Hiring An Attorney Who Is Tough, Smart & Knows the Law

Samuel Eugene SpitalDo you or someone you know have a professional or occupational license and facing an investigation or charges by the State of California? Are you seeking a professional or occupational license? Have you considered your future endeavors and how the potential outcome of the present situation can adversely impact the choices you may later have and/or want to make?

Whether it appears to be only a call or letter from the government, you want to be certain as to your rights and possible liabilities, and you want a lawyer who is tough, smart and knows the law. Clearly, anyone who has had such an encounter knows what might seem an innocent and non-adversarial communication from the government or an investigator can be just the opposite. It is not about “telling the truth because you have nothing to hide.” Rather, what you say can be misinterpreted and might constitute an admission against your interest (in law – it can be construed as a confession).

Hence, whether you are applying for a license or have one, the risks as well as rewards can be substantial. If you have received an Accusation by the Board or Agency that issued your license or you are planning to apply for a state license or have received a denial letter, it is indisputably a defining moment in your career and, therefore, should be treated as a critical event that justifies obtaining truly experienced counsel.

The intent and scope of legal services should be to provide you with a full and proper evaluation of your case, as well as to afford you legal advice as to your rights, as well as your legal, and financial (and perhaps emotional) exposure, including the alternatives that are available. In addition, to protect you from an otherwise powerful state government and on your personal behalf to level the playing field, you also want an attorney who will fully assess and rightfully advance your legal rights.

A prominent attorney is able to maintain such a position by him/her having integrity, as well as being fully experienced and highly skilled in presenting thorough legal arguments that are not only comprehensive, but most importantly are both in writing and legally sound. This  takes more than an idle analysis, but rather proper research; detailed planning of the strategy in a case; it involves an exhaustive review of all of the facts; a wise and accurate evaluation of the records; correctly interviewing lay and knowledgeably conferring with expert witnesses who are highly regarded in the profession; eventually, the proper foundation and scrutiny must be accomplished to truly level the playing field for the skilled and experienced lawyer to be in a position to confer with the prosecution side, persuasively argue and present as well as to negotiate and achieve a winning solution.

If a winning result is what you want, you should not expressly or implicitly place a constraint on the number of hours and time that your lawyer deems appropriate to strengthen your defense and develop a compelling offense. Clearly, you can’t afford to not do this if you are truly motivated and honestly desire to obtain a favorable outcome.

In the end, when you consult with and retain a lawyer who is tough, smart and knows the law, you are less likely to look back and wish you had done so. And, there are readily available tools to help you evaluate the criteria, such as percentage of their practice devoted to Administrative Law, years in practice, prior specialized experience, their proven success, and most importantly what other clients and leading attorneys have consistently said in the past and continue to say in the present about the lawyer you select. And, if you ultimately choose price as an overriding factor (paying the lower of retainer fees to a lawyer), it is more likely he or she will spend less time on your case. For a free consultation, call now 619.583.0350 or send an email to Sam Spital, Managing Lawyer, with a few ranges of time for him to call back. You have nothing to lose, there is no hassle, you will come away with more insights and, therefore, believe there was and is “everything to gain.”

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

What To Do If You Get A Call or Letter From The Government?

If you receive a telephone call or a letter from the Government, it is extremely important that you obtain experienced legal counsel at once. It may be possible to “nip it in the bud” during the pre-file and/or investigative stage. This is why it’s so important to seek legal advice in the early stages of a case. Do not be naïve to think you can handle it yourself and/or any lawyer can do so on your behalf.

Some lawyers handle a huge caseload, have their junior associates and paralegals perform the work, and may be best described as an assembly line or cookie cutter law firm. You deserve an attorney who will prepare a proper strategy that is accompanied by comprehensive written legal and factual arguments that address the issues.

