IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85675-8-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION NATHANIEL GILBERT CRAVEN,
Appellant.
SMITH, J. — In April 2012, law enforcement pulled Nathaniel Craven over
for erratic driving. Craven declined to submit to a field sobriety test. Noting the
smell of alcohol in the vehicle, on Craven’s person, and his slow and clumsy
language, an officer arrested him for driving under the influence (DUI).
The State charged Craven with felony DUI, violation of ignition interlock,
and reckless driving. Craven pleaded guilty to the second charge and a jury
convicted him as to the other two. The court imposed a standard range, an
additional six months of electronic home detention, and various financial
obligations. Craven also lost his right to possess a firearm.
Craven appeals, asserting that the trial court violated his Fourth and Fifth
Amendment rights in admitting into evidence his refusal to perform a field
sobriety test, the trial court violated his second amendment right in prohibiting
him from possessing firearms following his felony conviction, and that various
legal financial obligations (LFOs) should be stricken. We affirm Craven’s No. 85675-8-I/2
convictions but remand for the trial court to strike the emergency response fee,
Title 46 fee, and toxicology lab fee.
FACTS
In April 2021, Auburn Police Officer Bryce Barager pulled Nathaniel
Craven over for driving erratically on State Route 167. Craven had been
repeatedly drifting outside of his lane and appeared to have difficulty maintaining
a consistent speed. He was not driving above the speed limit.
Craven was “slow to acknowledge” Officer Barager, who “had to chirp [his]
siren” to get Craven to stop. Craven eventually exited the highway and pulled
over onto the shoulder of an exit ramp. Officer Barager had his service weapon
in hand as he approached the vehicle, but did not believe Craven saw it. Craven
did not initially respond when Officer Barager approached his vehicle and he had
to knock multiple times on the vehicle’s window before Craven reacted. Once
Craven lowered his window, Officer Barager observed that his movements were
“clumsy and sluggish.” Officer Barager could also smell alcohol. When asked
about his erratic driving, Craven apologized and stated he had been distracted by
calls from his wife. Officer Barager noticed that his speech was “very slurred.”
Craven categorically denied drinking. He did acknowledge, however, that he did
not have an ignition interlock installed in his car as required by a prior conviction.
Officers Derek Pederson and Robert Swales joined Officer Barager shortly
after he pulled Craven over. Officer Barager noted to the other officers that
Craven appeared to be “an imminent danger to the public driving the way that he
was.” Officer Barager then asked if Craven would be willing to perform field
2 No. 85675-8-I/3
sobriety tests. Craven refused. Craven then became argumentative, questioning
the validity of the traffic stop. Concluding that Craven was under the influence of
alcohol, Officer Barager ordered him out of his vehicle and placed him under
arrest for DUI.
When asked if he had a weapon on him, Craven informed the officers that
he carried a gun. The officers seized the gun without incident.
Once at the police station, Craven was asked if he would like to submit to
a breath-alcohol test. After being read implied consent warnings, Craven refused
to provide a breath sample. Officers warned him that this would result in a
suspended license. Law enforcement did not seek a warrant to authorize a blood
draw.
Having determined that Craven had been convicted of three or more prior
DUI offenses in the last 10 years, the State charged Craven with felony DUI,
violation of an ignition interlock, and reckless driving. Craven pleaded guilty to
the ignition interlock charge but proceeded to trial on the other two. Before trial,
he unsuccessfully moved to exclude his refusal to perform field sobriety tests as
substantive evidence. The jury convicted Craven as charged.
The court sentenced Craven to confinement within the standard range,
which he had already satisfied at sentencing, and an additional six months of
electronic home detention. As a result of his felony conviction, he lost his right to
carry a firearm. Craven’s sentence also barred him from possessing firearms
and ammunition as a condition of community custody. The court denied
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Craven’s request to return his seized weapon to his attorneys for safekeeping.
The judgment also included various LFOs totaling $1,186.27.
Craven appeals.
ANALYSIS
Right to Silence and Privacy
Craven asserts that the trial court violated his constitutional rights to
silence and privacy in admitting his refusal to perform a field sobriety test (FST)
as substantive evidence of guilt. But because Craven was not under arrest when
Officer Barager asked him to perform the FSTs, the request was not an
unreasonable search or seizure and the court properly admitted his refusal at
trial.
Right to Privacy
Craven argues that the trial court violated his Fourth Amendment and
article I, section 7 protections against unreasonable search and seizure in
commenting on his refusal to perform FSTs. Because Officer Barager’s request
did not violate his right to privacy, the trial court properly admitted the evidence at
We review whether the facts presented constitute an unreasonable search
or seizure de novo. State v. Rankin, 151 Wn.2d 689, 694, 92 P.3d 202 (2004).
