State Board License Diversion Program

A Diversion Program is intended to provide an alternative for a professional who is licensed in the State of California when there is evidence of a substance abuse and/or impairment due to a mental illness who would otherwise be charged with wrongdoing . One should not be embarrassed by what may appear to be a shortcoming as there are over forty (40) different  life stressors, multiple daily work pressures, and everyone should understand some challenges are simply genetic.

Obtaining a painstaking medical history and physical examination can afford the best way to evaluate your situation. Since this may also involve critical legal issues, however, seeking the advice of experienced legal counsel should be a paramount consideration as well.   A truly understanding and compassionate lawyer can discuss your eligibility, the  legal alternatives, as well as  the advantages and disadvantages of the course of action you may consider.

At the law firm of SPITAL & ASSOCIATES, you can obtain a confidential attorney consultation  at no charge, and we can help you identify the symptoms that may exist, if any,  and to assist you in changing the outcome.   There can be unintended consequences you need to fully understand when you have a professional or occupational license and, therefore, this may be a defining moment in your career. As our public service, we are here to help you so that you do not gamble on your career

Choosing the best course of action can make a huge difference now and in the future.

 

 

If You Have a Professional License, When Should You Obtain Legal Advice?

If you  receive a Citation or Notice of Violation for a crime and/or are arrested, you need to obtain legal advice immediately. Moreover, your concerns are far greater than your driver’s license. When you have a professional or occupational license, your career is at stake. Not only would it be reasonable to worry about losing your driving privilege, whether a few months or a year, you should not gamble on the outcome when your entire career is at stake. For those who do not have a professional or occupational license, it is wise to think ahead inasmuch as sometime in the future one may desire such a vocation or occupation. There are about 45 or more state licenses, and for the most part there are no statutes of limitations to prevent the government from using an arrest and/or a conviction to deny such a license. Think beyond today and as far as 5, 10 or even 15-20 years from now when you may have different aspirations  or even a second career.

It is easy to find an attorney who handles a variety of legal matters, and there are many who boast they know licensing law. Preferably, one should pay more attention to the lawyer’s credentials than where he may be located in the State of California and/or whether you can obtain legal advice or representation for a smaller sum of money. It is irrefutable that an attorney who argues the obvious and charges less money is going to do less work.  This is vastly different than a lawyer who places more importance on leveling the playing field; is passionate about obtaining a winning result; is a leader in the profession; has a consistent and proven record;  goes to painstaking lengths and is meticulous about establishing an effective defense and offense;  and is one to whom other lawyers seek advice and endorse as a distinguished attorney handling administrative law cases. Also, read the client reviews and compare the nature and  number  as this too may help in deciding how to proceed.

In the case of some matters, the state licensing Board or Agency may investigate a case before an arrest, such as when one is terminated or resigns from their employment and/or there is a complaint about one’s fitness to practice their chosen profession. In other cases, one may be prescribed certain drugs and narcotics that causes him/her to be suspected of having a physical or mental illness. This can even result in a forced physical or mental examination, as well as an Interim Suspension Order preventing one from working. There are countless types of cases that are investigated by the State Boards, Departments and Bureaus.

Lastly, if one is arrested for a certain type of offense, the Board may offer a Diversion Program and/or simply seek to have a meeting or interview you. Regardless how innocent you may feel or  meritorious the claim might be, contact an attorney who focuses his practice on the area involved or subject matter;  do so without delay or you risk a public Accusation filed against your license, and potentially the exposure of a criminal or civil case filed against you.

 

Unintended Consequences of Criminal Offenders Being Transferred from State Prison to County Jail

The growing population of over 150,000 inmates in state prisons in California has exceeded the level the U.S. Supreme Court opined in 2011 is permissible. There has been litigation in Federal Court to obtain a more speedy reduction of the state prison population, and a new law has been enacted as a result of the Governor and Legislature in California establishing the state’s prison realignment; this is the name given to transferring inmates to county jails to reduce the state prison population to about 110,000. A Federal three-judge court previously set June, 2013 as the deadline for California to reduce by over 37% its state prison population beyond each prison’s building capacity. The date was recently extended to February, 2016.  This narrative has been based upon the perceived challenge of the State of California to provide adequate health care to inmates.

The Federal Court allowed this additional period of time subject to transferring state prisoners to private correctional centers and county jails in California, but not any longer to out of state facilities. This was also based upon, among other reasons, the representation of Governor Brown that shorter sentences would be imposed on non-violent criminals; issuing additional good behavior credits to prisoners so they could be eligible for an earlier release; speeding up and expanding early parole for those over 65 years of age with at least 25 years in prison; along with those who are medically incapacitated, as well as expanding the rehabilitation programs provided to inmates.