It is noteworthy that there are several possible outcomes of an investigation, including the following:

1. Closed, the complaint is found to be “unsubstantiated;”
2. Closed, the complaint is found to be “inconclusive;”
3. Closed, the complaint is found to have merit but insufficient evidence to prosecute given the burden of proof and likelihood of prevailing;
4. Closed, an investigative fine is imposed;
5. Referred to the local District Attorney, referred to the State of California Attorney General for the filing of an Accusation, civil complaint and/or an Interim Suspension Order, referred to the U.S. Attorney, local City Attorney, or other Legal Division for prosecution;
6. Referred for issuance of a citation; and/or
7. Referred to another law enforcement agency for prosecution.

How important are the following? Your career! Your personal and professional image and reputation! Your credibility! Your ability to maintain your current and/or have the opportunity to obtain future employment!

If an investigation is opened against you, is the number one priority the cost of your defense? However, does it make sense that the reason a lawyer may charge less is to do less? Is it likely a cut-rate attorney charges a lesser amount because (s)he handles a large volume of cases and, therefore, your expectation of personal service and winning results may be unfulfilled? Is it sufficient for you if the attorney does the obvious and no better than an “ok” job? Do you prefer quality, passion and a dedicated lawyer who is extremely motivated to win, works harder and seeks to go beyond the minimum, with a strategy for a compelling defense and offense? Do you want a lawyer with consistent winning results or are you willing to gamble on the outcome?

When you receive a call, visit or letter from an investigator, consider each of these factors when selecting a lawyer with a proven record and one who will truly fight for you. Remember, the investigator has the government on his/her side with superb lawyers to prosecute their cases and you deserve to have a formidable and premier attorney on your side, and to level the playing field.

CA Supreme Court ruled that unlicensed school employees can give insulin injections

Commentary by Sam Spital, California State Board License and Criminal Defense Attorney

It strains credulity to believe the Supreme Court declared that California law permits unlicensed employees to give insulin injections, albeit pursuant to a doctor’s order. It is a slippery slope and this opens the door to even more situations in which the training and education of a licensed nurse are being marginalized.  The American and California Nurses Association based their arguments on California law (Bus. & Profs. Code section 2700 et seq.) that heretofore has held only licensed nurses can administer insulin.Specifically, the Legislature has mandated in the Nursing Practice Act the requirements for licensure with specific courses of education, scientific knowledge, skills and clinical training, and these include the administration of medications [Bus. & Profs. Code section 2725(b)(2)]

The author did not relate any of the pros and cons, nor alternatives to an increasingly important concern in public schools throughout California since more and more parents are discovering school nurses are unavailable on a regular basis (only 5% of the schools in California have a full time nurse on duty; 26% have no nurse on duty and the rest have only part time nurses).

No citation to the actual Supreme Court case was set forth in the article, but the name, citation and link are as follows:  AMERICAN NURSES ASSOCIATION vs. TOM TORLAKSON, August 12, 2013 (Case #S184583) http://www.cde.ca.gov/ls/he/hn/documents/anavtorlakson2013.pdf

 

Nevada state psychiatric hospital to lose accreditation

A Nevada state psychiatric hospital is being stripped of its accreditation, but is choosing not to appeal.

It seems a conundrum here: The hospital loses its accreditation and that means they will not be paid by the government, patients will have to be released, transferred to another facility if available and/or others will not be admitted until they apply for and receive a new certification.. There are many who believe the 72 hour hold is sufficient to protect the patient as well as society because psychiatrists and staff are required to determine if there is a present danger to the patient and/or society and only if that does not appear to exist is the patient released.

If the patient does not have any family or caretakers, they are released into the community. Unfortunately, there are an insufficient number of places for community housing and/or locations that can provide an appropriate, albeit temporary period of time for such patients to be sufficiently stabilized to be on their own. It is clear that we have far too many members of society that fall into this category and need ongoing care and treatment. While some pundits will claim we cannot provide appropriate and adequate transitional care for psychiatric patients who are medically challenged, others who are more enlightened including myself passionately believe the billions of dollars we send to foreign countries should first be used to fix this and countless other problems in our own country.

Commentary by Sam Spital, California State Board Licensing Defense Attorney & San Diego Personal Injury Lawyer:

1st-grade teacher accused of molesting 2nd boy

Stories involving child abuse and harm are some of the most difficult to hear. Unfortunately, reports such as this one are prevalent in our everyday news.

