Hello. In this episode we’ll discuss several questions regarding criminal law and thanks to listeners who have posed some of the questions. We’ll talk again with Criminal Law expert Paul Bergman, a Professor of Law at the UCLA School of Law, and the co-author of The Criminal Law Handbook: Know Your Rights Survive the System from Nolo.
We’ll start with a question about ‘Stand Your Ground’ laws. Every state has always had some form of ‘Stand Your Ground’ law. These laws are based on what’s known as the “Castle doctrine,” that is, “a man’s home is his castle,” and that if an intruder broke into a home, the resident of that home could use deadly force against the intruder provided the citizen had a reasonable suspicion that the intruder would inflict serious physical injury. As a general principle in most states, outside the home you could only use deadly force if you were threatened with physical injury and were unable to retreat from the criminal. This was known as the “Duty to Retreat.”.
In October 2005, Florida enacted new a type of Stand Your Ground law. Now, Florida residents can use deadly force in their homes even if they don’t fear physical injury. They can fire on anyone who unlawfully, forcibly enters their home. And the definition of ‘home’ now includes vehicles, so a Florida resident can use deadly force against anyone who forcibly unlawfully intrudes in their car or on their boat.
The Florida law also extended ‘Stand Your Ground’ rights beyond the home and car. A Florida resident outside their home can now use deadly force if they have a reasonable fear that someone is about to use deadly force against them. In other words, in Florida, outside your home, there is no longer a duty to retreat when faced with deadly harm.
When we say that resident can use this law, we mean that the resident can invoke it as a defense from prosecution. And if law officers disagree, the person can be charged with a crime and will have to prove their ‘Stand Your Ground’ defense in court. For example, the owner of a Florida towing company invoked the law to justify shooting a man whose car was impounded. Police disagreed and charged him with murder. At trial, the owner will have to prove that he feared being hit by the driver, who drove off without paying the impoundment fee.
In addition, to shielding Florida citizens from criminal charges, the law also shields citizens from civil lawsuits for money damages brought by the person who was shot.
South Dakota and Indiana have also passed Stand Your Ground laws similar to the Florida law and fifteen other states are reportedly considering similar Stand Your Ground laws.
Opponents argue that these laws – which they refer to as “Shoot First” laws or “Make My Day” laws -- encourage vigilantism, and that they encourage a shooting range mentality, allowing you to shoot people who cut through your backyard if you feel threatened.
Proponents of the law argue that it reflects today’s crime realities, that criminals are intent on causing physical harm and that the days of the gentleman thief are over.
Legal experts like Anthony Sebok at Findlaw, argue that the laws send a “very confusing message” because they often are not really clear when you can use lethal force without being prosecuted. For example, in Kentucky’s first case under that state’s new home intruder/Stand Your Ground law, the judge hearing the case, said that the law was “confusing, vague, poorly written.” One of the drafters of Kentucky’s penal code called it “the worst legislation I have ever seen.”
Stand Your Ground laws will stand their ground legally unless successfully challenged on grounds that they violate the constitution. And that’s one of the questions that we’re posing today. We asked criminal law expert Paul Bergman whether he felt that Stand Your Ground laws would be held to be unconstitutional.
PAUL BERGMAN: It’s unlikely that I think that they’re going to be held to be unconstitutional. There might be some claim that somebody’s life was taken away without due process of law, but it would have been taken away by an individual, not by the state, in most cases. So it’s not going to amount a constitutional problem. The real issue is whether or not it’s good policy, does it make sense, how far will people push this and how will prosecutors and juries react. Are people really using deadly force in situations that the law wasn‘t meant to apply to. I would say we’re going to have to see how the interpretation of the rule plays out before we make any judgments. If there are problems with the rules, they won’t amount to violations of the Constitution, I don’t think.
NOLO: We’ve had a few other questions about criminal law and one of them is about what to do when questioned by a police officer. Should you respond to all questions in order to show your willingness to cooperate? Should you stay quiet until you know whether this has anything to do with a criminal charge against you? Does refusing to answer questions make you more suspicious in the eyes of the police officer? We asked Paul Bergman what’s a recommend course of action for someone who’s stopped and questioned by police?
PAUL BERGMAN: That’s a pretty individual judgment. I’d say that if the person is at all uncomfortable, they should first, ask whether they’re under arrest, or whether they are free to leave. And if they are free to leave, they should say something like “Look, I’m willing to talk to you”, if you are, “but this really isn’t a good time.” And make an appointment for another time. Even if you don’t have a lawyer present, you will at least have an opportunity to think about it, be in a more comfortable setting where you’ll be more relaxed and able to provide accurate information.
If the officer says you’re not free to leave, more or less, you ARE under arrest. Then I think people out to not talk until they have access to a lawyer.
NOLO: What about your home? If your home is your castle, do you have to answer questions posed by a police officer who comes to the door? Should you let the officer in your house?
PAUL BERGMAN: Well, people should understand that they have a right not to allow a police officer in their house unless the officer has a warrant. You should always ask to see the warrant first. If the officer says, “I don’t have one, but I’d like to come in. If you’re not guilty you have nothing to be afraid about”, you DO have the right to say no and if you do allow the police officer in, then it’s voluntary and anything the police officer sees may be properly seized and used as evidence. All of these are individual judgments, but as a general rule, people at least ought to know that they have a right to say no to a police officer coming in the house unless that officer has a search or arrest warrant.
NOLO: Another question that we have for Paul Bergman is a basic one -- but it’s still an interesting one. What exactly does it mean to be ‘under arrest’? We asked Paul Bergman for an explanation.
PAUL BERGMAN: Well, what it means to be under arrest is that you can’t go wherever you’d like to go. It’s kind of a physical control, where you can go is determined by the police officer. Your freedom is restricted, that’s basically what it means to be under arrest.
NOLO: Can you be charged with a crime without being arrested?
PAUL BERGMAN: Well, you CAN leave. . You can be given a citation---people who get traffic tickets, for example, are given a citation, and then they leave. The police may also be unable to arrest you, they may have a probable cause to believe that you committed a crime, and you may be charged with a crime, but before you’re arrested. Usually the charge doesn’t come until the arrest takes place, but it’s theoretically possible for a charge to be made assuming they have probable cause without having the person in custody.
NOLO: A listener asked the question ‘What is circumstantial evidence and why do attorneys for defendants always criticize evidence when it is circumstantial? Isn’t it as good as other evidence? We asked Paul Bergman.
PAUL BERGMAN: Circumstantial evidence is often derided. We hear that all the time in movies…”that’s just a bunch of circumstantial evidence.” But in fact, most evidence offered at trial IS circumstantial and legally, there’s no problem with it
Its counterpart is direct evidence, and the only difference is, in direct evidence, you do not need an inference to connect the evidence to a crime. With circumstantial evidence, you do need to infer. That’s kind of a common thing we do all the time. If you see somebody smiling, you might infer that they’re happy. Well, that’s the same as we do in court. But circumstantial evidence can be quite powerful. There’s this legal saying that there is nobody who wouldn’t accept dog tracks in the snow as evidence that a dog had passed by, against the sworn affidavits of ten people that it had not. So circumstantial evidence, in that case, the dog tracks, can be quite powerful.
Actually, DNA test results and most scientific evidence, is simply a form of circumstantial evidence. The fact that the blood, let’s say, appears to have the same DNA characteristics as the blood left at a crime scene, is simply circumstantial evidence that the person whose blood was at the crime scene is the person whose blood was taken for the purpose of the DNA test. So scientific evidence is really just another form of circumstantial evidence. Circumstantial evidence has pretty much gotten a bad rap.
NOLO: The Fourth Amendment of the U.S. Constitution guarantees that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures …” The Fourth Amendment is basically about privacy – that is, which details of your life shall be revealed to the public and the Fourth Amendment protects against “unreasonable” searches and seizures by state or federal law enforcement.
However, the Fourth Amendment does not protect against searches initiated by nongovernmental people, such as employers, landlords, and private security personnel, unless the search is made at the request of a law enforcement authority.
As a general rule, however, the police may override your privacy concerns and conduct a search of your home, or car, or office, or personal or business documents, bank records, even your trash if:
• the police have probable cause to believe they can find evidence that you committed a crime, and a judge issues a search warrant, or
• The police search is proper without a warrant because of a variety of circumstances.
In 1961, the U.S. Supreme Court established the exclusionary rule. That states that evidence seized in violation of the Fourth Amendment cannot be used as evidence against defendants in a criminal prosecution. Many commentators still criticize this rule on the grounds that it unfairly “lets the criminal go free because the constable has erred.”
We asked Paul Bergman one final question. Knowing what we know now, would the drafters of the Constitution have written the Fourth Amendment in the same way today?
PAUL BERGMAN: Well, from a civil liberties point of view I’d like to believe that it would be written the same way. I think there’s still a consensus in the country that it’s a good idea for police not to have a right to arrest people on a whim, a hunch, that it’s a good idea for police officers not to simply enter somebody’s house or apartment, or property, on a whim or a hunch. That right, at the base of the Fourth Amendment, states a value that everybody believes in. That’s why I believe the Fourth Amendment WOULD be enacted. Now there are times when it may hamper the police, but the courts have been quite creative in creating exceptions to the warrant requirement, or for example, police can pursue a suspect into a house when they’re in hot pursuit. They’ve created opportunities for police officers to get warrants at all times of the day, there’s
NOLO: Thanks to Paul Bergman for his assistance. Much of the information for this episode came from Paul’s book, The Criminal Law Handbook.
FINDLAW http://writ.news.findlaw.com/sebok/20050502.html
FLORIDA LAW: http://news.bbc.co.uk/2/hi/americas/4415135.stm
TAMPA TOWING CASE http://www.usatoday.com/news/nation/2006-03-20-states-self-defense_x.htm
OPPONENTS http://www.licensetomurder.com/main.php
Kentucky Case http://www.kentucky.com/mld/kentucky/15132235.htm
Wiki Self Defense http://en.wikipedia.org/wiki/Self-defense_(theory)
Wiki Stand Your Ground http://en.wikipedia.org/wiki/Stand_your_ground_law
Sunday, September 10, 2006
Sunday, September 3, 2006
Is it a Crime to make a False Confession?
Hello. This week we’re going to explore criminal law and we’ll address some questions relating to a high profile case recently in the news. We’re speaking with Paul Bergman, a Professor of Law at the UCLA School of Law, and the co-author of The Criminal Law Handbook: Know Your Rights Survive the System form Nolo, a highly-recommended guide to criminal law.
In a recent criminal case, a man, John Mark Karr, confessed to trhe murder of Jon Bent Ramsay, committed over a decade ago. Karr was extradited to the United States where a handwriting analyst stated Karr’s handwriting matched a ransom note in the case. Then, twelve days after his confession, a DNA test revealed that Karr’s DNA did not match DNA found at the crime scene and he was released. We asked Paul Bergman a question that a lot of people are wondering ---Is it a crime to confess to a crime that you did not commit? That is, to make a fraudulent confession.
PAUL BERGMAN: There are statutes certainly in the federal government and in some states which make it a crime to lie to a police officer. And so if an individual makes a false confession to a police officer, then in theory, they might be prosecuted for that crime.
NOLO: If a suspect is lying when they make their confession, why not just give the suspect a lie detector test.
PAUL BERGMAN: Well the police sometimes do use lie detector tests to clear suspects. Generally, the lie detector test results are not admissible as evidence because the courts think the results are too subjective, they depend too much on the subjective judgement of the person running the lie detector test, and some people might be able to affect the results by practicing. So the general rule is that lie detector tests are not admissible in evidence whether the prosecution or defense wants to offer them.
