Published Articles
 

PRESS CLIPPINGS

	COLLEGIAN SAYS HAZING LEFT HIM IN THE HOSPITAL
	UCI BANS FRAT FOR TWO YEARS

Published in "Orange County Lawyer Magazine" February 2002

As a solo practitioner here in Orange County, I never imagined that I would find myself representing international gun runners, terrorists and the like. However, I have recently noticed a disturbing trend in my practice. In the last two years I have been representing more and more accused "terrorists." While this conjures to mind my working with the now infamous Osama Bin Laden or perhaps members of his organization, it may surprise many people to learn that rather than defending such international villains, I am being called upon to defend the "terrorist next door."

The charge often being brought by local district attorneys is a violation of Penal Code Section 422. Making terrorist threats. Section 422 holds: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."

Section 422 was part of the California Street Terrorism Enforcement and Prevention

Act passed by the Legislature in 1988. A portion of that act provides: "The Legislature hereby finds and declares that it is the right of every person ... to be secure and protected from fear, intimidation, and physical harm caused by the activities of violent groups and individuals. It is not the intent of this chapter to interfere with the exercise of the constitutionally protected rights of freedom of expression and association. The Legislature, however, ... finds that the State

of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. These activities ... present a clear and present danger to public order and safety and are not constitutionally protected." (Pen. Code, § 186.21, italics added.)" (People v. Brooks (1994) 26 Cal.App.4th 142, 149 [31 Cal.Rptr.2d 283].)

In light of recent tragic events, it is clear that what California may have considered "terrorism" in 1988, may not be the same as most would define it today. Nevertheless, this charge is being brought very frequently - and against people who would not easily fall into the category of "terrorist." The very language of the street terrorism bill and its legislative intent demonstrate that the purpose of the law was to stop street gangs who were operating like terrorist organizations. However, the targets of the law have recently become more varied and one could argue that in more recent times prosecutors have a weapon looking for a target in the street terrorism law.

In the past two years alone, I have handled a half dozen or so terrorist threat charges against all manner of people. Wives, spouses, even children. Each having nothing in common except that the State charged them with making terrorist threats. Of the half dozen or so such cases I have handled recently, I have tried a few, and when combined with other felony charges, gone to preliminary hearing on others. The district attorney has yet to prevail in proving any of the allegations to either a judge or jury at any of these hearings.

At the trial of one such matter, the facts were basically that a man and his wife got into an argument and he, in exasperation at not getting his point across, throws up his hands and says "well, I’m just going to have to kill you!" It was never alleged that the wife was actually touched, nor was there any evidence of a weapon being present. Only that the husband used the words and threw his hands in the air. At the trial of this matter I compared his actions to those of Jackie Gleeson as Ralph Cramden in the Honeymooners who was famed to say "One of these days Alice . . . bang zoom - right to the moon". He would make this threat and shake his fist at his wife. The young DA assigned to handle the matter only vaguely knew who Jackie Gleeson was and to what I was referring. The jury did understand however, and after two days of trial and 15 minutes of deliberation returned a not guilty verdict and a scathing rant against the DA for wasting their time in listening to this ridiculous case.

Another such case involved a troubled youth and his mother who were sitting at the probation department waiting to see the child’s probation officer when he allegedly said "I wish I could kill you" to his mother. The mother mentioned it to the receptionist who quickly had officers arrest the troubled youth and cart him off to juvenile hall. Again, no weapon, no actual physical movement or manifestation of actual threat. The arrest and charge served only to complicate an already tragic familial situation.

Still another case involved a man who came home after being fired from his work and told his wife that he wanted to go back and kill his boss. Being embarrassed about losing his job and being unable to support the family, he made it seem as though he was wronged and that he was angry. He told his wife that he was going to get a gun and drive to the office and kill the manager. He drove off and returned minutes later and dropped his act. His wife, being upset called for a psychiatric evaluation of her husband through their HMO. Nearly a week later the HMO, fearing Tarasoft liability, told the manager. The upset husband, who had since calmed down and landed another job, was arrested and charged with making terrorist threats in his own home against someone who didn’t learn of the threat until long after it was even mentioned.

These cases may be illustrative of a crucial fact. What the legislature and DA may deem a terrorist threat is radically different than what you and I may consider such a threat. The disturbing trend in prosecution appears to be to tack on a "terrorist threat" charge on many otherwise common criminal charges such as battery, spousal battery, and disturbing the peace.

As a close read of the statute will reveal, a terrorist threat must be "on its face and under the circumstances in which it is made. . . unequivocal, unconditional, immediate, and specific. . ." These are important words which must be addressed. Unequivocal requires words like "I will kill you", not" I might kill you" or "I wish I could kill you" or" I’d like to kill you." Unconditional requires an immediacy and immanence. "I am going to kill you" - not "I will probably kill you" or "if you don’t shut up I will kill you." Immediate and specific require the threat to be just that - specific and immediate. Words like "I will kill you some day" or "I’ll get you" simply don’t cut it.

Tacking on a difficult charge to prove in hopes of getting it is by no means anything new for prosecutors or civil plaintiffs alike. Adding a terrorist threat charge is in many instances like adding a fraud charge to a breach of contract case. It would be nice to win, but not very likely to come through. However, recent events have raised terms like "terrorist" and "terrorist threats" to nearly epic proportion. For most Americans, these terms conjure up horrible and devastating images. Images which very few people equate with a troubled child or angry spouse. What’s worse, is that in today’s atmosphere of fear and paranoia, those charged with "terrorist threats" risk a backlash and public reaction similar to being charged a witch in 18^th century Salem, Massachusetts.

Though one may argue that the term "terrorist" in penal code section 422 is a matter of semantics, it can hardly be argued that the term doesn’t have actual consequences for those accused. The U.S. department of Justice has just announced that in response to the latest attacks and through newly passed anti-terrorism legislation, prosecutors will now (in some cases) actually be able to secretly listen in on conversations between defendants and their criminal defense attorneys. Which defendants? Why those charged with making "terrorist threats" among others.

At present, the new law is only dealing with Federal crimes and does not impact State defendants. The Federal Register notice says the monitoring will be done by a special "privilege team" and a "firewall" will be established between that team and prosecutors. Only "disclosures necessary to thwart an imminent act of violence or terrorism" will be made to investigators. This still begs the question "What is a terrorist threat?" Recent case filings suggest that as far as California Legislators and California prosecutors are concerned, "terrorists" include angry spouses, troubled children and anyone else who utters poorly chosen words in haste.

In order to stave off the inevitable charges of my concerns being defense counsel "bleeding heart" whining, I have to state that I have no difficulty in laws protecting spouses who are being harassed, threatened and abused. I have no problem keeping storekeepers safe from gangs extorting protection money or anything of the like. It simply occurs to me that the California Street Terrorism Enforcement and Prevention Act passed 1988 begins to show its age in our changing world and proves an ungainly tool when used by the State to punish troubled children, angry spouses or others who become "the terrorist next door."  

 

Published in "Orange County Lawyer Magazine" September 1999

In the face of new, tougher penalties and requirements for drivers being convicted of driving under the influence (DUI), the Department of Motor Vehicles recently made an unprecedented and unusual announcement. It had made a mistake. After recovering from the shock, defense attorneys began to inquire about what caused this earthshaking announcement and what does it mean for their clients.

In short, the DMV has announced that drivers convicted of driving under the influence from January of 1997 until June 25, 1998 may apply to the DMV to have their driving records expunged if their convictions were solely based on the findings of the DataMaster BAC breathalyser equipment. This means that the conviction had to be supported only by a breath test result from a DataMaster machine. No urine or blood tests could have been done to corroborate the DataMaster results. The DataMaster BAC is a device used to test the concentration of alcohol in a person’s bloodstream by reading a sample of exhaled breath. While there are several different makes and models of the breathalyser, nearly every law enforcement agency in Orange County except Huntington Beach uses the DataMaster BAC.

What this means is that potentially 4,700 people who were arrested and convicted of driving under the influence based upon the breath samples from the DataMaster may be able to expunge their driving records through the DMV.

