Monday, December 20, 2010
Friday, October 1, 2010
While this offense is commonly referred to as "breaking and entering," forced entry is not required. If one intends to commit a theft or felony after entering, the Burglary is [technically] complete upon passing through the threshold of the structure.
Depending on the criminal history of the defendant as well as the circumstances of the case, Burglary may be charged as a misdemeanor or a felony. Because it can be charged either way, we call it a "wobbler" and the difference is significant. As a misdemeanor, a conviction can lead to some time in county jail; as a felony, one can be sentenced to several years in State Prison.
From a defense standpoint, it is essential to remember that Burglary requires "specific intent," which means the prosecution must prove, beyond a reasonable doubt, what the defendant was "thinking" at the moment the crime was allegedly committed. As you might imagine, that can be very difficult - unless they were inside the defendant's head at that moment - though not impossible. Because it is hard to know what a defendant was "thinking" at any given moment, countless individuals are wrongly accused, arrested, and charged with Burglary.
Remember, accusations and convictions are completely different. That is why a skilled and aggressive legal counsel is a must for anyone facing Burglary allegations or charges.
Penal Code §459: How One Can Be Convicted
A Burglary (PC§459) conviction in California requires that the prosecution prove, beyond a reasonable doubt, only two things:
First: that the defendant entered a building or other specified structure or enclosure,
Second: that, at the time the defendant entered, he or she had the intent to steal or commit some other felony.
One would think that a conviction should be simple given that there are only two elements to prove. However, a skilled Criminal Defense Attorney knows that there is much more to it than that.
What is a Building?
A "building" is defined as a structure designed for and having the capacity to contain people or animals, or to shelter property. The law actually identifies over twenty types of locations that may be the subject of a burglary.
• hotel rooms
• motor homes
• railroad cars
What is Entry?
"Entering" a structure is not as obvious as just walking through a door or crawling through a window. For purposes of California burglary law, one "enters" a building or structure:
1. When any part of the defendant's body crosses the outer limits of that location, or
2. When any object under the defendant's control crosses those limits.
Look at it like this: when Goldilocks entered the Bear's home by walking through the door, she entered. If she had the intent to take food when she did, the burglary was complete the moment she crossed the threshold. Even if she changed her mind and walked out empty-handed. That is simple.
However, what if she simply reached in through the already-open kitchen window? Yes, that is enough for entry. Had she reached in intending to take the pie that was cooling on the counter, the burglary would be complete.
Let's say she used a fishing pole to lift the pie up and through the window and that no part of her body passed through and into the house...that is enough for entry. The fishing pole entered under her control. That's all it takes.
This is where the defense gets interesting. The prosecution must prove, beyond a reasonable doubt, that the defendant intended to steal something or commit a felony at the time he or she entered the location. That is, they must prove “what the defendant was thinking” at the time of entry.
Sometimes Intent is Obvious: If it is the middle of the night and the defendant enters wearing a ski mask, carrying a crowbar and a loot bag, and doesn’t otherwise belong there, proving intent is not such a stretch.
Sometimes Intent is Not Obvious: On the other hand, what if the defendant exits a market without paying for the bottle of olive oil tucked away in his or her jacket? It could be nearly impossible to “prove” that the defendant intended to steal when he or she entered the store.
Theft or Felony and Only Theft or Felony
Even if the defendant never actually takes anything or commits the intended felony, the burglary is complete the moment of entry. But, what if the defendant enters a structure intending to commit a misdemeanor?
Let’s say the defendant entered the structure – without permission – for the sole purpose of slapping the occupant across the face (because he cheated on her). Hitting someone is a battery and that is a crime, but simple battery is not a felony so no burglary.
Other Burglary (PC§459) Offenses
An "auto burglary" requires an actual "break in" takes place when one enters a locked car with the intent to
• steal the car, or
• steal property within the car, or
• commit another felony inside the car.
Burglary via Forgery (PC §470)
Under California law, Forgery occurs when one knowingly creates, alters, or uses a written document, intending to commit a fraud.
If the defendant enters a banking institution or check-cashing store intending to cash someone else’s check with a signature that the defendant forged, he or she could be charged for both the forgery and the burglary – because the defendant intended to commit the forgery when he or she entered. By the same token, if the defendant enters a business intending to pay for a purchase with a stolen credit card, a burglary charge could be just the tip of the iceberg.
