In Re The Detention Of E.w. ( 2022 )

Filed
Washington State
Court of Appeals
Division Two
March 22, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Detention of: No. 54812-7-II
E.W.,
UNPUBLISHED OPINION
Appellant.
PRICE, J. — E.W. appeals the superior court’s order denying his motion to revise the
commissioner’s 14-day involuntary commitment order. Specifically, he argues that the
commissioner erred by proceeding with the probable cause hearing when, after exercising his right
to refuse medication, E.W. had been administered medication prior to the hearing. However, E.W.
has waived any error in the commissioner proceeding with the probable cause hearing.
Accordingly, we affirm the superior court’s order denying the motion to revise.
FACTS
At 11:34 p.m. on June 23, 2020, the Pierce County Designated Crisis Responder detained
E.W. at Good Samaritan Hospital. On June 24, E.W. was transferred to Wellfound, a private
mental health care facility. The crisis responder filed a petition for an initial 14-day involuntary
commitment. The probable cause hearing on the petition was scheduled for June 26.
At the probable cause hearing, E.W.’s attorney informed the commissioner that he would
like to make a record regarding a medication issue. Nathan Hinrichs, a court evaluator at
Wellfound, testified that he informed E.W. of his right to refuse medication 24 hours before the
hearing. Hinrichs testified that E.W. declined all medications and he informed the nursing staff of
No. 54812-7-II.
E.W.’s decision by noting it in several places. Hinrichs explained that, notwithstanding his
notations, E.W. did receive an oral dose of Zyprexa and an oral dose of Trazadone later that day.
After seeing that medications had been administered, Hinrichs met with E.W. in the morning to
see if he had changed his mind but E.W. reiterated that he did not want to take any medications
before court.
E.W. testified that he made it very clear that he did not want to receive any medications.
However, E.W. explained that in the afternoon, a nurse came to his room with the Zyprexa and
told him he had to take it. E.W. said he took the medication because the nurse told him to. Later,
another nurse brought him the Trazadone and told him to take it. Again, E.W. said he took the
medication because the nurse told him to.
Following this testimony, the State explained that the nurses that administered the
medication were not available to testify that day. The State suggested continuing the hearing in
order to hear testimony from the nurses. E.W. argued that any continuance would be prejudicial
because the earliest the hearing could be set would be Monday and he would have to spend the
weekend at Wellfound. The Commissioner decided to continue the hearing to hear additional
testimony on Monday.
E.W.’s attorney then stated that E.W. was willing to waive the medication issue in order to
proceed with the hearing that day. E.W.’s attorney represented that she had discussed waiving the
medication issue with E.W. and he was willing to waive it in order to continue with the probable
cause hearing. Then the commissioner inquired directly of E.W.:
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No. 54812-7-II.
[COMMISSIONER]: [E.W.], this is Commissioner Kiesel. Uh, I do have concerns
because the main reason you are not supposed to be given medication rights is if—
or medication, is to make sure that you are clear thinking for the hearing. Do you
feel that your medications are going to impact your testimony today?
[E.W.]: Absolutely not, Your Honor. I am high IQ and I’m fully aware of my
surrounding, thank you very much.
Clerk’s Papers (CP) at 53-54. The commissioner proceeded with the hearing on the petition.
Following the hearing, the commissioner entered a written order finding E.W. gravely
disabled. The commissioner ordered that E.W. would be detained at Wellfound for 14 days. E.W.
filed a motion to revise the commissioner’s order, which the superior court denied. CP 30, 193;
PDF 33, 196.
E.W. appeals the superior court’s order denying his motion to revise the commissioner’s
14 day involuntary commitment order.
ANALYSIS
E.W. argues that he has statutory, procedural due process, and substantive due process
rights to appear at his hearing unmedicated and the commissioner violated his rights by proceeding
with the hearing after he has been administered medication. The State argues that E.W. waived
any error. We agree with the State.
“ ‘In general, the waiver of a fundamental constitutional right must be made knowingly,
voluntarily, and intelligently.’ ” State v. Lee 12 Wn. App. 2d 378, 387, 460 P.3d 701, review
denied, 195 Wn.2d 1032 (2020) (quoting State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475(1996)). Assuming, without deciding, that this standard for waiving a constitutional right applies
here, E.W. knowingly, voluntarily, and intelligently waived his right to be unmedicated at the
commitment hearing.
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No. 54812-7-II.
E.W. raised the medication issue before the commissioner but then he clearly reversed
course, deciding he would rather proceed with the probable cause hearing instead of waiting to
have testimony from the nurses who administered the medication. E.W. voluntarily chose to take
his opportunity to be released by continuing with the hearing rather than face the certainty of
staying at Wellfound for the weekend. In addition, E.W. made his request to proceed with the
probable cause hearing with the knowledge that follows professional advice. E.W.’s decision was
made after a private discussion with his attorney—an attorney who also confirmed that E.W. was
waving the medication issue. And both E.W.’s desire to waive the issue and his ability to make
that decision were confirmed through his colloquy with the commissioner.
E.W.’s knowing, voluntary, and intelligent request to proceed with the hearing waived any
right to appear at the hearing unmedicated. Therefore, we decline to review E.W.’s argument that
proceeding with the hearing violated his statutory, procedural due process, and substantive due
process rights to appear at his hearing unmedicated, and affirm the trial court’s order detaining
E.W. for 14 days.
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No. 54812-7-II.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
PRICE, J.
We concur:
MAXA, P.J.
BASSETT, J.P.T.1
1
Judge Jeffrey Bassett is serving as a judge pro tempore of the court pursuant to RCW 2.06.150.
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