The problem is not simply the transfer of inmates to County Jails, but now the local detention facilities statewide are overcrowded. Moreover, it has been alleged there is an even greater conundrum in that far more sophisticated criminals are now incarcerated in County Jails.  For example, the San Diego County Sheriff’s Department that oversees the jails in this County has reported there has been an increased number of drugs being smuggled into the jails; this drug trade that previously was typical of state prisons has now become a serious problem in county jails.  It has been reported there were 221 of these drug and alcohol cases in the San Diego County Jails in 2012, which constitutes over a 50% increase from that in 2011. There was a total of 279 of such cases in 2013, and about 335 of these particular cases between January and September, 2014.

To better address one of  these problems, San Diego has installed body scanners at a cost of $150, 000 each unit and $10,000 each year to provide service and maintenance. This month, the County Board of Supervisors also approved spending more than three-quarters of a million dollars to obtain four additional scanners and for a five year maintenance agreement. Besides visitors hiding contraband, some of those picked up for minor probation and parole violations have been smuggling drugs into the jails, as they may only be incarcerated for up to 10 days.

But what is the best solution? Clearly, we need to implement greater rehabilitation and educational programs. For the most part, we are spending the money to incarcerate people who are addicted to alcohol and drugs, have a mental illness and/or do not have sufficient education and labor skills, when rehabilitation will have a far greater impact on this growing societal problem. Many advocates believe it can help to let local and state legislators know our political views, and of course, to become more involved in community programs.

 

 

California Courts and Courtrooms Closing

Due to severe budget cuts of the Judicial Branch of Government, a huge number of courts  and courtrooms in approximately 29 counties throughout California have closed, and some have had severe reductions in services. The Judicial Council of California has reported that over 50 Courthouses and over 200 Courtrooms have been closed as a result of past and ongoing cuts of the Legislature since 2008.  The impact is huge since it hampers the opportunity for timely, effective and meaningful access to justice. This impact has negatively affected the Criminal, Civil and Family Courts statewide. It is reported that this massive problem affects about two (2) million California residents. Because it will undoubtedly only get worse, it is critical that the Legislature restore the funding to our court system.

What strains credulity is the extremely large increase in tax revenue during the most recent years are  in the hands of the Legislature and Governor, while most of us hardly ever give much thought to the billions of dollars collected, administered and disbursed. That is why some commentators opine that government keeps getting bigger in nearly every other area when a free society needs to uphold the rule of law. Our judicial system is the place where disputes can be resolved and laws can be enforced and/or challenged in a rational manner with evidence and thru the eyes and ears of an impartial judge or jury.  Although the Lady of Justice is depicted as blindfolded with a scale to weigh the facts and circumstances in an effort to balance truth and fairness, the demeanor of the parties and witnesses is a critical component viewed thru the eyes of all those present in the courtroom.

BULLYING: There Is No Place For It In The Workplace!

From the meek child on the playground tormented by a bully, to the workplace where a co-worker or supervisor targets and harasses an employee, there is no place for bullying. The laws are changing to address this, and so too must the policies in the workplace. Any workplace policies should be geared towards defining, identifying and deterring such “abusive conduct” in order to bring an end to bullying in the workplace.

Recently, California has passed a law requiring training in supervisors to prevent “abusive conduct” in the workplace. While actual anti-bullying laws have yet to be enacted, one who is in a protected category (such as age, gender, race, etc.) does have the law on their side. Bullying or targeted misconduct at a person based upon their protected status IS grounds for action under the law. However, this still leaves unprotected those who are bullied but who do not stand in a special category.

As of January 1, 2015, the new law in California for employers with 50 or more employees require anti-bullying as part of the mandated sexual harassment training. California Government Code 12950.1. Regardless, workplace policies must reflect the new legislation effective January 1, 2015 requiring employers with 50 or more employees to train supervisors regarding prevention of abusive conduct:   For purposes of this section, “abusive conduct” means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.

https://leginfo.ca.gov/pub/13-14/bill/asm/ab_2051-2100/ab_2053_bill_20140220_introduced.pdf.

There are now entire organizations, websites and programs dedicated to ending bullying in the workplace such as: https://www.workplacebullying.org/tag/california-healthy-workplace-advocates/, the Workplace Bullying Institute. There are now even many government resources dedicated to ending bullying: https://www.stopbullying.gov/laws/california.html.