Theft is Theft
California’s Burglary statute specifically refers to both grand theft and petty theft.
Grand Theft (PC §487) refers to
• stolen goods or services valued above $400,
• stolen cars (grand theft auto), or firearms, regardless of their value, and
• property stolen directly from another’s person.
Petty Theft (PC §484) refers to
• stolen goods or services valued at or below $400.
Burglary via Embezzlement
Embezzlement in California happens when the defendant steals property that has been entrusted to him or her. Most commonly we see embezzlement where an employee steals from his or her employer. Where the prosecution can prove that the employee entered the building with the intent to embezzle (steal), burglary charges can also be charged.
Burglary and Robbery are Different, but Can be Related
Robbery (PC §211) is simply as the taking of another’s property from his or her person or immediate presence, accomplished by force or fear.
The individual who enters a structure with the intent to use force, intimidation, or fear to obtain property from a person on the premises, the burglary is complete. If that same individual carries out the intended crime, he or she will also face robbery charges and probably several others.
First Degree Burglary vs. Second Degree Burglary
California separates burglary into two categories -- first degree burglary and second degree burglary (PC §460)
First Degree Burglary, also known as residential burglary, occurs when the defendant commits a burglary on any inhabited dwelling and is the more serious of the two types. A dwelling is "inhabited" if it is used for dwelling purposes, regardless of whether it is currently occupied. First degree burglary is always a felony.
Second Degree Burglary, a.k.a. commercial burglary, is any burglary that isn't first degree. Shoplifting (PC §484) is the most common example. Second degree burglary is a "wobbler," which means it may be prosecuted as a felony or as a misdemeanor.
Strike Three, You’re Out
A first degree residential burglary conviction, it will count as a California serious felony under PC §1192.7(c). If there was a person in the residence or other structure at the time of entry, the burglary will count as a violent felony. In either of these situations, the conviction will count as a strike under California’s Three Strikes Law, which could ultimately result in lifetime imprisonment.
Defending PC §459 Burglary
Make no mistake, penalties for burglary in California a strict. However, a skilled attorney knows there are a variety of defenses that may be available.
Attack the Intent
Without intent there can be no burglary. If the defendant did not intend to commit a theft or other felony upon entry, he or she simply cannot be convicted of burglary. In defending a case, a skilled attorney will know that, if the target crime never occurred, then intent becomes more difficult to prove - beyond a reasonable doubt. Likewise, if it appears that the decision to commit [a theft] was made AFTER entering the structure, then "proof of burglary beyond a reasonable doubt" becomes very, very challenging for the prosecution.
Mistake of Fact, but Not Mistake of Law
Where theft is the target offense, for example, if one enters the structure and is reasonably mistaken as to the ownership of the thing he or she intended to take back, then there is no burglary. That is a mistake of fact; the defendant was mistaken as to ownership. On the other hand, "I thought it was only burglary if it was a house," is not going to win the day. That is mistake of law and is no defense.
Consent may or may not be a viable defense, depending on the situation. Examples of when consent may act as a defense include (but are not limited to):
• a situation where the defendant owns the property, or
• a situation where the defendant is invited in and the owner knows of his or her criminal intent (such as an undercover officer inviting you in to receive stolen property). The rationale here is that the danger that burglary law seeks to protect against is absent in such a situation.
However, if the property owner is not aware of the defendant's criminal intent, Consent will not be a viable defense. For example, the defendant enters a market or department store, intending to shoplift. While he or she has permission to enter for commercial purposes, the defendant does not have permission to enter for the purpose of stealing.
Good Old Factual Innocence
Of course this is the best and most effective defense to a burglary (or any other) charge. When it comes to burglary, one can be falsely arrested or falsely accused for a myriad of reasons, such as mistaken identity or true, but misleading, evidence.
Sometimes the evidence can appear very damaging. Nevertheless, a skilled California burglary attorney knows how to argue against the evidence and present a tough legal defenses to persuade the prosecution to resolve the case or maybe even dismiss it altogether.
If you or a loved one has been accused, arrested, or charged with a burglary in Southern California, consult a skilled Criminal Defense Attorney who will take the time to fight for you personally.
