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DUI Arrest In California: What Do I Do Now?
/in Criminal Defense /by SFVBAWe all know that it’s illegal to drive drunk, but people make mistakes. Sometimes it’s hard to tell when you’ve had too much. How do you deal with a DUI arrest?
California DUI Laws
California has some of the strictest DUI laws in the country. There are two separate sections of the California Vehicle Code which are applicable in a DUI arrest. Under C.V.C. § 23152(b), it’s illegal to drive with a blood alcohol of 0.08% or greater. The arresting officer will test your breath, blood, or urine to measure your BAC and if it’s over the limit, that’s a DUI.
Under C.V.C. § 23152(a), it’s illegal to drive “under the influence.” “Under the influence” simply means that your ability to drive is impaired – it means you may get a DUI even if your BAC is less than 0.08%. This isn’t an exact science – the officer will decide whether you’re under the influence when he or she pulls you over based on observations and field sobriety tests. If the officer determines that you’re under the influence, you’ll be taken into custody and asked to perform a breath, blood, or urine test to measure your BAC.
Do I Have To Take A Breath Test?
In California, you legally give “implied consent” to take a blood, breath, or urine test whenever you drive. You can refuse to take a BAC test, but your license will be automatically suspended for a year in addition to whatever penalties you may face for a DUI charge. C.V.C § 13353(a). If you’ve been convicted of a DUI within the past 10 years and refuse to take the test, your license may be suspended for even longer.
Do I Need An Attorney?
After you’re taken into custody, the state will formally bring charges against you. You’ll have to appear in court to defend yourself. So, should you hire an attorney?
If you don’t get a lawyer to handle your DUI arrest, you’ll have to manage your own hearing. The court will hold you to the same standard as an attorney – you won’t get any special treatment and you’ll be expected to be able to manage the proper paperwork, deadlines, rules, and procedures. If you choose to represent yourself, the judge will ask you a series of questions to make sure you understand the ramifications of proceeding without an attorney. If the judge is satisfied that you understand the risks, the hearing will proceed. The judge will tell you what the charges are and what potential penalties, including fines and jail time, you may face if you plead guilty or are found guilty.
There’s a reason lawyers go to school for years of training – the law is complicated and court procedures are convoluted. Small mistakes can be very costly – missing a deadline or doing the wrong paperwork can sink your whole case. So, an attorney is a major asset in dealing with a criminal charge. At the very least, a lawyer knows how to handle all of the logistical aspects of the case – what motions and documents to file, how a trial proceeds, and more.
However, your lawyer isn’t just there to guide you through the paperwork. He or she can evaluate your case for errors in the police report, the actual stop, the administration of field sobriety tests, the accuracy of the breathalyzer, and more. The police have to follow a very specific procedure when pulling you over, collecting evidence, and taking you into custody. If they made a mistake, your case could be thrown out. If there’s a problem with the evidence, your lawyer may be able to negotiate with the prosecutor to reduce fines, jail time, or even the actual charges. Hiring a lawyer to represent you after a DUI arrest is not a guarantee that you’ll get out of the charges or that you won’t face penalties, but your lawyer will know how to go about minimizing the penalties you face.
Penalties For A DUI Arrest
The penalties for a DUI can be severe. These penalties include, but are not limited to, fines, impound fees, Alcohol Education classes, increase in automobile insurance costs (including the requirement of the filing of an SR-22 for a period of at least five years), drivers license re-issue fee, and attorney fees. The penalties are more severe if you have prior DUI convictions or if you injured a person or damaged property while driving under the influence. In total, a DUI arrest could cost upwards of $10,000.00. An experienced criminal attorney may be able to minimize these costs and punishments.
Don’t Ignore The Penalties
When you’re dealing with a DUI arrest, you’ll face certain restrictions. Your license may be suspended, for example. You may be required to attend an Alcohol Education class or perform community service. Whatever restrictions you face, you should follow them to the letter. Driving on a suspended license will come with its own penalties and may make the court less inclined to leniency regarding the DUI charges. Failure to perform court-ordered education or community service can even land you in jail. In other words, don’t ignore the penalties – that will only get you in deeper trouble.
The Bottom Line
The best way to avoid a DUI arrest is to only drive sober. It’s safer and can keep you out of a lot of legal trouble. If you do find yourself facing DUI charges, consider hiring an experienced local attorney to help you manage your case and minimize the penalties you face.
Image Credit: By Scott Davidson from United States (Police Car Lights) [CC BY 2.0], via Wikimedia Commons
Aliso Canyon Gas Leak: Know Your Rights
/in General Legal Information, SFVBA News /by SFVBASince October of last year, SoCal Gas’s reservoir at Aliso Canyon has been leaking methane and other natural gases. SoCal has been trying to cap the leak and stop the flow of natural gas, but has so far been unsuccessful. Meanwhile, thousands of residents have had to evacuate the nearby areas because of health and safety concerns. What does the Aliso Canyon gas leak mean for you?
How Did The Aliso Canyon Gas Leak Happen?
SoCal Gas and other utilities store natural gas in large reservoirs so they can provide it to the public on demand. The reservoir at Aliso Canyon provides natural gas to 21 million customers and 14 power plants. Natural gas is difficult to contain and leaks are common, so employees didn’t immediately panic when they first noticed a leak in late October. However, the leak still hadn’t stopped after several days of attempted fixes.