The reasons go back to a very detailed set of code sections contained in Title 17 of the California Code of Regulations. These regulations set out the exact means and methods by which alcohol samples may be taken from suspected drunk drivers. Title 17 requires that the laboratory which calibrates the machines used for alcohol testing be licensed by the state. The problem here is that from January of 1997 until June of 1998, the lab in charge of calibrating the DataMasters was in fact unlicensed.

The Orange County Sheriff’s department has since responded by objecting to the DMV’s policy announcement and stating that the machines themselves were not inaccurate just because the lab calibrating them happened to be unlicensed for a time. Currently it is unknown whether the DMV will change its policy decision in response to the Sheriff Department’s objections. However, the Sheriff Department’s objections have the implied assertion that the drivers were no less drunk when tested by the unlicensed machines as opposed to fully licensed machines.

While that may be true, defense attorneys argue that all motorists are expected to be licensed to operate their vehicles on California’s highways. The day a driver’s license expires, he or she is committing a crime, although they may be no less capable of driving than when they had their license. In short, the technicalities used by the DMV and police for so long to ensnare drivers have now been turned against them. As the DMV is fond of saying, "rules are rules".

What Does This Mean For Drivers?

If the driver qualifies to have his or her driving record expunged, the DMV will take it off of their driving record. This does not affect the criminal record, nor will it affect the first offense being used as a prior. Basically, the only advantage to having the record expunged will be that the driver would then be eligible to apply for insurance through any of the major carriers rather than an assigned risk carrier which most drivers with DUI’s on their records must use for car insurance.

Beginning in January and July of, 1999, many new laws will come into effect for drivers charged with DUI.

For a first time conviction, the Court will have the option to increase the driver’s license suspension from four (4) months to six (6) months. Drivers will still have to pay fines ranging from $390 to $1,000 (which are typically tripled due to a penalty assessment). The DMV will increase the license suspension time from four (4) months to six (6) months. Courts still have the option of imposing a minimum of 48 hours in jail, and to order that an ignition interlock device be installed on the vehicles of drivers convicted of driving under the influence. In 1999, however, the vehicle code has been changed to call for "heightened consideration" by the Courts of ordering installation of an ignition interlock device in the vehicle of any driver convicted of DUI whose blood alcohol level was .20% or greater. (The limit to legally drive will remain .08%)

For a second conviction of DUI within seven (7) years of a prior conviction, the fines will remain the same ($390 to $1,000). If probation is granted by the Court, sentences will include 10 days to a year in jail with a minimum of ninety-six (96) hours in jail. Previously, the minimum had been forty-eight (48) hours jail. If no probation is granted, sentences will include ninety (90) days to a year in jail. In addition, the DMV will now suspend the license of a driver convicted of a second DUI for 2 years rather than 18 months as before. New for 1999 is the requirement that a driver convicted of a second time DUI install an interlock ignition device in their vehicle before a restricted license will be issued.

Drivers convicted of driving on a suspended license when the license was suspended because of an earlier DUI will now face at least 48 hours in jail and the mandatory installation of an ignition interlock device in their cars. This is a significant change from before as the ignition interlock device is an expensive item to have installed, and will have to be paid by the drivers, and will have to remain on their vehicles for up to the term of their probations which is typically three years from the date of conviction.

While the penalties explained above are not meant to be the definitive explanation of all of the sentencing subtleties in DUI and driving on a suspended license, but does illustrate the much more stringent approach being taken to DUI sentencing.

Perhaps the biggest and most easily noticed change in DUI law is the removal of the urine test for drivers suspected of driving under the influence. In the past, drivers have been given the choice of "blood breath or urine". As of January 1, 1999, drivers will only be afforded a urine test if officers suspect the driver of being under the influence of drugs other than alcohol.

The changes in the vehicle codes dealing with DUI will result in a wholesale reorganization in the layout and organization of the vehicle code. All of the sections which deal with DUI which were previously spread all over the vehicle code will now be grouped together. Other significant changes will affect how the DMV deals administratively with DUI’s. In 1999, getting restricted licenses after having your license revoked will take longer, and may require the installation of an ignition interlock device.

With the new changes for 1999, driving under the influence will take its place as one of the more expensive and heavily penalized crimes committed in Orange County. Penalties for a second or third offense will carry with them jail terms as long or longer than those for spousal abuse, narcotics possession, or minor weapons charges. With the legislative mood and intent clearly illustrated in the constantly increasing penalties, look for driving under the influence defense and prosecution to continue to play a large role in Orange County criminal justice into the next millennium.

THE WRONGFUL TERMINATION ROLLERCOASTER

Published in "Orange County Lawyer Magazine" June, 1997

The 90's have been a roller-coaster ride for employment and labor attorneys and their clients. While the state Supreme Court was actively enhancing and broadening the rights and protections of older workers, many of the state=s Appellate Courts were actively weakening those protections. Despite several Supreme Court rulings which enhance the protections for older employees, many Appellate Courts have recently taken great strides in reducing those protections.

Since the opening salvo in the wrongful termination campaign was fired by the Supreme Court in the early and mid 80's, courts across California have shown little coordination in their treatment of wrongful termination cases, particularly those involving age discrimination and implied contract claims.

In 1988, the Supreme Court in Foley v. Interactive Data, (1988) 47 Cal.3d 654 held that the cause of action for an >implied contract= was valid, and that even though the employer may have an Aat will@ clause in their employment agreement, the courts could interpret the actions and historical relationship of the parties i.e. the employer and employee, to determine the full scope of the contractual relationship. The Court, using another landmark decision in Tameny v. Atlantic Richfield Company, (1980) 27 Cal.3d 167, held that Athe employer=s right to discharge an >at will= employee is still subject to the limits imposed by public policy, since otherwise the threat of discharge could be used to coerce employees into committing crimes, concealing wrongdoing, or taking other action harmful to the public welfare.@ Foley, 47 Cal.3d at 665.

It has been said that an employer may terminate an employee for any reason, provided it is not a >wrong= reason. In practice, Tameny set forth the standard by which wrongful termination claims would be measured. The Court in Tameny established a >penumbra= of protection for the employee stating Acourts have recognized that an employer=s traditional broad authority to discharge an at-will employee may be limited by statute. . or by considerations of public policy.@ Tameny 27 Cal.3d at 172 citing Peterman v. International Brotherhood of Teamsters (1959) 174 Cal. App. 2d 184. The Tameny Court set forth the Awrong@ reasons for which an employer could be found liable for terminating an employee. (That is, in violation of some law or public policy.) Absent those limitations, the general rule of thumb was that an >at-will= employee was freely dischargeable.

With the playing field established, employees increasingly relied on the >implied contract= and the >implied covenant of good faith and fair dealing= to establish breach of contract claims to support their wrongful termination claims. The courts clearly established that if you could show some violation of state or federal law or >public policy=, you could bring a tort claim under Tameny, which in California would be embodied in the Fair Employment and Housing Act (Government Code Section 12940 et seq.) If you could not show such a violation of law, and were an >at will= employee no matter how long you may have worked for the company, or what the company may have done or said, you could simply be terminated. Thus increased use of the implied contract and good faith clause began.

The typical plaintiff=s argument goes something like this. Since a contract necessarily must arise between the relationship between the employer offering to pay for work, and the employee offering to work for pay, it naturally follows that like any other contract, the implied covenant of good faith and fair dealing must attach. In short, neither contracting party may do anything which would unfairly deprive the other of the rights and benefits of the subject contract. Therefore, many employees argue that continued employment or the expectation of continued employment are benefits of that contract, and should the employer terminate the employment contract without >good cause= (or >in good faith=), the employer violates the implied covenant of good faith and fair dealing.