For more information about burglary, or to discuss your case confidentially, contact The Law Office of David J. Givot at (310) 699-0070 or go to: www.TheLegalGuardian.net
Tuesday, September 28, 2010
It is true that disturbing the peace is considered a crime, however it's more commonly used as a plea bargaining tool by both the prosecution and defense. Criminal Defense Lawyers frequently maneuver for a disturbing the peace charge in order to avoid something more severe.
Penal Code §415 is what we affectionately call a "wobblet," which means that it is an offense that, where circumstances allow, prosecutors can charge as either a misdemeanor or as an infraction. The "wobblet's" big brother is the "wobbler," which is a crime that can be charged either as a misdemeanor or a felony.
When you find yourself considering how to begin fighting a "disturbing the peace" charge, consider that it is an offense which can be rather difficult for the prosecutor to prove. That is, when he or she has to prove it against a good California criminal defense attorney who is ready, willing, and able to help you fight and beat this charge.
Local Codes or State Law
Movies, Television, and Crime Novels notwithstanding, most laws regarding noise from things like loud parties, construction at off hours, or that ridiculous guy blaring thumping bass from his car are normally enforced through local municipal codes rather than PC §415. Criminal "disturbing the peace" charges are commonly reserved for more severe situations and it is in those cases that a skilled Criminal Defense Attorney is essential.
How Will They Prove You Are Guilty?
There are three ways to violate California's "disturbing the peace" law.
California PC §415(1) "Unlawful Fighting"
To convict you of unlawful fighting under California "disturbing the peace law," the prosecutor must prove, beyond a reasonable doubt, that you
1. willfully (deliberately or on purpose) and unlawfully fought another person (or challenged another person to fight), and
2. that the fight [or challenge] took place in a public place.
Remember Self Defense & Defense of Others
California law allows you to reasonably defend yourself or another when 1) you reasonably believe that you or another person is about to suffer bodily harm; AND 2) you reasonably believe that force is the only way to protect against that harm; AND 3) you use no more force than is reasonably necessary to defend against the danger.
California PC §415(2) "Unreasonable Noise"
To convict you of disturbing the peace by making "unreasonable noise," the prosecution must prove, beyond a reasonable doubt, that you:
1. willfully and maliciously* caused loud and unreasonable noise,
2. that noise disturbed** another person.
* Maliciously means intentionally doing a wrongful act with the unlawful intent of annoying or injuring another person.
**Disturbed another person means that the noise presented a danger of immediate violence, or was used for the purpose of disrupting lawful activities and not as a means to communicate
As you can see, these definitions and requirements are rather strict, which is why police don't regularly arrest people for "maliciously causing unreasonable noise." Folks are not generally arrested for loud music, loud cheers, loud games simply because they are not for the purpose of "annoying" other people and they do not present an immediate danger.
However, if you ignore requests by police or others who ask that you stop making loud, unreasonable noise a judge and/or jury could infer that your conduct was both willful and malicious and that you are in fact guilty.
California PC §415(3) "Fighting Words"
In order to convict you of provoking another person using "Fighting Words" the prosecution must prove, beyond a reasonable doubt, that you
1. used offensive words which were inherently likely to provoke an immediate violent reaction,
2. those words were directed at one or more persons and spoken in a public place.
This offense is essentially an exception to the right of free speech that is otherwise guaranteed by the First Amendment to the United States Constitution because courts have held that the types of "offensive words" that this subdivision prohibits "necessarily invite a breach of the peace." Furthermore, the courts believe that these "fighting words" are never essential to the expression of ideas and that any value they may have is significantly outweighed by society's interest in order and morality. The standard is squishy because Courts determine what qualifies as "fighting words" on a case-by-case basis. It is the context surrounding your "fighting words" that is critical. You must speak the words in a provocative manner that is sure to provoke a violent response.
How Will We Fight a PC §415 Disturbing the Peace Charge?
A skilled California Criminal Defense Attorney could present a variety of defenses to this charge. The most appropriate and viable defense depends on the facts of the situation. That is why you must select an attorney who not only knows how to fight, but how to find and exploit the weaknesses in the prosecution's case. Likewise, you need an attorney who is responsive to you as an individual as well as a client; one who is available to you when you need him.
