheim, Prosecuting Attorney, and Carol L. La Verne, James S. Horlacher, and Luke Hansen, Deputies, for respondent.
AUTHOR: J. Robin Hunt, J. We concur: Lisa Worswick, C.J., Bradley A. Maxa, J.
[178 Wn.App. 492] Hunt,
¶ 1 Jeffrey S. Moore and Mario Gadea-Rivas appeal the superior court's affirmance of the district court's denial of their motions to dismiss their driving under the influence (DUI) charges for failure to comply with CrRLJ 3.3 time for trial rules. Both argue that the superior court erred in ruling (1) that the district court's failure to set a timely trial date was cured under CrRLJ 3.3(a)(4); and (2) that Moore's failure to appear at motion hearings reset the time within he must have been brought to trial under CrRLJ 3.3. Holding that failure to set trial within the time limits of CrRLJ 3.3 requires dismissal, we reverse the superior court and remand to the district court to dismiss these charges with prejudice.
¶ 2 Both Jeffrey S. Moore and Mario Gadea-Rivas were arrested for driving under the influence of alcohol in 2009, a violation of former RCW 46.61.502 (2008). Moore submitted to a breathalyzer test.
I. District Court
¶ 3 Moore, who was out of custody, was arraigned in district court on May 11, 2009; the court scheduled a [178 Wn.App. 493] pretrial hearing for June 11. The next few months involved several
pretrial hearing reschedulings and Moore's multiple waivers of his time for trial rights under CrRLJ 3.3. On July 2, 2009, Moore filed his first waiver of his time for trial rights, effective through December 1, 2009; at the October 6 pretrial hearing, the district court set his trial for November 30 but later cancelled it without setting a new trial date. Thus, when Moore filed his last time for trial waiver at the May 24, 2010 pretrial hearing, the district court had not set a trial date.
¶ 4 Docket entries reflect that Moore was present with his attorney for some, but not all, of the numerous hearings and scheduling conferences leading up to this May 24 pretrial hearing. The State never objected to Moore's absence from hearings he did not attend. And the district court neither issued any bench warrants for Moore's " failure to appear" nor otherwise required his presence.
¶ 5 On May 14, ten days before his May 24 pretrial hearing, Moore filed a second motion to suppress--part of the joint " Vosk Uncertainty Motion" (Vosk Motion) to suppress brought by approximately 114 defendants and multiple defense attorneys. Clerk's Papers (CP) (Moore) at 43. Moore and his counsel were present for the May 24 pretrial hearing, at which the district court scheduled the Vosk Motion hearing (including Moore's second motion to suppress) for June 25. Also on May 24, Moore filed his fourth and final time for trial waiver, resetting his commencement date to June 1 and his expiration date 90 days later, on September 1. Apparently expecting that the Vosk Motion [178 Wn.App. 494] would be resolved before this September 1 expiration date, the district court did not set a new trial date for Moore.
¶ 6 On June 2, 2010, the district court accepted Moore's waiver of his right to appear at the Vosk Motion hearing. The court's docket reflects that Moore was not present at any additional hearings until his February 17, 2011 pretrial hearing. Again, the record includes no orders requiring Moore's presence at these interim hearings or any bench warrants for his failures to appear. Instead, the district court sent notices of continued Vosk Motion hearing dates to only the defense attorneys, not to the defendants themselves. Thus, the district court sent notice to only the defense attorneys when it bifurcated the Vosk Motion hearing, set defense arguments for June 25, and set the State's arguments 40 days later.
¶ 7 On June 15, the State moved to continue the Vosk Motion; the district court scheduled a hearing on this continuance motion for August 27. Moore was not present at the August 27 hearing, at which (1) the district court granted the State's request to continue the Vosk Motion hearing and set another status hearing in Moore's case for September 24; (2) Moore's counsel did not object to resetting the status hearing beyond the September 1 time for trial expiration date; (3) Moore did not again waive his time for ...