2016 New California Laws

There are about 800 new California laws that went into effect on January 1, 2016. Here are a few noted by the following topics:

Driving Under the Influence – drivers convicted of a DUI (whether alcohol or drugs) in four California counties [Alameda, Los Angeles, Sacramento & Turlare], under an existing program that will remain in effect until July 1, 2017 will be required to install an ignition-interlock device (IID) on their cars. The IID registers alcohol on the driver’s breath, and is designed to prevent the vehicle from starting based on a pre-determined level of blood alcohol.

Earbuds – earphones, headsets or earbuds in both ears cannot be used while driving a vehicle or bicycle

Electronic Surveillance – the police, sheriff and law enforcement must first obtain a search warrant before accessing your e-mail, text, social media, data and other electronic information, unless it is determined to be an emergency situation.

Gun ban – those who have a CCW permit (individual who may legally carry a concealed weapon) will not be allowed to bring their guns on school and/or college campuses without advance permission from the school or campus authority.

Gun-violence restraining order – individuals who fear a family member could hurt their self or others can apply to the court for a gun-violence restraining order to limit the person’s access to firearms for up to one year

Medical marijuana rules – a statewide agency will now license and regulate all aspects of the cultivation, manufacture, transportation, storage, distribution and sale of medical marijuana.

Motor-voter registration – adults who apply for or renew a California driver’s license will automatically be registered to vote, although one can opt out if you do not want to be registered.

School Children – must be vaccinated to go to public school

Toy guns – are outlawed (can’t be displayed) in public unless brightly colored such as red, pink or yellow

Work Pay – equal pay is required for men & women. It is not less burdensome for a female employee to challenge her employer if there appears to be a disparity in the pay women receive in contrast to men performing similar work. Employers are also barred from prohibiting workers from talking about their &/or their co-workers’ pay in order to determine wage fairness. The minimum wage in California is now $10/hr. However, fewer minimum wage earners now work a full 40 hour work week as a result of the expanded wage, health, and benefit laws involved in operating a business.

This is a summary only and not intended to constitute legal advice. For the official webpage and guide of the Bills the California Legislature enacted in 2015, click: Bills Enacted in 2015

Unintended Consequences of Criminal Offenders Being Transferred from State Prison to County Jail

The growing population of over 150,000 inmates in state prisons in California has exceeded the level the U.S. Supreme Court opined in 2011 is permissible. There has been litigation in Federal Court to obtain a more speedy reduction of the state prison population, and a new law has been enacted as a result of the Governor and Legislature in California establishing the state’s prison realignment; this is the name given to transferring inmates to county jails to reduce the state prison population to about 110,000. A Federal three-judge court previously set June, 2013 as the deadline for California to reduce by over 37% its state prison population beyond each prison’s building capacity. The date was recently extended to February, 2016.  This narrative has been based upon the perceived challenge of the State of California to provide adequate health care to inmates.

The Federal Court allowed this additional period of time subject to transferring state prisoners to private correctional centers and county jails in California, but not any longer to out of state facilities. This was also based upon, among other reasons, the representation of Governor Brown that shorter sentences would be imposed on non-violent criminals; issuing additional good behavior credits to prisoners so they could be eligible for an earlier release; speeding up and expanding early parole for those over 65 years of age with at least 25 years in prison; along with those who are medically incapacitated, as well as expanding the rehabilitation programs provided to inmates.

The problem is not simply the transfer of inmates to County Jails, but now the local detention facilities statewide are overcrowded. Moreover, it has been alleged there is an even greater conundrum in that far more sophisticated criminals are now incarcerated in County Jails.  For example, the San Diego County Sheriff’s Department that oversees the jails in this County has reported there has been an increased number of drugs being smuggled into the jails; this drug trade that previously was typical of state prisons has now become a serious problem in county jails.  It has been reported there were 221 of these drug and alcohol cases in the San Diego County Jails in 2012, which constitutes over a 50% increase from that in 2011. There was a total of 279 of such cases in 2013, and about 335 of these particular cases between January and September, 2014.

To better address one of  these problems, San Diego has installed body scanners at a cost of $150, 000 each unit and $10,000 each year to provide service and maintenance. This month, the County Board of Supervisors also approved spending more than three-quarters of a million dollars to obtain four additional scanners and for a five year maintenance agreement. Besides visitors hiding contraband, some of those picked up for minor probation and parole violations have been smuggling drugs into the jails, as they may only be incarcerated for up to 10 days.