The Fourth Amendment of the United States Constitution and article I,
section 7 of the Washington State Constitution protect an individual’s right to
privacy – prohibiting unreasonable search or seizure. U.S. CONST. amend. IV;
CONST. art. I, §7. The State may violate this right by eliciting testimony
4 No. 85675-8-I/5
commenting on the defendant’s exercise of their right to privacy. State v.
Gauthier, 174 Wn. App. 257, 265, 298 P.3d 126 (2013). A jury may not infer guilt
from a refusal to allow an unreasonable search or seizure. Gauthier, 174 Wn.
App. at 265.
Article I, section 7 of the Washington Constitution provides that “[n]o
person shall be disturbed in his private affairs, or his home invaded, without
authority of law.” Without a warrant or exception to the warrant requirement
providing that authority of law, a search or invasion is unlawful. State v. Villela,
194 Wn.2d 451, 458, 450 P.3d 170 (2019). Investigatory detentions, known as
Terry1 stops, are one such exception to the warrant requirement. State v. Baro,
55 Wn. App. 443, 445, 777 P.2d 1086 (1989).
Under Terry, an individual may be lawfully seized, without a warrant, when
law enforcement “has a reasonable suspicion, based on specific and articulable
facts and rational inferences from those facts, that the stopped person has been .
. . involved in a crime.” State v. Bonds, 174 Wn. App. 553, 564-65, 299 P.3d 663
(2013). The stop must be “ ‘reasonably related in scope to the justification for
[its] initiation.’ ” Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 82 L.
Ed. 2d 317 (1984) (internal quotation marks omitted) (quoting United States v.
Brignoni-Ponce, 422 U.S. 873, 881, 95 S. Ct. 2574 , 45 L. Ed. 2d 607 (1975)).
State v. Mecham, 186 Wn.2d 128, 380 P.3d 414 (2016), is the most recent
Supreme Court authority on Terry stops and FSTs. As a non-majority opinion,
the narrowest ground upon which a majority agrees governs. In re Pers.
1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
5 No. 85675-8-I/6
Restraint of Francis, 170 Wn.2d 517, 532 n.7, 242 P.3d 866 (2010). In Mecham,
five justices held that “an FST is a seizure but not a search so long as the
suspect has not already been arrested for an unrelated offense and the seizure is
justified under Terry.” 186 Wn.2d at 130.
a. Justified Under Terry
Craven asserts that the stop was not justified under Terry and therefore
constitutes an unconstitutional search or seizure. We disagree.
We review whether a seizure is justified under Terry de novo. State v.
Howerton, 187 Wn. App. 357, 364, 348 P.3d 781 (2015). Again, law
enforcement may lawfully seize an individual, without a warrant, if they have a
reasonable suspicion based on articulate facts that the individual has been
involved in a crime. Bonds, 174 Wn. App. at 564-65. A reasonable suspicion
requires only sufficient probability, not absolute certainty. Bonds, 174 Wn. App.
at 566.
Because Craven did not assign error to any of the court’s factual findings,
they are verities on appeal. State v. Gasteazoro-Paniagua, 173 Wn. App. 751,
755, 294 P.3d 857 (2013).
Here, Officer Barager’s dashboard camera footage shows Craven weave
across multiple lanes at varying speeds. Officer Barager also observed other
vehicles adjusting their own positioning to avoid contact with Craven’s vehicle.
And when Officer Barager indicated to Craven to pull over, it took the emergency
siren to get Craven to stop driving.
6 No. 85675-8-I/7
Craven’s inability to stay in his lane, inconsistent speed, and slow reaction
time provided Officer Barager with articulable facts to support a sufficient
probability that Craven was involved in a crime. That sufficient probability then
establishes the reasonable suspicion needed for a valid Terry stop.
Officer Barager’s stop was justified under Terry and therefore not an
unreasonable search or seizure.
b. Custody
Craven next states that the Terry exception to the warrant requirement
does not apply because Craven was essentially under arrest when Officer
Barager requested the FSTs and Officer Barager intended to use the FSTs to
gather evidence of Craven’s guilt. We conclude that Craven was not under
arrest.
We review whether an individual is in custody de novo. State v.
Escalante, 195 Wn.2d 526, 531, 461 P.3d 1183 (2020).
