THE INFORMATION ON THIS BLOG IS WRITTEN BY AN ATTORNEY LICENSED IN CALIFORNIA. The validity of information outside of California has not been verified. THE INFORMATION ON THIS WEBSITE IS NOT MEANT TO CREATE A LEGAL RELATIONSHIP. David Nitka will only acknowledge an attorney-client relationship with those persons who have a signed retainer agreement with David Nitka or his law office.

Friday, December 17, 2010

LIFE AFTER A DUI - What you can expect and why you need a Lawyer.

Once a DUI driver is released from jail, it’s critical to address the legal issues that stem from a drunk driving arrest as quickly as possible. A California DUI arrest actually generates two separate cases – a Department of Motor Vehicles Case and court case.

An individual facing a driving while intoxicated charge has only only 10 days from the date of arrest– including weekends and holidays – to request a DMV hearing or risk having his or her license automatically suspended.

A California drunk driving court case begins with arraignment. The driver will be asked to enter a plea of guilty or not guilty. Every experienced DUI attorney will advise his or her client to plead not guilty at arraignment until the facts of the case can be examined and an appropriate defense strategy established.

There are many proven defense strategies available to effectively fight a drinking and driving charge, and many good reasons to fight a drunk driving charge in court. Some drivers fear that a DUI arrest means an automatic conviction, but that’s simply not true. It’s possible to fight and win a drunk driving case with the help of experienced legal counsel.

It’s possible to win both in court and at the DMV hearing to determine driver’s license status, but these procedures are extremely complex, and the cost of losing is high. An experienced Attorney can minimize the damage from the DUI court action and the DMV Action.

DMV Penalties
These penalties relate to persons over 21 years of age, who were not operating a commercial vehicle.

1. First Offense: Where a chemical test was performed, and the results show a BAC of .08 or more, the DMV will suspend the driver’s license for four months.
Where a chemical test is refused, the DMV will suspend for one year. In a first time DUI case where a chemical test is taken, a restricted license may be obtained. Please consult for details on obtaining a restricted license.

2. Second Offense: (within 10 years of prior offense): Where the chemical test is performed, and results are .08 or greater, DMV will suspend for one year. Where chemical test refused, two-year revocation.

3. Third Offense: (within 10 years of prior offenses): With chemical test resulting in .08 or greater, two-year revocation; with refusal, three-year revocation.

4. Fourth Offense (within 10 years of prior offenses): The punishment is the same, whether a chemical test is taken or not. In either case, there is a four-year revocation of driving privileges.
Take note: these license suspensions/revocations are separate and apart from any action taken by the court. These are only the California DMV Punishments. The courts have no problem imposing double punishment in the field of DUI law; that is, both the court and the DMV are taking the person’s driver’s license in separate processes related to the same event.

In any other area of the law, this would be considered double jeopardy. With DUI’s the court considers the court’s suspension to be punishment, but the DMV’s suspension to merely be an administrative sanction. Also, be aware that any suspension or revocation imposed by the court does not usually start to run until after the DMV suspension is over with. That means that these suspensions run consecutively, not concurrently.

As you can see, there are very harsh penalties imposed against those found guilty of a DUI, make sure to hire an attorney to help reduce penalties you face due to a DUI.

5 STEPS TO MINIMIZE THE IMPACT OF A DRUNK DRIVING INCIDENT.

This article was written by my business partner John Ramirez who spent many years as a District Attorney prosecuting DUI arrests.


I always recommends that you use a designated driver or take a taxi home. In the unfortunate event that you are caught driving drunk here are some ways to minimize the impact of the DUI. If you are pulled over, follow these tips but we you will almost certainly need a lawyer to assist you with your case to reduce the penalties and fines that are sure to follow.

Five things to do:


1. Cooperate: Don’t flunk the “attitude test”: Be pleasant and cooperative with the officer. But that doesn’t mean to do everything you’re asked. There is no requirement that you answer any questions that the officer asks you that they call pre-field sobriety test questions. Never tell them how much you’ve had to drink.


2. Don’t take the Field Sobriety Tests. FST's are so you can show you're NOT under the influence, or they provide the police with evidence of your intoxication. You're not legally obligated to take a FST. However, the officer will then have to make a determination based on observed driving, odor of alcohol, and your ability to hold an intelligent conversation. The officer will not be able to rely on the FST, his most common ally in making a determination on whether to arrest you.