In a number of states, assuming the prosecution and the defense agree before the test is given that the results will be admissible no matter which way they come out, the court in those states will admit the test. Apart from admissibility, police often do administer lie detector tests, just for their own purposes; they tend to have faith in their outcomes. And they may, for example, decide not to pursue further evidence against a potential suspect who passes the lie detector test. And so they might use it as way of clearing particular individuals, for their own purposes, apart from any courtroom use.
NOLO: As most people who watch police shows on TV are aware a police officer arrests someone and often says something like: you have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you cannot afford an attorney, one will be provided to you at no cost. During any questioning, you may decide at any time to exercise these rights, not answer any questions or make any statements. We asked Paul Bergman whether a confession made without these warnings is still admissible in trial.
PAUL BERGMAN: Generally, yes. What people say voluntarily either before or after they’re in custody, is admissible in evidence. The Miranda warnings are required only when the police conduct an interrogation or question a suspect, and if they begin the interrogation without giving the warning, then the confession will probably not be admissible in evidence. But if somebody just starts talking to the police with no interrogation, then no need for Miranda warnings.
NOLO: In the case that’s recently in news, a suspect confessed via email, to someone other than a police officer. We asked Paul Bergman about the admissibility of confession that’s made to someone other than a police officer. Can that be used in court?
PAUL BERGMAN: Sure … the police or state office of some kind is the only person who has to give Miranda warnings. What people say to friends, strangers, in bars, et cetera, is admissible without any kind of restriction at all.
NOLO: Most of us are familiar with the concept of DNA testing from high profile trials and from television shows. We asked Paul Bergman whether a suspect in a criminal case has to agree to DNA testing.
NOLO: Yes if the police have the need for a sample from which they can extract DNA, they have a right to demand it and you have no constitutional privilege to refuse. Now of course if they take the DNA sample in some horrible or inappropriate way -- let’s say given a person’ religious beliefs or something like that -- then the person could demand that the DNA sample be obtained in some more neutral manner. But you have no basic right to refuse to permit a DNA sample to be taken.
There’s a constitutional right that a lot of people are aware of having to do with – you don’t have to incriminate yourself -- but the Supreme Court at least 50 years ago, interpreted that to mean that you don’t have to provide testimony. But that doesn’t mean that you don’t have to provide certain physical evidence coming from your body -- like I think in those days, it was a blood test.
QUESTION: Can you go into a bar and let’s say, after someone used a glass, can you take that glass and get the DNA and use that as DNA evidence?
NOLO: I believe so If you’re talking about whether the police can do it, then you’ve left that in public, they’re not conducting a search for which they would need permission, so yes, they could look at the glass and take it to a lab, and if they could get some usable DNA, then that would be acceptable.
NOLO: Many people are unclear about how DNA is obtained and about how it is used in court. DNA can be obtained from just about any human tissue and its commonly obtained from hair, fingernails, bones, teeth and bodily fluids. There is a well-known DNA database maintained by the FBI commonly used by law enforcement called CODIS, which stands for Combined DNA Index System. CODIS. For example, CODIS contains DNA samples from convicted sex offenders and from many felons. By the way, DNA has one interesting quirk. Identical twins are the only people with identical DNA – that’s because identical twins are created when a fertilized egg splits. That’s not the case for fraternal twins. Identical twins do not have identical fingerprints however. We asked Paul Bergman if DNA is always admissible in court.
PAUL BERGMAN: DNA evidence is generally admissible. I’m not an expert on DNA but I know that DNA sampling has been done on kind of a group- by-group basis. And I could be that, a judge might say that a particular DNA result is not admissible because of the defendant, or the person whose DNA was tested, is from one group, let’s say Caucasian and the DNA results were obtained by looking at a different group, let’s say Hispanics, or African American.
And there may be some novel way of testing for DNA that a court may not yet approve. But as a matter of science, the courts have accepted the science underlying DNA testing, and the results that are generally admissible.
NOLO: Scientific evidence has always been important in criminal cases but during the past 25 years, it has increased, particularly with the use of DNA evidence. Along with that has come considerable media attention, particularly a series of television shows, most prominent of which is CSI, which stands for Crime Scene Investigation. Surprisingly, these shows may have made it harder for prosecutors to obtain convictions., We asked Paul Bergman about the CSI effect.
NOLO: What these television shows tend to do now is to glorify and probably exaggerate the role of forensic scientists in detecting and proving crimes in court. And these shows are quite dramatic and these performers playing scientists have access, apparently, to all sorts of nifty gadgets to catch all sorts of things and come up with evidence that no one could have known about. The problem is that, at least many prosecutors believe, that it’s making it harder to obtain convictions, when they don’t have any of this nifty forensic testimony. And in most cases, it’s not appropriate to have forensic testimony, there’s no need for it. But the jurors, having seen all these CSI shows, are perhaps less likely to convict, because they say, “Well, this guy must not be guilty…we haven’t seen anyone in white coats, with machines, to prove guilt.” So, that’s the CSI effect. It kind of ramps up the pressure on prosecutors to produce the latest scientific gadgets in court, or else a defendant might go free.
NOLO: In movies and TV -- we often see stories like the Fugitive – where a person resists a police office to maintain their innoncence. We asked Paul Bergman whether it’s a crime to resist arrest even if you’re innocent.
PAUL BERGMAN: Sometimes it seems unfair, but somebody who is factually innocent could still be prosecuted for resisting arrest or escaping --- I mean, everyone understand the unfairness of it.
I guess the policy is that these matters ought to be fought out in the courts, where people are less likely to get hurt. If we allow people to take justice into their own hands, that’s vigilante justice…a vigilante may be pursuing somebody who has committed a crime, but we don’t want vigilantes taking the law into their own hands; we want the arrest to be made and for guilt to be determined in court. In the same way, you could say that someone who has been arrested, though innocent --- it may be unfair to charge them with a crime because if they try to escape, the police officer may pull out a gun and shoot him, or the police officer may get hurt, so it’s a better overall policy to have those matters play out in court, not out on the street.
In a recent criminal case, a man, John Mark Karr, confessed to trhe murder of Jon Bent Ramsay, committed over a decade ago. Karr was extradited to the United States where a handwriting analyst stated Karr’s handwriting matched a ransom note in the case. Then, twelve days after his confession, a DNA test revealed that Karr’s DNA did not match DNA found at the crime scene and he was released. We asked Paul Bergman a question that a lot of people are wondering ---Is it a crime to confess to a crime that you did not commit? That is, to make a fraudulent confession.
PAUL BERGMAN: There are statutes certainly in the federal government and in some states which make it a crime to lie to a police officer. And so if an individual makes a false confession to a police officer, then in theory, they might be prosecuted for that crime.
NOLO: If a suspect is lying when they make their confession, why not just give the suspect a lie detector test.
PAUL BERGMAN: Well the police sometimes do use lie detector tests to clear suspects. Generally, the lie detector test results are not admissible as evidence because the courts think the results are too subjective, they depend too much on the subjective judgement of the person running the lie detector test, and some people might be able to affect the results by practicing. So the general rule is that lie detector tests are not admissible in evidence whether the prosecution or defense wants to offer them.
In a number of states, assuming the prosecution and the defense agree before the test is given that the results will be admissible no matter which way they come out, the court in those states will admit the test. Apart from admissibility, police often do administer lie detector tests, just for their own purposes; they tend to have faith in their outcomes. And they may, for example, decide not to pursue further evidence against a potential suspect who passes the lie detector test. And so they might use it as way of clearing particular individuals, for their own purposes, apart from any courtroom use.
NOLO: As most people who watch police shows on TV are aware a police officer arrests someone and often says something like: you have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you cannot afford an attorney, one will be provided to you at no cost. During any questioning, you may decide at any time to exercise these rights, not answer any questions or make any statements. We asked Paul Bergman whether a confession made without these warnings is still admissible in trial.
PAUL BERGMAN: Generally, yes. What people say voluntarily either before or after they’re in custody, is admissible in evidence. The Miranda warnings are required only when the police conduct an interrogation or question a suspect, and if they begin the interrogation without giving the warning, then the confession will probably not be admissible in evidence. But if somebody just starts talking to the police with no interrogation, then no need for Miranda warnings.
NOLO: In the case that’s recently in news, a suspect confessed via email, to someone other than a police officer. We asked Paul Bergman about the admissibility of confession that’s made to someone other than a police officer. Can that be used in court?
PAUL BERGMAN: Sure … the police or state office of some kind is the only person who has to give Miranda warnings. What people say to friends, strangers, in bars, et cetera, is admissible without any kind of restriction at all.
NOLO: Most of us are familiar with the concept of DNA testing from high profile trials and from television shows. We asked Paul Bergman whether a suspect in a criminal case has to agree to DNA testing.
NOLO: Yes if the police have the need for a sample from which they can extract DNA, they have a right to demand it and you have no constitutional privilege to refuse. Now of course if they take the DNA sample in some horrible or inappropriate way -- let’s say given a person’ religious beliefs or something like that -- then the person could demand that the DNA sample be obtained in some more neutral manner. But you have no basic right to refuse to permit a DNA sample to be taken.
There’s a constitutional right that a lot of people are aware of having to do with – you don’t have to incriminate yourself -- but the Supreme Court at least 50 years ago, interpreted that to mean that you don’t have to provide testimony. But that doesn’t mean that you don’t have to provide certain physical evidence coming from your body -- like I think in those days, it was a blood test.
QUESTION: Can you go into a bar and let’s say, after someone used a glass, can you take that glass and get the DNA and use that as DNA evidence?
NOLO: I believe so If you’re talking about whether the police can do it, then you’ve left that in public, they’re not conducting a search for which they would need permission, so yes, they could look at the glass and take it to a lab, and if they could get some usable DNA, then that would be acceptable.
NOLO: Many people are unclear about how DNA is obtained and about how it is used in court. DNA can be obtained from just about any human tissue and its commonly obtained from hair, fingernails, bones, teeth and bodily fluids. There is a well-known DNA database maintained by the FBI commonly used by law enforcement called CODIS, which stands for Combined DNA Index System. CODIS. For example, CODIS contains DNA samples from convicted sex offenders and from many felons. By the way, DNA has one interesting quirk. Identical twins are the only people with identical DNA – that’s because identical twins are created when a fertilized egg splits. That’s not the case for fraternal twins. Identical twins do not have identical fingerprints however. We asked Paul Bergman if DNA is always admissible in court.
PAUL BERGMAN: DNA evidence is generally admissible. I’m not an expert on DNA but I know that DNA sampling has been done on kind of a group- by-group basis. And I could be that, a judge might say that a particular DNA result is not admissible because of the defendant, or the person whose DNA was tested, is from one group, let’s say Caucasian and the DNA results were obtained by looking at a different group, let’s say Hispanics, or African American.
And there may be some novel way of testing for DNA that a court may not yet approve. But as a matter of science, the courts have accepted the science underlying DNA testing, and the results that are generally admissible.
NOLO: Scientific evidence has always been important in criminal cases but during the past 25 years, it has increased, particularly with the use of DNA evidence. Along with that has come considerable media attention, particularly a series of television shows, most prominent of which is CSI, which stands for Crime Scene Investigation. Surprisingly, these shows may have made it harder for prosecutors to obtain convictions., We asked Paul Bergman about the CSI effect.