Providing a warrant exception only during investigative detentions, Terry
no longer provides an exception once an individual has been arrested. Terry,
392 U.S. at 7-8; State v. O’Neill, 148 Wn.2d 564, 589, 62 P.3d 489 (2003). In
determining whether an individual is in custody, the court will consider “whether a
reasonable person in the [defendant’s] position would believe [they were] in
police custody to a degree associated with formal arrest.” State v. Lorenz, 152
Wn.2d 22, 36-37, 93 P.3d 133 (2004).
The tone of the interaction, straightforward and non-deceptive nature of
law enforcement’s questions, lack of physical restraint, and length of the
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encounter all factor into whether a reasonable person would believe they were
formally arrested. State v. Persinger, 72 Wn.2d 561, 562, 433 P.2d 867 (1967);
State v. Ferguson, 76 Wn. App. 560, 567, 886 P.2d 1164 (1995); Escalante, 195
Wn.2d at 541; State v. Radka, 120 Wn. App. 43, 49-50, 83 P.3d 1038 (2004);
State v. Wheeler, 108 Wn.2d 230, 237, 737 P.2d 1005 (1987).
Officer Barager was calm, casual and respectful in conversing with
Craven. He did not initially accuse Craven of any wrongdoing, and when he
eventually asked Craven questions about alcohol, they were brief and
straightforward. Officer Barager did not physically restrain Craven, and Craven
remained in his vehicle within full view of the highway. That Craven was neither
removed from his vehicle nor handcuffed is a strong indication that he was not
yet in custody. And as approximately 10 minutes passed between Officer
Barager first approaching the vehicle and asking Craven to perform a FSTs, the
short time frame indicates an investigatory detention rather than an arrest.
Craven points to the fact that Officer Barager drew his weapon when
approaching the vehicle as evidence that he was under arrest. But the
uncontested findings of fact indicate that Craven was likely unaware of Officer
Barager’s weapon. By the time Craven acknowledged Officer Barager, his
weapon was put away. Further, Officer Barager’s weapon was never pointed at
Craven and was holstered for the entirety of their interaction.
A reasonable person in Craven’s position would not feel restrained to the
degree associated with formal arrest. Therefore, because Officer Barager’s
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request that Craven perform FSTs was part of a Terry seizure, the request does
not constitute an unreasonable search or seizure.
Right to Silence
Craven also suggests that admitting his refusal to perform the FSTs
violated his right to silence under the Fifth Amendment and article I, section 9.
We again disagree.
The Washington Supreme Court has “repeatedly held that the
performance of an FST is nontestimonial,” and therefore, “Fifth Amendment
protections do not apply.” City of Seattle v. Stalsbroten, 138 Wn.2d 227, 232-33,
978 P.2d 1059 (1999). And Washington courts have repeatedly held that “[t]he
protection provided by [article I, section 9] is coextensive with that provided by
the Fifth Amendment.” State v. Unga, 165 Wn.2d 95, 100, 196 P.3d 645 (2008);
State v. Earls, 116 Wn.2d 364, 374, 805 P.2d 211 (1991); State v. Terry, 181
Wn. App. 880, 889, 328 P.3d 932 (2014).
Because Fifth Amendment and article I, section 9 protections do not apply
to non-testimonial FSTs, the court did not violate Craven’s right to silence in
admitting his refusal at trial.
Right to Bear Arms
Craven next claims that the trial court violated his constitutional right to
bear arms by barring him from possessing firearms based on his non-violent
felony conviction. We conclude that the Washington statutes prohibiting felons
from possessing firearms are constitutional.
9 No. 85675-8-I/10
We review the constitutionality of a statute de novo. State v. Zigan, 166
Wn. App. 597, 603, 270 P.3d 625 (2012). As statutes are presumed
constitutional, the party challenging the constitutionally bears the burden of
proving otherwise beyond a reasonable doubt. State v. Batson, 196 Wn.2d 670,
674, 478 P.3d 75 (2020); Didlake v. State, 186 Wn. App. 417, 422-23, 345 P.3d
43 (2015).
1. Second Amendment Right to Bear Arms
The Second Amendment provides, “A well regulated militia being
necessary to the security of a free state, the right of the people to keep and bear
arms, shall not be infringed.” U.S. CONT. amend. II. “[T]he right to keep and bear
arms is among the ‘fundamental rights necessary to our system of ordered
liberty.’ ” United States v. Rahimi, 602 U.S. 680, 690, 144 S. Ct. 1889, 219 L.
Ed. 2d 351 (2024) (quoting McDonald v. City of Chicago, 561 U.S. 742, 130 S.