3. Take the Breath-a-lyzer: You will be asked to submit to a BAC test which will measure your Blood Alcohol Content. The two most common tests are the breath test and the blood test. The blood test is almost infallible. The breath test has certain flaws which may provide a basis for invalidating the test.


4. Find a Good Lawyer ASAP: California DUI / DWI arrests occur unexpectedly, and the driver is rarely prepared for the complex legal issues that follow. Drunk driving arrests require fast action. The most pressing issues are typically finding an experienced DUI Attorney, locating someone in custody, finding a reputable bail bond firm, and requesting a DMV hearing to prevent the automatic suspension of a driver’s license.


5. Facilitate Getting out of Jail: Getting the driver released from jail is usually a top priority. Although some individuals arrested for driving under the influence are released on their own recognizance - also known as OR - others must post bail. Locating a bail bond provider is the first step in getting a suspected DUI driver released from jail. Bail Bondsmen usually require an up-front down payment of 10 percent of the bail amount to secure the driver’s release. Locating a driver after a California DUI arrest can be challenging without the right resources, an attorney can be an excellent resource in facilitating this process.

Tuesday, November 9, 2010

Returning to Work after an Accident

Injuries happen; at work, away from work, on vacation or at home.

Regardless of the cause of your injury, the Americans with Disabilities Act (Federal) and California Fair Employment and Housing Act (State), known as ADA and FEHA have created rights for disabled individuals right to return to work.

Under California Law and Federal Law, once an employer has notice of a disability, then the employer must make a reasonable effort to accommodate an injured person in returning to work. You just read a very complex legal sentence and it seemed so simple.

First, Notice, how does an employer get notice of an injury? If you are injured at work and have a workers' compensation claim, the notice is pretty obvious because the employer will be tracking the injured workers return to work progress and will get notice of any disability. What about something that occurs away from work? Well the injured worker may have a duty to give notice to the employer. The easiest way to give notice: Give your employer's HR department a note from your doctor outlining your disability. The next step is important, follow up delivery of the note with an email directed to the HR department confirming delivery of your note and requesting accommodation.

Second, Disability, what constitutes a disability? This is a difficult question and has various definitions. In the context of ADA and FEHA a disability most likely means, any impairment, which requires some type of job Accommodation. This can be anything from a broken limb, a paralysis, a heart condition, a mental stress condition, breathing or circulatory issues, and even psychological issues.

Third, reasonable effort most likely means the employer has an affirmative obligation to contact the employee and should have a meeting with the employee to see if the employee's disability can be accommodated. By this rationale, the employee also has an obligation to respond to the employer's efforts to meet with the employee. If you are going to an accommodation meeting and you have an open personal injury claim or workers' compensation, then your attorney should attend the meeting with you to make certain the accommodation meeting does not affect your case in chief.

Accommodation. What is an accommodation? It generally means, can the injured worker accomplish the essential tasks of the job with REASONABLE accommodation. There are several factors bearing on reasonable: the cost to modify the workspace; the loss of productivity; the interruption to the work environment; Safety of the worker and those around him; the ability to retrain or move the worker to a position within the company; any other reasonable factor the parties choose to consider. This means there is no obvious answer to what it means to accommodate. Once again it becomes a judgment call as to the REASONABLE actions of the employer.

If you are in the unfortunate position of needing work accommodations due to an injury, or office can help make the transition back to work easier.

Friday, March 19, 2010

Is your Lawyer in touch with the Future

The practice of law often seems stodgy and full of old white men shouting about dusty and forgotten documents. Which may be true at times.

In reality, the legal field is ever changing. Lawyers are constantly trying to figure out how to conform the law to advances in technology and the changing needs of society.

Some of these changes are vast and far reaching, often decisions of the supreme court of this affect. Other decisions issued by a lower court can have a substantial impact on a single practice area.

Such is the case of the recent Decisions of Almaraz/Guzman and Ogilvie.

Each of these cases is currently on appeal and the law could change again. Regardless, your attorney should be familiar with these cases and should discuss with you raising these issues at trial.