Employers for some time have been altering their initial hiring agreements between themselves and their employees to include statements that the agreement may not be altered, modified or changed except in writing, and that no implied contracts are now or ever considered by the parties. Employers argue that since the initial agreement is fully consolidated and integrated, no implied agreements could ever be applicable. The ultimate conclusion, therefore, would be that if no implied contract could exist between the employer and employee, then no implied contract requiring Agood cause@ could be found to exist, and the employer, short of those reasons enumerated in Tameny, would be free to terminate any employee at any time for any reason.

Appellate Courts have looked at this situation in different ways. Wagner v. Glendale Medical, (1989) 216 Cal. App. 3d 1379 used a parole evidence and integration analysis to hold that A...there can be no implied contractual term completely at variance with an express term of a contract.@ Wagner 216 Cal. App. 3d at 1393 Citing Shapiro v. Wells Fargo Realty Advisers, 152 Cal. App. 3d at p. 482. The Court in Slivinsky v. Watkins-Johnson Company, (1990) 221 Cal. App. 3d 799 also used a parole evidence/integration type analysis to hold that AEven if the reduction in force were a pretextual ground for terminating Slivinsky=s employment, it would not be actionable with an Aat will@ employment contract unless the employer=s motivation for a discharge contravenes some substantial public policy principal.@ Slivinsky, 221 Cal. App. 3d at 806.

Even more recently, one appeals court held that without an implied contract requiring good cause for termination, no implied covenant of good faith and fair dealing may be found. The second District Court of Appeals in Camp v. Jeffer, Mangels, Buttler & Marmaro, (1995) 35 Cal. App. 4th 620 held that ASince the trial court properly found that there was no implied-in-fact contract requiring good cause for termination, Jeffer Mangels could not, and did not, breach the covenant of good faith and fair dealing...@ Camp 35 Cal. App. 4th at 631.

It must be noted, however, that the Court in Camp was faced with a very unlikeable set of plaintiffs. The Camps were indicted on several felony counts for conspiracy to use false information, and federal bank fraud to name just a few. When applying with the defendants= company, both of them were asked if they had ever been convicted of a felony, and both lied and said no. Thereafter, the court was extremely motivated to find for the defendants when the plaintiffs were terminated.

The problem is, the Court ripped a huge gash in the delicate fabric of the wrongful termination matrix in finding against the plaintiffs in Camp. If no implied covenant of good faith and fair dealing can exist without an implied contract, and no implied contract can exists because all employers routinely have employees sign =iron clad= employment agreements baring their existence, it would stand to reason that based upon the Court=s holding in Camp, the implied covenant of good faith and fair dealing is dead baring the failure of some company to provide an >at-will= no >implied contracts= agreement at the outset of employment. This analysis is further bolstered by the holding in Haggard v. Kimberly Quality Care, Inc, (1995) 39 Cal. App. 4th 508, in which the Sixth District held that no contract implied from oral statements or conduct could modify the at-will agreement termination provision of parties= employment agreement where the agreement expressly stated that it could only be modified by formal, written agreement.

The Appellate Courts= onslaught against the implied in fact contract and the covenant of good faith and fair dealing hits older workers harder than other protected grounds, because in most cases, the older worker will not have evidence of outright discrimination, only a long, distinguished work history with the company and that he or she was discarded only years before retirement. Older workers have come to rely upon the >disparate impact= theory in order to prove their age discrimination claims. The disparate impact theory holds that even though an employer may lay off a number of workers, or enforce certain workplace restrictions, if those lay-off, polices or actions hurt older employee in a disproportionately higher rate, the acts of the employer may be found to be discriminatory.

The attack on the protection of older workers recently hit a crescendo when the 9th District Court of Appeal ruled in Marks v. Loral, 97 D.A.R. 9559 that a company may fire employees merely because they make too much money regardless of the fact that older workers would suffer at a greatly disproportionate rate as opposed to younger employees. While it seems reasonable that if a company can get the same work done for less money, then they should be allowed to take their work to whomever they choose. This pits the invisible hand of economics against the very visible hand of an increasingly aging workforce of baby boomers who make up a large proportion of the work force.

If an older employee with a 20 or 30 year history with the company cannot establish an implied covenant not to fire him or her without good cause because they signed an employment contract 20 or 30 years ago, very few age discrimination cases could (or would) be brought via the breach of contract means. This seemingly leaves older employers with only the FEHA statute to rely upon. However, until very recently, FEHA only applied to employers with five or more employees. Those companies with less than five employees were free to discriminate at will against >at wills=. However, in a bold move, the California State Supreme Court in Jennings v. Marralle, (1994) 8 Cal. 4th 121 held that to limit the remedies provided in the FEHA act to only those employees who work in companies with over five employees A...would be inconsistent with the legislative intent reflected in the various provisions of the FEHA . . .@

 New Hope for Older Workers?

While the Appellate Courts have been hard at work erasing protections for older Americans, the State Supreme Courts has been equally busy redefining and expanding those very same protections. The Court in Stevenson v. Superior Court, S052588, held that discrimination against workers over the age of 40 violates a fundamental public policy in California. So much so, that the court went on to hold that the right of older employees to be free of discrimination in the workplace was so important, that employees could no longer be barred from bringing their suits because they failed to exhaust their administrative remedies, a traditional bar for many wrongful termination plaintiffs.

The Court in Scott v. Pacific Gas and Electric Co., (1995) 11 Cal. 4th 454 made its intentions clear in holding that implied contractual terms ordinarily stand on equal footing with express terms, and that courts must look to the employer=s policies, practices and communications to discover the contents of the employment contract, and must not confine themselves to examining express agreements between employers and individual employees. Thus, the Supreme Court has made it intentions clear, that implied contracts are not dead, and that employers cannot simply have employees >sign their lives away= and then use their employees for 20 or 30 years only to terminate them shortly before retirement with impunity.

While the dichotomy between the State=s Supreme and Appellate Courts widens, employees (and their attorneys) in certain appellate districts can take heart that Supreme Court holdings are still controlling, and other appellate court rulings are only suggestive. In any event, the appellate courts will soon have to consolidate their opinions on age discrimination, or face being overruled by the Supreme Court which has made its intentions to protect older employees quite clear.

GREATER EXPOSURE FOR MORE PEOPLE

Published in "Orange County Lawyer Magazine" December, 1997

Recent California Court Decisions have changed the face of wrongful termination and employment law. With these recent changes, employers have fewer shields to liability and their exposure to liability has become greater.

At-will employment has long been a cornerstone of the American workforce. This concept was established in the common law and later codified in Labor Code Section 2922 which states " an employment contract of indefinite duration is in general terminable at "the will" of either party.

However, Courts both in California and around the country have taken large steps in reducing the arbitrariness and freedom of termination which most employers have enjoyed. With the advent of legislation such as California's Fair Employment and Housing action ( Govt.Code Section 12900 et seq) which makes discrimination based upon race, color, creed, sex, sexual orientation as well as other classifications illegal, the nature of the nation's workforce is changing. Rather than being able to terminate employees for any reason, employers can now only fire employees for any reason so long as it wasn't for the wrong reason.

Reasons of Public Policy

Add to the list of reasons employers may not fire an employee, the reason of contradiction of public policy. Termination for contravening public policy was first recognized by the California courts in 1959 in Peterman v. International Brotherhood of Teamsters, 174 Cal. App. 2d 184. Thereafter, many courts have found contravention of public policy in termination actionable. Glenn v. Clearman's Golden Cock Inn. Inc., (1961) 192 Cal. App. 2d 793 (employee discharged for refusal to commit perjury; Nees v. Hocks, (1975) 272 Ore. 210 (employee discharged for serving on a jury), Harles v. Firs Nat. Bank in Fairmont, (1978) W. VA. 246 S.E. 2d 270 (employee discharged for reporting violations of consumer protection laws.

Courts have held viable tort actions exist for wrongful discharge resulting from discrimination based upon sex, race, nationality and other protected classifications. With perhaps the sole exception of discrimination based upon work place injury or physical impairment, California Courts have strongly entrenched their position that termination based upon a protected classification or termination which violates public policy set forth in code or statute will clearly be actionable.