NOLO: What these television shows tend to do now is to glorify and probably exaggerate the role of forensic scientists in detecting and proving crimes in court. And these shows are quite dramatic and these performers playing scientists have access, apparently, to all sorts of nifty gadgets to catch all sorts of things and come up with evidence that no one could have known about. The problem is that, at least many prosecutors believe, that it’s making it harder to obtain convictions, when they don’t have any of this nifty forensic testimony. And in most cases, it’s not appropriate to have forensic testimony, there’s no need for it. But the jurors, having seen all these CSI shows, are perhaps less likely to convict, because they say, “Well, this guy must not be guilty…we haven’t seen anyone in white coats, with machines, to prove guilt.” So, that’s the CSI effect. It kind of ramps up the pressure on prosecutors to produce the latest scientific gadgets in court, or else a defendant might go free.
NOLO: In movies and TV -- we often see stories like the Fugitive – where a person resists a police office to maintain their innoncence. We asked Paul Bergman whether it’s a crime to resist arrest even if you’re innocent.
PAUL BERGMAN: Sometimes it seems unfair, but somebody who is factually innocent could still be prosecuted for resisting arrest or escaping --- I mean, everyone understand the unfairness of it.
I guess the policy is that these matters ought to be fought out in the courts, where people are less likely to get hurt. If we allow people to take justice into their own hands, that’s vigilante justice…a vigilante may be pursuing somebody who has committed a crime, but we don’t want vigilantes taking the law into their own hands; we want the arrest to be made and for guilt to be determined in court. In the same way, you could say that someone who has been arrested, though innocent --- it may be unfair to charge them with a crime because if they try to escape, the police officer may pull out a gun and shoot him, or the police officer may get hurt, so it’s a better overall policy to have those matters play out in court, not out on the street.
Sunday, August 27, 2006
How Can You Best Advocate for a Special Education Child?
How Can You Best Advocate For a Special Education Child?
As schools prepare to open, many parents wrestle with a federal law called The Individuals with Disabilities Education Act, or IDEA, passed in 1975. The goal of this law is to help children with disabilities succeed in school. Before it was enacted, public schools frequently ignored children with disabilities, or shunted them off to inferior or distant programs. The IDEA created the concept of special education: special services and programs for students with disabilities. Since its enactment, millions of students have had access to improved educational opportunities in public institutions. But much of the language in the act, for example, terms such as “disability,” “appropriate education,” and “unique needs” stir up emotional, medical, legal, and financial issues. Lawsuits between school districts and the disabled and their advocates are not uncommon. So what should a parent do when their child has a disability, and how can a parent maneuver through the maze of special education rules?
And what about school districts squeezed for funds? How can they best provide for the needs of all students? We start with the principle that a child qualifies as being disabled by meeting two standards. First, the child must have a listed disability. There are a list of disabilities in the IDEA such as physical disabilities, hearing, speech, and vision impairments, emotional and mental conditions including autism, retardation, and attention deficit disorders, and many other conditions. For example, in October 2006, Tourette’s Syndrome was added to the list. Second – and both of these conditions must be met – the child’s disability has to adversely affect the child’s education. A child who qualifies under the IDEA must then consider special education options with the school district. The key for accomplishing these goals is the Individualized Education Program, or IEP, and it is here, with the IEP, that parents face the greatest challenges. We spoke with Lawrence Siegel, an attorney who has represented many parents of disabled children in the IEP process, and is the author of “The Complete IEP Guide: How to Advocate for your Special Ed Child,” and “Nolo’s IEP Guide: Learning Disabilities.” We asked him to explain the basics of the IEP.
LAWRENCE SIEGEL: Well, under IDEA, the special ed law, the Individualized Education Program, the IEP, is actually several things, and it is the blueprint for the child’s program, and it describes what the child is going to get. The IEP is a meeting that usually takes place once a year, in which the family and the school district meet to discuss all elements of the child’s program, and that’s written down on a form called an IEP, and that IEP will create with a good deal of detail what the child’s program is going to look like, and that’s what both the family and the child and the school and the teacher will follow to provide the child with the individually-tailored program that meets his or her needs.
NOLO: It’s estimated that there are over five million school-age children with disabilities, or one out of twelve children or teenagers. As we noted, to qualify under the law, it’s not enough that a child has a disability; the disability must adversely affect the child’s educational performance. So, how does a parent prove that a disability affects learning?
LAWRENCE SIEGEL: Well, there are a number of ways that a family can prove that, and they should, whether their child is in or out of special ed, qualified or not, they obviously should keep track of how the child is doing in school. First of all, through grades, of course. Second of all, is there a discrepancy between the child’s general ability, wherever that may be, and how the child is performing? If there’s a discrepancy, that’s fairly important. Thirdly, are there physical things that impact on the child’s ability to be educated? A vision loss, hearing loss, or physical restriction. Other ways in which you can determine whether the child’s education is adversely affected would be, how’s the child doing in developing various skills that a child ought to have at a certain age? Cognitive skills, is the child becoming literate, is the child developing the ability to write… if it appears the child is not doing that, that suggests that something is going on, and would be proof that the disability is affecting education.
NOLO: The IDEA states that a child with a disability is entitled to an appropriate education at no cost to the parents. That term, “appropriate education,” is one of the terms that has been subject to a great deal of debate since the law was enacted thirty years ago. We asked Lawrence Siegel his interpretation of the meaning, “appropriate education.”
LAWRENCE SIEGEL: It means, ultimately, that the child can progress from year to year, and make academic progress. It does not mean, if I can use a cliché, it doesn’t mean a Cadillac program, it means a Chevrolet program. So, you’ve got to look to the fact that the child with that program is going to advance academically and make progress.
NOLO: Another controversial aspect of the IDEA, and IEPs, is the concept of mainstreaming. Some courts have concluded that mainstreaming is a requirement of the IDEA. We asked Lawrence Siegel what mainstreaming means.
LAWRENCE SIEGEL: Mainstreaming is really the same as placement with non-disabled children in a regular class. It’s one option on what’s called the continuum of placement options under IDEA. IDEA doesn’t really use the term “mainstreaming,” what it says is, the legal term – and this is very important – is that every child with a disability is entitled to be educated in the least-restrictive environment, as determined by the IEP team. Furthermore, the law says that a child is entitled to be educated in a regular classroom and cannot be removed from that regular classroom unless there’s evidence that the child cannot achieve satisfactorily in the classroom, even with supplementary aides and services. So, at least theoretically, it means that all children should start in a regular class, and only be removed to a non-regular placement when there’s evidence that they can’t succeed there.
NOLO: Because the IDEA and the IEP rules are so complex, we asked Lawrence Siegel where parents whose children may qualify under the IDEA can look for assistance on these topics.
LAWRENCE SIEGEL: Your school district has an absolute legal duty to provide you with information about the whole special ed process, that’s the first place. Secondly, your state Department of Education usually will have a whole bunch of information about IDEA – how it works, what the rules are. So, you can start in those two places. If your child’s not in special ed yet, but you think your child belongs there, you certainly should start to talk to his or her teacher, talk to your doctor about the child, is the child not meeting developmental milestones, is the child having trouble with certain courses, is the child having trouble with handwriting, or a learning disability, or whatever it might be. So, talk to your teacher, talk to your doctor; there are a whole number of both generic support groups in your area and in the country, as well as specific support groups for specific disabilities who can give you some direction on what you should be looking for if you suspect your child is autistic or learning-disabled. Then, you may want to think about getting an assessment done, which the school has a duty to do, or even go outside of the school and get an assessment done.
NOLO: The IEP hearing can be quite expensive for a parent, especially if they have to pay for expert witnesses. We asked Lawrence Siegel for any suggestions about keeping fees down.
LAWRENCE SIEGEL: In terms of expert witnesses and other costs, this recent decision in the Arlington v. Murphy case, the court did say that, when there’s an expert witness who testifies in a hearing, you better be prepared that, if you have such a person and you win the case, you’re not going to get reimbursed for those costs. So, some alternatives would be, first of all, again, contact those organizations, and they’re fairly easy to find on the web and in my book. Those organizations that provide support for individuals and families with the specific disability your child has, they may in fact know a nonprofit or other folks who can provide you the expertise at no or low cost, that’s certainly one option. The second option is, if your expert has also done an evaluation on your child, I’d suggest you talk to the expert about the possibility of her testifying in a hearing, and whether she would do that or he would do that, as part of the total cost, and that total cost, for the assessment, is reimbursable. That’s one way to do it. And then, one other way, although I don’t particularly like it, is when you go to hearing, the expert may in fact provide written information as well as testifying. An alternative to cut your costs down would be to have the expert do a very thorough written report, which you would submit to the hearing officer, and not have that person testify. Now, I prefer that both happen, because it’s important that you have live testimony, but that would be a way to cut down your costs, too.
NOLO: The IEP hearing can also be a tense situation. Lawrence Siegel has participated in many of these hearings, and we asked him to describe what it’s like.
LAWRENCE SIEGEL: Well, you know, obviously the tension level will depend a good deal on the personalities involved… some administrators, even though they disagree with you, are really fairly decent people, and then others can be very difficult. It also depends on what the nature of the dispute is, and if it’s been acrimonious in the past then you can anticipate that it will be that way in the hearing. As a general rule, these hearings will take place certainly not in courts; they often will take place in the school district. They’ll be in rather informal settings, like a conference room. The hearing officer will generally try to put people at ease. It does have the trappings of going to trial in a way, but it’s much more informal so that there’s certainly going to be an anxiety level; everyone feels that, including the most jaded and experienced lawyer, but it’s informal enough that if you’re in it and you’re doing it yourself, you can always say to the hearing officer, “Can we stop? I’m really confused here,” or “I’m nervous,” or “I don’t know,” and it’s the kind of setting where you can ask questions like that.
NOLO: Should a family bring a lawyer to these hearings?
LAWRENCE SIEGEL: Certainly if you think the district’s going to have an attorney, you better seriously think about it. If the district’s not going to have an attorney, I think – and you can go to my book and other places to get some recommendations how you do the hearing yourself, but it’s certainly something that if you can do it, you should have an attorney. You’re probably going to do better with an attorney, and remember, if you win, you’re going to get reimbursed. In the alternative, one way to do it is to do it yourself – then you don’t have to put money out for an attorney – but possibly hire a special ed attorney. Remember, not every attorney is going to know special ed law, so make sure the attorney knows special ed law. Perhaps you can hire the attorney for a couple three-hours to review your case, and he or she can give you some pointers. That’s a heck of a lot less expensive than having the attorney go to the hearing, which can often involve anywhere from twenty to fifty hours of time for the lawyer.
As schools prepare to open, many parents wrestle with a federal law called The Individuals with Disabilities Education Act, or IDEA, passed in 1975. The goal of this law is to help children with disabilities succeed in school. Before it was enacted, public schools frequently ignored children with disabilities, or shunted them off to inferior or distant programs. The IDEA created the concept of special education: special services and programs for students with disabilities. Since its enactment, millions of students have had access to improved educational opportunities in public institutions. But much of the language in the act, for example, terms such as “disability,” “appropriate education,” and “unique needs” stir up emotional, medical, legal, and financial issues. Lawsuits between school districts and the disabled and their advocates are not uncommon. So what should a parent do when their child has a disability, and how can a parent maneuver through the maze of special education rules?
And what about school districts squeezed for funds? How can they best provide for the needs of all students? We start with the principle that a child qualifies as being disabled by meeting two standards. First, the child must have a listed disability. There are a list of disabilities in the IDEA such as physical disabilities, hearing, speech, and vision impairments, emotional and mental conditions including autism, retardation, and attention deficit disorders, and many other conditions. For example, in October 2006, Tourette’s Syndrome was added to the list. Second – and both of these conditions must be met – the child’s disability has to adversely affect the child’s education. A child who qualifies under the IDEA must then consider special education options with the school district. The key for accomplishing these goals is the Individualized Education Program, or IEP, and it is here, with the IEP, that parents face the greatest challenges. We spoke with Lawrence Siegel, an attorney who has represented many parents of disabled children in the IEP process, and is the author of “The Complete IEP Guide: How to Advocate for your Special Ed Child,” and “Nolo’s IEP Guide: Learning Disabilities.” We asked him to explain the basics of the IEP.