For more information about how you can fight the charges that you or a loved one are facing, contact The Law Office of David J. Givot at (310) 699-0070 or online at http://www.thelegalguardian.net/.
Tuesday, September 21, 2010
It's tempting, I know. With the flip of a switch you can go from lumbering along in traffic to king of the road. Those lights and that siren; man, it's hard to resist...and let's face it, it's fun!
Whether you call it "running hot" or going "priority" or "code-3" or anything else, driving with lights and sirens is serious, dangerous business. In many cases, it is also very necessary. So how do you know when and when not to light it up?
Like with almost any other decision you make as an EMS provider, you must ask yourself: "How would I explain this in court?" The trick is to consider how the answer would sound to the person who is suing you, or a jury who knows nothing of your job — not to another EMS provider.
For example: "The patient was bleeding profusely. We were doing our best to control it, but what he really needed was a surgeon. His blood pressure was falling and his pulse was increasing, both signs of shock, so I knew the clock was ticking..." That is a solid reason to use lights and siren.
On the other hand, neither "I had to pee really bad!" nor "the patient was puking all over the ambulance!" (Read: and I didn't want to have to clean it all up) are going to convince a plaintiff or a jury that the lights were justified.
Friday, August 27, 2010
Recently there was a story in the news about a family who couldn't swim but had a picnic on a riverfront beach...six of them drowned. While the story itself is tragic beyond comprehension, one can't help but wonder what made playing in a river a good idea to a group of non-swimmers.
The same is inexplicably true of EMS providers. As more and more paramedics, EMTs, firefighters, nurses, and police officers learn that there is an attorney committed to defending them, my own call volume is increasing with calls for help; calls that stem from situations where each one of them knew better. That is to say, I have a client...
Monday, August 9, 2010
Employers, schools, administrative agencies, and others tend to see an arrest for public intoxication as a sign of poor judgment and a direct reflection of the defendant's decision-making ability. In reality, many Drunk in Public charges are unsubstantiated either because the defendant was not actually drunk or law enforcement failed to properly investigate. Unfortunately, once those handcuffs snap into place, the stigma is there and the fight to clear your good name begins.
If you or someone you care about are arrested for public intoxication, follow these simple rules:
1. Remain Silent
Other than to give basic identification information, like name, date of birth, and social security number, nobody in the United States can be forced to answer police questions intended to elicit an incriminating response. The police will tell you that they just want to fill in blanks on the report or they just need some answers so they can let you go. Remain silent.
Every question they ask is intended to get an answer that will help convict you.
When asked ANY questions, simply tell the officer, "I am invoking my right to remain silent and I will not answer any questions without an attorney present."
2. Remain Calm
Being arrested and going to jail sucks. However, arguing, fighting with, or challenging law enforcement will only make it worse. Like Chinese finger-cuffs, the harder you fight, the more powerful the police become. Always remember that respect will win the day. If they tell you to do ten jumping-jacks, do ten jumping-jacks. If they say stand there, sit here, face this way, you do it. And you do it quietly.
3. Contact an Attorney
At the first opportunity, contact an attorney to guide you through the rest of the criminal justice process.
At the Law Office of David J. Givot, we do more than just help you through. We will carefully and methodically examine the charges and the evidence against you. If law enforcement has not done everything necessary to convict you in front of a jury, beyond a reasonable doubt, then we will attack the charges from every available angle to achieve the best possible result. Even more importantly, we will vigilantly consider how any resolution will affect your professional, educational, and/or personal future.
Saturday, August 7, 2010
As you start the car, you do another little self-assessment; you glance in the mirror, tug your eyelids - not too red - you're not buzzed at all (just a little tired) and off you go. Home is only 5 minutes away on side streets. No problem.
Moments later, the red and blue lights in your rearview mirror come as a terrifying surprise because you did not know you had a tail-light out or that your turn-signal was broken or that the light for your license plate was out, or whatever.
Suddenly your heart is pounding in an otherwise empty chest and scenarios run through your mind too quickly to contemplate. Your fingers and hands feel very weak as you roll down the window. Please let it be a cop I know...it's not, you don't really know any cops.