Worker's Compensation No Shield

Many defendants have argued that the California's Worker's Compensation scheme (Labor Code Section 132(a), 3601) of exclusive remedy bars plaintiffs' suits for emotional injury resulting from termination. The theory behind California's Worker's Compensation Plan is simple. All employers pay into a common insurance plan against which aggrieved employees may make claims for injuries of all types suffered while at work. One of the provisions of this plan is that the plan shall be the exclusive remedy for workplace injuries, and thus bar individual suits against the employers for workplace injuries arising as a natural incident to employment.

To this plan, there are, of course, exceptions. A new exception has apparently been carved out for injuries as a result of wrongful termination in violation of code, statute or public policy. The Court of Appeals in Accardi v. Superior Court of Ventura County, 17 Cal. App. 4th 341 left no doubt as to the court's position on the matter in holding "Discrimination in employment is NOT a normal incident of employment." Jones v. Los Angeles Community College Dist., (1988) 198 Cal. App. 3d 794. The Court went on to hold " A claim for damages under FEHA is not preempted by the Worker's Compensation Act. Accardi, 17 Cal. App. 4th 341 citing Meninga v. Raley's, Inc., (1989) 216 Cal. App. 3d 79

With the holding in Accardi, there can be little doubt that the Worker's Compensation Act is no shield to a wrongful termination suit claiming harassment or discrimination. Employees may bring discrimination or harassment suits based upon contract or tort against their employers

Personal Liability for Supervisors

In addition to expanding coverage and solidifying the grounds for a wrongful termination suit, recent California decisions have made it clear that liability may extend to individuals both as employers and as supervisors.

The FEHA defines an "employer" in section 12926(d) as "any person regularly employing five or more persons, or any person acting as agent of an employer, directly or indirectly. Defendants have argued that as the FEHA laws are similar to Federal Title VII protections, Courts should follow Federal guidelines and precedent which currently do not allow for individual liability for supervisors accused of discrimination or harassment. California Courts, however, have simply not followed Federal precedent. Choosing instead to extend personal liability to supervisors and other agents of a defendant company.

The Court of Appeal in Page v. Superior Court of Sacramento County, (1995) Cal. App. 95 D.A.R. 1228 ruled on a typical fact pattern. In Page, the plaintiff complained of sexual harassment including having her supervisor grab and fondle her and in once instance masturbate in front of her. After the plaintiff complained to the company about her supervisor's actions, she was ignored and passed over for a promotion. The defendants demurred to plaintiff's complaint on the ground that under the federal scheme, supervisors could not be held personally liable for damages for sexual harassment or retaliation. While the trial court agreed with the defendants, the Appellate Court reversed the trial court choosing to interpret the FEHA statute itself rather than rely upon federal precedent. The Court stated "we conclude the language of FEHA in unambiguous in imposing personal liability for harassment or retaliation in violation of FEHA. Numerous other courts have also interpreted the statute and noted that if a "person" may violate the FEHA, than a "person" should be held personally liable. Carr v. Barnaby's Hotel Corp., (1994) 23 Cal. App. 4th 14; Kelly-Zurian v. Wohl Shoe Co., (1994) 22 Cal. App 4th 397; Mogilefsky v. Superior Court, (1993) 20 Ca. App. 4th 1409.

The Courts' findings draw upon and mirror the California Fair Employment and Housing Commission's rulings which have consistently held supervisors personally liable for sexual harassment and "persons" under the FEHA. DFEH v. Madeara County (1990) FEHC NO: 90-01 at p.27; DFEH v. Del Mar Avionics, (1985) FEHC NO: 85-19 at p.25; DFEH v. La Victoria Trtilleria, (9185 FEHC NO: 85-04 at pp. 11-12.

As recent Court decisions set precedent for wrongful termination and sexual harassment suits under the FEHA, it seems likely that the Courts will also extend such precedent to violations of other provisions of the FEHA and other labor and public protection statutes.

Punitive Damages may be sought for violations under the FEHA

In addition to extending the exceptions under the worker's compensation scheme to bring wrongful termination and harassment suits, recent decisions also raised the stakes for such violations by allowing punitive damages to be claimed and awarded for violations of the FEHA and breaches of the implied good faith clause of employment agreements.

As late as 1988, the California Supreme Court in Foley v. Interactive Data Corp., (1988) 47 Cal.3d 654 held that the covenant of good faith and fair dealing applies to employment contracts and that breach of the covenant gives rise to only contract damages. However, recently the Court holdings in Watson v. Department of Rehabilitation, (1989) 212 Cal. App. 3d 1271, Roberts v. Ford Aerospace, (1990) 224 Cal. App. 3d 793 and Monge v. Superior Court, (1986) 176 Cal. App. 3d 503 have stated that where an action is plead under the FEHA for racial employment discrimination, recovery of punitive damages under the general provisions of Civil Code section 3294 is permitted.

Despite the holding in Foley, and federal precedent, recent California Decisions have made it clear that both employers and individual supervisors and other agents may be held liable for discrimination and harassment. Additionally, both employers and supervisors will face and be held liable for punitive damages as a result of their actions, without protection from worker's compensation or contract law protections.

Published in "Orange County Lawyer Magazine", June, 1998

Beginning in the late 1970's and continuing through the 1980's, California Labor Law expanded to include new terms and causes of action for employees. "Wrongful Termination" developed with the passage of the Fair Employment and Housing Act (FEHA) Gov. Code § 12940 et seq. Terms like "sexual harassment", "disparate impact", and "discriminatory intent" became important buzzwords for employment litigators. Additionally, a more subtle term came to light: "hostile work environment". While terms like sexual harassment and disparate impact were quickly defined through case law, little was made of the hostile work environment. While employment attorneys and their clients used the term, it was always as a secondary descriptive term such as "her supervisor repeatedly sexually harassed her, causing her exceptional emotional distress and creating a hostile work environment."

It was not until the mid 80's that the term ‘hostile work environment’ became an actionable cause of action of its own. The seminal California case was Fisher v. San Pedro Peninsula Hospital, (1989) 214 Cal.App.3d 590, 262 Cal.Rptr. 842. In Fisher, the Second District Court of Appeals defined precisely what a hostile work environment was. After the trial court’s granting of the defendant’s demurrer, the Court of Appeals held that under certain circumstances, the creation of an offensive or hostile work environment could violate FEHA whether or not the employee actually suffers any tangible job detriment.

Traditionally, and under FEHA, a plaintiff could show wrongful termination, constructive termination or harassment through affirmative acts to the plaintiff coupled with a demonstrable detrimental impact on his or her job in some respect. Harassment could be founded upon any of the protected classes mentioned under FEHA such as race, color, creed, nationality, gender, etc. However, the archetypal claim for harassment is based upon sexual harassment or discrimination. It’s not surprising then that the first usage and definitions for what a hostile work environment are from a sexual harassment case.

As originally defined, sexual harassment included "quid pro quo" sexual harassment and ‘environmental sexual harassment’. While direct sexual harassment was defined as when submission to sexual conduct is made a condition of concrete employment benefits Fisher 262 Cal.App.3d at 607, environmental sexual harassment was largely overlooked and ill defined.

The issue in Fisher was that the plaintiff was not actually directly sexually harassed herself; and she could not show a concrete detriment to her job. Her claim rested upon the acts of harassment against her co-workers which she witnessed or was aware of. The Fisher Court looked to federal law which held that a plaintiff may establish a violation of title VII (the Federal Anti-Discrimination Provisions) by proving that discrimination based on sex had created a hostile or abusive work environment regardless of whether the plaintiff suffered tangible or economic loss. Meritor Savings Bank v. Vinson, (1986) 477 U.S. 57, 106 S.Ct, 2399.

The Meritor Court looked to the Fair Employment and Housing Commission which reasoned that "Sexual harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives its victim of her statutory right to work in a place free from discrimination, when the sexually harassing conduct sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt her emotional tranquility in the workplace, affect her ability to perform her job as usual, or otherwise interferes with and undermines her personal sense of well-being." DFEH v. Bee Hive Answering Service, (1984) FEHC No. 84-16 at pp. 18-19.