Natural gas wells reach deep underground, meaning it’s very difficult to make repairs. So, many wells are equipped with safety valves so that they can be shut off from above ground to prevent further leakage while the time-consuming repairs are made. However, the well that’s leaking in Aliso Canyon has no safety valve – it was removed in 1979 because it was old and leaking. Regulations require that “critical wells” – those within 100 feet of roads or parks or within 300 feet of homes – have safety valves. The Aliso Canyon well was far enough away from any homes or roads that it wasn’t legally required to have a valve. So, SoCal Gas declined to replace the one they removed in 1979.
To make matters worse, the well itself was old and in poor repair. Modern natural gas wells are sealed in cement from the surface to the bottom to prevent the steel pipes from corroding and cracking underground. Older wells, like the one that’s currently leaking, weren’t cemented along their entire lengths. After decades underground, exposed to water and dirt, the steel pipes wear out and leak – that’s how the Aliso Canyon gas leak happened. Natural gas is now spewing out from a leak in the exposed pipe hundreds of feet underground and coming up through the ground into the air.
Why Can’t They Stop It?
Because the leak is so deep underground, SoCal can’t simply patch it. There are a number of methods that can be used to stop a natural gas leak, including pouring a heavier liquid down the well to stop the natural gas from flowing out. SoCal Gas has tried that method a number of times but have been unsuccessful. Now, the only way to stop the leak is to drill a relief well that will intercept the leaking well 8,000 feet underground. The work will take months. Workers must move slowly and cautiously – the natural gas welling up from the ground could cause the hillside to collapse or could even explode.
This single leak has released more methane than burning 850 million gallons of gasoline would. It’s been flowing for 3 months and the relief well won’t be completed before the end of February, at the earliest.
What Does This Mean For Me?
The natural gas itself is odorless and colorless but it’s treated with chemicals called “odorants” so that people can smell a leak if it happens in their homes. SoCal Gas reports that the natural gas itself is harmless, adding that it dissipates quickly enough to decrease the risk of ignition. It also states that the odorants used to make the gas smell are harmless at the concentrations used in natural gas.
That said, the smell in the surrounding area is strong and many people are complaining of nausea, vomiting, headaches, rashes and other side effects from exposure to the gas and odorants. As a result, more than 6,500 homes in the Porter Ranch area have been evacuated.
If you feel nauseated or develop other symptoms and live near the leak, you should leave the area immediately. Note that the gas is invisible but you will probably be able to smell it. SoCal Gas is providing free accommodations for those displaced by the leak; you’ll need to call SoCal at 404-497-6808 to get your accommodations.
Legal Issues Surrounding The Aliso Canyon Gas Leak
SoCal Gas is facing a number of lawsuits from regulatory agencies, including local air regulators and the Los Angeles DA. The suits allege that SoCal knew about the leak for days before reporting it, that it failed to act quickly enough to stop it, and that it was negligent in designing, constructing, and maintaining the well, among other concerns. In addition, many residents of the areas affected by the Aliso Canyon gas leak have filed their own lawsuits against the utility. One of those suits alleges that the leak caused the wrongful death of a local woman.
If you’ve suffered health problems due to the leak, you may be entitled to compensation from SoCal Gas. You may also be entitled to compensation if you were forced to evacuate your home or business. Utility companies deal with dangerous and volatile substances all the time and the law holds them responsible for the safety of the public.
If you were affected, you should speak to an experienced local attorney as soon as possible to learn about your legal rights and options. SoCal Gas also allows you to make a claim directly through its website, but it’s best to consult with an attorney to ensure that you’re getting everything you deserve. Once you accept a settlement, you lose the right to ask for more later.
California Drug Laws: Heroin
/in Criminal Defense /by SFVBAHeroin is a highly addictive drug derived from morphine, which in turn is made from the seeds of certain types of poppy plants. It’s illegal everywhere in the United States, but it has been increasing in popularity in recent years. How do California drug laws treat heroin-related crimes?
Heroin Use Is On The Rise
In recent years, heroin usage has dramatically increased throughout the United States. In fact, the National Center for Health statistics reported that the U.S. death rate from heroin overdoses nearly tripled between 2010 and 2013. California has been no exception.
Despite the recent heroin epidemic, Democratic and Republican politicians throughout the United States have been lobbying for alternatives to incarceration for non- violent drug offenders. Even President Obama weighed in on the issue stating that: “ rather than spending billions of dollars- taxpayer dollars- on long prison sentences for nonviolent drug offenders…we could save money and get better outcomes by getting treatment to those who need it.” Consequently, many state legislatures have lightened the criminal penalties for drug possession. California lightened its criminal sentencing for drug possession in November 2014 with the passage of Proposition 47.
Heroin Laws
Heroin and other narcotics are illegal under federal and state laws. Heroin is treated as a Schedule I substance under the California Uniform Controlled Substance Act due to its high risk for addition and abuse. In California, defendants convicted of heroin possession can face misdemeanor or felony charges depending on the circumstances of their case. Those charged with misdemeanor heroin possession might be eligible for certain treatment programs. However, the penalties for dealers and traffickers are much more serious.
Penalties For Heroin Possession
Heroin possession is illegal in the State of California. Persons found guilty of possessing a usable amount of heroin will be prosecuted under Section 11350 of the California Health and Safety Code. Section 11350 criminalizes possession of heroin for personal use. The government is not required to prove you actually intended to use the drug, only that you possessed it. There are 3 types of possession actionable under California law: actual possession, constructive possession, and joint possession.