But what is the best solution? Clearly, we need to implement greater rehabilitation and educational programs. For the most part, we are spending the money to incarcerate people who are addicted to alcohol and drugs, have a mental illness and/or do not have sufficient education and labor skills, when rehabilitation will have a far greater impact on this growing societal problem. Many advocates believe it can help to let local and state legislators know our political views, and of course, to become more involved in community programs.

 

 

Be Safe and Vigilant During This Holiday

This is the time of the year when there are many holidays and we will be celebrating, most often with family and friends. 

However, the period of time between Thanksgiving and the New Year can also be the most dangerous days and nights of the year, whether on the neighborhood streets &/or highways.

Unfortunately, we all seem to have more stress from our work, family and societal pressures. Many individuals are tempted to have an alcoholic drink by invitations to lunch or dinner, to parties, and to holiday gatherings that when accepted can at times lead to impaired judgment. It can also be a stressful time due to the continuing and escalating expenses of living; our limited finances; as well as the expectations we impose on ourselves, and others impose on us (even if only because of our perception). Lastly, we are faced with the days getting darker much sooner in the fall and winter, which factor can also increase the risk of accidents.

Given all of the above, during each holiday season we want to be mindful of the safety of our family and loved ones, ourselves and countless others and, therefore, to be extra vigilant when we go and leave places and are on the road. 

Physician charged with unprofessional conduct

A Tennessee physician was arrested for DUI and charged with unprofessional conduct.

Ernest Kleier was unhappy with the state Medical Board Decision that took action against his license for a DUI. He argued the charge of unprofessional conduct was constitutionally vague because it did not spell out what “unprofessional, dishonorable, or unethical conduct” meant. On appeal, the Court agreed with Kleier, at which point the state medical board appealed to the state Court of Appeals; the Board prevailed in the case and their Decision was sustained.

Does a state medical board have the right to inquire into any act or omission that is related to the duties and functions of a licensed medical doctor and any other professional or occupational licensee? It has been opined that driving under the influence of alcohol evinces poor judgment since it places the driver, anyone else in the vehicle, and others on the road in danger of an accident and/or injury. However, this is a slippery slope and now some state Boards consider an infraction with a fine of $300 or more a basis for disciplinary action. This makes it even more prudent to retain an experienced state board license defense attorney when applying for licensure, renewing a license and if one ever is contacted by a state board seeking to interview, talk to and/or meet with you or someone you know in that situation. It is possible to negate and disprove the charges at the criminal stage of the case by a compelling defense and offense; and, it is the practice of Spital & Associates to provide a comprehensive legal and factual written presentation in addition to marginalize the case at the Board level.

 

Chargers doctor steps down

David Chao, the team doctor for the Chargers, stated this Thursday that he’ll be stepping down. He’s been with the team for 17 seasons.

Chao said he wants time to spend with his wife and children, and also has a back injury that will require him to get surgery this month. He said his time spent with the Chargers has been great, and said he wouldn’t trade it for the world.

However, controversy has surrounded Chao’s time with the Chargers. In the past few years, it has been reported that he has had two drunk driving citations, several medical malpractice lawsuits, a public reprimand from the California medical board, and an investigation into his record keeping by the Drug Enforcement Agency. Additionally, at a Super Bowl news conference in January, some New Orleans official demanded that Chao be replaced.

However, the Chargers stand by their doctor, saying that he was part of the team.

Police officer seriously injured in crash Patrol vehicle hit by suspected drunken driver (Sam Spital)

Commentary by Sam Spital, San Diego Personal Injury Attorney:

“A patrol car driven by a San Diego Police Department officer at approximately 2:30 a.m. was struck by a pick-up truck whose driver admitted he was driving under the influence (DUI). The UT News on December 30, 2012 reported the police officer was badly hurt with broken bones and internal injuries requiring surgery. The crash occurred a little over an hour after another collision in which it is believed the driver was also under the influence and killed another individual in a head on accident.

It strains credulity to believe anyone would risk the life of another and/or themself by driving after drinking an alcoholic beverage, albeit the male driver of the pick-up truck in the above collision reportedly had no injuries. Unfortunately, at this time of the year in celebrating the New Year holiday far too many individuals stay out late at night and may not realize they are fatigued and possibly drowsy, they drink at a party or gathering but fail to use a designated driver or take a taxi cab when they are ready to go home.