According to this article by Fox 5 San Diego, a South Bay elementary school teacher is accused of possessing child pornography and using it to convince boys to expose themselves online. The 41-year-old was previously charged with molesting a former student. Today, he faces new charges which include allegations of a sex crime committed against a second boy. In addition to previous charges, the suspect now faces 12 counts of committing a lewd act on a child involving a second victim.

The first-grade teacher was initially arrested after agents with the San Diego Internet Crimes Against Children Task Force searched his home. An investigation discovered the suspect posed as a girl on website called “MeetMe” and persuaded boys to expose themselves live via webcam.

 

1st Grade Teacher Re-Arrested on Child Porn Charges (Sam Spital)

COMMENTARY BY SAN DIEGO CRIMINAL ATTORNEY SAM SPITAL:

 “Internet sex crimes against children are escalating and parents need to be vigilant to avoid what has become a despicable and outrageous scourge in modern society. Clearly, the solution is not to remove computers from children. Even using available tools to restrict access on individual computers is not a full-proof solution because the internet can be accessed at countless places and in locations otherwise unknown by a parent. Open, regular and continuous communications between parents and children continues to be the most valuable approach advocated by most counselors, teachers and experts. The goal is not to cross the boundary to become a friend rather than a parent, but certainly to build and maintain love and respect, as well as establishing proper ethics and morals.

On December 6, 2012, a 41 year old first grade elementary school teacher in Chula Vista, a city in San Diego, was arrested on suspicion of 11 counts of lewd and lascivious acts on children under the age of 14. One of the charges is molesting a young boy. Apparently, the suspect posed as a 13 year old girl who used a web site named ‘MeetMe’ and has utilized other similar web sites to lure young boys to disrobe during webcam communications. The story contained no reference to possible exculpatory evidence (facts that would be favorable to the defense), remorse and/or mitigation, all of which may likely be presented by defense counsel on behalf of the suspect.

This has allegedly taken place while charges are already pending on possessing child pornography.Bail has been set for approximately $1 million.”

Nurses Videotaped in Sex Acts Worked for Unlicensed Company (Sam Spital)

Commentary by SAN DIEGO CRIMINAL LAW AND PROFESSIONAL LICENSE DEFENSE ATTORNEY:

“This story was updated and published on November 8, 2012 by San Diego Channel 6 News regarding two registered nurses who were caught by home surveillance equipment and videotaped masturbating and performing oral sex on each other near, as well as kissing and fondling, a female stroke victim who was 98 years old. The nurses were referred by AMS Home Care Solutions, which reportedly is not currently and never was licensed by the California Department of Public Health to provide skilled nursing care (apparently AMS applied in May, 2011 for, but was not granted, a license). On October 24, 2012, an Administrative Law Judge (ALJ) issued an Interim Suspension Order (ISO) against the nurses. For further information regarding both cases before the Board of Registered Nursing, see: http://rn.ca.gov/public/rn575494.pdf andhttp://rn.ca.gov/public/rn673160.pdf.

Pursuant to Code of Civil Procedure, Section 1094.5, either or both of the nurses can obtain judicial review of their respective ISO by filing a Petition for a Writ of Mandamus in San Diego Superior Court in which the judge will decide if there was an abuse of discretion by the ALJ in imposing the interim Order. The Board of Registered Nursing has up to 15 days to file an Accusation in connection with the above case in which the nurses face an outright revocation of each of their RN licenses. If a Notice of Defense is timely filed the nurses or either one are entitled to a hearing or trial within 30 days. There were no responses by defense counsel and, therefore, it is uncertain what strategy or arguments will be made on behalf of their respective clients.”

 

Alleged Abusive Caregiver has Troubled Past (Sam Spital)

“NBC News and the Union Tribune reported that a Registered Nurse performing as a caregiver was arrested on multiple criminal charges for physical abuse of a 23 year old patient who is severely autistic. According to a Complaint filed by the District Attorney, the defendant is charged with several counts of willful cruelty to a dependent adult. The RN and his   co-defendant in this case are each being held in County Jail on $1 million bail.Even though the parents trusted the nurse for about two years, they became concerned about two months ago for their fear of serious mistreatment and exploitation of their son when they observed signs of abuse and then installed a video surveillance camera in their home. The tape recorded hundreds of beatings, slaps, kicks, pushing, eye-poking and punching the victim’s head during the parent’s absence over a recent three week period of time.