Misdemeanor Heroin Possession
In most cases, heroin possession will be prosecuted as a misdemeanor. However, depending on the specifics of your case, your criminal background, and the decisions of the prosecutor and/or judge, you could face felony charges. In general, first-time, non-violent offenders will be charged with a misdemeanor. Those charged with misdemeanor heroin possession can face any combination of the following sentences:
In certain cases, the Judge might determine that a defendant would benefit more from a drug diversion program than from incarceration and/or other traditional forms of sentencing. Drug diversion programs are not available for all defendants and eligibility depends largely on the circumstances of your case and judicial discretion. The two most common drug diversion programs are Proposition 36 and PC 1000. In general, the programs are not available to defendants if the underlying arrest involved violence, threats of violence, possession of a firearm, or the sale of drugs. You’re may also be ineligible for diversion if you’ve been convicted of other drug charges in the past.
Felony Heroin Possession
Persons charged with felony heroin possession can be incarcerated for up to three years. Drug diversion programs are not available for defendants facing felony charges. However, persons incarcerated for felony heroin possession before November 2014 might be eligible for resentencing under Proposition 47. Resentencing is not automatic and certain defendants, including violent felons, habitual felons, and registered sex offenders will not qualify.
Penalties For Selling Heroin
Defendants charged with selling or trafficking heroin face much harsher sentences than those charged with possession. Sections 11351 and 11352, respectively, govern the prosecution of selling and trafficking heroin in the state of California. The prosecution does not have to prove that a person actually sold or intended to sell the drug with direct evidence. Oftentimes, defendants are charged with selling heroin based on circumstantial evidence. In ambiguous cases, the Court often looks to the presence of the following factors when determining whether an individual was selling or attempting to sell heroin:
Defendants charged with selling heroin typically face either one of the following sentences, depending on the circumstances of their case:
Penalties For Trafficking Heroin
Individuals who are charged with transporting and /or selling heroin within one county or across county lines may be charged with “trafficking” heroin. Defendants convicted with trafficking heroin could face:
Defendants might also be charged with a $50,000 fine in certain trafficking cases involving the:
Laws concerning the prosecution of heroin have changed in recent years. Before the enactment of Proposition 47, all persons found guilty of heroin possession faced felony charges. Now, first-time non-violent offenders in California will likely face misdemeanor possession charges while violent and habitual criminals will typically face felony charges. However, defendants convicted of selling and/or trafficking heroin face felony charges with the possibility of up to 9 years of incarceration and a $50,000 fine.
Other Charges
Even if you’re not carrying any heroin on your person, you may be charged with being under the influence of heroin. This charge is possible if you appear to be under the influence in any manner, physically or mentally. This is a misdemeanor, punishable by up to a year in jail. However, most cases will be eligible for diversion instead of jail.
These are just the charges you may face under California drug law – you may also be charged separately under federal law for trafficking heroin and other drugs.
California Attorney Search
If you’ve been arrested on a heroin charge, you need the help of an experienced local attorney to protect your rights. Our Attorney Referral Service will make your California attorney search simple.
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How to Get A Green Card In California
/in Immigration Law /by SFVBAWant to know how to get a green card in California? Learn more about eligibility, the application process, and more.
There are several ways to get a green card.
Today, we’re taking a closer look at how to get a green card in California so you can take your first step toward permanent resident status.
There are a few things you need to understand, including the difference in eligibility categories, the application process, and the benefits of speaking with an experienced immigration law attorney.
In addition, it’s important for you to understand that immigration law is federal, which means the requirements to obtain a green card are the same across the country, regardless if you’re in California or another state.
Let’s get started …
What Is A Green Card?
A green card is an identification card that lists your personal information and immigration status.
It’s a record that you’re in the United States legally as a Permanent Resident. Under federal law, you’re required to carry it with you at all times or face up to 30 days of jail time and fines of up to $100.
Permanent Resident status is a stepping stone on the way to full citizenship but doesn’t bring all the rights of full citizenship. For example, green card holders usually can’t vote, hold public office, or work for the government. Permanent residents can’t automatically sponsor family members for citizenship, either.
They must pay U.S. taxes on their earnings and register for the draft.
After 5 years of permanent residence, you can apply for full citizenship. If you’re married to a citizen, you can apply for full citizenship after just 3 years with a green card.
How to Get A Green Card In California
There are several ways to get a green card in California, each with its own eligibility requirements.
A green card lawyer will help you identify the best eligibility category for your situation and help you file your petition or application with the United States Citizenship and Immigration Services (USCIS) by mail.
Some of the most common green card eligibility categories include the following:
Once you decide on the best path to obtaining a green card for your situation, it’s important you follow the instructions carefully.
An experienced green card lawyer will evaluate your situation and help you select the best path for your application. A green card lawyer will walk you through the process and help you understand how the application process works, including how many green card slots are available per year and how they’re arranged according to preference. This will determine how long you may have to wait before being approved for a green card.
After you file your application, you will probably be required to visit one of the USCIS Field Offices in California for an in-person interview as part of your application.
Green Card through Family
A close family member with U.S. citizenship can sponsor you for a green card.
U.S. citizens can sponsor their children, spouses, and siblings. Citizens over the age of 21 can sponsor their parents. In addition, Permanent Residents can sponsor their minor children, unmarried children, and spouses.
There are a certain number of slots available for each of these categories, with preference going to spouses, single children under the age of 21, and the parents of U.S. citizens over the age of 21. Married children and the parents of children under the age of 21 do not have preference over others and may have to wait for years to get a green card.