LAWRENCE SIEGEL: Well, under IDEA, the special ed law, the Individualized Education Program, the IEP, is actually several things, and it is the blueprint for the child’s program, and it describes what the child is going to get. The IEP is a meeting that usually takes place once a year, in which the family and the school district meet to discuss all elements of the child’s program, and that’s written down on a form called an IEP, and that IEP will create with a good deal of detail what the child’s program is going to look like, and that’s what both the family and the child and the school and the teacher will follow to provide the child with the individually-tailored program that meets his or her needs.
NOLO: It’s estimated that there are over five million school-age children with disabilities, or one out of twelve children or teenagers. As we noted, to qualify under the law, it’s not enough that a child has a disability; the disability must adversely affect the child’s educational performance. So, how does a parent prove that a disability affects learning?
LAWRENCE SIEGEL: Well, there are a number of ways that a family can prove that, and they should, whether their child is in or out of special ed, qualified or not, they obviously should keep track of how the child is doing in school. First of all, through grades, of course. Second of all, is there a discrepancy between the child’s general ability, wherever that may be, and how the child is performing? If there’s a discrepancy, that’s fairly important. Thirdly, are there physical things that impact on the child’s ability to be educated? A vision loss, hearing loss, or physical restriction. Other ways in which you can determine whether the child’s education is adversely affected would be, how’s the child doing in developing various skills that a child ought to have at a certain age? Cognitive skills, is the child becoming literate, is the child developing the ability to write… if it appears the child is not doing that, that suggests that something is going on, and would be proof that the disability is affecting education.
NOLO: The IDEA states that a child with a disability is entitled to an appropriate education at no cost to the parents. That term, “appropriate education,” is one of the terms that has been subject to a great deal of debate since the law was enacted thirty years ago. We asked Lawrence Siegel his interpretation of the meaning, “appropriate education.”
LAWRENCE SIEGEL: It means, ultimately, that the child can progress from year to year, and make academic progress. It does not mean, if I can use a cliché, it doesn’t mean a Cadillac program, it means a Chevrolet program. So, you’ve got to look to the fact that the child with that program is going to advance academically and make progress.
NOLO: Another controversial aspect of the IDEA, and IEPs, is the concept of mainstreaming. Some courts have concluded that mainstreaming is a requirement of the IDEA. We asked Lawrence Siegel what mainstreaming means.
LAWRENCE SIEGEL: Mainstreaming is really the same as placement with non-disabled children in a regular class. It’s one option on what’s called the continuum of placement options under IDEA. IDEA doesn’t really use the term “mainstreaming,” what it says is, the legal term – and this is very important – is that every child with a disability is entitled to be educated in the least-restrictive environment, as determined by the IEP team. Furthermore, the law says that a child is entitled to be educated in a regular classroom and cannot be removed from that regular classroom unless there’s evidence that the child cannot achieve satisfactorily in the classroom, even with supplementary aides and services. So, at least theoretically, it means that all children should start in a regular class, and only be removed to a non-regular placement when there’s evidence that they can’t succeed there.
NOLO: Because the IDEA and the IEP rules are so complex, we asked Lawrence Siegel where parents whose children may qualify under the IDEA can look for assistance on these topics.
LAWRENCE SIEGEL: Your school district has an absolute legal duty to provide you with information about the whole special ed process, that’s the first place. Secondly, your state Department of Education usually will have a whole bunch of information about IDEA – how it works, what the rules are. So, you can start in those two places. If your child’s not in special ed yet, but you think your child belongs there, you certainly should start to talk to his or her teacher, talk to your doctor about the child, is the child not meeting developmental milestones, is the child having trouble with certain courses, is the child having trouble with handwriting, or a learning disability, or whatever it might be. So, talk to your teacher, talk to your doctor; there are a whole number of both generic support groups in your area and in the country, as well as specific support groups for specific disabilities who can give you some direction on what you should be looking for if you suspect your child is autistic or learning-disabled. Then, you may want to think about getting an assessment done, which the school has a duty to do, or even go outside of the school and get an assessment done.
NOLO: The IEP hearing can be quite expensive for a parent, especially if they have to pay for expert witnesses. We asked Lawrence Siegel for any suggestions about keeping fees down.
LAWRENCE SIEGEL: In terms of expert witnesses and other costs, this recent decision in the Arlington v. Murphy case, the court did say that, when there’s an expert witness who testifies in a hearing, you better be prepared that, if you have such a person and you win the case, you’re not going to get reimbursed for those costs. So, some alternatives would be, first of all, again, contact those organizations, and they’re fairly easy to find on the web and in my book. Those organizations that provide support for individuals and families with the specific disability your child has, they may in fact know a nonprofit or other folks who can provide you the expertise at no or low cost, that’s certainly one option. The second option is, if your expert has also done an evaluation on your child, I’d suggest you talk to the expert about the possibility of her testifying in a hearing, and whether she would do that or he would do that, as part of the total cost, and that total cost, for the assessment, is reimbursable. That’s one way to do it. And then, one other way, although I don’t particularly like it, is when you go to hearing, the expert may in fact provide written information as well as testifying. An alternative to cut your costs down would be to have the expert do a very thorough written report, which you would submit to the hearing officer, and not have that person testify. Now, I prefer that both happen, because it’s important that you have live testimony, but that would be a way to cut down your costs, too.
NOLO: The IEP hearing can also be a tense situation. Lawrence Siegel has participated in many of these hearings, and we asked him to describe what it’s like.
LAWRENCE SIEGEL: Well, you know, obviously the tension level will depend a good deal on the personalities involved… some administrators, even though they disagree with you, are really fairly decent people, and then others can be very difficult. It also depends on what the nature of the dispute is, and if it’s been acrimonious in the past then you can anticipate that it will be that way in the hearing. As a general rule, these hearings will take place certainly not in courts; they often will take place in the school district. They’ll be in rather informal settings, like a conference room. The hearing officer will generally try to put people at ease. It does have the trappings of going to trial in a way, but it’s much more informal so that there’s certainly going to be an anxiety level; everyone feels that, including the most jaded and experienced lawyer, but it’s informal enough that if you’re in it and you’re doing it yourself, you can always say to the hearing officer, “Can we stop? I’m really confused here,” or “I’m nervous,” or “I don’t know,” and it’s the kind of setting where you can ask questions like that.
NOLO: Should a family bring a lawyer to these hearings?
LAWRENCE SIEGEL: Certainly if you think the district’s going to have an attorney, you better seriously think about it. If the district’s not going to have an attorney, I think – and you can go to my book and other places to get some recommendations how you do the hearing yourself, but it’s certainly something that if you can do it, you should have an attorney. You’re probably going to do better with an attorney, and remember, if you win, you’re going to get reimbursed. In the alternative, one way to do it is to do it yourself – then you don’t have to put money out for an attorney – but possibly hire a special ed attorney. Remember, not every attorney is going to know special ed law, so make sure the attorney knows special ed law. Perhaps you can hire the attorney for a couple three-hours to review your case, and he or she can give you some pointers. That’s a heck of a lot less expensive than having the attorney go to the hearing, which can often involve anywhere from twenty to fifty hours of time for the lawyer.
Sunday, August 20, 2006
Can You Prepare Your Own Will?
This week our topic deals with what it takes to do your own will and we’re talking with Nolo editor and author Mary Randolph.
QUESTION: Mary, wills deal with two things people often dread – death, and the law. For that reason, many people are wary of preparing a will without an attorney. What’s your response to someone who is fearful of doing it on their own?
MARY RANDOLPH: Well, I certainly understand that people want to do it right, it’s an important document, but the good news about wills is that they’re fairly simple, straightforward documents, and you can do one without a lawyer. They really haven’t changed much in several hundred years; they’re standard documents, and if you have some good materials to help you, you can fill in the blanks and make a perfectly valid will.
QUESTION: Maybe another way that we can understand how wills work would be if you explain what happens if you die without one.
MARY RANDOLPH: That’s right, things get more complicated if you don’t leave a will, because you’re not leaving any instructions for what you want to happen to your property. Or, more importantly, if you have young children, who you want to raise them, and those are two of the key things that you do in a will. Every state has a law under which it will distribute your property if you die without leaving any instructions, and it will go to your closest relatives, and that may be what you want, it may not be what you want. It also has provisions for appointing a guardian for children, if you have young children and you die before they’re adults. And that’s what people really want to take care of; if they have young children they want to name a person who would raise the children themselves if they couldn’t.
QUESTION: Let’s say that a person is sitting down to prepare a will. What type of information should they have gathered before they start writing?
MARY RANDOLPH: Well, it’s pretty basic; you want to think about your big assets – what kind of property you own (make sure you know what you own and what you co-own with someone else, because of course you can only leave what you own). You want to think about who you want to leave property to – do you want to leave it to children, or would you rather leave it to an adult to manage it for the children, for example. So it’s very basic, personal things, just to think about your assets; you may overlook some things that might be valuable, or that might be contentious after your death. Sometimes people can argue about things that aren’t particularly valuable financially but have a lot of emotional significance. So, that’s something you want to think about before you sit down to write down your wishes.
QUESTION: Is it a good idea or a bad idea to speak with family members or friends before preparing a will?
MARY RANDOLPH: Well, it’s never a good idea to surprise people with your estate plan, so whether you talk to people before you make your will, and solicit some opinions, or after you make your plan, and you tell them what your plan is, it’s a good idea to let people know what’s coming, and that’s for a couple of reasons. One is because if people are speculating about what you wished, or why you did something, it can really lead to family disagreements. Sometimes these situations don’t always bring out the best in surviving family members, and if they just don’t understand, for example, why you left a certain heirloom, or more property, to one child than another, which you might have perfectly good reasons for doing, if they don’t understand that, then they might feel bitter or resentful; it might lead to arguments and bad feelings. So, you want to explain to people while you can why you’re doing what you’re doing.
QUESTION: Let’s say I wanted to do this on my own. There are so many websites, software programs, and books available to help you write these documents. I know Nolo has many such products, but how could a person verify that the product they choose is reliable? For example, if I use a program like Quicken Willmaker Plus, how do I know it addresses my state’s laws?
MARY RANDOLPH: That’s a good question; there are a lot of things out there. You want to take a look and make sure that there’s good materials along with whatever forms you’re given to fill out, whether it’s online, or just in a form packet. Make sure there’s help that lets you know what decisions you’re making, that covers all the issues that you care about, and that you don’t have questions. Make sure something does address your state law; Willmaker, for example, one of the first questions it will ask you is what state you’re in, because that has a very big effect on what you own, how you can leave things, your spouse’s rights… it’s a very important thing to know. And if a software package or form that you’re using doesn’t get that information, you’re not going to get results that are really tailored to the law in your state.
QUESTION: Mary, how often do wills need to be updated?
MARY RANDOLPH: Well, there’s no cut-and-dried rule; it’s basically that you need to take a look at your documents when there’s a big change in your life. If your family situation changes, you get married or get divorced, there’s a new grandchild in the family, you sell your house… anything that’s going to make your will out-of-date, then it’s time to take a look. But it isn’t something that most people need to do even on an annual basis. Every few years, it’s a good idea to take it out, take a look at it, and see if you need to change anything. It’s not particularly hard to update a will. The easiest way, because everyone these days does them on computers, is just to make a new will, tear up the old one, and you’re done.
QUESTION: Is it possible that a law could change so that my will becomes invalid? If so, how would I learn about that kind of change?