The parents were interviewed and stated they initially went online at the Board of Registered Nursing web site to find out if there had been any disciplinary action against the RN, and found none before employing him. A current review of the BRN web site reflects the suspect has been licensed since 1983 as an RN and has no prior Board case:http://www2.dca.ca.gov/pls/wllpub/WLLQRYNA$LCEV2.QueryView?P_LICENSE_NUMBER=361686&P_LTE_ID=828.  However, this is understandable in that when a nurse seeks to renew a license during the last couple of years, the form only inquires of criminal convictions during the preceding two (2) years.

The UT detailed a criminal history of the nurse dating back to 1969 and which the mother acknowledged she was told by the caretaker he was innocent (it is unclear how much he told the parents, although it appears he was acquitted of second-degree murder of a 13 month old infant who died from a skull fracture while the Defendant was baby-sitting; and there was a 11-1 in favor of conviction, but the jury deadlocked and a mistrial was declared by the Court). The mother acknowledged she was also told about another case in 2002 that stemmed from several felony counts of animal abuse and neglect in which the defendant pled guilty to one criminal misdemeanor charge and was placed on probation, which she also noted the Defendant told her he took “good care” of his dogs.

Those with severe autism will act out and outbursts and physical aggression are constant and extremely common. These individuals struggle with rigidity and transitions. One could argue caregivers and parents should both be mandated for respite care, continuing education, self-care and psychological testing of the prospective caregiver to help a parent to evaluate how he/she will deal with aggressive behavior. While the focus is often on the individual with autism, there is a definite need for more education for both the parents and caregivers since they are continually under extreme and cumulative stress and often do not use acceptable and appropriate support systems or remedial protocols. Also, requiring limited work hours and frequent breaks can help diffuse the anxiety and strain in dealing with a severely autistic individual. It appears all of the current focus is on early intervention for children and how to parent a child with autism (behavioral interventions, speech intervention, emotional-regulation intervention). There are required courses on how to use behavioral strategies for the child that parents need to take when they are a Regional Center client. However, there are no required classes for both caregivers and parents on self-care, taking frequent and much needed breaks, self-talk, managing depression, managing grief, dealing with constant outbursts and repeated physical aggression, and loss of expectations of a typical child. There is only brief mention about seeking out support groups and offering resources, but there are far too few continuing education courses and workshops that specifically deal with caretakers and parents regarding much needed practices and protocols.

I have handled countless cases and represented both Registered and Vocational Nurses in California who also have had criminal records and then face a denial of licensure, or suspension and revocation of an existing license. In a limited few of these cases there are defenses that can be asserted since the conviction is conclusive. In the vast majority of criminal and administrative law cases, however, the focus I often select is on sentencing and this is where expert testimony and other compelling evidence is propounded to establish mitigation. As both a San Diego criminal defense lawyer and a California Administrative Law attorney, I underscore the extent to which the purposes of a court and Board in exacting a sanction have been and are fulfilled, as follows: (1) to impose a reasonable and appropriate punishment to deter the offender and future individuals from unlawful conduct; (2) retribution, or to penalize the offender so as not to repeat the misconduct; (3) to protect the health and safety of the public from illegal behavior; and (4) rehabilitation, or to get the offender to have remorse and recognition of wrongdoing so that he will not engage in any criminality again.”

Sam Spital, Criminal Defense Lawyer

Special needs teacher arrested for relationship with student?

Clearly, we must maintain the integrity of our legal system and the principle that “a person is innocent until proven guilty.”

However, it is unspeakable for a teacher to use her position of trust to engage in sexual relations with a student. Even more despicable is for a special education teacher to engage in such misconduct with a student with special needs. These students are particularly vulnerable.