Bullying is not limited to the supervisor-employee relationship. Due to poor interpersonal problems, competition, and expected team collaboration, co-workers are just as likely if not more to be a bully. This can take the form of gossiping, making up rumors, taking credit for others’ work, excluding/ignoring, and teasing through sarcasm. These often covert behaviors make it difficult to have quality work experiences and can often keep one excelling in job performance. Work supports are critical for motivation. Tattling to the boss just makes one look like a complainer and not a problem solver. What is needed is more solution focused communication training at all levels of the hierarchy.

 

Additional resources:

PACER’s National Bullying Prevention Center:  https://www.pacer.org/bullying/
National Crime Prevention Council:  https://www.ncpc.org/topics/bullying
Education. com  https://www.education.com/topic/school-bullying-teasing/

For more information related to Employment Law, click the following link: https://www.spitalaw.com/san-diego-employment-law-attorney/

 

Identity Theft – What is the Real Story?

Identity theft can be characterized as a major scourge in society today. It has become a  growing danger, and as such it  currently is often labeled cybercrime and/or cyber espionage, with this fraud on the public becoming so pernicious that even major nationwide firms such as Target, eBay and Home-Depot; as well as financial giants such as JP Morgan Chase, Citigroup and Etrade have been hacked; regardless of the size of the business, there are many others that have been invaded but not yet discovered by their respective IT mavens, causing total havoc to millions of people all over California, the United States and even international destinations. This is the theft and use of an individual’s name, personal information, social security number, credit card and bank number, or illegally using any one, two or more of these pieces of extremely private and personal items, social information and/or data.

Were you aware there are cell phone tracking devices that also allow data to be collected? Stingray is a product of the Harris Corporation, which has annual revenues of approximately $5 billion dollars with about 14,000 employees and claim they not only serve government, but commercial businesses in over 125 countries. The Stingray and similar products track the whereabouts of cell phones, but can also be used to spy and eavesdrop on telephone calls as well as text messages. While there clearly are legitimate interests served, we are on the threshold of a new era in technological advances that unfortunately impact the meaning and purpose of the Fourth Amendment right to privacy. At the time of writing this Blog, Israel has announced it is taking measures to become a cyberwar superpower. Their program is being launched in high school with a national goal of creating cyberwarriors in their pursuit of cybersecurity.

Often the unsuspecting public responds to a telephone call, an email or text in which the person sending it is located in a foreign country but that is not necessary and even if so, it may not be obvious or apparent. These criminals perpetrate their fraud by gaming the unsuspecting public. In some cases, the thief elicits private information on the pretense they are going to provide a free cruise or gift; at other times, they claim to offer a refund; in some cases they might report your account as having been hacked (by someone else) and they want to confirm you are the true owner in order to correct the crime and, therefore, under the pretense of good will ask to verify your personal and private information, only to commit identify theft. When they use correspondence more frequently than not, they duplicate logos and other official looking names (for example, they may use what appears to be an authentic bank email, but change a letter, number and/or use a different web mail system). In addition, by steering you to links and attachments to emails to what may appear to be safe invitations, secure and legitimate websites, they instead are able to hack your computer, cell phone, laptop and/or tablet, which thereby causes problems that can be insurmountable. Your electronic device then is mined without you knowing for otherwise private and seemingly protected data. The hackers have the ability to seize your computer, mobile device,  laptop and cell phone,  and if they choose lock it so you cannot operate your device. Then, they have the ability to literally take over and steal all of your banking information, photos and images, and otherwise have access to everything you choose to maintain on such devices, becoming an open book to your entire private and social life.

With stolen information, an unscrupulous thief using your personal data can and will often apply for a tax refund, and then in filing a tax return request the refund be sent to a different address. It appears at the present time the IRS in its effort to get a refund processed quickly does not possess and/or utilize software to first perform adequate and complete cross checks to prevent this from happening. By the time it is caught, the thief has found other sets of private information for countless other individuals and uses it to obtain multiple refunds again and again sent to different addresses as well. Your identity and social security number can be used unlawfully to obtain unemployment benefits, file insurance claims, and nearly every other illegal enterprise they think they can master and, therefore, you have become a victim of identity theft.

If you believe you will not be exploited by using digital communications (perhaps even without identity theft taking place), ask yourself if you or anyone you know has included a particular subject in an email, text or correspondence only to find in minutes there is an advertisement involving the same subject matter that pops up on your screen. This is how the search engines gather data to finance their operations as they sell leads to advertisers.  Sadly, the more information on one’s social media pages and ease with which it is mined also serves to enhance the criminal’s credibility by supporting the otherwise protected identity that is stolen.

