Monday, February 29, 2016

Is Kaiser Hospital Pursuing Frivolous Restraining Orders Against its Patients?

In the past two weeks, I have personally encountered two separate people who have been served with very questionable restraining orders by Kaiser Hospitals.  Two isolated cases don't necessarily make a pattern, but they raise some questions.

A couple weeks ago, I successfully defended a young quadriplegic man against a nonsense "workplace violence" restraining order that Kaiser Hospital had filed on behalf of several nurses. The nurses unconvincingly claimed that they feared for their safety, and requested that the court intercede by evicting a paralyzed man from his hospital bed.  A judge declined to issue the order and my client was permitted to remain in the facility.  

A few days later, I spoke to an MS patient who claims that Kaiser obtained a bogus "civil harassment" restraining order against her.  I was not personally involved in her case, but she tells me that she was treated at Kaiser and that she had sent her doctor a "thank you" gift.  She denies engaging in any behavior that would constitute the basis for a restraining order and she was genuinely confused as to why her hospital would take such a course of action. Unfortunately, she failed to respond to the restraining order petition in a timely manner and the court entered a default judgement against her.

Are these two anecdotal cases indicative of a larger pattern?  Are Kaiser Hospitals abusing the restraining order process against their own patients?  I don't have enough information to make such a bold accusation right now, but it's something that I'm genuinely interested in learning more about. 

If you or a loved one has been served with a restraining order by Kaiser Hospitals, call us for a free consultation.  (714) 449-3335.  

Our office has extensive experience in defending against restraining order petitions in all Southern California courts.  If we can successfully show that Kaiser is abusing the process by pursuing frivolous restraining orders against its own patients, you may be entitled to compensation.   

Thanks for reading.  

Friday, February 19, 2016

The Usual Headaches Complicate Court Appearances in Catalina

I just got back from another trip to court in Catalina.  It looks like the same old headaches are still causing complications for individuals who are cited on or around the island.

The old story goes like this:

If you are cited for some illegal fishing activity (fishing without a license, in a protected zone, in possession of the more than the daily bag limit, etc.), Fish & Wildlife wardens will give you a citation that orders you to appear in court on Catalina Island "on or before" a particular date.

If you actually make the trip back to Catalina as you were ordered to do (and as you signed a written promise to do), there's a good chance that you will receive some bad news upon arrival: the court has not yet processed your citation.  You are not on calendar and nobody at the courthouse has any information about your case.  You will be told to go home and to wait for a new "Notice to Appear" to arrive by mail.  If that new notice never arrives, it is still your responsibility to maintain contact with the court and to continue checking in regularly until your matter finally appears on the calendar.  Then, of course, you can make another trip to begin the process of fighting your case.

If you miss a court date (because the new "Notice to Appear" was mailed to an old address, or to the wrong address, or because it was never mailed at all), a warrant will be issued for your arrest. You will become a "fugitive", and then your life will really get miserable.

Once your case appears on the court's calendar, then you can appear and start the process of trying to fight it.  You might decide to cut your losses and simply plead "guilty" or "no contest" at the first appearance to save yourself from making any more costly trips to and from Catalina.  If you decide not to jump on a bad offer, though, be prepared to make several more appearances. That's when "complication #2" rears its head.

If your case requires several trips back and forth to Catalina Island, you should expect the DA to "forget" your case file at least once.  When this happens, the matter will simply be continued to the court's next available date.  That means another wasted trip. Often, I get the impression that prosecutors intentionally drag their feet to make the whole process as complicated and expensive as possible for individuals to defend themselves.  I understand why many defendants are eventually pressured into accepting bad deals because they simply cannot afford to make any more day-long trips to court. The DA understands this, too, and they will use basic economics to gain whatever strategic advantage they can.

Catalina Island is a great place to spend a day, but not in court.  If you or a loved one has been cited and given a court date on Catalina Island, save yourself the expense and the hassle of making unnecessary trips.  Have a quality, local attorney handle it for you.

I appear in Catalina more frequently than any other private attorney in California.  I can make your appearances, gather evidence and negotiate with the court and the DA on your behalf to ensure that your case receives the most favorable outcome possible.  Common matters on the island involve fishing violations, but we also deal with a lot of alcohol-related offenses (drunk in public, assault, battery, domestic violence and DUI -- yes, DUI on golf carts).

