CONVICTED ON A TECHNICALITY: the manipulations of the law to maximize consequences to minor offenders

One of the great failures of the criminal justice system was the Sentence Reform Act, a piece of legislation designed to promote consistency and fairness in the criminal justice system by restraining the power of judges without taking any steps to restrain prosecutors and police. The basis of the SRA is the concept that sentence ranges should be determined based on the seriousness of the present offense (as determined by statute, rather than the actual facts of the case) combined with the number of prior felony convictions (although, misdemeanor convictions increasingly are factored into felony offender scores).

In short, the more felony convictions, the longer the potential sentence upon conviction. Generally speaking, the harsher a potential sentence may be, the less likely a case is to go to trial and the more likely a defendant is to enter into a plea agreement (regardless of their innocence or guilt). Because many prosecutors are poor trial attorneys, some have adopted strategies to maximize the potential cost of asserting one’s right to trial to discourage defendants from asserting their rights to a trial by jury.  

The following is a short list of some of the arguably unjust ways prosecutors seek to “pack felonies” into a defendant’s offender score by “up-charging” gross misdemeanors into felonies.


Burglary is arguably the most abused charge in the Prosecutor’s arsenal. It is a class B felony that carries with it a maximum sentence of 10 years in prison and in some states it is a strike offense (as in, “three strikes, you’re out” = life in prison).

Yet an alarming number of burglaries charged are really just shoplifting from Walmart. This is because burglary is defined as unlawfully entering a building with the intent to commit a crime against a person or property therein. So if someone was banned from Walmart for life because he shoplifted a Seahawks t-shirt, and came back within the next 99 years to do it again, they can be charged with burglary, transforming a petty thief into a convicted felon – with all the personal and societal consequences such a charge carries.

But burglary doesn’t stop there, because you can be charged with burglarizing your own house. In fact, Chris Van Vechten once defended an individual charged with burglary because he entered his own house in violation of a no contact order at the request of the protected party. The Defendant did this because the protected party – his wife – needed to go to work and she needed someone to babysit their child, a 4 year-old quadriplegic child suffering from cerebral palsy.

Chris firmly believes one cannot be convicted of burglary merely by entering a home in violation of court order, but the issue remains unresolved by our courts and some prosecutors charge such violations as burglaries to maximize offender scores.


If Burglary is the most abused charge, bail jumping is probably the most used. For practical purposes, an over simplification of bail jumping is merely failing to show up to court when ordered to do so. You don’t need to actually be out on “bail” to be guilty of bail jumping.

There are two main defenses to bail jumping: (1) The Defendant did not know they were required to appear; & (2) “uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.” RCW 9A.76.170.

The “uncontrollable circumstances” defense is where the charge gets abused. The pattern jury instruction definition of “uncontrollable circumstance” is fairly narrow, arguably excluding car trouble and there is case law expressly excluding any illness as a defense unless the illness progressed to the point of hospitalization. See WPIC 19.17 and State v Fredrick, 123 Wn.App. 347, 352, 97 P.3d 47 (2004).  Furthermore, you can be charged with bail jumping because you were in jail in another jurisdiction when you were supposed to appear at the scheduled hearing.   The prosecutor’s argument for this is that it’s the defendant’s fault for getting arrested when they knew they had a court date. Juries don’t like this argument, and skilled defense attorneys can blow it out of the water, but the point of filing the additional charge is to increase the risk of asserting Constitutional rights against the State.


This is an oldey but a goody for prosecutors. “Robbery” is defined as unlawfully taking personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person or his or her property or the person or property of anyone. RCW 9A.56.190. Despite what appears as a reasonable definition on the surface, within prison culture “robbery” is often referred to as “shoplifting with a shove.”

Chris Van Vechten once defended a client who was detained by Goodwill security after she attempted to shoplift a shirt by wearing it out of the store underneath some other garments. The officer grabbed her, and she attempted to break free of the grasp while still wearing the shirt. By doing so, she committed “robbery” by using “force” (aka, running while wearing the shirt).

The most egregious use of robbery Chris Van Vechten ever saw was a homeless lady who purchased a hamburger from Jack in the Box. As she counted out her coins at the cash register to pay, it was revealed that she was 18 cents short. No one volunteered to help her shore up the difference and so she snatched the burger from the counter and fled the building.   In so doing, she unlawfully took property in the presence of another by the use of force and got charged with Robbery.

Like Burglary, Robbery is a Class B felony, but in Washington it is also a strike offense, meaning someone could be sentenced to life in prison because they ran off with a hamburger that they were 18 cents short on.


In recent years, some prosecutor offices have begun abusing these Class C felonies to increase offender scores.

ID Theft occurs when someone knowingly obtains, possess, uses, or transfers a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime. RCW 9.35.020

“Means of Identification” is exceptionally broads and includes means:

information or an item that is not describing finances or credit but is personal to or identifiable with an individual or other person, including: A current or former name of the person, telephone number, an electronic address, or identifier of the individual or a member of his or her family, including the ancestor of the person; information relating to a change in name, address, telephone number, or electronic address or identifier of the individual or his or her family; a social security, driver’s license, or tax identification number of the individual or a member of his or her family; and other information that could be used to identify the person, including unique biometric data.

See RCW 9.35.005(3)

Felony Criminal Impersonation occurs when someone: “assumes a false identity and does an act in his or her assumed character with intent to defraud another or for any other unlawful purpose.” RCW 9A.60.040

Over the past year, prosecutors have been charging defendants who give a false name to police officers with Identity Theft and Criminal Impersonation. It is a crime to give a false statement to a police officer – and it constitutes a gross misdemeanor.

People who get stopped for driving with a suspended license will sometime lie about who they are by giving the name of someone else they think has an active driver’s license. Historically, this has been charged as a gross misdemeanor, but prosecutors have begun charging them as felonies.

Chris Van Vechten does not believe someone assumes a false identity merely by giving a false name, and has successfully fought prosecutors on this, but unfortunately Identity Theft is both extremely broad in its scope and the Courts have thus far failed to restrain prosecutors to what was surely the intent of the Legislature.


If it appears as though the prosecutor is up-charging you, it’s probably because he/she is afraid to take your case to trial.  Get yourself an attorney with courage and resolve yourself to resist.