Perhaps knowing the above may prevent identity theft if you choose to not open an email, text message or respond to a call if it is, or you have reason to believe, even remotely suspicious. Some choose to select the incognito setting so when they navigate the internet their searches are ostensibly private. However, that is inaccurate since  your search is not concealed from the websites you navigate for information, nor the internet service provider you use, and can still be accessed by your employer.

The Federal Government National Security Agency (NSA) forbids the reporting the very fact the government has made a request and the release of personal information they seek, for example,  from the internet  search engines and social media sites. The Government has for many years accessed internet communications and telephone records on the grounds it is necessary for the safety of the public in their efforts to identify and catch those that engage in criminal activity and/or terrorists. More recent in their endeavors have been the required production of emails, video chats, texts, and pictures to name a few of the data streams they continue to request. However,  several of the major entities recently were able to reach a settlement allowing them to disclose to the public limited information they provide to the government every six months. On October 7th, Twitter filed a lawsuit against the FBI and the U.S. Department of Justice arguing on the basis of the First Amendment to the Constitution and freedom of speech that Twitter should not be barred from full disclosure to the public of the surveillance being done by the government.

There are a few steps you can take if you are a victim of identity theft. First and foremost, be extremely cautious before opening any email, text or communication unless you are certain from whom it came, being totally adverse to opening attachments unless you are 100% confident they are safe and secure. You can purchase software programs that are designed to prevent malicious software from taking over your computer; it will alert as to whether the internet site you wish to navigate and explore is safe and secure, or dangerous. But, these safeguards afford no 100% guarantee.

If you are a victim of cybercrime, identity theft or cyber espionage, contact law enforcement to report the crime and get a copy of the incident report that is created after you filed the report as this will be your hard evidence to corroborate a future claim (if that is any consolation). Second, you should report this to the three major credit reporting bureaus. Then, contact the various creditors who have issued credit cards to you, talk to their fraud department to cancel your existing cards and have new ones issued. It is also recommended you change all of your user names and passwords on your electronic devices and accounts. Some advocates believe this should be a regular project you do as well to hopefully prevent identity theft.

 

 

How to Handle Contacts and Interviews From Government and Others?

As a mater of great concern is what to do when confronted with a telephone call from law enforcement,  a licensing Board, Bureau or Agency,  and/or an  investigator who is seeking to obtain the underlying facts,  information, details &/or answers to questions. Even more challenging is when such an individual makes an in-person contact with you. It is the considered opinion of this writer that any of these inquiries may have or produce both intended and unintended consequences.

Accordingly, there are multiple reasons we do not recommend our clients participate in any dialogue and/or series of questions and answers, without the advice of experienced legal counsel.   What may at first glance appear to be friendly and seem to not involve legal issues, may indeed produce legal exposure and liability. Seemingly innocent queries are frequently  investigations, which then turn out to be interrogations rather than interviews by others, whether by the government or an other individual.

What are some of the issues:

1) these encounters and confrontations are frequently conducted under the guise of an interview when there appears to be reasonable cause that a violation of law has taken place that puts you at risk for criminal, administrative &/or civil liability.
2) when law enforcement personnel and/or an agent thereof has not admonished you regarding your “Miranda” rights to remain silent, that what you  say may incriminate you, etc.  Then and as a result, you may not really know and understand the underlying allegations, summary of issues and, in particular not know and fully understand your rights, and innocently make a statement that is incriminating.
3) far too often, the dialogue you believed was of little or no consequence  is tape recorded.
4) the answerer is at a major disadvantage in trying to recall facts and respond when (s)he has not had a thorough opportunity to review the question(s) and all of the facts in a non-threatening environment, and hopefully with their personal attorney.
5) there is a built-in bias on the part of investigators or persons using a different title or description but conducting a search for information, facts and evidence,  that the answerer is not likely to be fully honest and  truthful because they believe the answerer has something to hide &/or they believe (s)he is equally informed of the facts of the case, and directly or indirectly is trying to be deceptive when nothing could be farther from the truth.

In summary, we recommend you confer with an experienced attorney before you engage in and or respond to any verbal or written communications from anyone (except your lawyer), whether from an investigator, enforcement personnel, analyst, government employee or staff  and/or any other law enforcement officer or agent,  as well as a former or current employer &/or their employees relating to what may be the basis of and/or lead to a violation of law, a legal problem, dispute or issue, disciplinary action,  etc.

What Are Adverse Childhood Experiences (ACE)?