MARY RANDOLPH: Very unlikely that any law would make your will invalid. It’s possible that laws could change in a way that you would want to change something in your will. For example, if you move to a different state that has different property laws affecting spouses, for example, community property state versus other states. It’s possible that you might want to reassess your will then, but nothing is going to come along and just make it invalid.
QUESTION: I read that Warren Burger, the former Chief Justice of the Supreme Court, wrote his own will, but he didn’t give any power to his executors, and didn’t provide for estate taxes, and these errors cost the estate thousands of dollars. How does a person preparing their own will know whether they’ve made the right financial decisions?
MARY RANDOLPH: Well, it’s true that Warren Burger scribbled out a will on a piece of paper, and didn’t really take into account some things he should have taken into account. Most people don’t owe estate taxes; 99% of the estates don’t pay estate taxes, so that’s not anything most people have to worry about, but you do need to make sure you have some standard provisions in your will. And I’m sure Warren Burger knew lots of lawyers that could have helped him. You don’t even have to know a lawyer these days, you can use something like Willmaker, it’s got all the standard provisions, so it lets you know that you’re not leaving out anything crucial; it will prompt you, and ask you questions. So by the time you get done you should feel that you’ve addressed all the issues that you need to.
QUESTION: I have a few questions about the Quicken Willmaker Plus product. If it’s made by Nolo, why is it called Quicken Willmaker Plus?
MARY RANDOLPH: Well, Quicken, as you probably know, has provided financial software, personal finance software, to people for many years now, and they approached Nolo and asked us to provide the legal content. We’ve been publishing books and software on legal matters for more than thirty-five years, and they asked us to provide the content for our will-making program, so that’s why we teamed up with Quicken.
QUESTION: From what I understand, the program has a web update feature, which automatically goes to the Nolo website, and downloads any changes in the laws into the program. How do you keep the software current each year?
MARY RANDOLPH: Well, our in-house lawyers are looking at Willmaker every year; we put out a new version every year that addresses any legal changes in the fifty states, so we are on top of it. Luckily, the law on wills doesn’t change usually each year, but if there’s something people should know about, or if there are some tips that we’d like to give them, we publish a new version every year. In the mean time, if there’s anything that changes that we think people should know about, we put it on our website, and the Willmaker software has a feature where you can go directly from the software to the web update page on Nolo.com, so you can find out about anything that you might need to know
Sunday, August 13, 2006
How Can Job Descriptions Trigger Lawsuits?
We're speaking with Margie Mader-Clark, an expert on human resources issues and rules, and the author of "The Job Description Handbook," from Nolo.
NOLO: Margie, let's start with a basic question. Why does someone who manages employees need a book about writing job descriptions? Why can't someone just write out the tasks that the employee has to do?
MARGIE MADER-CLARK: You have to think of a job description as a management tool that will actually cover a lot more than just hiring someone or laying out the job. You can use it in most every part of the life-cycle of the employment process -- you can use it to set up interview questions, you can use it to orient your new employee and tell them what the functions of their job are, you can use it to measure their performance on those given functions... so a well-written job description can actually take you a lot further in any of the employment processes than just the hiring process itself.
NOLO: You write in your book that the most common and costly mistake managers make is to write a job description that can be interpreted as discriminatory. Could you give us an example of how a discriminatory job description can backfire?
MARGIE MADER-CLARK: A job description, like any other part of the employment process, is governed by a couple of different laws to do with overall discrimination, Americans with disabilities is another distinct law... a job description needs to be specific enough about what you actually need someone to do or be able to do to do the job. So, if you were to write a job description that had, for instance, a lifting requirement of fifty or sixty pounds, you would automatically be cutting out some portion of the potential workforce. So you have to be certain that the job actually does require that, or can that weight be broken down into smaller chunks, to potentially be picked up by more of the workforce. So the mistakes become costly when the job description can actually become a basis for an employment lawsuit. If it can be proven that you're discriminating in your hiring practices or your promotional practices, and the job description is the basis of that, you can be liable for significant amounts.
NOLO: There are some cases where a job description calls for specific characteristics, that relate to sex, religion, or other protected characteristics, for example if you're hiring a female matron at a women's prison. So how do you know when a protected characteristic is essential to the job description?
MARGIE MADER-CLARK: Well, a little background on the concept of protected characteristics. They actually have a name in the employment law world, they're called Bona Fide Occupational Qualifications, or BFOQs. So you have to be able to prove that nobody else can reasonably do the job without having that particular Bona Fide Occupational Qualification. In these particular examples, they're sort of obvious, which makes them all the more defensible. You wouldn't have a woman as a Catholic priest, and you probably wouldn't have a man as a warden at a female prison. If they're not obvious and defensible, they probably are not Bona Fide Occupational Qualifications. For example, the weight-lifting requirement that I gave earlier, that could be done by a man or a woman of any race or religion. That wouldn't be considered a BFOQ.
NOLO: In your book, you warn against job descriptions that include a statement like, "This position is a stepping-stone for promotion," or, "If you can meet these challenges, you'll have a bright future." What's wrong with providing some encouragement to a potential employee, and how else can a company attract ambitious people?
MARGIE MADER-CLARK: Well, first of all, I think you're exactly right, and the job description is a marketing tool for the job itself, so being able to make the job sound interesting and make it sound like there's advancement opportunities and so forth is critical. However, if you're making a promise about future advancement, that creates what's called an implied contract, and if for any reason you don't advance that person, you're in breach of that contract. So careful wording in your job description can still provide encouragement, without the contractual obligation. For instance: "This position is reviewed and considered for advancement on a regular basis," or, "The position is eligible for regular salary increases." Those kinds of statements would give the candidate the knowledge that there's more to the job, or that a career could be made out of the job without making a promise that would be an implied contract.
NOLO: In your book, you discussed a case where a woman sued, claiming that the job description requirements caused an invasion of her privacy, because she had to disrobe. How does one deal with situations such as artist models, where the job description seems to require an invasion of privacy?
MARGIE MADER-CLARK: Well, first of all, applying for a specific job is not mandatory, so people are sort of opting in. So if your job description is using these Bona Fide Occupational Qualifiers, and it is an artist model, and the artists are working on nudes, that would be a specific thing that you'd be either opting to do, or opting not to do. As a part of the job itself, it's a requirement, so if you didn't want to do that, you wouldn't apply for that particular job. That's the best way to get around something like that.
NOLO: When preparing a job description, how does a manager know how to classify those employees that qualify for overtime, and those that don't?
MARGIE MADER-CLARK: Overtime classifications can be very complicated; I think there could probably be a whole separate book on that particular topic. In actual fact, the law takes the position that all positions are eligible for overtime until they're classified as exempt from that eligibility. Exemption comes in a couple of different forms, but the basic rule of thumb: the more independence the position has, the less likely it is to qualify for overtime. So if your position is something that has high direction, you're being told what to do most of the time, you have specified work hours, you have specific deliverables that don't change that much, for instance an assembly line job or something like that, most likely that kind of job is eligible for overtime. You swing to the other end of the scale, if you basically operate independently, you have sort of wide-ranging goals, but no direction on necessarily how to accomplish them, that puts you more towards the exempt-from-overtime status. It's a lot more complicated than that, there's a couple of specific categories, but that's the basic rule of thumb regarding over-time.
NOLO: Some businesses try to get away with describing the same job in different ways so that the company can avoid equal pay considerations. For example, a female position is classified as a "maid," and a similar male position is entitled "housekeeping technician." What's the problem with this approach?
MARGIE MADER-CLARK: It's pure and simple discrimination based on gender, unless those positions are paid precisely the same. If each bullet under a maid and under a housekeeping technician, each bullet about what they do, is largely the same, and then classifying those jobs or paying them differently, is the basis for a discrimination lawsuit. You don't see that happen as much anymore, I think it's starting to blend together, especially in areas that have been traditionally female, like airline stewardesses, now flight attendants, and so forth. It's much more focused on what the job is and who can do the job, rather than what gender is specific to that job.
NOLO: Your job description book includes a series of tests at the end of each chapter. Just curious, what's the purpose of testing the reader?
MARGIE MADER-CLARK: The book was intended to be a learning manual, and broken up into parts where you could just sort of read one part and then read the next if you needed it. The tests are simply a way to test your learning. It's also a great way to recap the chapter, so if you go through a test, you can see what the basic bullet points of the chapter were, the most important points... it's a little clue that you might not have to read the whole chapter if you're passing the tests, so it's kind of two-fold: you can use it as a way to short-cut the reading process, and you can also use it as a way to test your knowledge.
NOLO: What happens if a manager writes a job description in an attempt to side-step the Americans With Disabilities act? For example, the job description includes a requirement that the employee be able to climb ladders in a warehouse, when it's really not essential.
MARGIE MADER-CLARK: I think the main thing to remember here is to be flexible in your requirements. If you're writing down that an employee needs to be able to climb ladders in a warehouse, you have to think more in terms of what do you really need them to do? Do you need them to be able to access materials on a, top shelf? If so, are there other ways to access those materials; can someone else climb a ladder for them? Or is it truly a job where they would be up on a ladder all day long? If you can't prove that it's truly a job where they would be up on a ladder all day long, then you need to provide a reasonable accommodation to anybody who would apply for that job. So a reasonable accommodation in this particular example would be someone who could lift things off the top shelf for you.
NOLO: You recommend including a disclaimer in a job description. What should it say, and what's the advantage of doing that?
MARGIE MADER-CLARK: A job description by its nature is a little bit of a living document. It needs to have the ability to change with the changing business needs. So, the most important point that you want to get across in a disclaimer is that the job description is flexible and subject to change; different functions can be added at management discretion and so forth. There's a couple good examples in the book of what a disclaimer could look like, but those are the basic points that you want to get across. The advantage of doing that of course is that it leaves you wiggle room if, when the person comes onboard they have a skill set that you weren't even 100% sure about, and you want to employ that skill set, you can add it into the job description, because those can change throughout the life-cycle of employment. And, likewise, if someone is not doing something as well, you can put that function onto someone else and you can take functions away from a job description. So what you don't want is you don't want a job description to look like, again, any sort of written contract about what that job is about, and be locked down and unable to change. A disclaimer gives you that wiggle room.
NOLO: Margie, let's start with a basic question. Why does someone who manages employees need a book about writing job descriptions? Why can't someone just write out the tasks that the employee has to do?
MARGIE MADER-CLARK: You have to think of a job description as a management tool that will actually cover a lot more than just hiring someone or laying out the job. You can use it in most every part of the life-cycle of the employment process -- you can use it to set up interview questions, you can use it to orient your new employee and tell them what the functions of their job are, you can use it to measure their performance on those given functions... so a well-written job description can actually take you a lot further in any of the employment processes than just the hiring process itself.
NOLO: You write in your book that the most common and costly mistake managers make is to write a job description that can be interpreted as discriminatory. Could you give us an example of how a discriminatory job description can backfire?
MARGIE MADER-CLARK: A job description, like any other part of the employment process, is governed by a couple of different laws to do with overall discrimination, Americans with disabilities is another distinct law... a job description needs to be specific enough about what you actually need someone to do or be able to do to do the job. So, if you were to write a job description that had, for instance, a lifting requirement of fifty or sixty pounds, you would automatically be cutting out some portion of the potential workforce. So you have to be certain that the job actually does require that, or can that weight be broken down into smaller chunks, to potentially be picked up by more of the workforce. So the mistakes become costly when the job description can actually become a basis for an employment lawsuit. If it can be proven that you're discriminating in your hiring practices or your promotional practices, and the job description is the basis of that, you can be liable for significant amounts.