It seems likely in the not too distant future there will be ignition interlock devices (IID) in not only those automobiles in which the driver has been convicted and the Judge has ordered the installation of the device http://www.dmv.ca.gov/pubs/brochures/fast_facts/ffdl31.htm, but in all vehicles to prevent the huge number of fatalities and serious injuries caused by DUI drivers. Remembering back several years ago, there were objections to seat belts being placed in automobiles and laws that soon were enacted that required they be used or it was deemed a violation of law. This historical perspective may be used to justify the IID since it too can prevent DUI related auto accidents.”

–Sam Spital

San Diego Police say Roman Catholic archbishop-elect of San Francisco arrested for DUI (SAM SPITAL)

“The article published in the Washington Post noted in the early morning hours of August 27, 2012, a San Diego Police Officer arrested the Roman Catholic Archbishop-elect of San Francisco for driving under the influence. If the facts are true, this certainly evinces a lack of good judgment as no one should drive after having any alcohol, whether wine, beer or liquor. It simply is not appropriate given the potential for harm or even death to others as well as the individual in question. Of course, the reader does not know all of the facts and, therefore, should not automatically conclude a DUI crime was committed by the newly appointed Archbishop.

The portion of the article that is troubling is the greater amount of written copy devoted to describing the Archbishop-elect as an ardent supporter of California’s same-sex marriage ban, and his role as Chairman of the U.S. Conference of Catholic Bishops’ Subcommittee for the Promotion and Defense of Marriage. It clearly shows a potential bias of the author of the Post article against others who may oppose same sex marriage, which does not seem relevant to whether a DUI crime occurred, and by whom. When this type of reporting takes place, one becomes suspicious of there being more information that should have been described but likely was omitted from (possibly even deliberately left out of) the article. Further, commonly accepted standards of journalism require a fair and balanced account rather than the writer’s use of the article to pander her own prejudices and/or to produce more justification to criticize others (regardless of religious belief).”

SAM SPITAL, LAWYER
SAN DIEGO DUI DEFENSE COUNSEL

Missouri v. McNeely

“On September 25, 2012, the United States Supreme Court in the case of Missouri v. McNeely, (Case No. 11-1425) http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-1425.htm granted a Writ of Certiorari and will likely decide early next year in their scheduled 2012-2013 docket whether a law enforcement officer must first get a warrant before taking a blood sample from a suspected drunk driver who has not previously given consent.

The underlying trial court ruled the warrantless blood sample violated the defendant’s Constitutional right to be free from an unreasonable search and seizure. The State appealed and the decision was reversed. The case then proceeded to the Supreme Court of Missouri where the State continued its argument of the “exigent circumstances exception” to the Fourth Amendment of the U.S. Constitution warrant requirement, on the grounds that alcohol quickly dissipates in the bloodstream while police must wait for a warrant. The Missouri Supreme Court rejected this contention and supported the trial court’s holding.

The American Civil Liberties represented the driver who was charged with a DUI. Among other things, the ACLU noted there are 27 states that ban nonconsensual blood samples from being taken without a warrant. However, California is not included in any such ban per the case of Schmerber v. California, 384 U.S. 757 (1966), which not only addressed the Fourth Amendment, but also ruled the withdrawal of blood is not a violation of one’s privileged against self-incrimination under the Fifth Amendment.”

SAM SPITAL

San Diego baseball player involved in alleged DUI hit-and-run

Matt Bush, a San Diego native and aspiring professional baseball player was reportedly involved in a series of hit-and-run accidents last month, which resulted in the serious injury of a motorcyclist. This is just the latest of a series of similar incidents for the 26-year-old, who has seen his once-promising baseball career stall as a result of his issues with alcohol.

According to police reports, the series of alleged DUI accidents began when Bush crashed a teammate’s SUV into another vehicle. The driver of the second vehicle later told police that he had been hit by a SUV matching the description of the one driven by Bush, which had backed up at a red light to make an illegal U-turn following the crash.

Later that day, the same SUV crashed into the back of a motorcycle, causing its 72-year-old rider to suffer serious injuries. Bush reportedly fled that scene as well.

He was later apprehended by police, at which time he told police that he had been involved in yet another accident, in which he had collided with a pole, between the crash with the first vehicle and the motorcycle. Bush was arrested and charged with multiple criminal offenses in connection with the series of alleged DUI hit-and-run accidents. In addition, the motorcyclist reportedly plans to file a personal injury lawsuit against Bush and the owner of the SUV involved in the crashes.

The arrest is just one in a line of alcohol-related incidents that have derailed Bush’s once-promising professional baseball career. In 2004, Bush was the top overall pick in the MLB draft, but has spent the last two years playing for a minor league team after multiple ‘reported alcohol issues.’ Hopefully, he is able to get these issues under control and get back to his former and future baseball success.