The Fisher Court held that in order to state a prima facie claim for environmental sexual harassment under California’s Fair Employment and Housing Act, the plaintiff must prove (1) that she (or he) belongs to a protected group, (2) that she was subject to unwelcome sexual harassment, (3) that the harassment complained of was based on sex, and (4) that the harassment complained of was sufficiently pervasive so as to alter conditions of employment and create an abusive working environment along with respondeat superior. Fisher 214 Cal.App.3d at 609 citing Meritor Savings 477 U.S. 57. This definition has been repeated by the United States Supreme Court in Harris v. Forklift Systems Inc., (1993) U.S. 17, 21, 114, S.Ct 367,126. See Also Guthrey v. State of California (1998) 63 Cal.App.4th 1108.

With the creation of a foundation for alleging a hostile workplace environment, it remains up to the courts to define what that means in any given circumstance. The U.S. Supreme Court opined that "Whether an environment is hostile or abusive can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity, whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Harris v. Forklift Systems, 510 U.S. at p.23.

California Courts have begun to narrow and define what constitutes a hostile workplace by eliminating what does not qualify. The Court in Etter v. Veriflo, (1998) 67 Cal.App.4th 457, 79 Cal.Rptr.2d 33, held that harassment [here in the form of racial harassment] must not be "occasional, isolated, sporadic, or trivial". Again the California Courts looked to federal case law for guidance. The federal case of Faragher v. city of Boca Raton, (1998) 524 U.S. 2275 held that the conduct must be extreme: "simple teasing,...off-hand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment"

Other cases have held that isolated or trivial incidents do not constitute a hostile workplace environment:

Jones v. Flagship, 793 F.2d 714 - a supervisor’s two suggestive remarks and a single proposition of plaintiff;

Rabidue v. Osceola Refining Co, (6^th Cir. 1986) 805 F.2d 611 - even though a co-workers was extremely vulgar and crude and in confrontational posture with plaintiff and nude photos were present, the totality of the workplace was not affected.

Scott v. Sears, Roebuck & Co., (7^th Cir. 1986) 798 F.2d - isolated winks, suggestive remarks and a co-worker’s single request for a date with the plaintiff did not constitute a hostile work environment.

Dowes v. F.A.A., 775 F.2d 288- defendant engaged in mildly offensive verbal conduct on three occasions and twice touched plaintiff’s hair.

As a general rule, the frequency of conduct which is required to cause a hostile workplace environment is inversely proportionate to the severity of the conduct. Thus, a single very serious incident such as a physical assault or attack may serve to create a hostile environment while constant jibes or innuendo may not.

In marked contrast to a direct harassment or discrimination cause of action, a hostile work environment claim does not require that the plaintiff actually be harassed personally or that they suffer any tangible ill effects from discrimination or harassment. Several courts have found that incidents of sexual harassment directed toward other employees in the work place are relevant to determine if a hostile work environment exists.

The California Appeals Court in Beyda v. City of Los Angeles, (1998) 65 Cal.App.4th 511 looked to a New Jersey Court’s analysis to hold that "The plaintiff’s work environment is affected not only by conduct directed at herself, but also by the treatment of others. A woman’s perception that her work environment is hostile to women will obviously be reinforced if she witnesses the harassment of other female workers." Beyda, 65 Cal.App.4th at 518 citing Lehman v. Toys ‘R’ Us, Inc. (1993) 132 NJ 587. The Beyda Court reasoned that a person may be affected by knowledge that other workers are being sexually harassed in the workplace, even if the individual plaintiff does not personally witness that conduct. While such may be true in sexual harassment cases involving harassment of women, no courts have yet expanded this concept to age, physical disability or religious discrimination.

The Beyda court interprets Fisher to require a "nexus"be shown between the allegedly hostile environment and the plaintiff’s experience in the workplace. Harassment against others in the workplace is only relevant to the plaintiff’s case if she has personal knowledge of it. Unless the plaintiff witnesses the conduct against others, or is otherwise aware of it, that conduct cannot alter the conditions of employment and create an abusive working environment.

While the standard has been established for creation of a hostile work environment through sexual harassment, and direct physical or verbal harassment of the plaintiff or tangible economic damages are not required for the plaintiff to prevail, the numerous and varied holdings of the extremely recent decisions above make it clear that this hostile workplace environment will remain a cause of action in a state of evolution for some time to come.

THE “D” IN DUI STANDS FOR DRIVING, DOESN’T IT?

(WHAT IS DRIVING AND DO YOU KNOW WHEN YOU ARE DOING IT?)

 While most of us may not be crystal clear as to every issue of fact and law that comes across our desks, one of the few things that I, and others I have queried, have been reasonably sure of is when we are “driving” - as in driving a vehicle.  Typically getting in a car or on a motorcycle, starting the engine and making it move under its own power fit the definition pretty well. This question, however, is not as straightforward as it may seem.  Especially in the legally contorted world of driving under the influence.  With an admitted agenda that has no equal in history as to any other criminal charge, the California Courts have declared their unyielding support to” legislative goals of deterring drunk driving and encouraging cooperation in chemical testing”.  Rice v. Pierce 203 Cal.App.3d 1460 (1988) .

In order to further these perceived “goals”, the courts have taken to some rather unusual and legally tortuous analysis in order to determine what “driving” is and when refusal to take a chemical test is required.

The California Vehicle Code defines a “driver” as “a person who drives or is in actual physical control of a vehicle.” (Section 305VC) “Driving” has been also defined in various ways by various courts.  Most recently and prominently by the California Supreme Court in Mercer v. DMV  53 Cal.3d 753 (1991).  The Mercer court held that “Based on (i) the "plain meaning" of the statutory term "drive," (ii) the use of that and related terms by our Legislature in related statutes, and (iii) the interpretation of the word "drive" and related terms in numerous decisions by our sister states, we conclude section 23152 requires proof of volitional movement of a vehicle.”  What was not determined, however, is whether or not “volitional movement” of the vehicle required the vehicle to move under its own power.  

Section 415 of the California Vehicle Code defines a "motor vehicle" as "a vehicle which is self-propelled." Under these definitions the only distinction between a "motor vehicle" and a "vehicle" appears to be that the former is a device self-propelled, while the latter is a device propelled by its own force or by some other nonhuman force or power.

These definitions (or lack thereof) make for some unique applications, which result in some even more unique factual decisions.  In a state where an apple or even a half eaten apple can be considered a “dangerous or deadly weapon” (People v. Montes (1999) 74 Cal.App.4th 1050 (1999) , and In re Gavin T. 66 Cal.App.4th 238 (1998) ) nothing surprises me.

As for “driving”, the Court in People v. Jordan 75 Cal.App.3d Supp. 1 (1977)  held that a person pedaling a moped without the motor was “driving” because the moped did have motor and it therefore did theoretically qualify as a “motor vehicle” even though it wasn’t actually being used as such.

California is not alone in this expansive definition of “driving”.  Many other state courts have made equally “expansive” rulings.   In Kentucky, a person found asleep behind the wheel of a non-moving vehicle was “operating the vehicle” (Wells v. Commonwealth, 709 S.W.2d 847 (Ky. App. 1986). A vehicle stuck in the mud and disabled was being “driven” by a “motorist” in New York (People v. David "W", 83 A.D.2d 690, 442 N.Y.S.2d 278 (1981); State v. Dubany, 184 Neb. 337, 167 N.W.2d 556 (1969)).   A vehicle motionless and out of gas was being “driven” by a motorist in Washington (State v. Smelter, 36 Wash.App. 439, 674 P.2d 690 (1984))

The upshot is that you never know when you will be “driving”.  Apparently, you can even do it in your sleep. But the interesting part comes when you are stopped for “driving” and asked to complete chemical testing which in California you are obliged to do as a “motorist”.  So the question - When are you required to give your consent to chemical testing and when is your refusal of such tests punishable?

