# State v. Leach

> Washington Supreme Court · November 22, 1989 · 113 Wash. 2d 679

URL: https://www.frixlaw.com/law-library/cases/9537978

## Case

- **Full name:** The State of Washington, Petitioner, v. Duncan Leach, Respondent; The City of Seattle, Respondent, v. Maureen Elverston, Petitioner
- **Court:** Washington Supreme Court
- **Decided:** November 22, 1989
- **Citations:** 113 Wash. 2d 679; 782 P.2d 552; 1989 Wash. LEXIS 131
- **Precedential status:** Published
- **Opinion:** Concurrence by Brachtenbach
- **Judges:** Smith, Brachtenbach
- **Cited by:** 191 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by State v. Pry, 452 P.3d 536 (2019).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9537978

## How later opinions describe it (automated extraction)

- rejecting an argument that a charging document violated due process when it listed the offense charged as “ ‘DWI,’ ” the acronym for “ ‘Driving While Intoxicated,’ ” instead of listing the charge as “ ‘driving while under the influence of intoxicating liquor or any drug* ” (qu…
- rejecting an argument that a charging document violated due process when it listed the offense charged as '"DWI,"' the acronym for "'Driving While Intoxicated,"' instead of listing the charge as "'driving while under the influence of intoxicating liquor or any drug'"

## Opinion text

Brachtenbach, J.
(concurring)—I concur in the majority opinion. However, I write separately to emphasize that application of the essential elements rule to misdemeanors charged in courts of limited jurisdiction has long been a settled matter in this state's jurisprudence. Misdemeanor charges have been subject to the rule for over 60 years. See, e.g., Seattle v. Proctor, 183 Wash. 299 , 48 P.2d 241 (1935); Seattle v. Jordan, 134 Wash. 30 , 235 P. 6 (1925); State v. Moser, 41 Wn.2d 29 , 246 P.2d 1101 (1952) (gross misdemeanor). See also State v. Ashker, 11 Wn. App. 423 , 523 P.2d 949 (1974), overruled on other grounds in State v. Braithwaite, 92 Wn.2d 624 , 600 P.2d 1260 (1979).
The rule has been applied to charges tried in courts of limited jurisdiction for nearly 80 years. See, e.g., State v. Heath, 57 Wash. 246 , 106 P. 756 (1910) (justice court); State v. Jordan, supra (police court); State v. Proctor, supra (police court); Seattle v. Morrow, 45 Wn.2d 27 , 273 P.2d 238 (1954) (justice court).
In fact, in Seattle v. Jordan, supra, at 34-35, this court specifically declined to apply a more liberal rule for pleadings filed in police court.
*700 Neither the State nor the City of Seattle has offered any sound legal basis for overruling this longstanding precedent. Instead, it appears, the underlying concern appears to be that because the law has not been followed, we should change it to protect those convictions subject to attack on the basis that the law was not followed. It goes without saying that this is insufficient reason to change existing law of constitutional magnitude.
I also stress that it is not the defendant's obligation to ensure that the State's charges are sufficient to uphold his or her conviction. If the State initially fails to file sufficient charges, the court rules allow for amendment of the charging document.
I am disturbed, however, by the possibility that a defendant may be well aware at the outset of the proceedings that the charging document fails to state a crime, and yet maintain silence until appeal. When faced with the question whether an indictment sufficiently charges an offense, federal courts have held that "indictments which are tardily challenged are liberally construed in favor of validity." United States v. Pheaster, 544 F.2d 353, 361 (9th Cir. 1976), cert. denied, 429 U.S. 1099 (1977); accord, e.g., United States v. Shoup, 608 F.2d 950 , 960 n.19 (3d Cir. 1979); United States v. Hooker, 841 F.2d 1225, 1230 (4th Cir. 1988); United States v. Freeman, 813 F.2d 303, 304 (10th Cir. 1987).
I recognize that this state's and the federal applicable rules of appellate review are not congruent. However, I think that in the proper case, with full briefing and argument by the parties, this court should consider whether to apply a stricter standard for reviewing allegedly insufficient charging documents. I do not suggest that we abandon the essential elements rule; rather that in cases where the alleged defect in the charging document is as knowable to the defendant at the outset as on appeal, we consider *701 adopting an appellate standard of liberally construing the document in favor of validity.
Reconsideration denied March 6, 1990.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9537978. Public record. Not legal advice.