What is "Elder Abuse" in California?

Section 368 of the California Penal Code covers a wide variety of crimes against elders and dependent adults.  Violations of PC 368 are collectively referred to as "elder abuse", and may be punishable by up to 4 years in prison.  

If a victim of elder abuse is seriously injured, a conviction can carry an additional 5-year "enhancement" (on top of the 4-year maximum sentence).  If an elderly victim dies as a result of abuse or neglect, the sentencing enhancement goes up to 7 years.  It goes without saying that courts and prosecutors take allegations of elder abuse very seriously.  

The penalties for elder abuse may be severe, but these cases are rarely "cut-and-dry".  Complicated family relationships can lead to false allegations, and terms like "undue influence" are open to a lot of interpretation.  These types of cases are often very defendable with the right attorney on your side.  

Who is Considered an "Elder" or "Dependent Adult"?

Any person who is 65 or older is considered an "elder" under California law.  Penalties for elder abuse go up if the victim is over 70.  

Laws against elder abuse also protect "dependent adults".  A "dependent adult" is defined as any person between the age of 18-64 who suffers from some mental or physical disability which restricts his or her ability to carry out normal activities or to protect his or her own rights.  

What is Considered "Abuse"?

PC 368 includes a huge range of things that can be considered "elder abuse", including:

• Causing or permitting an elder to suffer unjustifiable physical or mental suffering
• Causing or permitting an elder to be injured
• Causing or permitting an elder to be placed into a situation where his or her health is endangered
• Committing any act of theft, embezzlement, forgery, fraud or identity theft against an elder 
• Committing false imprisonment of an elder

Notice that this list includes a lot of obvious examples of abuse, but some of the acts that can be charged as "elder abuse" are less intuitive.  Many of my clients are surprised to learn, for example, that they can be prosecuted for allowing an elderly family member to be placed into a situation that endangers his or her safety.  

If your elderly father likes to walk the dog but one day he falls and breaks his hip, you can be prosecuted for "permitting" your father to be injured.  If you care for an elderly family member who allows his house to become cluttered or stops practicing basic hygiene, social workers may get involved and report you to the District Attorney for allowing the situation to become unsafe.  

Financial Abuse

Allegations of financial abuse get even more complicated.  Of course, it's illegal to steal money from anyone.  Cases of financial abuse involving elders are difficult, though, because the elderly "victims" often give away money to friends or family members willingly.  When other family members get jealous or suspicious, police reports get filed and the criminal cases can spin out of control quickly. 

Penalties for financial abuse of an elder are severe, too.  A first-time conviction can carry up to 4 years in prison and a fine of $10,000, plus mandatory fees and "penalty assessments".  Once those fines and fees are added up, the total penalty can be more than $60,000 (plus, of course, restitution for the value of any property that was taken).   

Who is Considered a "Caretaker"?

A caretaker is legally defined as, "a person who has the care, custody or control of, or who stands in a position of trust with, an elder or a dependent adult".  

Notice a few things about this definition: it says "a" person, not "the" person who has the care of an elder.  That means the label can be applied to anyone who is responsible for an elderly person's care.  A "caretaker" does not necessarily have to be a licensed nurse or the victim's closest living relative.  Any person who is responsible for the care of an elderly person can be criminally prosecuted if the victim is abused, neglected or placed into a dangerous situation.  

Notice also that the definition of "caretaker" includes anyone who "stands in a position of trust" with the elderly person or the dependent adult victim.  That's a very loose definition, and it may be subject to a lot of argument.  

Restraining Orders

If a defendant is convicted of elder abuse, the court will issue a "criminal protective order".  Depending on the circumstances, the CPO may order that person to stay a certain distance away from, or to have no contact with the elderly victim.  CPOs usually remain in effect for the duration of probation  In some unusual cases, though, a CPO may remain in effect for up to 10 years.  

As their name implies, Criminal Protective Orders are issued by the criminal court as part of the criminal case.  Victims of elder abuse may also seek the protection of an Elder Abuse Restraining Order in civil court, regardless of whether or not any criminal charges have been filed.  An EARO can remain in effect for up to 5 years, but may be renewed if necessary.  

Anyone who is the subject of a Criminal Protective Order or an Elder Abuse Restraining Order will be prohibited from owning or possessing firearms and ammunition while the order is in effect.  If they have weapons registered in their name, they will be ordered to turn them over to police, or else sell them to a licensed firearms dealer within 48 hours.  The California Department of Justice has regional teams that are specifically responsible for enforcing these orders.  If they determine that a prohibited person is unlawfully in possession of firearms, they will conduct compliance checks and serve search warrants if necessary.  

Allegations of elder abuse are serious.  If you or a loved one has been arrested or accused of elder abuse, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  Our office has extensive experience defending against these charges and we can help.  

Thanks for reading.  

Catalina Island: Land of the Golf Cart DUI

It's been a long, lonely summer, but crowds are finally returning to Catalina Island.  With the influx of visitors, Avalon has seen a surge in golf cart-related accidents and DUI arrests over the past few weeks.

Under California law, it is illegal to operate any motorized vehicle while under the influence of alcohol, or with a blood-alcohol concentration (BAC) greater than 0.08%.  The rule also extends to drugs other than alcohol, and even to drugs that are legal or proscribed by a doctor.  That includes marijuana, Xanax, Adderall, pain medication, and anything else that inhibits a driver's ability to operate a vehicle safely.  

Drug-related DUI charges can be complicated because, unlike alcohol, there is no legal threshold that clearly defines how much Xanax, marijuana, or Adderall is "too much" to drive.  Those drugs might affect individual users differently, and some amount of them might actually a user safer behind the wheel, if the user is taking those drugs under a doctor's prescription.  

"Motorized vehicle" is not limited to gas-powered cars and trucks.  Golf carts have motors, so they're included.  That means -- and many visitors to Catalina are surprised to learn -- that you can be arrested for DUI in a golf cart.  You can even be arrested for DUI in a golf cart if you haven't been drinking, but you've been taking legal drugs.  

If you've ever driven a golf cart, you know that they do one thing well -- tip over.  Golf cart roll-over accidents are surprisingly common on the island, with its steep hills and hairpin turns.  Occasionally, these minor accidents result in major injuries.  If a driver is found to be under the influence and he contributes to a collision resulting in an injury, the DUI can be charged as a felony. 

All the other normal traffic laws also apply on Catalina Island, including laws against leaving the scene of a collision without exchanging information ("hit & run").  Any time a driver is involved in a collision that results in property damage or injury, he is required to immediately exchange insurance information with the owner of the property if that person can be ascertained.  If the driver cannot reasonably find the owner of the damaged property, he must report the incident to police.  Laws against leaving the scene of a collision even apply if public property is damaged (e.g. a retaining wall, a traffic sign, etc.).  With so many recent golf cart-related collisions in and around Avalon, the local sheriff's department has reported an uptick in hit & run incidents.  

Our office has extensive experience defending against DUI and Hit & Run cases on Catalina Island.  There are many possible defenses to these charges, but only a qualified attorney can determine the best strategy to fight your particular case.  

If you or a loved one has been cited or arrested on Catalina Island, call our office for a free, confidential attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.