Green Card through Employment
An employer or prospective employer may be able to sponsor you for Permanent Resident status. In general, these slots are reserved for highly-educated workers with exceptional skills who will take on positions that can’t be filled by a U.S. citizen. For example, talented researchers and professors can get green cards in order to take specialized research positions or tenure-track teaching positions.
You may also be able to get a green card if you’re a skilled laborer and the U.S. has a shortage of workers with your skill set.
Finally, you may be able to get a green card if you plan to open a business in the U.S. and create a certain number of jobs for US citizens; this category has last preference among the work-based green card options.
Green Card for Refugees
U.S. immigration law requires refugees to apply for a permanent resident status after being physically present in the country for one year.
It’s important you follow the instructions provided by the USCIS very carefully, as it may mean the difference between being approved or denied a green card.
Here’s a quick overview of some of the eligibility requirements:
Learn more about the requirements of obtaining a green card for refugees here.
Reasons Your Green Card May Be Denied
Qualifying for a green card does not guarantee that you’ll receive one. First, there are only so many green cards available every year, and there are always more applicants than cards. Second, your personal circumstances or history may result in a denial of your application.
Regardless of your category, you may be ineligible for a green card if you’ve been convicted of certain crimes. Crimes involving drugs and serious crimes such as rape, murder, and fraud can all bar you from getting a green card. Human trafficking and prostitution crimes can also prevent you from getting Permanent Resident status, as can any crimes involving harming a child. You may also be denied if you’ve violated immigration laws.
You may be denied for health reasons. You must complete a medical exam before your green card is approved and you can be turned away if you have a communicable disease or a physical or mental condition that is dangerous to the public health. You may be turned away if you’re a drug addict or if you can’t prove that you have obtained all the necessary vaccinations.
If you’ve been linked to terrorist activities or other activities that may pose a threat to national security, your application may be denied.
As part of the application process, US Citizenship and Immigration Services (USCIS) will investigate your health, age, resources, education, and other circumstances to determine if you’re likely to be able to support yourself and, if relevant, your family. If they determine that you’re likely to need long-term government support (such as welfare), your application may be denied.
Finally, your application may be denied if you fail to bring all of the required paperwork and make all of the required appointments. A simple clerical error or missing page can cost you your Permanent Resident status.
Check With A Green Card Lawyer
Applying for a green card is a stressful experience.
The eligibility requirements are strict, the application process can be overwhelming, and the chance of being denied can take an emotional toll.
If you’re serious about applying for a green card and becoming a permanent resident, we recommend you speak with a green card lawyer in Los Angeles sooner than later. To help you get started, we’ll find one for you!
Call 818-697-1426 or tell us a little about your situation using our attorney referral form.
We’ll evaluate your needs and connect you with an experience green card attorney in your area. We’ll even help you get up to 30-minutes of FREE consultation.
Even if your initial application is denied, an experienced attorney can help you revise your application and resubmit it for further consideration.
California Child Support Laws
/in Family Law /by SFVBAWhat Is Child Support?
Child support is a financial contribution from one parent to the other to help with the costs of raising the child. It may be used for food, clothes, housing, books, school supplies, and other direct and indirect expenses. Note that these payments may be used for the benefit of the entire household – it doesn’t have to be spent exclusively on the child. For example, a payment may be used to cover the heating bill even though that also benefits everyone else who live in that household. Unless the child is being neglected, the courts generally won’t look at what the money is being spent on.
In California, payments are due until the child turns 18. If she has already turned 18 but is still enrolled in high school full-time, you’ll have to continue to make payments until she graduates or turns 19, whichever comes first.
In almost all cases, the non-custodial parent makes payments to the custodial parent because the custodial parent handles the day-to-day care and expenses of the child. The amount of child support is determined by the family court and it’s based on the income of both parents, the needs of the child, and other factors. In practical terms, the parents’ financial information and custodial time are entered into a formula that produces a payment amount. It is possible to work with the court to try to have that amount changed if you or the other parent feel it is unfair or inappropriate. You may also be able to come to an agreement with the other parent on a different amount than the computer program suggests, although you’ll need to get court approval for the final arrangement.
Mandatory Add-Ons
In addition to the base payment amount, you may be required to include your child on your employer-provided healthcare plan or to purchase healthcare for your child, assuming the cost is reasonable. California child support laws also mandate certain add-on payments in addition to the base payment, such as uninsured medical costs and childcare. In other words, you’ll have to split those costs with the other parent on top of the regular payments.
Discretionary Add-Ons
The court may also add certain other expenses onto your regular child support payments. For example, you may be required to split the cost of private school tuition and extracurricular activities. Whether or not the court orders these additional payments will depend on a number of factors, including the quality of life to which the child is accustomed and the means of both parents.
Changes In Child Support
The amount of payments rarely changes. For example, the obligation is not affected if one parent remarries, no matter how much money their new spouse makes. The new spouse’s income isn’t part of the equation. There are, however, certain circumstances under which your obligation may be changed or ended completely.
First, you will no long have an obligation to pay if your child is adopted by another person – usually the other parent’s new spouse. That also involves completely waiving all of your parental rights, so you no longer have the right to see your child or have any say in her upbringing.
You may be able to petition the court to change the amount you have to pay if your financial condition changes significantly. For example, you may have your obligation lowered if you are seriously injured and can’t work, if you lose your job, or if you go to jail. You’ll have to petition the family court for a change; it won’t happen automatically just because your financial circumstances have changed. You may also be able to change your child support obligation if the custody situation changes such that you have custody a significant portion of the time.