The decisions revolve around rather complex principles in the California Workers' Compensation system so I will be using some oversimplifications.

This all makes sense with historical context:
Pre 2004 - Workers Compensation in California operated under the "old rates" which provided whole person impairments to injured workers as a percentage impairment. The percentage equalled a dollar value. Low value cases would be in the 20% range which equalled aproximately $15,000.

2004 - Arnold Schwarzenegger following his campaign promise on Workers Comp reform passes SB899 which demands objective findings to support the awards in accordance with the AMA guides 5th edition. Further the whole person impairment percentages are revised.

Post 2004 - Low value cases are likely to have a value below 10% whole person impairment which equates to approximately $6500.

Post 2004 the value of cases was substantially diminished. There is a separate debate as to whether the new laws adequately compensate injured workers. That is not the discussion here.

In order to provide for injured workers, plaintiff's attorneys got creative and found some ways to get the value of cases higher.


Almaraz/Guzman - Under SB 899, a whole person impairment must be based on objective criteria and determined in accordance with the AMA guides 5th edition. The guides provide the basis for rating impairments. The decisions in Almaraz/Guzman permit a doctor to look beyond the strict rules laid out in the guides so that the whole person impairment attributed to the worker "Accurately and Adequately" describes their level of impairment.

What this means is that the doctors are still bound by the AMA guides but may take a more liberal view of the guides, using other sections and analogies to other injuries in order to more "adequately and accurately" reflect the injured workers injury. This can increase a whole person impairment.

The case law indicates there are several factors where the Almaraz/Guzman analysis will be more at issue:
1. Is this a post surgery case. Surgeries are rated lower in the new guides which may show that the injured worker is not "adequately" or "accurately" compensated in the claim.

2. Can the worker return to work. If the injury puts the person entirely out of work it is more likely than not a very serious injury which would indicate a higher level of compensation.

3. Age - If the individual is found to be older, their injured may have a greater impact on their ability to return to work which may not be accounted for in the rating.

4. Complicating Factors - This refers to extraneous factors which are not considered in the AMA guides which still should be considered. questions like did the surgery work? is the injured worker likely to improve over time.

5. Is there an obvious or patently low WPI for the injury described.

The above issues should be used by your attorney in deposing the doctor and determining whether an Almaraz/Guzman analysis is appropriate in your case.

Next week a discussion of Ogilvie.

Monday, March 15, 2010

Are you being returned to work?

Injuries happen; at work, away from work, on vacation or at home.

Regardless of the cause of your injury, the Americans with Disabilities Act (Federal) and California Fair Employment and Housing Act (State), known as ADA and FEHA have created rights for disabled individuals right to return to work.

Under California Law and Federal Law, once an employer has notice of a disability, then the employer must make a reasonable effort to accommodate an injured person in returning to work. You just read a very complex legal sentence and it seemed so simple.

First, Notice, how does an employer get notice of an injury? If you are injured at work and have a workers' compensation claim, the notice is pretty obvious because the employer will be tracking the injured workers return to work progress and will get notice of any disability. What about something that occurs away from work? Well the injured worker may have a duty to give notice to the employer. The easiest way to give notice: Give your employer's HR department a note from your doctor outlining your disability. The next step is important, follow up delivery of the note with an email directed to the HR department confirming delivery of your note and requesting accommodation.

Second, Disability, what constitutes a disability? This is a difficult question and has various definitions. In the context of ADA and FEHA a disability most likely means, any impairment, which requires some type of job Accommodation. This can be anything from a broken limb, a paralysis, a heart condition, a mental stress condition, breathing or circulatory issues, and even psychological issues.

Third, reasonable effort most likely means the employer has an affirmative obligation to contact the employee and should have a meeting with the employee to see if the employee's disability can be accommodated. By this rationale, the employee also has an obligation to respond to the employer's efforts to meet with the employee. If you are going to an accommodation meeting and you have an open personal injury claim or workers' compensation, then your attorney should attend the meeting with you to make certain the accommodation meeting does not affect your case in chief.