NOLO: There are some cases where a job description calls for specific characteristics, that relate to sex, religion, or other protected characteristics, for example if you're hiring a female matron at a women's prison. So how do you know when a protected characteristic is essential to the job description?
MARGIE MADER-CLARK: Well, a little background on the concept of protected characteristics. They actually have a name in the employment law world, they're called Bona Fide Occupational Qualifications, or BFOQs. So you have to be able to prove that nobody else can reasonably do the job without having that particular Bona Fide Occupational Qualification. In these particular examples, they're sort of obvious, which makes them all the more defensible. You wouldn't have a woman as a Catholic priest, and you probably wouldn't have a man as a warden at a female prison. If they're not obvious and defensible, they probably are not Bona Fide Occupational Qualifications. For example, the weight-lifting requirement that I gave earlier, that could be done by a man or a woman of any race or religion. That wouldn't be considered a BFOQ.
NOLO: In your book, you warn against job descriptions that include a statement like, "This position is a stepping-stone for promotion," or, "If you can meet these challenges, you'll have a bright future." What's wrong with providing some encouragement to a potential employee, and how else can a company attract ambitious people?
MARGIE MADER-CLARK: Well, first of all, I think you're exactly right, and the job description is a marketing tool for the job itself, so being able to make the job sound interesting and make it sound like there's advancement opportunities and so forth is critical. However, if you're making a promise about future advancement, that creates what's called an implied contract, and if for any reason you don't advance that person, you're in breach of that contract. So careful wording in your job description can still provide encouragement, without the contractual obligation. For instance: "This position is reviewed and considered for advancement on a regular basis," or, "The position is eligible for regular salary increases." Those kinds of statements would give the candidate the knowledge that there's more to the job, or that a career could be made out of the job without making a promise that would be an implied contract.
NOLO: In your book, you discussed a case where a woman sued, claiming that the job description requirements caused an invasion of her privacy, because she had to disrobe. How does one deal with situations such as artist models, where the job description seems to require an invasion of privacy?
MARGIE MADER-CLARK: Well, first of all, applying for a specific job is not mandatory, so people are sort of opting in. So if your job description is using these Bona Fide Occupational Qualifiers, and it is an artist model, and the artists are working on nudes, that would be a specific thing that you'd be either opting to do, or opting not to do. As a part of the job itself, it's a requirement, so if you didn't want to do that, you wouldn't apply for that particular job. That's the best way to get around something like that.
NOLO: When preparing a job description, how does a manager know how to classify those employees that qualify for overtime, and those that don't?
MARGIE MADER-CLARK: Overtime classifications can be very complicated; I think there could probably be a whole separate book on that particular topic. In actual fact, the law takes the position that all positions are eligible for overtime until they're classified as exempt from that eligibility. Exemption comes in a couple of different forms, but the basic rule of thumb: the more independence the position has, the less likely it is to qualify for overtime. So if your position is something that has high direction, you're being told what to do most of the time, you have specified work hours, you have specific deliverables that don't change that much, for instance an assembly line job or something like that, most likely that kind of job is eligible for overtime. You swing to the other end of the scale, if you basically operate independently, you have sort of wide-ranging goals, but no direction on necessarily how to accomplish them, that puts you more towards the exempt-from-overtime status. It's a lot more complicated than that, there's a couple of specific categories, but that's the basic rule of thumb regarding over-time.
NOLO: Some businesses try to get away with describing the same job in different ways so that the company can avoid equal pay considerations. For example, a female position is classified as a "maid," and a similar male position is entitled "housekeeping technician." What's the problem with this approach?
MARGIE MADER-CLARK: It's pure and simple discrimination based on gender, unless those positions are paid precisely the same. If each bullet under a maid and under a housekeeping technician, each bullet about what they do, is largely the same, and then classifying those jobs or paying them differently, is the basis for a discrimination lawsuit. You don't see that happen as much anymore, I think it's starting to blend together, especially in areas that have been traditionally female, like airline stewardesses, now flight attendants, and so forth. It's much more focused on what the job is and who can do the job, rather than what gender is specific to that job.
NOLO: Your job description book includes a series of tests at the end of each chapter. Just curious, what's the purpose of testing the reader?
MARGIE MADER-CLARK: The book was intended to be a learning manual, and broken up into parts where you could just sort of read one part and then read the next if you needed it. The tests are simply a way to test your learning. It's also a great way to recap the chapter, so if you go through a test, you can see what the basic bullet points of the chapter were, the most important points... it's a little clue that you might not have to read the whole chapter if you're passing the tests, so it's kind of two-fold: you can use it as a way to short-cut the reading process, and you can also use it as a way to test your knowledge.
NOLO: What happens if a manager writes a job description in an attempt to side-step the Americans With Disabilities act? For example, the job description includes a requirement that the employee be able to climb ladders in a warehouse, when it's really not essential.
MARGIE MADER-CLARK: I think the main thing to remember here is to be flexible in your requirements. If you're writing down that an employee needs to be able to climb ladders in a warehouse, you have to think more in terms of what do you really need them to do? Do you need them to be able to access materials on a, top shelf? If so, are there other ways to access those materials; can someone else climb a ladder for them? Or is it truly a job where they would be up on a ladder all day long? If you can't prove that it's truly a job where they would be up on a ladder all day long, then you need to provide a reasonable accommodation to anybody who would apply for that job. So a reasonable accommodation in this particular example would be someone who could lift things off the top shelf for you.
NOLO: You recommend including a disclaimer in a job description. What should it say, and what's the advantage of doing that?
MARGIE MADER-CLARK: A job description by its nature is a little bit of a living document. It needs to have the ability to change with the changing business needs. So, the most important point that you want to get across in a disclaimer is that the job description is flexible and subject to change; different functions can be added at management discretion and so forth. There's a couple good examples in the book of what a disclaimer could look like, but those are the basic points that you want to get across. The advantage of doing that of course is that it leaves you wiggle room if, when the person comes onboard they have a skill set that you weren't even 100% sure about, and you want to employ that skill set, you can add it into the job description, because those can change throughout the life-cycle of employment. And, likewise, if someone is not doing something as well, you can put that function onto someone else and you can take functions away from a job description. So what you don't want is you don't want a job description to look like, again, any sort of written contract about what that job is about, and be locked down and unable to change. A disclaimer gives you that wiggle room.
Sunday, August 6, 2006
Do You Have to Consent to Roadside Sobriety Tests?
This week we’re going to discuss DUIs – the laws and procedures that are triggered when someone is arrested for driving under the influence of alcohol or drugs. We’re going to speak with Aaron Bortel, a San Francisco attorney and expert on DUI law. Aaron is also a member of Nolo’s Lawyer Directory. Most people call it “drunk driving” and in some states it’s referred to as “Driving While Intoxicated” or “DWI,” but you don’t have to be intoxicated or “drunk” to be convicted of this crime. For that reason, the offense we’re discussing is commonly known as “Driving Under the Influence” or ‘DUI.’
In most states, a first time DUI offense will usually result in some jail time, a large fine – usually more than $1,000 -- and a driver’s license suspension. The maximum sentence for a first offense is usually six months or a year in jail and that varies from state to state. Second and third offenses often result in jail sentences of several months to a year. In California, A DUI conviction counts as a second offense or third offense if the prior convictions occurred within ten years. This is what is known within the world of DUIs as priorability – whether an offense counts as prior offense.
In addition to the penalties I mentioned, insurance companies often cancel (or drastically raise rates) for drivers convicted of a DUI. And a DUI charge stays on a driving record for many years.
The procedure for enforcing DUI laws usually begins when a police officer observes someone driving improperly, perhaps weaving in out of lanes of traffic, or speeding. After stopping the car, the officer observes the driver, for indications of alcohol or drug impairment, for example, slurred speech, red eyes, dilated pupils, flushed face, a strong alcoholic beverage odor on the driver’s breath, or unsteadiness after the driver gets out of the car. The officer may request a roadside coordination test – also known as a field sobriety test which may involve the driver balancing or walking.
If the officer reasonably suspects that driver is under the influence, the driver will be arrested. And after the arrest, comes a crucial test -- either a breath or a blood test.
We asked DUI attorney Aaron Bortel whether it’s ever in a driver’s best interest to refuse to take this test.
AARON BORTEL: It‘s a tough one to defend, let’s put it that way. You’re better off not refusing the test in most cases.
NOLO: What’s the legal basis for requiring this test?
AARON BORTEL: When we sign up to get our license, we sign something where we impliedly consent to take a chemical test after being arrested for a DUI. The test that you’re required to do is the evidential test that’s either a blood test or a breath test which is usually at the station. The officer is required to tell you if you refuse to do the blood test or evidential breath test that you will lose your license for a year.
After the arrest, the driver’s license is taken away and usually, the driver’s car is impounded. The police officer will also be required to send a form to the DMV notifying them of the arrest.
A decision must be made as to what charges will be brought against the driver. In California, for example, driving under the influence can lead to two misdemeanor charges -- Driving Under the Influence or Driving While Blood Alcohol is 0.08% or higher. But the driver can also be charged with Felony DUI, a very serious charge that can send the driver to prison for over a year and possibly up to five years.
NOLO: We asked Aaron Bortel for an explanation of Felony DUI.
AARON BORTEL: If you add on an injury to another you’ve got a felony. It’s that injury. Now the degree of injury is usually what determines whether or not they will charge it as a felony or a misdemeanor. It can be to someone in another vehicle, or a pedestrian or someone in your own vehicle. There you’ve got felony DUI.
NOLO: Occasionally, famous people are arrested for DUIs and it makes the news. This week, actor Mel Gibson was arrested after driving over 85 miles per hour, almost twice the legal speed limit. The idea of an intoxicated person doing double the speed limit seems frightening to the average driver. Does the speeding affect the DUI charge?
AARON BORTEL: I feel the same way that you do that yeah, it is a lot scarier when someone is going that much faster and I think that is treated much more severely by the prosecutors. Prosecutors do not like speeding cases. I’m not talking ten or twenty miles an hour over the speed limit but when they start seeing double the speed limit, doing ninety, one hundred on the highways and freeways, they get a little more upset and what happens there is that they are less likely to reduce charges.
What they did not do here, was that they did not add on an enhancement where if he were convicted for doing 20 miles an hour or greater [over the speed limit] on a highway which also includes surface streets and were convicted he would be looking at a minimum 60 days in jail.
NOLO: Under California law, a driver under the influence whose speed on surface streets exceeds the posted limit by 20 mph is eligible for an additional factor or enhancement and, if convicted, would lead to a minimum of 60 days in jail for the driver. So, why wasn’t Mel Gibson charged with an enhancement?
AARON BORTEL: That’s a big question in the DUI community right now. Most prosecutor offices that I’ve dealt with would not hesitate, y’know more than thirty, more than forty miles an hour over the speed limit, they will do it.
NOLO: There were many other elements reported in the Mel Gibson DUI case including belligerency, threatening of an officer, and the fact that an open bottle of tequila was found in the car. Although to a layperson, the presence of an open bottle of tequila may seem like damning evidence, it can also be used as part of the defense which may argue that the effects of the drinking from the open bottle – since they were so close to when the driver was stopped -- may not have affected the driver … but it may have affected the evidential test given later, when the driver’s blood alcohol level has risen. In other words, defense attorneys sometimes argue that an open bottle raises doubt as to whether the driver was over a .08 at the time the driver was stopped. That aside, however, the conventional thinking for most DUI cases is that a properly administered test that results in a reading substantially higher than .08 -- and in Mel Gibson’s case, .12 – will most likely result in a conviction. So what would a first time offender like Mel Gibson face in a California court? How much is the fine? And is there jail time?