Failure To Pay Child Support
If a parent fails to make child support payments for 30 days, the DMV can refuse to issue or renew their driver’s license. After 120 days, their driver’s license can be revoked altogether. The license won’t be returned until all back payments are caught up. Failure to meet a child support obligation may also be reported to the credit bureaus and hurt the parent’s credit score.
In addition, the other parent may file a motion to hold the non-paying parent in contempt of court. Depending on the circumstances, that can mean fines or jail time. The judge can order the non-paying parent to sell property in order to pay the support obligation. The judge may also order wage garnishment or have the money taken or withheld from a retirement or benefits account, including most federal benefits.
Under California child support law, the custodial parent has 3 years from the time of a missed payment to file a claim against the non-paying parent. After 3 years, that parent can no longer sue for collection.
Child Support Help
If you have legal questions about child support and your rights, we can help. Our Attorney Referral Service can connect you to an experienced local family law attorney who can explain your rights and options and help you choose the best path for your unique circumstances. Being a parent is hard enough and California child support law is complicated – an attorney can make all the difference in the world.
Working Overtime In California
/in Employment Law /by SFVBAFederal Overtime Laws
Federal overtime laws define the minimum protection for employees. These are set out in the Fair Labor Standards Act (FLSA). Under federal law, employers must pay 1.5x your regular hourly pay rate for every hour you work past 8 hours in a day or 40 hours in a week. Salaried employees are generally excluded from this rule and may be required to work beyond 40 hours per week without an increase in pay.
California Overtime Law
California offers even more to workers than federal law requires. Like the FLSA, California overtime law requires your employer to pay 1.5x your normal hourly wage for every hour you work past 8 hours in a day or 40 hours in a week. You are also entitled to 1.5x your normal hourly wage for the first 8 hours you work on the seventh consecutive day of work. California has an additional increase if you work far beyond normal hours. You’re entitled to double your normal hourly rate for every hour you work past 12 hours in a day or past 8 hours on a seventh consecutive day of work.
You must work more than 8 hours per day and more than 40 hours per week to qualify. For example, someone whose regular schedule involves working for 10 hours per day, 4 days a week does not qualify for overtime pay for the extra 2 hours on each work day because she’s only working a total of 40 hours per week.
Nonexempt Employees
Some employees are exempt from the overtime laws, meaning that they are not legally entitled to overtime pay past 8 hours per day and 40 hours per week. Exempt employees include executives, administrators, professionals, state and local employees, cab drivers, airline employees (under certain circumstances), actors, and workers whose overtime pay is governed by a collective bargaining agreement.
Nonexempt employees, on the other hand, are entitled to the protection of overtime laws. That means almost everyone who works for an hourly wage and is not a member of a union is entitled to overtime pay. Salaried workers are also entitled to overtime pay as long as they don’t fall under one of the exemptions.
Mandatory Overtime
Your employer does generally have the right to require you to work overtime, as long as you receive the appropriate overtime pay. In fact, your employer can fire you for refusing to do it. On the flip side, your employer is required to pay you for overtime work even if it’s unauthorized. However, you may be disciplined if you’re breaking a company policy about working hours or notifying your superior and you can’t try to conceal the fact that you’re working overtime from your employer.
How To Calculate Overtime
First, you’ll need to determine how many hours you’ve worked in a given week. If it’s more than 8 per day and 40 for the week, you’re probably entitled to overtime pay. First, count how many hours you worked beyond 12 hours in a given shift or beyond 8 hours on a seventh consecutive day of work. Those are the hours for which you make double your regular pay. Next, take the total number of hours you worked and subtract 40, then subtract the number of double pay hours (so you don’t double count them). In general, that’s the number of hours for which you make 1.5x your regular pay. There may be slight variations if you work 7 days in a row, which we see in the second example below.
Overtime pay is based on a multiple of your regular hourly pay rate. If you’re paid an hourly wage, that’s your regular pay rate and you just multiply it by 1.5 or 2 to determine your overtime pay rate. If you earn a salary, you’ll need to take your annual salary, divide it by 52 to get your weekly salary, and divide that by 40 to get your regular hourly pay rate.
For example, say you earn $10 per hour and your schedule last week looked like this:
First, you worked 13 hours on Wednesday. That’s one hour of double pay.
You worked a total of 53 hours last week. We take 53, subtract the 40 hours for which you don’t get overtime pay, and subtract the hour of double pay. That leaves you with 40 hours of regular pay, 12 hours of time-and-a-half, and 1 hour of double pay.
Let’s take a look at one more example. Say you make $10 per hour and your schedule last week looked like this:
With this schedule, you never worked more than 8 hours in a day. You worked a total of 42 hours for the week. However, you don’t just get 2 hours of overtime pay. Because you worked 7 days in a row, you get overtime pay for the hours you worked on the 7th day. That means you get 6 hours of time-and-a-half and 36 hours of regular pay.
Have You Been Denied Overtime Pay?
If you’ve worked overtime in California, you’re entitled to overtime pay. Unfortunately, employers will sometimes deny the appropriate pay rate in order to save money. If this has happened to you, you may need the help of an experienced California employment lawyer to help you get the pay you’ve earned. You may also choose to file a wage claim with the Division of Labor Standards Enforcement.
California Attorney Search
The San Fernando Valley Bar Association offers a comprehensive attorney referral service to help connect you to an experienced lawyer who can help you with your legal questions. We can match you with the right employment law attorney for your unique situation.