Fourth, Accommodation. What is an accommodation? It generally means, can the injured worker accomplish the essential tasks of the job with REASONABLE accommodation. There are several factors bearing on reasonable: the cost to modify the workspace; the loss of productivity; the interruption to the work environment; Safety of the worker and those around him; the ability to retrain or move the worker to a position within the company; any other reasonable factor the parties choose to consider. This means there is no obvious answer to what it means to accommodate. Once again it becomes a judgment call as to the REASONABLE actions of the employer.

Friday, February 12, 2010

You should not be MOCKed

MOCK - It is the cornerstone of testimony. It is actually a mnemonic for Memory Oath Communication and Knowledge.

Everyone can give testimony unless they are excluded by MOCK. Cal Evid 700

It is the four things a witness must have in order to give testimony in a court of law.

Memory - A witness must have an independent recollection of an event. Essentially a person must be able to describe a memory from their own mind in order to give testimony on that memory. Cal Evid 702

Oath - A witness must be able to give an oath to tell the truth and understand the oath they are giving. A child or an incompetent would be unable to give an oath because they would lack the capacity to understand what the oath meant. Cal Evid 701(a)(2)

Communication - A witness must be able to communicate their testimony in such a way as to be understood. Interpretation is allowed and the communication need not be verbal. Cal Evid 701(a)(1)

Knowledge - The individual must have personal knowledge of the subject upon which they will testify otherwise it may be hearsay. Presenting hearsay evidence is a whole can of worms which has scared law students for decades. Cal Evid 702(a); Cal Evid 801, et. seq.

How Does This Apply to You?

If you are ever asked to give testimony in a courtroom or deposition setting, it is important that you are competent to give testimony. It is also important to have a lawyer present to protect your interests. During the course of testimony, if you are ever unable or incompetent to give testimony you should immediately inform your attorney so the proceeding can be stopped.

Having a lawyer present during testimony can protect you from being "tricked" by another attorney. An attorney can object to questions on your behalf. Finally, if you ever become unable to give testimony, your lawyer can conclude the proceeding on your behalf and make certain your legal rights are protected.

Often times, people are subpoenaed to testify in a case in which they are not involved. The person may give testimony without a lawyer present but it is done so at their peril. Remember testimony under oath which is recorded can come back to bite you. Famous examples include Barry Bonds, Bill Clinton and Lil Kim are all people who gave testimony under oath which later caused them serious problem.

Save yourself the trouble, at least speak with an attorney before giving testimony.

Monday, February 1, 2010

How is work working out? Have you been injured while working out or at a company sporting event?

If you recall my prior post about the subjective/objective test for injuries outside of work, you may be entitled to compensation.

The same test applies to an injury while at a gym, company sporting event, or even a vacation!

All of this is codified in Labor Code Section 3600a(9). The text of a(9) is confusing but some real world examples can explain the broad scope of the labor code in providing benefits to employees.

Consider the following three examples:

1. An employee was working out in his free time at his local gym. Employee worked as a personal trainer for a major chain of personal training gyms. While working out in his free time, employee injured his knee. The court found the knee injury to be compensable. The employee had a subjective belief that he was required to maintain his physical fitness. The judge found it was objectively reasonable for the employee to believe he had to be physically fit. Therefore the employees claim was valid.

There is an indication that if the employee had been engaging in an outrageous workout regime or had been getting paid by a third party at the time of the injury then it would not be compensable.

2. Employee works as a law clerk at a law firm. Employee is injured at a company softball game which occurred after hours. Employee's injury is deemed compensable

The basis for this award to the employee is because the employee had a subjective belief that they were required to play softball. The judge found the belief reasonable based on the employers use of work areas to advertise the softball game, the number of supervisors and managers at the game, the indication that employees were expected to attend.
-Ezzy v. WCAB (1983) 146 Cal.App.3d 252, 48 CCC 611

3. A member of a police SERT team is on a training run while off duty when he slips, falls and breaks his ankle. It is held to be a compensable claim.

The police officer testified he was of the subjective belief that he had to work out due to an upcoming physical fitness test. The judge found this to be objectively reasonable as a member of the police SWAT team the employee was expected to maintain a high level of fitness for work and he could face discipline or loss of job if he was found not physically fit. Therefore the injury was found compensable. Wilson v. Workers' Comp. Appeals Bd. (1987) 196 Cal.App.3d 902