AARON BORTEL: It depends on the county, but I’d say usually it’s between $1400 to $1700. That’s a typical fine. Sometimes they have to do a little community service. But your standard first offense DUI will give you in most counties -- they’ll usually give you two days in jail which can be done picking up trash on the Sheriff’s work program so you don’t actually spend the night in jail. You show up in the morning, [they] give you an orange vest, [you] pick up trash on the road. Some counties are more harsh than others. It’s my understanding that L.A. county is not one of those.
NOLO: Aaron Bortel also explained that in addition to a minimum of 2 days in jail, and license suspension by the DMV, a first time offender would also face three years probation.
Depending on the county, drivers accused of DUIs can in some cases can plea bargain. Bortel explained that some counties, for example, Marin County, north of San Francisco have a reputation for not entering into plea bargains in DUI cases. In other California counties, drivers may plea bargain in appropriate cases to lower counts known as wet reckless, for example, – a lesser offense than a DUI but it still counts for determining priorability. Or a driver may plea bargain to what is known as a dry reckless which is not a priorable offense.
As public opinion has gathered against drunk driving over the past few decades, drivers have found it harder and harder to plea bargain? Aaron Bortel concurs.
AARON BORTEL: I think everything in DUI law has gotten tougher since I started practicing in the early nineties. Mothers Against Drunk Driving has had a big push for many years to make the laws tougher. The law’s gotten a lot tougher not just in fines going up, but the sentencing has gotten much tougher, priorability – number of years – has increased. It used to be that it was seven years – if you got a second DUI within seven years [in California] it would count as a second offense. Now it’s ten years.
Aaron Bortel, like many DUI attorneys, often attempts to help clients get into alcohol programs and begin a recovery. But does an arrest and conviction affect drivers so much that they really change their behavior?
AARON BORTEL: They learn a lesson. Because they are often having to go to a DUI school their insurance rates go way up. Their licenses are suspended or restricted. Those kind of things happen. And those are what make most people learn their lesson and not put themselves in that situation again.
NOLO: That’s all we have time for this week. Thanks so much for listening. Much of the background information I used is derived from two books, Fight Your Ticket and Beat Your Ticket, both by attorney David Wayne Brown.
In most states, a first time DUI offense will usually result in some jail time, a large fine – usually more than $1,000 -- and a driver’s license suspension. The maximum sentence for a first offense is usually six months or a year in jail and that varies from state to state. Second and third offenses often result in jail sentences of several months to a year. In California, A DUI conviction counts as a second offense or third offense if the prior convictions occurred within ten years. This is what is known within the world of DUIs as priorability – whether an offense counts as prior offense.
In addition to the penalties I mentioned, insurance companies often cancel (or drastically raise rates) for drivers convicted of a DUI. And a DUI charge stays on a driving record for many years.
The procedure for enforcing DUI laws usually begins when a police officer observes someone driving improperly, perhaps weaving in out of lanes of traffic, or speeding. After stopping the car, the officer observes the driver, for indications of alcohol or drug impairment, for example, slurred speech, red eyes, dilated pupils, flushed face, a strong alcoholic beverage odor on the driver’s breath, or unsteadiness after the driver gets out of the car. The officer may request a roadside coordination test – also known as a field sobriety test which may involve the driver balancing or walking.
If the officer reasonably suspects that driver is under the influence, the driver will be arrested. And after the arrest, comes a crucial test -- either a breath or a blood test.
We asked DUI attorney Aaron Bortel whether it’s ever in a driver’s best interest to refuse to take this test.
AARON BORTEL: It‘s a tough one to defend, let’s put it that way. You’re better off not refusing the test in most cases.
NOLO: What’s the legal basis for requiring this test?
AARON BORTEL: When we sign up to get our license, we sign something where we impliedly consent to take a chemical test after being arrested for a DUI. The test that you’re required to do is the evidential test that’s either a blood test or a breath test which is usually at the station. The officer is required to tell you if you refuse to do the blood test or evidential breath test that you will lose your license for a year.
After the arrest, the driver’s license is taken away and usually, the driver’s car is impounded. The police officer will also be required to send a form to the DMV notifying them of the arrest.
A decision must be made as to what charges will be brought against the driver. In California, for example, driving under the influence can lead to two misdemeanor charges -- Driving Under the Influence or Driving While Blood Alcohol is 0.08% or higher. But the driver can also be charged with Felony DUI, a very serious charge that can send the driver to prison for over a year and possibly up to five years.
NOLO: We asked Aaron Bortel for an explanation of Felony DUI.
AARON BORTEL: If you add on an injury to another you’ve got a felony. It’s that injury. Now the degree of injury is usually what determines whether or not they will charge it as a felony or a misdemeanor. It can be to someone in another vehicle, or a pedestrian or someone in your own vehicle. There you’ve got felony DUI.
NOLO: Occasionally, famous people are arrested for DUIs and it makes the news. This week, actor Mel Gibson was arrested after driving over 85 miles per hour, almost twice the legal speed limit. The idea of an intoxicated person doing double the speed limit seems frightening to the average driver. Does the speeding affect the DUI charge?
AARON BORTEL: I feel the same way that you do that yeah, it is a lot scarier when someone is going that much faster and I think that is treated much more severely by the prosecutors. Prosecutors do not like speeding cases. I’m not talking ten or twenty miles an hour over the speed limit but when they start seeing double the speed limit, doing ninety, one hundred on the highways and freeways, they get a little more upset and what happens there is that they are less likely to reduce charges.
What they did not do here, was that they did not add on an enhancement where if he were convicted for doing 20 miles an hour or greater [over the speed limit] on a highway which also includes surface streets and were convicted he would be looking at a minimum 60 days in jail.
NOLO: Under California law, a driver under the influence whose speed on surface streets exceeds the posted limit by 20 mph is eligible for an additional factor or enhancement and, if convicted, would lead to a minimum of 60 days in jail for the driver. So, why wasn’t Mel Gibson charged with an enhancement?
AARON BORTEL: That’s a big question in the DUI community right now. Most prosecutor offices that I’ve dealt with would not hesitate, y’know more than thirty, more than forty miles an hour over the speed limit, they will do it.
NOLO: There were many other elements reported in the Mel Gibson DUI case including belligerency, threatening of an officer, and the fact that an open bottle of tequila was found in the car. Although to a layperson, the presence of an open bottle of tequila may seem like damning evidence, it can also be used as part of the defense which may argue that the effects of the drinking from the open bottle – since they were so close to when the driver was stopped -- may not have affected the driver … but it may have affected the evidential test given later, when the driver’s blood alcohol level has risen. In other words, defense attorneys sometimes argue that an open bottle raises doubt as to whether the driver was over a .08 at the time the driver was stopped. That aside, however, the conventional thinking for most DUI cases is that a properly administered test that results in a reading substantially higher than .08 -- and in Mel Gibson’s case, .12 – will most likely result in a conviction. So what would a first time offender like Mel Gibson face in a California court? How much is the fine? And is there jail time?
AARON BORTEL: It depends on the county, but I’d say usually it’s between $1400 to $1700. That’s a typical fine. Sometimes they have to do a little community service. But your standard first offense DUI will give you in most counties -- they’ll usually give you two days in jail which can be done picking up trash on the Sheriff’s work program so you don’t actually spend the night in jail. You show up in the morning, [they] give you an orange vest, [you] pick up trash on the road. Some counties are more harsh than others. It’s my understanding that L.A. county is not one of those.
NOLO: Aaron Bortel also explained that in addition to a minimum of 2 days in jail, and license suspension by the DMV, a first time offender would also face three years probation.
Depending on the county, drivers accused of DUIs can in some cases can plea bargain. Bortel explained that some counties, for example, Marin County, north of San Francisco have a reputation for not entering into plea bargains in DUI cases. In other California counties, drivers may plea bargain in appropriate cases to lower counts known as wet reckless, for example, – a lesser offense than a DUI but it still counts for determining priorability. Or a driver may plea bargain to what is known as a dry reckless which is not a priorable offense.
As public opinion has gathered against drunk driving over the past few decades, drivers have found it harder and harder to plea bargain? Aaron Bortel concurs.
AARON BORTEL: I think everything in DUI law has gotten tougher since I started practicing in the early nineties. Mothers Against Drunk Driving has had a big push for many years to make the laws tougher. The law’s gotten a lot tougher not just in fines going up, but the sentencing has gotten much tougher, priorability – number of years – has increased. It used to be that it was seven years – if you got a second DUI within seven years [in California] it would count as a second offense. Now it’s ten years.
Aaron Bortel, like many DUI attorneys, often attempts to help clients get into alcohol programs and begin a recovery. But does an arrest and conviction affect drivers so much that they really change their behavior?
AARON BORTEL: They learn a lesson. Because they are often having to go to a DUI school their insurance rates go way up. Their licenses are suspended or restricted. Those kind of things happen. And those are what make most people learn their lesson and not put themselves in that situation again.
NOLO: That’s all we have time for this week. Thanks so much for listening. Much of the background information I used is derived from two books, Fight Your Ticket and Beat Your Ticket, both by attorney David Wayne Brown.
Sunday, July 30, 2006
What's the Best Way to Screen Tenants?
We’re speaking with attorney Janet Portman, an expert on landlord tenant law and the author of, “Every Landlord’s Guide to Finding Great Tenants.”
NOLO: Janet, your book is geared to finding and screening great tenants. But what about a landlord who has just purchased your book, and already has tenants in the building? Can a landlord go back now and run a screening effort on existing tenants?
JANET PORTMAN: Great question, and the answer is no. Here’s why: in order to request a credit report, a first level screening tool, you have to have a valid business reason. But if you’ve already rented to someone, especially someone with a lease, you don’t have that reason anymore. If you want to check criminal background, a second level screening tool, you need your tenant’s permission, but existing tenants aren’t likely to play along. The most you can hope for with your building full of tenants is that the prior owner did some minimal screening, and that the bad apples are either near the end of their lease, or are renting on a month-to-month basis. You can terminate their rental agreements with requisite notice – usually thirty days. If you have a really bad tenant, regardless of the length of his lease, you can always terminate for cause.
NOLO: You mentioned criminal background checks. If you were to explain the rules to someone from another country, they might be mystified. For example, the California Apartment Association advices their members not to do a Megan’s Law search, and not only that, but refusing to rent to an ex-con might result in a lawsuit. How did it come to be that landlords have to take a “don’t ask, don’t tell” approach when it comes to ex-convicts?
JANET PORTMAN: This is one of the most interesting issues in the landlord tenant world today. Here’s the deal: California and New Jersey and Madison, Wisconsin, passed laws that prohibit employers and landlords from using Megan’s Law databases to deny housing or employment, and there’s hefty penalties if landlords break the law. Maybe these legislators realize that if ex-cons could be denied a job or a place to live once an employer or landlord saw their name on the list, they would become outcasts, and eventually go underground, defeating the whole purpose of the registration process. But landlords in these states, knowing that they are charged with maintaining a safe place for residents to live, feel that they should be able to use the database to weed out applicants who might commit crimes. So, there’s the problem. Fortunately, there’s a way to find out about a person’s unsavory past by using other tools besides the Megan’s Law lists.
NOLO: Janet, just so we’re clear, is it okay to turn down tenants who are pet owners solely on the breed of their dog? And can you do other things, like ask for special deposits because of the pet?