Ct. 3020, 177 L. Ed. 2d 894 (2010)). The Supreme Court has construed the
amendment to guarantee an individual right to possess and carry weapons.
District of Columbia v. Heller, 554 U.S. 570, 626, 128 S. Ct. 2783, 171 L. Ed. 2d
637 (2008). However, “the right secured by the Second Amendment is not
unlimited.” Heller, 554 U.S. at 626.
In Heller, the Supreme court notably clarified that the Second Amendment
right to possess firearms belongs to “law-abiding, responsible citizens” and
emphasized that “nothing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons.” 554 U.S.
at 635, 626. Such regulations, the court continued, are presumptively lawful.
10 No. 85675-8-I/11
Heller, 554 U.S. at 627. The Supreme Court reaffirmed Heller in McDonald, 561
U.S. 742, again providing that Heller did not undermine long-standing regulatory
measures such as “ ‘prohibitions on the possession of firearms by felons.’ ”
McDonald, 561 U.S. at 786 (quoting Heller, 554 U.S. at 627).
The Supreme Court revisited Heller, however, in New York State Rifle &
Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L. Ed. 2d 387
(2022). New York State Rifle clarified the appropriate Second Amendment
analysis, stating [w]e hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.
142 U.S. at 17.
Therefore, courts must first determine whether the plain text covers the
individual’s conduct. New York State Rifle at 142 U.S. at 17. If so, the
constitution presumptively protects the conduct and the government must march
though the nation’s historical tradition of firearm regulation to justify regulation.
New York State Rifle at 142 U.S. at 17. In making this determination, courts then
consider whether the challenged regulation is “relevantly similar” in light of “how
and why the regulations burden a law-abiding citizen’s right to armed self-
defense.” New York State Rifle at 142 U.S. at 29. The government bears the
burden of production and persuasion, but need only “identify a well-established
11 No. 85675-8-I/12
and representative historical analogue, not a historical twin.” New York State
Rifle at 142 U.S. at 30.
Applying this framework, the New York State Rifle court held, “consistent
with Heller and McDonald, that the Second and Fourteenth Amendments protect
an individual’s right to carry a handgun for self-defense outside the home.” 142
U.S. at 10. Significantly, the court emphasized that it reaffirmed and clarified
Heller and McDonald, rather than abrogating the Court’s reasoning in those
cases. New York State Rifle at 142 U.S. at 10. The court also emphasized that
the right to bear arms is held by “law-abiding, responsible citizens.” New York
State Rifle at 142 U.S. at 70.
Recently, in Rahimi, the Supreme Court used the New York State Rifle
test to reject a facial challenge to the constitutionality of a statute that prohibited
an individual subject to a domestic violence restraining order from possessing a
firearm. 602 U.S. at 701. In doing so, the court reiterated Heller’s statement that
prohibitions on the possession of firearms by persons with felony convictions are
presumptively lawful. Rahimi, 602 U.S. at 699.
RCW 9.41.040(1) provides that a person is guilty of the crime of unlawful
possession of a firearm in the first degree if they own, access, or have custody,
control, or possession over a firearm after having been convicted of a serious
offense. RCW 9.41.010(42)(q) defines serious offense to include any felony
charged under RCW 46.61.502(6), which involves three or more convictions for
driving under the influence in the past 10 years. RCW 9.41.047 then clarifies
that, at the time a person is convicted of an offense making the person ineligible
12 No. 85675-8-I/13
to possess a firearm under state law, the court shall notify that person that they
may not possess a firearm unless the superior court that issued the order
restores the person’s firearm rights.
Craven, relying primarily on New York State Rifle, asserts that the State
cannot meet its burden to prove disarming him based on his non-violent felony
comports with this nation’s historical tradition of regulating firearms. We
disagree.
a. Historical Analysis
In considering historical sources to interpret the Constitution, “not all
history is created equal.” New York State Rifle, 597 U.S. at 34. “Constitutional
rights are enshrined with the scope they were understood to have when the
people adopted them.” Heller, 554 U.S. at 634-35. Thus, neither historical
precedent that pre-dates the amendment nor post-enactment history should carry
too much weight. New York State Rifle, 597 U.S. at 34. However, “the Second
Amendment permits more than just those regulations identical to ones that could
be found in 1791.” Rahimi, 602 U.S. at 691-92. Accordingly, “a court must
ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is
understood to permit, ‘apply[ing] faithfully the balance struck by the founding
generation to modern circumstances.’ ” Rahimi, 600 U.S. at 692 (alteration in
original) (quoting New York State Rifle, 597 U.S. at 29 n. 7). An appropriate
analysis considers whether the “challenged regulation is consistent with the
principles that underpin our regulatory tradition.” Rahimi, 600 U.S. at 692.
