State v. Hornaday

(dissenting)—I would reverse the conviction of resisting a lawful arrest, RCW 9A.76.040, because Mr. Hornaday was not lawfully taken into custody. Absent circumstances not present here, RCW 10.31.100 only authorizes a police officer to arrest a person without a warrant for committing a misdemeanor when the offense occurs in the officer's presence.2 The majority concludes Mr. Hornaday possessed or consumed liquor in the arresting officer's presence. RCW 66.44.270. Thus, the question narrows to whether the "appearance" of intoxication plus the odor of intoxication, without more, is "possession"…