Call us for a free consultation.  (714) 449-3335.  Ask for John.  Thanks for reading.

Catalina Lawyer

Tuesday, February 9, 2016

The First Amendment as a Defense to Drug Charges?

If you haven't already, please check out the columns I've been contributing to The entire archive is available under the "Ask a Weed Lawyer" section.

My latest post for The Kind Land is scheduled for publication on Valentine's Day (2/14/16).  In it, I discuss "freedom of religion" as a possible defense to drug charges.  This is an area that has generated a lot of popular mythology and bad information.  Many people believe that the First Amendment's protections for the "free exercise of religion" grant them total immunity against prosecution for any activity that is central to their religious beliefs.  Unfortunately, this is not true. The Supreme Court has consistently ruled that the US Constitution does not entitle individuals to disregard generally applicable criminal laws.  Sorry, Rastafarians.

The Religious Freedom Restoration Act

But there are a couple federal laws that, taken together, make this analysis more interesting.  First is the "Religious Freedom Restoration Act", which was signed into law in 1993.  That law prohibits the US government from taking any action that "substantially burdens" the free exercise of religion, unless the government can prove 2 important things: 1) that the feds have some "compelling" interest to protect, and 2) that the government's action in question is the least intrusive means for protecting that interest.

Keep a couple things in mind, though.  The RFRA is not a constitutional amendment, it is a federal law.  That means that it does not apply against the states; it only applies to actions taken by the federal government.  States and local governments are still free to "substantially burden" the exercise of your religion.  Also, the RFRA does not grant blanket immunity to do anything that you claim is part of your religion.  Instead, it establishes a balancing test.  If you claim that some federal law infringes on your religious beliefs, then the courts must weigh that infringement against the government's legitimate interest in protecting public health and safety.  If the government's interest is found to be "compelling", and its actions are "the least intrusive means" for protecting that interest, then you still lose.

The Religious Land Use and Incarcerated Persons Act

Enacted in 2000, the federal RLUIPA takes the RFRA one step further.  It prohibits cities and local governments from making any laws regarding zoning or land use that substantially burden the practice of religion.  Up until now, most of the litigation around the RLUPIA has involved eminent domain cases -- whether or not a city may seize church land to build a new housing development or airport.

What does this have to do with marijuana?  Glad you asked.

The Oklevueha Native American Church, a group that claims over 200 local branches, has recently announced plans to open several new locations in Costa Mesa, Huntington Beach, and Westminster.  Members of the church use peyote, marijuana and other hallucinogens to "commune with nature" as part of their religious beliefs.

The church will operate out of buildings that formerly housed marijuana dispensaries.  Church leaders have stated that they intend to distribute marijuana to their members, in violation of local zoning laws.  It is not clear whether or not the church intends to distribute other controlled substances and whether or not it will restrict marijuana sales to members who hold valid medical recommendations.

Spokesmen for the cities of Huntington Beach and Costa Mesa have publicly stated that they intend to enforce their existing zoning laws.  An attorney for the church has threatened to bring a federal lawsuit under the RLUIPA if the cities' land use regulations interfere with his clients' right to freely exercise their religion.

We're all excited to see how this plays out.

If you or a loved one has questions about drug charges in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Drug Lawyer

Friday, February 5, 2016

What are the Different Kinds of Vehicular Manslaughter in California?

Vehicular manslaughter is the crime of causing someone's death while you are operating a motor vehicle.  That vehicle can be a car, a motorcycle, a boat, or even a golf cart. The big difference between manslaughter and murder is that murder charges require the prosecutor to prove that the defendant acted with "malice".  Think of malice as "bad intent" -- like intentionally trying to kill someone or acting so recklessly that death was likely or foreseeable. Manslaughter charges, on the other hand, do not require the prosecutor to prove that the defendant acted with malice.

If you are responsible for causing a traffic death in California, prosecutors may charge you with some form of "vehicular manslaughter", or even murder under some circumstances.  Not all vehicular manslaughter cases are created equal.  The major factors in determining how (or if) you'll be charged are:

-Whether or not you were intoxicated at the time that you caused the collision,
-Whether or not you have a prior DUI conviction,
-Whether or not you acted with "gross negligence",
-Whether or not you acted with "wanton and conscious disregard for life".