13 No. 85675-8-I/14
The first federal law prohibiting felons from possessing firearms passed in
1938 and applied only to those convicted of “a crime of violence.” Federal
Firearms Act, Pub. L. No. 75-785, § 2(e), 52 Stat. 1250, 1251 (1938) (repealed).
Express disarmament expanded to cover all felons in 1961. See Act of Oct. 3,
1961, Pub. L. No. 87-342, § 2, 75 Stat. 757, 757 (repealed).
However, early American laws regularly disarmed individuals for
nonviolent acts. Saul Cornell & Nathan DeDino, A Well Regulated Right: The
Early American Origins of Gun Control, 73 FORDHAM L. REV. 487, 506 (2004).
Additionally, common law displays a long history of disarming individuals who
were viewed as a danger to the public order. See United State v. Williams, 113
F.4th 637 at 650-57 (6th Cir. 2024) (providing a detailed historical summary of
common law and determining that “governments in England and colonial America
long disarmed groups that they deemed to be dangerous.”); Joseph G.S.
Greenlee, The Historical Justification for Prohibiting Dangerous Persons from
Possessing Arms, 20 WYO. L. REV. 249, 272 (2020) (noting that “the historical
justification for felon bans reveals one controlling principal that applies to each
historical period: violent or otherwise dangerous persons could be disarmed”); R.
Brian Tracz, Comment, Bruen and the Gun Rights of Pretrial Defendants, 172 U.
PENN. L. REV. 1701, 1719 (2024) (providing a historical overview that
demonstrates how “substantial burdens were placed on the rights of dangerous
people to possess firearms before, at, and directly after the founding.”).
And beyond the historical evidence of disarmament, at the time of the
ratification of the Second Amendment, “[f]elonies were so connected with capital
14 No. 85675-8-I/15
punishment that it was ‘hard to separate them.’ ” Medina v. Whitaker, 913 F.3d
152, 158 (2019) (quoting 4 W ILLIAM BLACKSTONE, COMMENTARIES *98 . In fact,
felony cases punishable by death included “nonviolent offenses that we would
recognize as felonies today.” Medina, 913 F.3d at 158. And early legislatures
“authorized punishments that subsumed disarmament – death or forfeiture of a
perpetrator’s entire estate – for non-violent offenses.” United States v. Jackson,
110 F.4th 1120, 1127 (8th Cir. 2024). “[I]t is difficult to conclude that the public,
in 1791, would have understood someone facing death and estate forfeiture to be
within the scope of those entitled to possess arms.” Medina, 913 F.3d at 158.
Because the statutes restrict firearm rights, the plain text of the Second
Amendment addresses the conduct at issue. Therefore, we next consider
whether the nation’s historic tradition of firearm regulation justifies this particular
regulation.
Beginning with the early federal laws explicitly prohibiting felons from
possessing firearms, Craven does not challenge the disarmament of violent
felons. In fact, Craven repeatedly draws a distinction between violent and
nonviolent felons, likely because of the extent of the case law upholding the
disarmament of violent felons. After having drawn that distinction, Craven then
emphasizes the time gap between the ratification of the Second Amendment and
any federal law disarming nonviolent felons.
But the difference between 1791 and 1935 and 1791 and 1961 is not a
dramatic one. A less than 30-year difference in a 150-year gap is not enough to
suggest that the prohibition on non-violent offenders is no longer consistent with
15 No. 85675-8-I/16
the founder’s intentions, especially because disarmament of violent offenders
has been repeatedly affirmed.
Next, the extent of contemporaneous common law indicates that the
modern practice of felon disarmament, violent or nonviolent, is consistent with
the principles that underpin our regulatory tradition. Craven committed a felony
offense by repeatedly driving while intoxicated. Such behavior poses a danger to
the public order. As a result, disarmament is an appropriate response, both at
ratification and now.
b. Recent Case Law
Beyond the historical analysis indicating that disarmament of nonviolent
offenders is consistent with our nation’s tradition of regulating firearms, recent
case law continues to affirm such disarmament.
State v. Ross, 28 Wn. App. 2d 644, 649, 537 P.3d 1114 (2023), review
denied, 2 Wn.3d 1026 (2024), provides that “[New York State Rifle] did not
overrule, or cast doubt on, the Court’s recognition in Heller and McDonald that
the Second Amendment did not preclude prohibitions on felons possessing
firearms.”