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California Car Insurance Law: Are You In Compliance?
/in General Legal Information /by SFVBAThat’s part of the reason you’re required by law to have car insurance. What are the rules for car insurance in California?
How Car Insurance Works
When you purchase a car insurance policy, you’ll have variety of coverage options to choose from. The more coverage you get, the more expensive your policy will be. The price will also vary by your demographic characteristics, the type of car you drive, and how much you drive. You’ll pay regular premiums in exchange for the policy. Each element of your policy will include a specific dollar amount of coverage. For example, you may have $15,000 in bodily injury coverage. That means your insurance will pay out up to $15,000 for the costs incurred if you’re involved in a wreck that hurts someone.
Generally, the insurance of the driver who causes a crash must pay for the damage done. If the other driver does not have insurance or has insufficient insurance, you may choose to pay for the remainder yourself or file a claim with your insurance. However, filing a claim with your insurance will usually make your premiums go up. If you’re hit by a driver who has no insurance or whose insurance policy doesn’t cover all of your costs, you may be able to sue in civil court for your losses. However, not all drivers will be able to pay and you aren’t guaranteed to get compensation. In other words, it’s often a good idea to get more than minimum liability coverage.
The different types of car insurance coverage include:
Liability Coverage
This is typically the minimum coverage allowed under state law. It covers the costs of bodily injury to other people and damage to other people’s property. It does not cover damage to your own property or your own injuries.
Collision Coverage
Collision coverage will pay for damage to your car caused by a crash. This type of coverage usually involves a “deductible,” which is an amount that you must pay out of pocket before the insurance kicks in. For example, say you have collision coverage with a $2,000 deductible and you’re involved in a crash that causes $5,000 in damage to your car. You’ll have to pay the first $2,000 and your insurance company will cover the rest.
Comprehensive Coverage
Comprehensive coverage includes all damage to your vehicle from causes other than accidents, such as theft or floods. Like collision coverage, comprehensive coverage typically involves a deductible.
Medical Coverage
Medical coverage pays for all medical bills incurred in an accident, regardless of who caused the crash.
Uninsured Motorist Coverage
This coverage will pay for your costs when you’re involved in a crash with a driver who has no insurance or whose insurance coverage is insufficient to cover the expenses associated with the crash.
California Minimum Insurance Requirements
State law determines the minimum car insurance coverage requirements. In California, you must carry a minimum of $15,000 in bodily injury coverage per injured person and up to $30,000 per accident. You must also have carry at least $5,000 of coverage for property damage. You may see this minimum coverage denoted as “15/30/5.”
Note that this minimum only covers injuries and damage to the other people involved in an accident. You would need to purchase additional coverage to cover damage to your car or your own injuries.
Los Angeles Minimum Insurance Requirements
Los Angeles has the same minimum insurance requirements as the rest of California – 15/30/5 coverage. However, car crashes are frequent in Los Angeles and minimum coverage may not be enough to meet your needs. For example, almost half of the crashes in Los Angeles every year are hit-and-run accidents. If you have the minimum coverage and the car that hits you gets away, you’ll have to pay for your own expenses. If you have medical or collision coverage, on the other hand, your own insurance will pick up the bill. By the same token, California is home to more than 4 million uninsured drivers, meaning you’ll be left with the bill if you’re involved in a crash.
Consequences Of Driving Without Insurance
If you’re caught driving without insurance outside the context of a crash, the penalty is a fine of up to $200 the first time. If you’re caught a second time, the penalty is a fine of up to $500 and your vehicle may be impounded – you won’t be able to get it out of impound until you pay for insurance and all the impound and storage fees.
If you’re caught without insurance in a crash, the penalties are much more severe. Your license may be suspended for up to 4 years, although you may be able to have it reinstated after 1 year with proof of insurance. Your car may be impounded, and you’ll have to show proof of insurance and pay the impound and storage fees to get it back.
Car Insurance Attorneys
Whether you’re dealing with your own insurance coverage or fighting to get compensation from the insurance of another driver, an experienced car accident attorney can help. Our car accident attorney referral service can connect you to an experienced local lawyer to help you with all your legal questions.
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Which Presidential Candidates Oppose Medical Marijuana?
/in General Legal Information /by SFVBAC
alifornia is home to more than 1,000 medical marijuana dispensaries, with annual sales of medical cannabis topping $1.3 billion. That’s a big industry, but it’s still a conflicted one. Marijuana is a Schedule I drug under federal law, along with heroine, ecstasy, LSD, and peyote; that’s the most serious class of drugs. As evidenced by the spread of medical marijuana across 23 states and Washington, D.C. and the legalization of recreational pot in Colorado, Washington, Oregon, Alaska, and Washington, D.C., attitudes about marijuana across the country are changing. About half of Americans support legalization today, compared to about 15% in 1990.
The Obama administration has defunded federal actions against medical marijuana dispensaries, but a new President may have different ideas about the future of medical marijuana in California. Where do the current frontrunners in the Presidential race stand on medical weed?
We’ll limit the discussion to the candidates currently polling higher than 5%.
Democrats
Hillary Clinton
Hillary Clinton is the current frontrunner for the Democratic nomination in 2016. She has so far refrained from taking a strong stance on federal medical marijuana policy, but has expressed support for states choosing to grant access to medical pot. In the October debate, she claimed to support the use of medical marijuana but says she wants to wait and see what happens in California and other medical-marijuana states before attempting to make any changes or decisions at the national level. She had given no opinion on recreational marijuana.