Accidents happen, and not every fatal accident warrants the filing of criminal charges.  If the DA wants to charge you with any form of vehicular manslaughter, they must prove that you did something illegal or dangerous, and that your illegal / dangerous act directly caused someone else's death.  The severity of the charges will depend on the nature of the illegal or dangerous act that you committed.

Vehicular Manslaughter, Not Intoxicated

If the underlying "illegal / dangerous act" is some minor traffic infraction (failure to signal, answering a text message, etc.) and that infraction causes someone's death, you could be charged under PC 192(c)(2), "vehicular manslaughter without gross negligence".

Vehicular manslaughter without gross negligence is a misdemeanor, punishable by a maximum of one year in jail.  You might not necessarily receive a whole year in jail (you might not receive any time in jail, depending on a lot of things), but it's on the table.

Gross Vehicular Manslaughter, Not Intoxicated

If the underlying "illegal / dangerous act" involves "gross negligence", though, prosecutors have the option of treating the case as a felony, with a maximum penalty of 6 years in prison.

Gross negligence is defined as "an extreme departure from what a reasonably careful person would do in the same situation".

Vehicular Manslaughter While Intoxicated

If the driver is intoxicated at the time that he or she causes a fatal collision, the case may be charged under PC 191.5.  Vehicular manslaughter while intoxicated carries a maximum penalty of 6 years.  To sustain a conviction, the DA must prove all the elements of a normal vehicular manslaughter charge (that the driver committed some illegal or dangerous act and that this act directly resulted in a death), and they must also prove that the defendant was impaired by drugs or alcohol at the time.

Gross Vehicular Manslaughter While Intoxicated 

As it's name implies, "Gross vehicular manslaughter while intoxicated" = vehicular manslaughter + intoxicated driver + gross negligence.  A conviction can carry up to 10 years in prison.

Wanton & Reckless, or "Watson Murder"

There is a controversial provision in California law (PC 188) that allows prosecutors to charge a driver with murder if the driver acts with "conscious disregard" for life and thereby causes someone's death.  The theory is that some behaviors are so dangerous that they carry an inherent risk that someone will die.  If a defendant knows about these dangers, consciously disregards them, and thereby kills someone, the killing will be treated as if it were intentional and not an accident.

To illustrate "wanton & reckless / Watson murder", I always use the example of firing a gun into a crowd of people.  The shooter might claim that he did not intend to kill anyone, but the act of shooting into a crowd is so inherently dangerous that the shooter should have foreseen the risk that he might kill a person.  If someone does die as result of that reckless shooting, then the killing is treated as murder and not as an accident.  The same principles apply on the road.

Textbook examples of "wanton & reckless" murder involve illegal street racing accidents.  News flash: street racing is dangerous.  The danger is part of the appeal.  If you engage in illegal street racing and someone is killed, though, be prepared to face murder charges.

A more controversial example is what we call "Watson murder".  Here's how it works:  whenever anyone is convicted of DUI in California, the judge is required by law to warn him or her that driving under the influence of alcohol or drugs is inherently dangerous to human life.  The judge is also required to order the defendant to attend and complete a mandatory alcohol education program, where they will learn about the dangers of drunk driving.  If that person is ever involved in a fatal DUI collision later in the future, prosecutors will argue that the defendant had special knowledge and awareness regarding the dangers of drunk driving because he or she had been previously warned and had completed the mandatory alcohol classes.  Since the defendant personally knew that driving under the influence was dangerous and consciously disregarded that risk by continuing to drink and drive, any resulting harm will be treated as if it were intentional and not an accident.

A conviction for Watson murder can carry a sentence of 15 years to life in prison.

There are many possible defenses to vehicular manslaughter and Watson murder charges. Depending on the evidence, your attorney may argue that you were not directly responsible for causing the fatal accident, or that there is insufficient evidence to prove that you were intoxicated at the time of driving.  Only a qualified criminal defense attorney can determine the best strategy for your particular case.