State v. Bonaparte, 32 Wn. App. 2d 266, 278, 554 P.3d 1245 (2024)
review denied, 4 Wn.3d 1019 (2025), then notes the inability to explain away “the
United States Supreme Court’s repeated articulation that prohibitions on the
possession of firearms by felons are presumptively lawful.” Bonaparte further
clarifies that “ ‘[n]either [New York State Rifle] nor Heller frame[s] the analysis in
16 No. 85675-8-I/17
terms of violent versus nonviolent felons.’ ” 32 Wn. App. 2d at 279 (some
alterations in original) (quoting Ross, 28 Wn. App. at 651).
Craven first contends that Ross was wrongly decided because the court
“reasoned Ross did not have Second Amendment rights because he was not a
law-abiding citizen,” a type of reasoning rejected by the Supreme Court in
Rahimi. But the Supreme Court in Rahimi rejected the idea that an individual
may be disarmed “simply because he is not ‘responsible.’ ” 602 U.S. at 701.
The court did not address the “law-abiding” language used in Heller, McDonald,
and New York State Rifle. In fact, the court in New York State Rifle, after having
considered the historical analysis from “antebellum America,” determined that
none of the limitations on the right to bear arms at issue operated to prevent
“law-abiding citizens” from carrying arms in public. 597 U.S. at 5. Additionally,
Rahimi reaffirmed Heller’s more general pronouncement that prohibitions “on the
possession of firearms by ‘felons’ ” were “ ‘presumptively lawful.’ ” 602 U.S. at
682 (quoting Heller, 554 U.S. at 626).
Regardless of any determination of responsibility, or lack thereof, Craven
is clearly not a law-abiding citizen. And because Rahimi does not reject the “law-
abiding” language, Ross is applicable law.
Craven then attempts to distinguish Ross and Bonaparte based on the
fact that the cases deal with violent felonies. But again, both cases specifically
note the lack of distinction between violent and non-violent felonies. Indeed,
State v. Olson, in affirming the restriction of firearm rights for non-violent felonies,
specifically notes that Bonaparte points out how other courts have “ ‘upheld
17 No. 85675-8-I/18
prohibitions on the possession of firearms by nonviolent felons.’ ” 33 Wn. App.
2d 667, 565 P.3d 128 (2025) (quoting Bonaparte, 32 Wn. App. 2d at 277-79).
Most recently, this court determined in State v. Hamilton, 33 Wn. App.2d
859, 565 P.3d 595 (2025), that New York State Rifle required new analysis for
the question of whether Washington statutes restricting firearm rights are
unconstitutional as applied to a specific offender. In performing that analysis, this
court determined that the restrictions were not unconstitutional as applied to
Hamilton. Now, using Ross and Bonaparte to inform our analysis, we conclude
that the Washington statutes are not unconstitutional as applied to Craven either.
In Hamilton, the court clarified that an offender may constitutionally lose
firearm rights if the enacted felony places the offender “squarely in the category
of persons deemed dangerous to the public order for the purpose of historical
firearms regulation.” 33 Wn. App. 2d at 874.
Here, Craven’s repeated infractions for driving while intoxicated and the
intersection of alcohol misuse and gun violence indicate that he fits the category
of person deemed dangerous for the purpose of historical firearm regulation.
And although Craven’s felony offense did not result in the death of another
person, as Hamilton’s did, Ross and Bonaparte indicate that the distinction
between violent and nonviolent felonies is inconsequential for this particular
analysis.
Because disarmament of nonviolent felons is consistent with this nation’s
historical tradition of firearm regulation and Craven fits the category of person
18 No. 85675-8-I/19
deemed dangerous for the purpose of historical firearm regulation, the statutes at
issue do not violate Craven’s Second Amendment right to bear arms.
2. Article I, Section 24
Craven also asserts that the laws disarming him independently violate
Washington’s constitutional provision protecting firearm rights. Because Craven
cannot establish that the statutes are not reasonably necessary to protect public
safety and substantially related to the legitimate ends sought, the statutes at
issue do not violate article I, section 24 of the Washington State Constitution.
The Washington State Constitution provides an independent protection of
the right to bear arms, stating that such a right “shall not be impaired.” W ASH.
CONST. art. I, § 24; State v. Rupe, 101 Wn.2d 664, 706, 683 P.2d 571 (1984)
(plurality opinion). Although interpreted independently from the Second
Amendment, article I, section 24 similarly provides that the right to bear arms is a
fundamental right. Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 780, 819
P.2d 370 (1991).