California Vehicle code§ 23612(A) says “ A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing.  Section(B) also says “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing.  However, the rub begins further in the section, when the Legislature seemed to change its mind and wrote, “If the person is lawfully arrested for DUI. . . the person shall...give a test.”  So we’ve gone from a person who is driving in the first two sections over to any person who is lawfully arrested for suspicion of DUI.  These may be two entirely different groups of people.

Those charged with DUI are prosecuted on several fronts and face multiple suspensions of their license and other penalties, both from the DMV and the courts.  Because in California the DMV and courts are not uniform in their jurisdiction, and multiple overlaps occur, a person can be prosecuted by the DMV and win and keep their license, only to go to trial and lose.  Similarly, a person could lose the DMV hearing and later go to trial and be acquitted.  Most of the time this finding will overturn the DMV’s decision. However, an interesting schism has arisen.  As things stand now, if a person were arrested say while sitting in his non-moving vehicle and that person (believing he or she was not “driving”) then refuses to give a chemical test, can face the suspension of his or her license for a year, two or even three.  But because the vehicle code statutes which empower the DMV to suspend a driving license are different than those which empower the courts, a person can lose on the refusal issue at the DMV, go to trial, win, be acquitted of the refusal and still lose his or her license to the DMV.

How does this happen you ask?  Well, CVC §23612 can (and has) been interpreted by the DMV to mean that if a person were arrested on suspicion of DUI, that person must submit to a chemical test - even if that person were later found not to be driving.

The courts, however, utilize CVC§23577 which creates an “enhancement” for the failure to complete a chemical test in connection with a DUI investigation.  But an “enhancement” cannot stand without the underlying DUI conviction.  Section 23577 says “If a person who is convicted of a violation of section 23153(DUI) and at the time of the arrest. . .refused . . .the chemical test. . . the court shall impose the following penalties.”.  So, only people otherwise convicted of DUI can be punished with a refusal under the law in any state court of California,  except the DMV, which can and will punish a person without the pesky need for a conviction for actually driving under the influence.

The issue has arisen and is now before the California Supreme Court.  The issue as framed by the Court of Appeal in Troppman v. Borucki (2005) 126 Cal.App.4th 755 is can a person be punished by the DMV for refusing a chemical test in connection with a DUI when there is no evidence of that person actually driving.  The court’s answer in Troppman was - yes.  The DMV doesn’t actually need to find any “driving” in order to punish a person for not taking a chemical test- a chemical test to determine if you were “driving” under the influence.  Why put the cart before the horse when you don’t need the horse at all?

The Fifth Appellate District in Jackson v. Pierce 224 Cal.App.3d 964 (1990) and Medina v. Department of Motor Vehicles l88 Cal.App.3d 744, 747 (1987)  interpreted the statute on its plain meaning.  The court held that the statute in the first two sections refers to “drivers” and “one who drives” therefore, only those actually driving logically should be presumed to have given their consent for testing.

However, the Sixth Appellate District in Machado v. Department of Motor Vehicles 10 Cal.App.4th 1687 (1992) and First District Third Division in Troppman chose to look at the later language in the statue referring to “one who is lawfully arrested”.  The Court in Troppman, in citing Rice (supra) reasoned “ with regard to the legislative goals of deterring drunk driving and encouraging cooperation in chemical testing, [the Rice court observed:] “It would serve no useful policy to permit an intoxicated person suspected of driving a vehicle to refuse to take a chemical test for alcoholic content. To require an additional finding that the arrestee was actually driving, would undermine the important goals of cooperation and deterrence.

The contorted logic used by the courts in Troppman and Rice coupled with the bent of the legislature is considerable.  All persons who use California roads as motorists implicitly consent to taking certain chemical tests.  These chemical tests are designed to determine whether or not you were “driving” under the influence.  Those who do refuse will lose their license for at least one year either through the DMV, the courts or both.  However, even if you’re not actually driving, the officers still have reasonable suspicion you may be under the influence so as to allow them to investigate the possibility of your driving under the influence.  Because after all, since you were suspected of driving - you’ve already given your consent to give the testing- right? The Rice court held “A lawful arrest requires only reasonable cause to believe a person was driving, not proof the arrestee was actually driving.”  Rice 203 Cal.App.3d at p. 1465.  So while a person not driving can legally be arrested and brought to trial (at his considerable expense), the good news is he or she can and may be acquitted because he or she was not driving.  Further, if he or she chose not to cooperate with chemical testing, the refusal enhancement will also fail because you can’t have an enhancement without the underlying charge.  But, even with the same lack of evidence of driving, the DMV may still take that person’s license to drive for a year or more.  The court in Rice reasoned “When a person has been lawfully arrested and the peace officer has reasonable cause to believe the person was driving under the influence of drugs or alcohol, imposing an additional requirement that the DMV prove actual driving as a prerequisite to license suspension (i.e., the enforcement "stick" of section 13353) would undermine the policy goals of encouraging cooperation in testing and deterring drunk driving.”  Rice, supra, 203 Cal.App.3d at p. 1465.

The holdings in Troppman and Rice make the courts’ bias and motivation clear.  Enforcement and punishment first, never mind the inconvenient truths (or lack of evidence.)  The California  Supreme Court’s agreeing to hear the Troppman decision will end the schism which has developed in the appellate courts, but may be yet another nail in the coffin for those who believe that constitutional rights and due process apply to everyone - even to those accused of drunk driving.  So be careful out there, you never know when you may wake up and find yourself “driving”.

David Salvin is an Orange County criminal defense attorney focusing on drunk driving and under the influence cases.

The follow article is about a lawsuit Mr. Salvin filled.

COLLEGIAN SAYS HAZING LEFT HIM IN THE HOSPITAL

UCI pledge is suing fraternity and 13 members over
allegations including assault and battery.

December 15, 2001

By EMILY BITTNER
The Orange County Register

A UCI student who hoped to join a fraternity is accusing his prospective brothers of hazing him so badly during an initiation ritual last year that he had to be hospitalized and alleging that fellow initiates had to beg members to call an ambulance.

Jeff Warden, 20, is suing 13 members of Beta Theta Pi and the fraternity's national organization. He is seeking damages on allegations of assault, battery, emotional distress and negligence. "These guys were to me people that I could see myself being friends with for life," Warden said in his lawyer's office in Lake Forest. "That weekend, I was scared for my life. I thought I was going to die."

Both the fraternity's national organization and the University of California, Irvine, are investigating the allegations. Warden's lawyer said police were not notified, so a criminal investigation was never pursued. One fraternity member named in the lawsuit denied that any hazing occurred that weekend or before. "That has never happened," said Cory Halbardier, a senior mechanical-engineering major who said he was in Big Bear that weekend.  "If it did, I wouldn't have joined."

Other fraternity members named in the suit, filed last month in Orange County Superior Court, did not return telephone calls. The national fraternity has published guidelines against hazing, but Warden's lawyer, David J. Salvin, said: "They seemingly took the guidelines against hazing as a blueprint for what to do."

Warden, two other pledges and several Beta Theta Pi members left the UCI campus for a retreat at Big Bear on Friday, Dec. 8, 2000, Salvin said. During the next 28 hours, the members forced Warden and the other initiates to drink alcohol, denied them water, deprived them of sleep and made them simulate sexual acts with each other, Warden said.

Warden, who celebrated his 19th birthday during the initiation weekend, said friends told him that he lost consciousness and was twitching on the ground after exposure to low temperatures, excessive exercise and alcohol.  One pledge said he had to "beg" fraternity members to call an ambulance and that they left Warden unconscious on the ground for at least half an hour. Medical reports from Bear Valley Community Hospital, where he stayed overnight, said he suffered "continuous seizures" that Saturday night.

Warden said he lost his driver's license because doctors are required to report any seizure victims to the Department of Motor Vehicles. For the past year, he has spent about $10,000 getting medicine, MRIs, EKGs and CT scans from neurologists to prove that he could drive again. Warden said he has no prior history of seizures and has suffered none since the initiation. "I was put through terror that night and those days," said Warden, a sophomore film-studies major. "It took me a long time to talk to anyone about it. ... Now it's hard for me to let people get involved in my life."

