When to use a Knapstad motion and when not to

Every criminal defense attorney out there knows about filing a motion to dismiss a case, or filing a motion to suppress evidence.  Typically these types of motions really wont tip off the Prosecution about what the defense theory of the case is.  Meaning if you file a motion to suppress drugs for example because of an unlawful search and seizure.  If you lose that motion you're not going to turn around and argue to the jury they need to find your client not guilty because the police officer didn't have a sufficient basis to search your client. 

But in criminal defense practice in Washington state, there is another kind of dispositive motion that can be filed that is not one of the constitutional motions discussed above.  It is called a Knapstad motion.  This motion for the most part is not usually granted.  But it can be filed when the defense attorney feels that based on the facts in the report, there is insufficient evidence to meet one of the elements.  

For example lets say a client is charged with Negligent Driving First Degree in Seattle.  But the reason the officer pulled the client over was because he was speeding.  There were no other vehicles present.  There was not chance of getting into an accident with another driver, vehicle, or property.  They were simply arrested for Negligent Driving 1 because their alcohol level was less than the legal limit.  Well one way to try and get this charge dismissed is to argue there is insufficient evidence to establish the elements of the crime.  Meaning the Prosecution cannot prove the driver was likely to endanger persons or property.  

Lots of criminal defense attorneys in Seattle dont like to file these types of motions for a couple of reasons.  First they are typically not granted, because all the Prosecution has to do is say the facts are in dispute, and we anticipate at trial the facts will establish one of the elements the Defense is arguing we cant meet.  The other reason is because if the defense loses the motion they effectively have tipped off the Prosecution on what their theory of the case is.  So in the Negligent Driving First Degree example the Defense would argue at trial there is no evidence to provide beyond a reasonable doubt the defendant was likely to endanger any persons or property because no observations were made to indicate that.  

Sometimes my practice as a DUI lawyer in Seattle, I like to lay in the weeds when one of these issues arise.  Meaning I wont file a Knapstad but instead lay in the weeds at trial and then make a halftime motion to dismiss.  Effectively arguing the same thing as a Knapstad motion.  

A few weeks ago I did this very thing, and it worked out perfectly for a client of mine.  I represented a client charged with Prostitution Loitering in Seattle.  Meaning he was accused of soliciting a prostitute.  However based on my investigation of the case I felt there was no intentional solicitation on his part.  He never discussed a sex act, no money exchanged hands.  Really the only evidence against him was he was talking to an undercover officer posing as a prostitute, and he was in an area of high prostitution.  

I thought about filing a Knapstad motion at first.  And argue to a Judge pretrial there was insufficient evidence to convict him because there was no evidence of solicitation.  But I felt it would be best to not tip off the Prosecution about this defense and proceed to a jury trial.  Well as I suspected the Prosecution didn't have much of a case.  After I cross examined their witnesses there was no evidence of solicitation on the part of my client.  I established no sex acts were discussed.  No money changed hands.  My client didn't repeatedly drive around trying to beckon any prostitutes.  There was no cash found on him, condoms, or any other circumstantial evidence that could establish he was there doing what the Prosecution was.  

So after the Prosecutor rested, I asked the Judge for a side bar.  Explained to the Judge that I would like to make a motion outside the presence of the Jury.  The Jury was excused, and I proceeded to make a halftime motion.  I argued that the Prosecution couldn't establish a prima facie case against my client.  Even if the evidence was viewed in the light most favorable to the Prosecution there was no evidence of intentional solicitation.  Which is one of the things that needs to be proven in this type of a prostitution case.  The Prosecution wasn't prepared for this, and it caught them totally by surprise.  

Ultimately the Judge agreed with me and dismissed the case.  My client walked away a free man.  Had I filed a motion earlier to dismiss based on this issue.  I don't think it would have been as successful.  But because I laid in the weeds.  Didn't tip off the Prosecution on what my defense was.  Then after they rested their case, I made my motion.  And as you can see it worked out perfectly.  So the moral of the story is.  Sometimes you need to lay in the weeds as a defense attorney in Seattle, then pounce when the time is right. 

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Matthew A. Leyba is a DUI Attorney in Seattle.  His practice focuses on representing those accused of DUI and other serious traffic offenses.