The Washington Supreme Court last considered firearm rights and
protections in State v. Sieyes, 168 Wn.2d 276, 225 P.3d 995 (2010), and State v.
Jorgenson, 179 Wn.2d 145, 312 P.3d 960 (2013).
In Sieyes, addressing the constitutionality of a statute prohibiting juvenile
handgun possession, the court “look[ed] to the Second Amendment’s original
meaning, the traditional understanding of the right, and the burden imposed on
children by upholding the statute.” 168 Wn.2d at 295. The court rejected
Sieyes’s claim, stating he “fail[ed] to provide convincing authority supporting an
19 No. 85675-8-I/20
original meaning of the Second Amendment which would grant all children an
unfettered right to bear arms.” Sieyes, 168 Wn.2d at 295.
In Jorgenson, a five-justice majority determined that the challenged law
must be “ ‘reasonably necessary to protect public safety or welfare, and
substantially related to legitimate ends sought.’ ” 179 Wn.2d at 156 (quoting City
of Seattle v. Montana, 129 Wn.2d 583, 594, 919 P.2d 1218 (1996)). To make
that determination, courts must “ ‘balanc[e] the public benefit from the regulation
against the degree to which it frustrates the purpose of the constitutional
provision.’ ” Jorgenson, 179 Wn.2d at 156 (alteration in original) (quoting
Montana, 129 Wn.2d at 594). Under this test, the court affirmed a law prohibiting
Jorgenson from possessing firearms while on bond after being charged with first
degree assault for shooting someone. Jorgenson, 179 Wn.2d at 148-49, 157-58.
a. Standard of Review
Craven first requests that this court disregard the test laid out in
Jorgenson and instead apply strict scrutiny. We decline to do so.
A dissenting opinion is not binding authority. Roberts v. Dudley, 140
Wn.2d 58, 76 n.13, 993 P.2d 901 (2000). An appellate court, however, is bound
by Supreme Court precedent. State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227
(1984). A five-justice majority is precedential. Norg v. City of Seattle, 200 Wn.2d
749, 757, 522 P.3d 580 (2023).
Here, Craven references two authorities to support his request: both
dissents authored by the same judge. Jorgenson, in contrast, was decided by a
five-justice majority, making it binding precedent. We do not find Craven’s
20 No. 85675-8-I/21
analysis persuasive, and in addition, this court lacks the authority to disregard
Jorgenson and apply strict scrutiny instead. We continue the analysis under
Jorgenson.
b. Constitutionality
Applying the Jorgenson standard, we conclude that the statutes at issue
are reasonably necessary to protect public safety and substantially related to the
legitimate ends sought.
Again, “a statute is presumed to be constitutional and a party challenging
its constitutionality bears the burden of proving its unconstitutionality beyond a
reasonable doubt.” State v. Myles, 127 Wn.2d 807, 812, 903 P.2d 979 (1995).
And RCW 9.41.040(1) and RCW 46.61.502(6)(a) prohibit an individual convicted
three or more times for driving under the influence in the past 10 years from
possessing a firearm.
“Public safety and welfare are necessarily implicated in any circumstance
involving firearms because it is widely understood that guns pose an inherent
danger to people and property.” Fort Discovery Corp. v. Jefferson County, No.
53245-0-II, slip op. at 22 (Wash. Ct. App. Sep. 9, 2020) (unpublished), https://
www.courts.wa.gov/opinions/pdf/D2%2053245-0-II%20Unpublished%20
Opinion.pdf. And this court has previously held that prohibiting the possession of
firearms by convicted felons is a “reasonable regulation.” State v. Krzeszowski,
106 Wn. App. 638, 641, 24 P.3d 485 (2001).
Here, Craven fails to establish unconstitutionality beyond a reasonable
doubt.
21 No. 85675-8-I/22
To begin, the State clearly has an interest in protecting the public from the
risk of firearm violence. The statutes at issue then only restrict firearm
possession for those convicted of serious offenses. And as this court has
previously determined, such restrictions are reasonable regulations. Prohibiting
those convicted of serious offenses from carrying weapons that make it
significantly easier to do harm is reasonably necessary to protect public safety.
Next, we conclude that the restrictions are substantially related to the
legitimate ends sought. Craven contends that just because a person drives while
intoxicated does not mean that person has a greater risk of improperly using a
firearm. But repeated infractions for driving while intoxicated does indicate a
willingness to repeatedly endanger the lives of others. And a variety of case law
demonstrates the intersection of alcohol misuse and gun violence.
