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Smith v. Smith, No. 76247-8, Division I

WACDL filed an amicus brief in support of a Motion for Discretionary Review to COA from a trial court denial of continuance of a pending civil action for DVPO while the criminal offense is still pending.

Court

Division I, COA

Issue

When a civil action for a permanent DVPO is commenced while at the same time as criminal proceedings the respondent/defendant must make a choice in the civil proceedings to either waive 5th amendment protections and testify, exercise 5th amendment rights and decline to testify, or make a motion to continue the hearing until the termination of criminal proceedings using the Olympic Pipeline analysis. Delaying the DVPO proceedings has de minimum impact on the courts and should be granted.

Ruling

COA affirmed the trial court decision that the Olympic Pipe Line factors weighed against further continuances of the DVPO hearing pending resolution of criminal proceedings. In these circumstances holding the DVPO hearing before resolution of the criminal charges did not violate Mr. Smith's 5th amendment or due process rights. However, the court did note that in the future the desired result could be accomplished by stipulating to a single order of continuance that would remain in effect until after resolution of the criminal case that incorporates a voluntary agreement to surrender all firearms and grants the same protections as a full protection order, which would resolve the issue of hardship associated with delay of the hearing.

WACDL Author

Amy Much and Tom Weaver

Appellate Author

Bradley Barshis

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