JANET PORTMAN: Landlords can prohibit all pets, or some pets, and they can also say, “No dogs over a certain weight, no un-spayed or non-neutered dogs,” and yes, “No pit bulls, Dobermans, or any other breed.” The only caveat here is when the tenant says, “I am disabled, and this is my service or companion dog or animal.” But let’s not get hung up on this exception. It’s not that easy to satisfy the legal definition of being disabled, so landlords aren’t likely to find hoards of tenants successfully circumventing their no-pit bulls policy by using this exception. Now, as to charging more if a tenant wants to bring a pet, most of the time, the pet deposit that a landlord wants to set should be included within the security deposit, and if your state sets limits on the amount of security deposit you can charge, you must fold whatever you consider a pet deposit into the overall deposit you charge the tenant.
NOLO: I want to be sure I have another rule correct: you can rent to a person who is in the U.S. illegally, that’s not a violation of the law, but you can’t employ that person as your property manager?
JANET PORTMAN: Yes, that is right. Our legislators, and really, our society, for we elect them, have decided that it’s against the law to hire someone who is here illegally, but it is not illegal to rent to that person.
NOLO: What happens if a married couple wants to rent, and one spouse is ideal from a screening perspective but the other spouse is a dud, and a potential liability? Can you turn them down because of one spouse’s screening results?
JANET PORTMAN: That depends on what the problem is: is it behavioral, or financial? Suppose this couple’s former landlord describes one spouse as a dream tenant, and the other as a wild party animal who caused endless neighbor complaints. You can turn them down for this reason. But suppose one spouse has a great job, and satisfies your minimum income requirement, but the other doesn’t work. Here, you must treat them as one, and disregard the fact that the unemployed spouse couldn’t handle the rent on his or her own. That’s because married people are responsible for their spouse’s basic living expenses. So, in a sense, you’re dealing with one renter, when it comes to income.
NOLO: In chapter nine of Every Landlord’s Guide to Finding Great Tenants, you say it’s okay to participate in a bidding war; you just can’t initiate one because of bait-and-switch laws. Can you elaborate on that?
JANET PORTMAN: It’s against the law to advertise one thing, then change the terms of the deal when the customer shows up. So, if you’re on a hot market and have several qualified applicants vying for your place, it’s risky to say, “Well, I’ll rent to anyone who will pay me $100 more in rent,” and so on. Instead, lucky landlords in this situation should wait and see what develops. If an applicant offers a deal-sweetener, then fine, but understand that you’re still taking a risk. A disappointed applicant may claim later that you initiated the war. It’s smarter to figure out the temperature of the market before you set the rent, and choose your tenant on the basis of who’s the best applicant, not who can offer the best goodies.
NOLO: Janet, is it really true, or is it just an urban myth, that a landlord can deny an apartment to someone simply because they’re an attorney?
JANET PORTMAN: If you live in California, then you may have a problem, since a judge might view being a lawyer as a personal characteristic or trait, and in California, you can’t discriminate on the basis of a personal characteristic. I’m not aware of any legal decisions that have followed that line, but I do recall a similar situation out of San Diego several years ago, where a condo association had a rule that an owner couldn’t sell to a lawyer. A selling owner challenged the rule, and I believe they settled it. Other states don’t forbid personal characteristic discrimination, so a “no lawyers need apply” rule might work outside of California. But there’s one thing to keep in mind: a person may be a lawyer, but could also be old, of a certain ethnicity, national origin, race, religion, be disabled, have a family… all of these characteristics are protected by fair housing laws. If the lawyer you reject happens to be a member of one of these groups – and these are big groups – you’ll get challenged for discriminating on one of these bases.
NOLO: Janet, it seems like we’ve come a long way since the landlord was actually the “lord of the land.” In viewing your book, so much of what a landlord says and does is regulated by the government. I doubt this was the case when Benjamin Franklin and Thomas Jefferson were renting property. So how did it come to be that the government could have so much control over how you screen and choose tenants?
JANET PORTMAN: The answer to your question is in how the term “landlord” has morphed into “residential rental owner,” which is what landlords like to call themselves these days. Back before Ben’s day, there were no city-dwelling tenants; all tenants were tenant farmers, who rented land from the local lord, who owned it, hence “landlord.” The lord didn’t warrant that anything worked, or was up to code, and certainly didn’t promise to fix anything; his tenant farmer was far handier. With the industrial revolution, people began moving to the cities, and gradually began renting homes without land. Fast-forward to 1971 in Washington, DC, where a group of tenants refused to pay rent because nothing worked, it wasn’t up to code, and the landlord wouldn’t fix it. Same complaint, but they won, having turned the tables 180 degrees. Courts and legislators had begun to realize that the handy tenant farmer was now the hapless office worker, who didn’t know a screwdriver from a chisel, and that the owner was in a better position to take care of the structure. Once the courts acknowledged that decent housing was a basic necessity, it was a short hop to requiring landlords to offer it, and another short hop to forbidding them from denying housing for any reason other than a solid business reason. In other words, they couldn’t discriminate based on racial and other stereotypes.
NOLO: Janet, your book is geared to finding and screening great tenants. But what about a landlord who has just purchased your book, and already has tenants in the building? Can a landlord go back now and run a screening effort on existing tenants?
JANET PORTMAN: Great question, and the answer is no. Here’s why: in order to request a credit report, a first level screening tool, you have to have a valid business reason. But if you’ve already rented to someone, especially someone with a lease, you don’t have that reason anymore. If you want to check criminal background, a second level screening tool, you need your tenant’s permission, but existing tenants aren’t likely to play along. The most you can hope for with your building full of tenants is that the prior owner did some minimal screening, and that the bad apples are either near the end of their lease, or are renting on a month-to-month basis. You can terminate their rental agreements with requisite notice – usually thirty days. If you have a really bad tenant, regardless of the length of his lease, you can always terminate for cause.
NOLO: You mentioned criminal background checks. If you were to explain the rules to someone from another country, they might be mystified. For example, the California Apartment Association advices their members not to do a Megan’s Law search, and not only that, but refusing to rent to an ex-con might result in a lawsuit. How did it come to be that landlords have to take a “don’t ask, don’t tell” approach when it comes to ex-convicts?
JANET PORTMAN: This is one of the most interesting issues in the landlord tenant world today. Here’s the deal: California and New Jersey and Madison, Wisconsin, passed laws that prohibit employers and landlords from using Megan’s Law databases to deny housing or employment, and there’s hefty penalties if landlords break the law. Maybe these legislators realize that if ex-cons could be denied a job or a place to live once an employer or landlord saw their name on the list, they would become outcasts, and eventually go underground, defeating the whole purpose of the registration process. But landlords in these states, knowing that they are charged with maintaining a safe place for residents to live, feel that they should be able to use the database to weed out applicants who might commit crimes. So, there’s the problem. Fortunately, there’s a way to find out about a person’s unsavory past by using other tools besides the Megan’s Law lists.
NOLO: Janet, just so we’re clear, is it okay to turn down tenants who are pet owners solely on the breed of their dog? And can you do other things, like ask for special deposits because of the pet?
JANET PORTMAN: Landlords can prohibit all pets, or some pets, and they can also say, “No dogs over a certain weight, no un-spayed or non-neutered dogs,” and yes, “No pit bulls, Dobermans, or any other breed.” The only caveat here is when the tenant says, “I am disabled, and this is my service or companion dog or animal.” But let’s not get hung up on this exception. It’s not that easy to satisfy the legal definition of being disabled, so landlords aren’t likely to find hoards of tenants successfully circumventing their no-pit bulls policy by using this exception. Now, as to charging more if a tenant wants to bring a pet, most of the time, the pet deposit that a landlord wants to set should be included within the security deposit, and if your state sets limits on the amount of security deposit you can charge, you must fold whatever you consider a pet deposit into the overall deposit you charge the tenant.
NOLO: I want to be sure I have another rule correct: you can rent to a person who is in the U.S. illegally, that’s not a violation of the law, but you can’t employ that person as your property manager?
JANET PORTMAN: Yes, that is right. Our legislators, and really, our society, for we elect them, have decided that it’s against the law to hire someone who is here illegally, but it is not illegal to rent to that person.
NOLO: What happens if a married couple wants to rent, and one spouse is ideal from a screening perspective but the other spouse is a dud, and a potential liability? Can you turn them down because of one spouse’s screening results?
JANET PORTMAN: That depends on what the problem is: is it behavioral, or financial? Suppose this couple’s former landlord describes one spouse as a dream tenant, and the other as a wild party animal who caused endless neighbor complaints. You can turn them down for this reason. But suppose one spouse has a great job, and satisfies your minimum income requirement, but the other doesn’t work. Here, you must treat them as one, and disregard the fact that the unemployed spouse couldn’t handle the rent on his or her own. That’s because married people are responsible for their spouse’s basic living expenses. So, in a sense, you’re dealing with one renter, when it comes to income.
NOLO: In chapter nine of Every Landlord’s Guide to Finding Great Tenants, you say it’s okay to participate in a bidding war; you just can’t initiate one because of bait-and-switch laws. Can you elaborate on that?
JANET PORTMAN: It’s against the law to advertise one thing, then change the terms of the deal when the customer shows up. So, if you’re on a hot market and have several qualified applicants vying for your place, it’s risky to say, “Well, I’ll rent to anyone who will pay me $100 more in rent,” and so on. Instead, lucky landlords in this situation should wait and see what develops. If an applicant offers a deal-sweetener, then fine, but understand that you’re still taking a risk. A disappointed applicant may claim later that you initiated the war. It’s smarter to figure out the temperature of the market before you set the rent, and choose your tenant on the basis of who’s the best applicant, not who can offer the best goodies.
NOLO: Janet, is it really true, or is it just an urban myth, that a landlord can deny an apartment to someone simply because they’re an attorney?
JANET PORTMAN: If you live in California, then you may have a problem, since a judge might view being a lawyer as a personal characteristic or trait, and in California, you can’t discriminate on the basis of a personal characteristic. I’m not aware of any legal decisions that have followed that line, but I do recall a similar situation out of San Diego several years ago, where a condo association had a rule that an owner couldn’t sell to a lawyer. A selling owner challenged the rule, and I believe they settled it. Other states don’t forbid personal characteristic discrimination, so a “no lawyers need apply” rule might work outside of California. But there’s one thing to keep in mind: a person may be a lawyer, but could also be old, of a certain ethnicity, national origin, race, religion, be disabled, have a family… all of these characteristics are protected by fair housing laws. If the lawyer you reject happens to be a member of one of these groups – and these are big groups – you’ll get challenged for discriminating on one of these bases.
NOLO: Janet, it seems like we’ve come a long way since the landlord was actually the “lord of the land.” In viewing your book, so much of what a landlord says and does is regulated by the government. I doubt this was the case when Benjamin Franklin and Thomas Jefferson were renting property. So how did it come to be that the government could have so much control over how you screen and choose tenants?
JANET PORTMAN: The answer to your question is in how the term “landlord” has morphed into “residential rental owner,” which is what landlords like to call themselves these days. Back before Ben’s day, there were no city-dwelling tenants; all tenants were tenant farmers, who rented land from the local lord, who owned it, hence “landlord.” The lord didn’t warrant that anything worked, or was up to code, and certainly didn’t promise to fix anything; his tenant farmer was far handier. With the industrial revolution, people began moving to the cities, and gradually began renting homes without land. Fast-forward to 1971 in Washington, DC, where a group of tenants refused to pay rent because nothing worked, it wasn’t up to code, and the landlord wouldn’t fix it. Same complaint, but they won, having turned the tables 180 degrees. Courts and legislators had begun to realize that the handy tenant farmer was now the hapless office worker, who didn’t know a screwdriver from a chisel, and that the owner was in a better position to take care of the structure. Once the courts acknowledged that decent housing was a basic necessity, it was a short hop to requiring landlords to offer it, and another short hop to forbidding them from denying housing for any reason other than a solid business reason. In other words, they couldn’t discriminate based on racial and other stereotypes.
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