Mortenson v. Moravec, 1 Wn. App. 2d 608, 406 P.3d 1178 (2017), for
example, provides that a firearm seller may be liable for providing a gun to an
intoxicated person. This indicates that intoxication increases the likelihood of
gun misuse. In fact, Mortenson focuses on the legislature’s “increasing concern
with preventing the combination of alcohol and firearms.” 1 Wn. App. 2d at 625.
Second Amendment Foundation v. City of Renton, 35 Wn. App. 583, 668
P.2d 596 (1983), also draws a connection between alcohol misuse and gun
violence, supporting the regulation of firearms in places where alcohol is served.
Relying on an earlier standard, Second Amendment Foundation even determines
that “[t]he benefit to public safety by reducing the possibility of armed conflict
22 No. 85675-8-I/23
while under the influence of alcohol outweighs the general right to bear arms.”
35 Wn. App. at 586.
Although neither case speaks directly to driving under the influence and
gun misuse, they do outline the relationship between intoxication and gun
violence. Accordingly, restricting gun rights in individuals repeatedly convicted of
driving while intoxicated is substantially related to protecting the public from gun
violence. Craven’s distinction between driving while intoxicated and gun misuse,
unsupported by authority, does not establish unconstitutionality beyond a
reasonable doubt.
And finally, we conclude that the public benefits from the regulation
outweigh the degree to which it frustrates the purpose of the constitutional
provision. As detailed above, demonstrable benefits occur by restricting a
convicted felon’s firearm rights. And to the frustration of purpose, Craven, and
other such offenders, have the ability to restore their firearm rights. In fact,
Craven previously had his gun rights restored after a different felony conviction,
evidencing that the statutory restriction is not necessarily permanent. Given the
extent of the State’s interest in protecting the public from gun violence and the
non-permanence of the firearm right restrictions, the benefits outweigh the
degree of frustration.
We conclude that the statutes at issue do not violate article I, section 24 of
the Washington State Constitution.
23 No. 85675-8-I/24
LFOs
Lastly, Craven contends that the emergency response fee, Title 46 fee,
toxicology lab fee, and victim penalty assessment (VPA) should be stricken
based on his indigency. We uphold the VPA fee but remand to strike the
remaining fees.
1. Emergency Response Fee
RCW 38.52.430 authorizes an emergency response recovery fee when a
court finds an individual guilty of causing an incident that resulted in an
emergency response. Upon a finding that the expenses were reasonable, the
court shall order the defendant to reimburse the public agency responsible for the
emergency response. RCW 38.52.430.
The State concedes that the trial court never made a finding that the
expenses were reasonable. Without such a finding, the fee was not properly
imposed. We remand for the trial court to strike the emergency response fee.
2. Title 46 Fee
RCW 46.64.055(1) requires that a court impose an additional $50 penalty
for a felony conviction in violation of Title 46. The trial court may waive this fee,
however, if the court finds the defendant to be indigent. RCW 46.64.055(1).
The State concedes that Craven has now established indigency. We
remand for the trial court to strike the Title 46 fee.
24 No. 85675-8-I/25
3. Toxicology Lab Fee
RCW 46.61.5054(1) provides that a court must impose a $250 fee on all
alcohol offenders. The fee is discretionary and may be suspended if the person
being sentenced is indigent. RCW 46.61.5054(1)(b).
Again, the State concedes that Craven has now established indigency.
We remand for the trial court to strike the toxicology lab fee.
4. VPA
RCW 7.68.035 requires a court to impose a victim penalty assessment
unless the court finds the defendant indigent “at the time of sentencing.”
Craven contends that because the court found Craven has now
established indigency, we should remand for the trial court to strike the VPA.
The State disagrees, noting that Craven was not indigent “at the time of
sentencing,” as required by statute.
Craven emphasizes that the court did not determine that Craven was “not
indigent,” and simply did not address the issue. But Craven was represented by
two private attorneys throughout trial and indicated at sentencing that he was
employed and had worked consistently in construction for the past 20 years. The
court specifically noted that he appeared to be financially secure, stating, “You
were able to hire these two. . . among the very best counsel. . . [s]o you have
some resources. You are residentially secure. You have got a job. You are
secure, according to your lawyers.”
Given the court’s consideration of Craven’s finances and the lack of
finding of indigency, the court did not err by imposing the VPA fee.
25 No. 85675-8-I/26
We affirm the convictions but remand for the trial court to strike the
emergency response fee, Title 46 fee, and toxicology lab fee.
WE CONCUR: