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WPIC 49C.21 Refusal to Provide a DNA Sample as a Sex or Kidnapping Offender—Elements

11 WAPRAC WPIC 49C.21Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 49C.21 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part VII. Sex Crimes
WPIC CHAPTER 49C. Failure to Register as a Sex or Kidnapping Offender for Crimes on or After July 22, 2011
WPIC 49C.21 Refusal to Provide a DNA Sample as a Sex or Kidnapping Offender—Elements
To convict the defendant of the crime of refusal to provide DNA [as a [sex] [kidnapping] offender], each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date the request was made), the defendant was requested by (name of court or agency) to provide a DNA sample;
(2) That at the time the request was made, the defendant was required to register in the State of Washington as a [sex] [kidnapping] offender;
(3) That the request resulted from the defendant's [conviction in the State of Washington for (name of crime)] [requirement to register in the State of Washington as a [sex] [kidnapping] offender]; and
(4) That the defendant willfully refused to comply with that request.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
Use WPIC 10.05 (Willfully—Definition) and WPIC 49C.06 (Sex Offender Registration Requirement—Definition) with this instruction
RCW 43.43.754(9). The statute defines the offense as:
A person commits the crime of refusal to provide DNA if the person has a duty to register under RCW 9A.44.130 and the person willfully refuses to comply with a legal request for a DNA sample as required under this section. The refusal to provide DNA is a gross misdemeanor.
Under this statute, it is an element that the request for a DNA sample was “required under this section.” The instruction therefore sets out the circumstances under which a sample may be required. A DNA sample must be collected from everyone who is convicted of a felony or any of the following crimes: fourth degree assault with sexual motivation, communication with a minor for immoral purposes, second degree custodial sexual misconduct, failure to register, harassment, patronizing a prostitute, second degree sexual misconduct with a minor, stalking, or violation of a sexual assault protection order. RCW 43.43.754(1)(a). A DNA sample must also be collected from every person who is required to register as a sex or kidnapping offender. RCW 43.43.754(1)(b). Depending on the circumstances, a sample may be collected by a police department, a sheriff, or the Department of Corrections. RCW 43.43.754(4).
RCW 43.43.754(9) requires that there be a “legal request.” The lawfulness of an order is a question for the court, not the jury. See State v. Boss, 167 Wn.2d 710, 223 P.3d 506 (2009) (in prosecution for custodial interference, lawfulness of custody order is question of law); State v. Miller, 156 Wn.2d 23, 123 P.3d 827 (2005) (in prosecution for violation of no-contact order, validity of order is question of law). This instruction therefore omits any reference to a “legal request.” Instead, the instruction requires the jury to determine facts that would render the order legal.
This instruction also does not include a separate “jurisdictional” element. Washington jurisdiction is established by elements (2) and (3).
For element (3), the parties often stipulate to the existence of a prior conviction. See the Comment to WPIC 4.78 (Stipulation of Prior Offense (“Old Chief Stipulation”)) for a discussion of “Old Chief” stipulations applicable to “felony sex offense.”
[Current as of December 2018.]
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