If the allegations are true, the UCI chapter could be sanctioned or closed  and individual members expelled from the fraternity, said Stephen Becker, administrative secretary for the national fraternity.  Beta Theta Pi has yanked about 15 chapters from U.S. universities in the past three or four years because of hazing incidents and alcohol violations, Becker said.

Forty to 50 hazing incidents a year are reported to Hank Nuwer, author of four books on the subject. He learns about the cases mostly from campus security or news reports because school officials often handle the incidents privately, he said. Since 1971, 65 people have been reported killed in hazing incidents. Of those, 41 were related to alcohol and the vast majority involved fraternities.

"It's all group-think. They deceive themselves and the people around them and they're not aware of the consequences," Nuwer said. "This (hazing) is terrible behavior, but they thought it was ordinary. No one should think this is ordinary."
Warden said he hopes to help put an end to similar hazing incidents. "Someone should never have to go through that," he said. "I could've died, and I almost did die."

A similar incident in San Diego got fraternity permanently ousted.

January 19, 2002

By MARLA JO FISHER

The Orange County Register

IRVINE -- A University of California, Irvine, fraternity accused of hazing a student until he had a seizure had its registration as a campus organization revoked for two years Friday -- the first time the university has taken such action against a campus group in its 37-year history, officials said.

Members of the Beta Theta Pi fraternity who participated in the incident were also sent disciplinary letters Friday, although none of the nine participants who remain on campus will be expelled, according to Randy Lewis, executive associate dean of students. "This received a very serious review and was found to be a very significant and great breach of university policy," Lewis said. "It was a violation, not only of the university hazing policy, but of state law."

However, UCI's action was less severe than that taken by San Diego State University, which expelled Beta Theta Pi and Tau Kappa Epsilon in December 2000 after hazing incidents that left two 18-year- olds hospitalized for alcohol poisoning, according to the San Diego Union-Tribune.

The UCI investigation began after Jeff Warden, a UCI sophomore, filed a lawsuit in Orange County Superior Court in late November, accusing the fraternity brothers of hazing him so severely during a retreat at Big Bear that he ended up in the hospital after an epileptic seizure.

Warden alleged in his suit that he was forced to drink alcohol and was deprived of sleep until he became ill, and that he did not receive proper medical attention due to negligence by his would-be fraternity brothers. After the incident, Warden said he did not join the fraternity. The president of the 23-member UCI chapter declined to comment earlier this week. He could not immediately be reached for comment. The fraternity has 10 days to appeal the action.

A spokesman for the national headquarters of the fraternity, based in Oxford, Ohio, said that the conditions imposed by UCI for re-establishment of the chapter in 2004 -- if sought -- were "not unreasonable. "We hope we would be able to go back and be successful there in the future, if it's recommended by our Board of Trustees," spokesman Thomas Olver said. The national organization's risk-management policy bans hazing, which it defines as treatment designed to cause "mental or physical discomfort, embarrassment, harassment, or ridicule."

Attorney David Salvin, who is representing Warden in the lawsuit, said his client is pleased "that the university has acknowledged there was wrongdoing" in serving alcohol to minors and hazing but was disappointed that the Greek organization wasn't permanently banned. "We were pleased there was some disciplinary action taken," Salvin said.

CAN THEY DO THAT?

Imagine you’re driving home from dinner at a restaurant where you had a glass of wine or other alcohol with dinner. You are involved in a accident in which you are injured. The police arrive on scene and you are taken to a nearby hospital for treatment. Without actually arresting you, the officer, smelling the alcohol on your breath, demands that a blood sample be drawn against your will. You are left wondering - Can they do that without arresting you or at least having some suspicion of your violating some law.

We have been raised with the idea that before a search or seizure may be instituted, the police must have a search warrant or at least complete the search incident to an otherwise lawful arrest. But what about a forced search and seizure in the form of a blood drawn in a situation where the officer likely doesn’t have enough evidence or even probable cause to arrest you for driving under the influence, but demands a blood sample be taken in order to acquire enough evidence to prosecute?

This question poses a greater legal conundrum than you might first expect. With the slow and inexorable erosion of the Fourth Amendment rights we have seen in criminal law over the past thirty years, many defense attorneys reluctantly sigh that they probably can execute such a search and seizure upon you even without a warrant or arrest.

However, the actual law is not as well settled. In 1972, the California Supreme Court in People v. Superior Court (Hawkins), 6 Cal.3d 757 addressed the issue of forcing blood tests from motorists suspected of driving under the influence. The Court held "It is clear that the Fourth amendment does not bar a compulsory seizure, without a warrant, of a person’s blood for the purposes of a blood test to determine intoxication, provided (1) that the taking of the sample is done in a medically approved manner, (2) is incident to a lawful arrest, and (3) is based upon the reasonable belief that the person is intoxicated." Hawkins, 6 Cal.3d 757 at 761 citing Schmerber v. California, (1966) 384 U.S. 757.

The Federal law at the time was relatively clear. A forced blood draw is acceptable provided you have (1) medically approved blood draw, (2) incident to a lawful arrest, and (3) reasonable belief the person is intoxicated.

The California and Federal standards remained parallel but distinct until in 1982 voters approved Proposition 8, billed as the "Right to Truth-in-Evidence" provision to article I of the California Constitution, section 28, subdivision (d) section 28(d). The proposition required inter alia that "relevant evidence shall not be excluded in any criminal proceeding." The proposition, as applied, required that "California decisional law which would exclude relevant evidence under our state Constitution is now inapplicable; only that evidence which was illegally obtained under federal constitutional standards must now be suppressed in California Courts." Lance W., (1985) 37 Cal.3d 873; People v. Gutierrez, (1984) 163 Cal.App.3d 332;

California’s adoption of federal standards with regard to suppression of forcibly drawn blood evidence may not have been particularly meaningful as the standards set by Hawkins and Schmerber were the same. However, after the U.S. Supreme Court issued its ruling in Schmerber it issued an opinion in Cupp v. Murphy (1973) 412 U.S. 291 which arguably changed the federal standard.

The case in Cupp did not deal with DUI. The Cupp case involved fingernail scrapings taken from a husband who was suspected of killing his wife. The Cupp Court had no problem with these samples being taken without Cupp’s first having been arrested. By analogy it can be argued that forced blood draws are no different than the fingernail scrapings in Cupp. (If you ignore the pain, intrusion and risk of infection etc.)

This argument by analogy was used by the First District Court of Appeals in People v. DelToro, 214 Cal.App.3d. The Court held "We find that Hawkins has been abrogated by Proposition 8 because its holding is contrary to the federal rule as enunciated by the U.S. Supreme Court in Cupp." We further find that since the taking of the blood sample in this case complies with Cupp v. Murphy, the order granting the motion to suppress the blood sample should be reversed."

While the First Appellate District utilized Proposition 8 and the federal holding in Cupp to perform a de facto abrogation of the California Supreme Court holding in Hawkins, other appellate jurisdictions have not seen fit to do so.

The Fourth Appellate District in People v. Nieto, (1990) was faced with forced blood draw from a motorist who was suspected of driving under the influence. The facts differed from Hawkins only in the fact that the arrest was not made prior to the forced blood draw, but afterwards. In Nieto the prosecution argued the Deltoro had abrogated Hawkins and that pursuant to Proposition 8, California must now follow the federal standard of suppression of evidence, or whatever the federal standard was argued to be at the time. They argued that since Cupp had apparently set the trend allowing forced search and seizure with or without arrest, the blood taken from Nieto was not subject to suppression.

The Nieto Court, having a perfect opportunity to drive another nail in the coffin for Hawkins and the original California standard requiring arrest prior to the seizure, instead chose not to do so and made that fact clear in its holding. The Court reasoned "The seizure of Nieto’s blood was proper as incident to the lawful arrest that ensued. Although Nieto had not been placed under arrest prior to his blood bring drawn, the seizure was not unlawful simply because the arrest followed, rather than preceded it. . . ."

The Court went on to address the Proposition 8 issue. "Respondent [prosecution] urges us to follow the lead of two recent cases, which have held Hawkins is abrogated by the passage of Proposition 8, which amended [the California Constitution]. Because Hawkins is distinguishable, we decline the invitation to comment on its continuing vitality."

So that leaves those of us living under the auspices of the Fourth Appellate District to wonder. Can they do that? Or put differently, does the Fourth District care what the First District thinks the voters meant when they voted for Proposition 8 which was passed before the feds allegedly changed their suppression standards in Cupp? And even if the First District thinks the voters meant to follow the federal suppression standard which didn’t exist at the time of the vote, and even if the First Appellate District feels they can overrule the California Supreme Court, what difference does their persuasive, rather than controlling, decision make to those of us in the Fourth District.

If the issue isn’t exactly as clear as Baccarat in your minds, Don’t worry. Neither I nor the deputy district attorney who got my motion to suppress in the case that lead to this tiptoe through the legal tulips could figure it out either. We worked out an excellent resolution to the case at bar and left the issue as of yet unsolved. So next time you’re stopped for suspicion of driving under the influence (or your clients are), look to see if the police actually made an arrest or you may be left wondering "Can they do that?"

DOUBLE JEOPARDY - ALIVE AND WELL

Published in the "Orange County Lawyer" Magazine July 2001

One of the most important criminal law concepts most attorneys take from law school is the concept of double jeopardy. Essentially, that a person may not be prosecuted (or punished) more than once by the same governmental agency for the same offense.

California Penal Code Section 654 holds "An act or omission which is made punishable in different ways by different provisions may be punished under either provision, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other." This code was enacted in 1872 and is nearly as old at the State itself. The law states that even though one criminal act may be a violation of several different code sections or laws, a defendant may only be convicted (and punished) once - under one section or law. That is the core of the concept of double jeopardy.

However the concept of double jeopardy has not yet wrought itself into the course sensibilities of the venerable DMV. Even now, in the "enlightened" 21^st century, double jeopardy is alive and well at the DMV.

This situation occurs with drivers who are accused of driving under the influence and happen to be under 18 years of age at the time. Regardless of one’s views on under aged drinking, the legal analysis and logic of the DMV is difficult to understand at best.

California Vehicle Code Section 13353.2 calls for the immediate suspension of a driver’s license to drive for any of the following reasons: (1) The person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood; (2) The person was under 21 years of age and had a blood concentration of 0.01 percent or greater as measured by a preliminary alcohol screening test or other chemical test.

This section essentially calls for strict liability for the drinking driver under 21 years of age. At .01% BAC (blood alcohol concentration) California Law deems the sample to be considered negative for alcohol in living subjects. (California Code of Regulations Title 17 section 1220.4(c)). However, for the DMV, .01% BAC is just fine, and will result in the loss of that driver’s right to drive for a year. Compounding the difficulty in avoiding that suspension is the fact that unlike at the court level, where the defendant must be found "guilty beyond a reasonable doubt," the DMV’s administrative action requires only that there be "reasonable evidence" of the defendant’s having committed those acts prohibited by statute. It is also important to note that the normal rules of evidence, including hearsay, do not apply at the DMV level, nor does the defendant have the right to face his/her accuser as they would at the court level. In practice, the DMV relies upon the report of the officer whether it is sworn or not.

While the idea of the loss of a person’s right to drive for a year is daunting, it is made doubly so in the case of the defendant who is charged with DUI who is under 18. Not only is the minor driver subject to the loss of his/her driving privilege under the administrative prerogative of the DMV, he/she may have their license taken by the court.

However, even if the court determines not to take the license of the defendant as part of the sentence for the DUI, the very fact that the minor defendant pleads guilty or is otherwise convicted of DUI is grounds for the DMV to take that person’s license away for another year.

California Vehicle Code section 13352.3 (a) provides that the DMV shall "immediately revoke the privilege of any person to operate a motor vehicle upon the receipt of a duly certified abstract of the record of any court showing that the person was convicted of a violation of Section 23152 or 23153 (DUI) while under 18 years of age, or upon receipt of a report of a judge or juvenile court showing that the person has been found to have committed a violation of Section 23152 or 23513." The length of revocation shall be for a year or until the minor reaches 18 - whichever is longer.

So there it is. The minor driver who has already lost his or her license at the DMV administrative hearing for a year then goes to court some months later and is either is convicted or pleads guilty to a DUI, now faces the loss of his or her license for an additional year. Even if the court explicitly orders the defendant’s driving privilege not to be suspended, the DMV, acting on its own authority, will still revoke their license for another year. In this author’s experience, it is clear that most judges are at least tangentially aware of the double jeopardy and complete autonomy of the DMV in this regard. Judges understand that they are more or less powerless to avoid the double jeopardy imposed on the minor driver by the DMV.

What makes the DMV action classic double jeopardy is the fact that the DMV and the DMV alone suspends the minor driver’s license twice for the same offense. Once pursuant to the administrative hearing and again for no more reason than the conviction by the court.

Looked at in a broader perspective, it can be argued that the situation for minor drivers is closer to triple jeopardy. In effect, the same driver (under 18), doing the same act one time (driving with any measurable amount of alcohol in their system while under 18) may be punished not just twice, but three times by the State of California. One time by the DMV in its administrative hearing resulting in the loss of the defendant’s right to drive for a year, a second time by the court in being declared a ward of the court, paying fines, doing probation etc. and then a third time by the DMV again with the suspension of the defendant’s license for yet another year for no more reason than the driver’s having been convicted in the court. However, courts have consistently held that since the DMV is not the same governmental agency as the courts, there is no double jeopardy in a driver being punished by the DMV and the courts for the same offense.

Although the vehicle code sections which provide for the double punishment do not provide for concurrent or consecutive suspension, the typical arrangement is for the two suspensions to run concurrently. In practice, the court disposition of the case is within a month or so of the DMV’s administrative suspension resulting in the loss of the license for just over a year. However, it has happened where the juvenile court proceedings take several months resulting in a four to five month gap between the start of the DMV administrative suspension and the second DMV suspension following a court conviction. This results in the loss of the defendant’s license for far more than a year as called for in the statutes individually.

Again from personal experience, nothing short of a writ of mandamus from the Superior or Appellate Courts will change the DMV’s mind or actions. The action taken by the DMV is handled out of its "Mandatory Action Unit" in Sacramento. There, overworked (and likely underpaid) phone operators take the calls from the public on all suspension issues. The answer you get largely depends on with whom you speak. And like the soup de jour, the answers change daily. Supervisors will not take direct calls and attorneys are given no deference.

The best path is to avoid the DUI charge altogether by explaining the situation to the court and district attorney during the original negotiations. Ask to have the charge amended or modified. Ask to have a differed entry of judgment which can be changed after completion of the probation related programs.

If the DA is unwilling to alter the charges (as is the result in the vast majority of cases) success may be had if, after your client’s completing the first year of suspension (the one year DMV administrative suspension), you make application to the juvenile court which handled the original disposition for a modification or change of plea. Explain the double jeopardy situation, the fact that the minor has completed all or most of the probation and that in order to resolve the driving situation, your client needs to amend their plea. In some cases, the court may be willing to modify the plea from VC 23152 which triggers the DMV suspension to VC 23103 (reckless driving with alcohol involved) or better yet VC 23140 (under 21 with BAC of .05%). Either of these offenses will avoid triggering the second suspension.

Presently, there is little if any case law on this particular point of law. The de facto double jeopardy which exists is generally ignored by the courts, and usually unchallenged by the defendant because most minor defendants lack the financial means to bring a writ before the court. In general, the extra loss of driving privilege for a few months doesn’t warrant paying for a writ to the court. The realities of finance and social position often mean that minor defendants who cannot afford to challenge the might of the DMV simply don’t. This, however, doesn’t change the legal reality that double jeopardy is alive and well and living in that bastian of customer service known as the California Department of Motor Vehicles.

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