For the most part, many of us have not read or heard about ACE’s, the acronym for adverse childhood experiences. Whereas highly negative experiences as a child often create indelible marks in his/her brain impacting child development, they do not have to be irreversible. For more information of significant interest, see the following:  https://acestoohigh.com/2012/10/03/the-adverse-childhood-experiences-study-the-largest-most-important-public-health-study-you-never-heard-of-began-in-an-obesity-clinic/

Negative childhood experiences inevitably can cause anxiety, toxic stress, fear, shame, disappointment, anger,  hopelessness, helplessness, despair and depression. They can arise from one or more specific incidents of neglect; physical, sexual, verbal and/or emotional abuse; and  family dysfunction in general.  When the feelings that arise from such experiences become intolerable, they can move from being an acute and temporary problem to a chronic and continuing episode. For far too many, they not only impact a child’s development but frame their adult life. They are often linked to and the causal factor behind substance abuse; mental illness; criminal behavior; separation and divorce; neuro-psychiatric and neuro-psychological problems, major medical health conditions as well as auto-immune diseases; work absences and employment problems. However,  learning more about this scourge and most importantly obtaining appropriate and if necessary ongoing care and treatment can alter the fabric of life.

Far too many examples are evident in the news every day, yet there are clues that either were ignored &/or rationalized by parents, siblings, relatives, peers, friends and associates. Become more aware of those you love and with whom you associate so that their personal feelings are addressed, if only to be the one who listens and hears the challenges and struggles they may experience. Hopefully, encouragement will suffice; however, recommending one obtain counseling and professional guidance may ultimately be the best remedy and tool for accommodating negative feelings and ultimately reduce  the ACE score.  Also, see https://www.socialjusticesolutions.org/2014/08/07/q-pediatrician-screens-parents-kids-trauma-ace-score-9/

 

Pharmacist Consultations Are Very Important

The California Board of Pharmacy mandates that Pharmacists provide personal consultations to individuals who are dispensed medications via a prescription when requested by the patient and in all cases if they did not previously receive the prescription and/or it was in a different dosage, form or strength.

 

In December, 2013, CVS Pharmacies entered into a settlement with the State as a result of enforcement actions by the Board of Pharmacy, and a couple of weeks ago Rite Aid paid nearly $500,000 as a monetary settlement shortly after a lawsuit was filed by the San Diego District Attorney and other Southern California and Northern California county District Attorneys.  Rite Aid did not admit liability, but in addition to the amount they paid to settle their case, they agreed to institute an internal audit and compliance program, and obey the patient consultation requirements in California.

 

The public needs to be protected and sufficiently informed when drugs are dispensed by pharmacies. Because a physician may not fully elaborate on the use of an individual medication, possible complications and adverse drug interactions, it is the pharmacist who can provide the protection the public needs so their health is safeguarded.

 

For a review of the 2014 Changes in Pharmacy Laws, click the following link: https://www.pharmacy.ca.gov/publications/14_spring_script.pdf

Law Enforcement Cannot Search Cell Phones Without Search Warrant

In the case of Riley vs. California, Number 130132, decided by the U.S. Supreme Court on June 25, 2014, a unanimous Court held that the police cannot search or access information on a cell phone even though it is incident to an arrest (in this case it was for a weapons charge), except when it involves the threat of a terrorist attack or specific danger of a case such as child abduction.

What can be described as a landmark decision and may prove to be historic precedent in holding the right to privacy guaranteed by the Fourth Amendment of the Constitution outweighs the need and convenience of police by now requiring they get a search warrant, it will certainly have a huge impact on the procedures and protocols of all law enforcement agencies and departments.

Prior courts were split on ruling in favor or against the police being allowed to search a suspect to prevent any evidence from being destroyed and in order to determine if there were any concealed weapons for their protection and that of others. Those in favor of such invasive searches considered them no different than perhaps looking at the contents of an address book discovered during a pat down and/or a search.

On the other hand, proponents of the right to privacy focused on the unparalleled amount of data stored in and comprising the contents of cell phones, in the most part containing nearly everything a person uses and/or needs in his/her daily life, whether text messages; emails; voice mail; videos; photos; mobile apps; archives of web browsing; GPS and the inherent history of locations where a person has been or wants to go that is contained therein; bank accounts and the contents of deposits and debits; as well as charge account purchases, etc. Nothing comes even close except a tablet, laptop and/or desktop computer, and these often do not contain the extent of data and information as customarily held in smart phones commonly sold as Droids and iPhones to the public and now used by the vast majority of society.

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