Bernie Sanders
Of all the candidates for 2016, Bernie Sanders has come out most strongly in favor of medical marijuana. He has also stated that he would vote “yes” to recreational marijuana, citing concerns about mass incarceration and abuses of the criminal justice system. At the end of October, he announced his support for the idea of taking marijuana off the federally controlled substance registers, allowing states to legislate on the issue as they see fit. That would also remove the threat of federal prosecution for those using or selling medical (and recreational) marijuana in states that chose to legalize it.
Republicans
Donald Trump
Donald Trump has changed his stance on marijuana several times over the years, but most recently he has said that he supports the idea of leaving marijuana legislation to the states. He has come out firmly against the use of recreational marijuana, but tentatively supports the use of medical marijuana. He has also suggested waiting to see how total legalization affects Colorado, Washington, Oregon, Alaska, and Washington, D.C. before making any decisions.
Ben Carson
Carson has taken a stronger stance against weed than Trump. He has stated that there are some medical uses for marijuana, but strongly opposes the idea of legalization. He frequently refers to marijuana as a “gateway drug” and has asserted that he would escalate the War on Drugs. His exact stance on medical marijuana is unclear, but he would likely allow for some form of medical use.
Marco Rubio
Marco Rubio has expressed tentative support for the possibility of medical applications for marijuana, assuming it goes through an FDA approval process and has no psychoactive components. At the same time, he has stated that he would enforce federal law even in states that have changed their own laws to allow for medical or recreational use, which could pose a threat to the medical marijuana industries in California and other states. He is strongly against total legalization.
Ted Cruz
Ted Cruz takes a somewhat different stance on marijuana laws from the other Republican candidates discussed so far. He has expressed support for allowing the states to make their own choices regarding medical and recreational cannabis use. He references the idea of states as “laboratories of democracy,” where individual states can experiment with changes in the laws and other states can see what happens and choose whether to follow suit. He has also stated that he is personally against marijuana use and would vote against it on a ballot.
Jeb Bush
Personally, Jeb Bush has expressed strong anti-marijuana opinions. He is also on the board of the Drug Free America Foundation, a group dedicated to combating the use of illegal drugs in general and marijuana in particular. At the same time, he has asserted that he supports the right of states to make their own decisions on the issue. Like Ted Cruz, he has noted that he would vote against legalization if it came up on a ballot in his state.
The Bottom Line
Every single candidate has expressed some support for medical marijuana use. Ben Carson is probably the candidate most strongly opposed to marijuana in general, and even he has tentatively supported the idea of medical marijuana use. Carson and Rubio may attempt to change the regulation of medical marijuana if elected, but neither has made a strong statement about wiping it out altogether. Every other candidate on the ballot supports either medical cannabis itself or the right of states to choose their own policies in that area. In other words, the 2016 election is not likely to have a serious impact on medical marijuana in California or anywhere else.
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Breathalyzer Laws In California
/in Criminal Defense /by SFVBAToday, around 30% of fatalities occurring in motor vehicle accidents are the result of impaired or drunk driving.
This statistic is down from 50% in the 1960s, largely due to educational campaigns and increased enforcement. Enforcement is easier these days, in part because of the popular breathalyzer test to measure blood alcohol content.
What is the law on breathalyzers in California?
What Is A Breathalyzer?
A breathalyzer is a hand-held device used by law enforcement to test the level of alcohol in your system; you’ll be required to take a deep breath and blow into the device. Breathalyzers use either fuel cell sensors or semiconductor sensors to measure the alcohol content in your breath, which is used to calculate your Blood Alcohol Concentration (BAC). For many years, a BAC level of 0.10 was considered the standard in the United States for drunkenness. Today, most states have reduced that standard to 0.08. The American Medical Association maintains that at a BAC level of 0.05 a person can be impaired. While there are several processes for identifying an impaired or a drunk driver, the breathalyzer has remained one of the most common.
Do I Have To Take A Breathalyzer Test?
All states have “implied consent laws,” which means by operating a vehicle, you have implied your consent to a BAC test. The California implied consent law states that if you arrested and the officer has probable cause to believe you are driving while under the influence, you automatically consent to BAC testing. That may be a breathalyzer test, but it may also be a blood or urine test. You can choose between a blood test and a breathalyzer, and you’ll have to take a urine test if neither a blood nor breath test is available.
Even if you haven’t been arrested, you’re still required to take the test. Under California law, you have also impliedly consented to submit to a preliminary breath test by applying for and receiving a driver’s license from the state to operate a vehicle on public roadways.
The officer who pulled you over will tell you that you may choose to refuse the test. However, refusing the test will result in penalties. In addition, you do not have the right to speak to an attorney about whether you should take the test before you make the decision. If you do submit to a breathalyzer test, the results may be used to establish probable cause for your arrest as necessary. Remember that refusing to take the test does not guarantee you won’t be arrested. In fact, if the officer has another reason to believe you are intoxicated, you could still be arrested and required to submit to a mandatory BAC test anyway.
Refusing To Take A Breathalyzer
So, you don’t have to take the test if you haven’t been arrested yet. The officer is required by law to advise you of the consequences: you will receive a fine, you will lose your driver’s license, and you face possible jail time if you are subsequently convicted of driving under the influence and/or refusal to submit to the test.
In California, refusing a breathalyzer test is its own charge separate from the DUI. The penalties for refusing the test are determined by your prior record. Refusing the test once will result in suspension of your license for a year. If you’ve refused the test before or if you’ve been convicted of DUI or reckless driving within the past 10 years, you’ll lose your license for 2 years. If you’ve refused the test twice before or if you’ve been convicted of reckless driving or DUI twice or more during the past 10 years, your license will be suspended for 3 years. Regardless of your record, you will face a $125 fine for refusing to take the test.
While the refusal to take the test can make the consequences of your DUI charge worse, it also means that the prosecutor may have less evidence with which to prosecute you. This could create a scenario where a plea bargain may be struck for reckless driving or speeding. It is not, however, a guarantee that you will not ultimately be convicted of DUI and/or have your driver’s license suspended by the Department of Motor Vehicles.
A refusal can be either express or implied. In other words, you can say to the officer that you will not take the test and that would be an express or explicit refusal. Alternately, you can remain silent when asked if you submit and that would be implied refusal. If you consent to the test and then subsequently change your mind, you will be deemed to have impliedly refused as well.
Should You Take A Breathalyzer?
It’s almost never a good idea to refuse the test. You’ll end up with your license suspended for a year and it won’t necessarily protect you from a DUI conviction. In most cases, the officer who pulled you over will have enough probable cause to arrest you and administer the test anyway.
If you have been arrested for DUI, you need the help of an experienced attorney to protect your rights and help you get the best possible outcome in court. Our DUI defense attorney referral service can help.
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Gun Laws in California: Restrictions on Gun Ownership in the Golden State
/in Criminal Defense, General Legal Information /by SFVBAWhile jurisprudence over the last two centuries explains that the right to bear arms is granted by the U. S. Constitution, that right is limited. State and federal governments have the right to place limitations on weapon types not having a “reasonable relationship to the preservation or efficiency of a well regulated militia.”
California’s Unique Gun Law Restrictions
There are many major federal regulations governing the manufacture, trade, possession, transfer, record keeping, transport, and destruction of firearms, ammunition, and firearms accessories, such as the National Firearms Act, the Gun Control Act of 1968, Firearms Owner Protection Act, and the Brady Handgun Violence Prevention Act. In addition to the federal statutes, each state has its own regulatory scheme to independently oversee the use of firearms.
While forty-four of the fifty states have provisions in their state constitutions very similar to the Second Amendment of the U.S. Constitution, California is an exception to this rule. With some of the most restrictive gun laws in the country, California has a variety of detailed gun law provisions and restrictions. The California Supreme Court has held that the state constitution does not provide private citizens with the explicit right to purchase, possess, or carry firearms. However, this ruling is in contravention of the U.S. Supreme Court’s decision in McDonald v. City of Chicago, which held that the Second Amendment of the U.S. Constitution applies to states as well. As a result of the restrictive legislation and state court interpretation, many of California’s gun laws are now being challenged in federal court.
Rules And Regulations
California has blazed the trail in gun control: it was the first state to require handgun microstamping and it was the first state to enact a Gun Violence Restraining Order law allowing concerned citizens and law enforcement to petition a court to prevent dangerous individuals from buying or possessing guns. California has enacted a variety of other gun control laws, including the following:
Who Can Buy A Gun In California?
A U.S. citizen, with proof of California residency, over the age of 21 can purchase a handgun, while the age requirement for rifles and shotguns is 18. As of January, 2015, anyone who owns a handgun must obtain a Handgun Safety Certificate (subject to certain exceptions).
The buyer must present “clear evidence of identity and age” which is defined as a valid, non-expired California Driver’s License or Identification Card issued by the Department of Motor Vehicles (DMV). Alternately, a military identification accompanied by permanent duty station orders indicating a posting in California is also acceptable. The exemptions to the DROS process is the transfer of a firearm by a parent to an adult child, or vice versa, or by a grandparent to grandchild, or vice versa, as long as the transfer does not involve a firearm in the prohibited category. The exemptions do not apply to step parents and step children, aunts, uncles, cousins, brothers, and/or sisters.
Concealed Carry Licenses
As a rule, California does not issue Carry Concealed Weapons (CCW) licenses. However, under the rare circumstances they are issued, they can only be issued by California county sheriffs to residents of that county or by the chief of police to the residents of that city. California does not honor or recognize as legal any CCW issued by another state.
Who Can’t Buy A Gun?
Aside from the age restrictions, California has extensive categories prohibiting firearm ownership. The major disqualifiers are people with specific convictions for misdemeanors or felonies, those who are addicted to narcotics, and those who are a danger to themselves or others. Additionally, there are prohibitions for certain mental conditions, conditions of probation, and/or domestic restraining/protective orders.
If you purchase a firearm in violation of California gun law, you may face a variety of penalties, including fines and possible prison time. The basis of the violation determines the penalty. For example, if you purchase a firearm without the appropriate safety certificate or if you are a minor illegally possessing a firearm, you face a misdemeanor with up to 6 months in jail and a fine of $1000. Felony gun charges typically carry prison sentences from one year to twenty years depending on the offense, your criminal record, and the facts of the crime.
Gun Control May Get Stricter In California
California Lieutenant Governor Gavin Newsom has proposed a ballot initiative for 2016 seeking tighter gun control by restricting ammunition sales, requiring the forfeiture of large capacity, assault-style magazines, requiring gun owners to report lost and/or stolen guns to local authorities, and requiring background checks at the point of sale of ammunition.
Need An Attorney?
We can help. The SFVBA Attorney Referral Service can connect you to an attorney to help you deal with any gun law issues, whether you’re trying to purchase a gun or have been cited for a gun law violation.
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