If you or a loved one has questions about vehicular manslaughter or Watson murder in Orange County, Los Angeles, Riverside or San Bernardino, call our office for a free attorney consultation. (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Vehicular Manslaughter Lawyer

Tuesday, February 2, 2016

Changes Keep Coming for Medical Marijuana in California

Updated 2/4/16:  Governor Brown has signed AB-21 into law.  It takes effect immediately.

Change is the only constant when it comes to medical marijuana in California. I've previous written about the Medical Marijuana Safety and Regulation Act, which will completely upend the way we regulate medical weed here in the Golden State.  Those posts are available here and here.

It seems that our legislature loves to keep us on our toes, though.  Amendments to the proposed rules are coming faster than anyone can keep track.  Before we've had a chance to wrap our head around the latest package of new regulations, the State Assembly calls an audible and changes the play at the line of scrimmage.  "Omaha! Omaha!"

The latest game-changer is AB-21.  That bill has been approved by the Assembly and the State Senate.  Now it awaits the governor's signature.

Under the MMRSA as originally written, local cities and counties would be allowed to create their own land use regulations regarding cultivation and distribution of medical marijuana IF (and only if) they had comprehensive regulatory schemes in place before March 1, 2016. If the local municipality had no land use regulations for medical marijuana by that date, then the state would be responsible for determining how and where dispensaries could operate.

Many cities were eager to maintain local control over medical marijuana, so they scrambled to impose blanket bans on any marijuana-related activities.  Most observers (including myself) expected cities to reexamine their bans some time after March 1. We understood that they didn't intend to permanently prohibit medical marijuana, but they were forced to adopt sweeping bans as "place holders", to preserve local zoning authority.  This rush to ban marijuana-related activity was an unintended consequence of our great experiment to better regulate medical cannabis.

AB-21 is the legislature's latest attempt to save the MMRSA before it even takes effect.  If signed by Governor Brown, AB-21 will delete the March 1 deadline for cities to adopt land use rules for medical marijuana.  Municipalities will instead by allowed to adopt their own zoning rules at any time.  By deleting that deadline from the MMRSA, AB-21 will remove the urgency that cities had been facing to adopt harsh, "emergency" anti-pot laws.

In the time it's taken me to write this, the legislature has probably passed another set of confusing amendments to the Medical Marijuana Safety and Regulation Act. Stay tuned to see how this all plays out.

If you or a loved one has questions about starting a medical marijuana dispensary in Southern California, call us for a free attorney consultation.  (714) 505-2468. Ask for John. Thanks for reading.

Santa Ana Marijuana Lawyer

"Perverse Incentives" Encourage False Reports of Human Trafficking

New California laws may reward prostitutes who make false accusations against their pimps.  

News flash: the prostitution business is illegal in California.  It's also booming.  With the rise of the internet and social media, buyers and sellers are finding new ways to ply the world's oldest trade. Meanwhile, police and prosecutors are struggling to make a dent in the state's illicit sex industry. Their latest tactic has been to target pimps and panderers -- the "managers" and "recruiters" of the prostitution industry.  Here's how it works.

California voters overwhelmingly approved Prop. 35 in 2014.  That ballot initiative imposed lengthy prison sentences on anyone who uses force or fear to deprive a victim of her personal liberty for the purpose of coercing her into prostitution.  That makes sense, right?  If a criminal holds a girl in slavery and forces her to engage in prostitution against her will, I think we all agree that he deserves to be punished harshly.

Since Prop 35 took effect, local police and prosecutors have received huge grants that are specifically earmarked for targeting sex traffickers.  These grants give law enforcement a strong financial motivation to deliver results.  And that's where a set of "perverse incentives" begin to reveal themselves.

Some police are now conditioned to act under the presumption that all streetwalkers are essentially slaves who were coerced into involuntary prostitution.  When a prostitute is arrested, she has a simple choice: either, 1) tell the police what they want to hear (that she is a victim who was forced to perform prostitution against her will), testify against her pimp and receive immunity, or else 2) deny that she was coerced into the job, go straight to jail and face criminal charges. Tough call, right?  It's easy to see how the incentives align to encourage false reports of "human trafficking".

If you or a loved one is accused of pimping, pandering or human trafficking in Southern California, call us for a free attorney consultation.  (714) 505-2468.  Ask for John.

Thanks for reading.

Orange County Human Trafficking Lawyer