Asking for your license and registration becomes mere formality when he smells the faint "odor of an alcoholic beverage emitting from your breath and person." (that's how he will write it in the report.) "Have you had anything to drink tonight?"
That balloon is quickly burst when he asks you to step out of the car. You quickly play the rest of the cards in your imaginary deck, before he initiates sobriety tests. Of course he is unfazed by any of the names you drop, where you work, or who you know and he is not the least bit interested in the fact that your best friend's brother's neighbor is a sergeant in a police department three states away.
Things get worse when you figure out that the sobriety tests, which are totally optional in California, do not differentiate between fear and intoxication. Before you know it, you are handcuffed, your car is being towed, and you are headed for fingerprinting, photographing, and an overnight stay with some new friends -- some, perhaps, more interested in you than others.
Oh, by the way, the chemical blood-alcohol test is 0.09, just barely above the legal limit in California. But, before you get too excited, the mathematics on a 0.09 an hour or so after the arrest equals a significantly higher level at the time of driving.
The next morning, you are released either on bail or on your own promise to appear for your court hearing. Once out, you either pay the $300-$500 to get your car out of impound or you leave it there to rack up additional $99+ per day fees. You search for lawyers on the Internet, but none answer on a Sunday (except me - I answer every day) and when you do get through you see that attorney's fees will run anywhere from $3,500 to $10,000 or more and that defense attorney's don't like payment plans.
Then, you see they have taken your driver's license and replaced it with a suspension slip/temporary license and, in California, you have only 10 days to request a hearing from the DMV to try and avoid having your license suspended beyond the absolute minimum of 30 days.
Then there is your employer. You get to tell the people who pay your salary that you are a very poor decision-maker. But you can't tell them about the case because your Lawyer told you not to discuss the case; your employer demands an explanation or you will face discipline.
Assuming there are no loopholes through which to get out from under this nightmare, you are stuck.
When all is said and done, not paying for that cab ride you couldn't afford will have cost you a night in jail, a suspended driver's license, employer discipline, a damaged reputation, and roughly $7,000 or more in fees and fines and other related expenses. Oh, and the DUI, that stays on your record in California for about ten years.
So, what was that about not being able to afford a cab? Taxi!!!
Monday, June 28, 2010
A Bench Warrant is an Arrest Warrant that is issued by a Judge after someone fails to appear in court. Law enforcement is allowed to detain the person based upon this court order to get that individual to appear in court, as per the judge’s orders.
The Law Office of David J. Givot offers more than just warrant recall expoerience. We area full service Criminal Defense Law Firm that will defend the underlying criminal accusations as well. Call today for a free consultation or go online to http://www.thelegalguardian.net/.
Read that headline very, very carefully.
Michael Jones, 46, claims officers from the Vineland Police Department were negligent in chasing him at speeds near 100 mph...more
Now, tell me again how safe YOU are from a lawsuit.
The Law Office of David J. Givot aggressively defends EMS providers. Call today for your free consultation (310) 699-0070 or go to http://www.thelegalguardian.net/
Monday, June 14, 2010
"In all criminal proceedings, the accused shall enjoy the right…to have the assistance of counsel for his defense."
The Sixth Amendment right to counsel is a most critical component of the Bill of Rights because, when you are accused, it provides you with a lawyer; someone who is trained and practiced in the legal process and can provide a safeguard against violations of your other rights and protections.
While it seems like a right we have enjoyed forever, it was only in 1963 that the Supreme Court held that states must provide a lawyer for all felony suspects who may otherwise be unable to afford one.
Today, all person charged with a serious crime, misdemeanor or felony, in the United States enjoy the assistance of a defense attorney regardless of economic status.
In California, county-employed public defenders represent clients who cannot afford their own attorneys, and contrary to popular belief, achieve roughly equal outcomes for their clients compared to privately-hired lawyers. Though system overload and limited resources prevent most public defenders from offering each client the extensive personal service and attention available through privately retained counsel.
It is understandable that many Americans, particularly young people, have become cynical about police practices and our legal system. It is quite common to lose hope when arrested and to become angry at the officer or the law he is enforcing. However, it is absolutely essential to remember that our legal system does provide rights for the accused.
If you're arrested, WAIT FOR LEGAL ADVICE BEFORE ATTEMPTING TO DISCUSS A CRIMINAL CHARGE WITH POLICE.
And Never rely on police to inform you of your right to remain silent and see a lawyer.
Say the Magic Words!
Tell the police: "I'm going to remain silent. I would like to see a lawyer." If police persist in questioning you, repeat the magic words and every time they try to talk to you, repeat the magic words until your lawyer arrives.
For more on this and other criminal defense issues in California, visit www.TheLegalGuardian.net or call The Law Office of David J. Givot at (888) 293-0396.
The Fifth Amendment Self-incrimination Clause
"...No person... shall be compelled in any criminal case to be a witness against himself or be deprived of life liberty or property without due process of law..."
The right against self-incrimination is not an American construct. In fact, it can be traced to common law dating back to biblical times.
The right against self-incrimination is but one of many found in the Fifth Amendment, yet it seems the most widely known (even if under -utilized). It is, for sure, the clause that has the most profound effect upon the conduct of law-enforcement officers as they investigate crimes. Perhaps that is why the meaning of the self-incrimination clause has remained one of the most controversial issues in criminal procedure since the Supreme Court's ruling in Miranda v. Arizona.
Today the Supreme Court requires that police inform all criminal suspects of their right to remain silent prior to custodial interrogation - that means that if you reasonably believe you are not free to leave, then the police must inform you of your right to remain silent before they ask any questions indented to incriminate you lest anything you say and anything derived from it become inadmissible.
Although your right to remain silent exists regardless of whether you are under arrest, the requirement that you be informed of the right extends from the point of arrest throughout the suspect's involvement in the criminal justice system.
Many in the law-enforcement community feel that this restriction unfairly limits the ability of police and prosecutors to obtain convictions, however studies have shown that conviction rates have not changed significantly since the Court first required police to inform arrestees of their right against self-incrimination.
When you find yourself facing police questioning, whether you are in custody or just curbside, remember your right to remain silent and use it and do not allow yourself to get sucked into the criminal justice system without a lawyer.
For more on this and other criminal defense issues in California, visit http://www.thelegalguardian.net/ or call The Law Office of David J. Givot at (888) 293-0396.
Saturday, June 12, 2010
Attempted Murder: San Joaquin County, CA
Misdemeanor Shoplifting: Los Angeles County, CA
Misdemeanor Obstructing Police Officer: Orange County, CA
Wednesday, June 9, 2010
The last time I addressed a paramedic school graduating class was my own… twenty-one years ago, almost to the day. On that day, I read a poem. I don’t remember the poem… I don’t know what it was about or who wrote it… it was just what the staff told me to read. I would have given the valedictorian speech, but I missed it by a tenth of a percent. I’m not bitter… I’m just saying that by a tenth of a percent Josh Binder gave the valedictorian speech and I read some crappy poem.
Today, though, is a much different day, for all of us. Today, instead of reading a poem that somebody else wrote, I get to tell you how it really is; from real experience with real people and real blood. I get to tell you what I know to be true about being a paramedic.
When I say that I believe "paramedic" is the single most significant job there is, I'm not just blowing sunshine up your collective rectums because this is a paramedic school graduation; and I'm not saying it because I spent most of my adult life working as a paramedic; and I'm not saying it because defending Paramedics and EMS providers is the cornerstone of my legal defense practice and some of you look like potential clients.
I say that "paramedic" is the most significant job there is because I know it's true. Think about this: Unlike even other EMS providers, it is the paramedic who willingly puts himself or herself smack in the middle of tragedy. It is the paramedic who willingly seeks out life's worst moments and brings hope and comfort. It is the paramedic who willingly faces the absolute worst that human kind has to offer and takes control with a level head, a firm voice, and gentle hands.
But, more than all that, it is the paramedic - and nobody else - who goes to work every morning, takes out their license to practice, slams it on the table and says: "I dare you, world; I dare you to take this away from me today. I dare you to take my livelihood, my possessions, and even my life. I dare you." Because, unlike any other profession, in EMS a simple twist of fate, a simple mistake, a simple misjudgment, can cost you everything. I've tried, but I cannot think of any other profession where that is true. There are jobs that are singularly more difficult. There are jobs that are singularly more dangerous. But there is no other profession that is more significant for those reasons and many more.
To add a little perspective, I remember lying awake some nights in quarters thinking to myself: "Wow, if I called 911 right now, I would get...me. That's it. I'm it." For all intents and purposes, that was true. There is no 911 for 911 to call: You are it. For that reason alone, most people cannot do this job. Most people are not willing to take the kind of risks that you will take every minute that you hold a paramedic license.
Notice, I did not say "every minute that you are working," I said every minute that you hold a paramedic license. Because your status as a licensed paramedic, what is expected of you, is not limited to who you are and what you do on duty. As an attorney who defends paramedics against actions taken by the California State EMS Authority, I am here to tell you, the State cares very much who you are and what you do all the time. As far as the State is concerned, who you are and what you do away from the job can have just as detrimental an impact on your license -- and you career -- as when you are working.
Again, most normal people are simply not willing to be held to those kind of standards... but you are -- and you'd better be.
Experience has shown me that there are only three kinds of paramedics. There are the naturals; the ones for whom it is effortless... guys like Victor Oseguera, Paul Cooper, Kevin Murphy, or Mr. "tenth-of-a-percent" Josh Binder...these guys have it flowing through their veins. Then there are the ones who work very hard to be the best they can be; they read everything they can, they do twice the amount of CE they need to; the ones who bust their butts to make it look easy because being good is that important. That was me. (Probably why I only got to read a poem). And then there are the rest. The ones who slipped through the cracks. The ones who view being a paramedic as just another part of the job. The ones who reach limply for the bare minimum. The ones who, when you know they are working, you stay out of their first-in.
Which one are you? Each of you knows the answer already and I hope my words here today will solidify what you need to do with that answer.
Standing here now...as a lawyer...it seems surreal that it has been 21 years since the Spring of 1989 when I did my internship at the old LA City 66's at Florence and Western.
I clearly remember that my preceptors, Kelly McKee and Mike Samudio, spent a lot of time making sure I knew my policies and procedures...and my drug dosages. In fact, Kelly carried with him a toy squeaky hammer and gummy-bears. When we would meet up with other crews he would show off what I knew by asking me difficult questions; if I answered correctly, I got a gummy-bear. If I was wrong, he would hit me in the head with the squeaky hammer.
Kelly and Mike showed me that as serious as this job is, it can also be fun; that, more than anything, the job is about people...people who depend on and deserve the best we have to offer...every time, no matter what.
Of course, I also learned that the right amount of armor-all makes it impossible to stay in one place on the bench seat.
That was two decades ago. I was 20-years-old and ready to save the world. And back then, I believed I could. And I believed I would.
Now, looking back, on those two decades, I believe I did. If only for one family, though I know it was many, many more, I did change the world. And now it’s your turn.
The question now is… "How will you change the world?"
Who will you be?
Will your commitment and your effort allow an elderly couple to enjoy just one more anniversary? Or will your complacency and disinterest cause a grieving widow to wake up alone for the first time in 50 years?
Will your knowledge and skill remind you that a stomach ache is not always a stomach ace? Or will a culture of burn-out and malaise allow you to believe that a drunk is always a drunk.
Will your passion lead you to find or create innovative solutions to problems old and new? Or will just enough, be enough?
Today is the day, now is the moment to ask yourself, not only what kind of Paramedic you want to be or will be… but how will you change the world. Because, for Paramedics, changing the world is not some ethereal or esoteric notion, it is what you will do every single day.
In fact, right now, someone somewhere is going about their regular daily life. They are not thinking of you any more than you are thinking about them. But they are out there; sitting in traffic, buying groceries, having a late lunch with an old friend, planning a wedding, making a baby, walking between classes, or just lounging by a pool somewhere having a drink. Wherever they are, they are just doing their thing.
They are happy and relaxed because they don’t know that one day next week, next month, or maybe next year their entire existence is going to be hanging by a thread; their breath may be short, their heart may be fibrillating, their limbs may be convulsing… or they may be staring helpless at the bloody, lifeless body of their child and the twisted metal that moments before was a bicycle… and there will be you. Your senses, your hands, and your decisions in that moment will be the difference between hope and hurt, life and longing, another birthday party or a child’s funeral. What you do in that moment will change the world for them and for you and that change cannot and will not be undone.
So, I ask you: Who will you be in that moment? Will you be prepared or preoccupied? Will your passion for perfection carry the day? Or will the pursuit of mediocrity be too little, too late?
As you sit there, the slate is clean; the choice is yours and I offer you this:
Being a Paramedic is the single most significant job there is; it is rich with reward and possibly the most fun you can have with shoes on... but there are no second chances; not for you and not for those who depend on you. Who will you be? How will you change the world?
My client attended and completed paramedic training in South Dakota. Among the skills she learned and practiced was Rapid Sequence Intubation (RSI), an aggressive treatment for the most life-threatening circumstances. She went to work in the Washington State, where she was tested again and licensed to perform RSI — a skill she was able to use in the field. She ultimately moved with her husband to Riverside County, California, where she worked as a paramedic onboard a rescue ambulance and built an impeccable reputation for quality care and compassion.
During a particularly devastating wildfire season, it seemed as if most of Southern California was burning. With local resources tapped, firefighting agencies from throughout the western United States converged on the area to either fight on the frontlines or backfill fire stations in outlying communities. Such was the case of a paramedic engine company from Richland, Washington; the same community where my client had worked – and performed RSI. The Richland crew was stationed to cover in the same Riverside County jurisdiction as my client.
As fate would have it, an off-duty fire captain from the very station in which the Washington crew was at the ready, was involved in a roll-over vehicle accident and critically injured. Within minutes, a local engine company — the Richland paramedic-engine company, and my client in her rescue ambulance, were on scene.
They found the fire captain unconscious and unresponsive, with decorticate posturing and respirations in the single digits with minimal tidal volume. The patient's clenched jaw and vomiting made airway management virtually impossible. The Richland crew, operating on mutual aid protocols which allow them to function as if they were home, quickly determined that RSI was indicated. Although RSI is not within the California or Riverside County paramedic scope of practice, everyone on scene concurred that RSI was indicated and an available option for the Washington paramedics.
One of the two Richland paramedics quickly attended to the intubation, while the other saw to the RSI drugs, Lidocaine, Etomidate, and Succinylcholine. Amid the chaos and added tension of the scene, the second Richland paramedic called out for some assistance from the local paramedics who hastily declined for lack of experience, training, or authorization to perform RSI...except my client.
My client, without hesitation, offered to put her experience, training, and out-of-state, though current, licensure to work toward saving the life of the fire captain — who is also her co-worker and friend.
In a flash, my client pushed two of the RSI drugs, the Richland paramedic quickly followed with the third, and the ET tube was placed, secured, and the patient rapidly transported to the trauma center.
The patient made a 100 percent recovery and is back to work; however that is not the most dramatic outcome of the call. My client spent most of the next year dealing with the backlash from the agency, the hospital, the local EMS authority, and the State of California. There were investigations, reviews, incident reports, interviews, and intra-agency remediation of the most absurd nature. After all that, she spent yet another year fighting the revocation of her paramedic license by the State EMS Authority.
Ultimately, we brought the matter before an Administrative Law Judge for a hearing that lasted two days. While the story of the hearing is complicated and entertaining, it is too long to discuss here. Simply put, one of the pivotal issues was whether she acted unreasonably and with reckless disregard for California law when she assisted in the RSI.
If she was reckless and unreasonable, then she would face the maximum penalty of full license revocation. If, based on the totality of the circumstances, her conduct was reasonable and not demonstrative of her "rogue medic" propensities, she faced the bare minimum of a small fine and nothing more.
I believe the turning point was when the Judge asked my client one simple question: "If you had it to do all over again, in the exact same situation, after all that you have gone through, would you do it again?" My client sobbed quietly, tears streamed down her face. Then, she took a deep breath, regained her composure and turned to the Judge. She looked him square in the eyes and said, "If I had it to do all over again? The exact set of circumstances? Yes. I would do it again. If the choice is life or death, I will always choose life."
In my closing argument I conceded that my client functioned outside medical control and beyond her California scope of practice. But, I added, she functioned within her training and experience and within her then-current Washington State licensure in a situation that left her with an impossible circumstance and a non-choice; help and save a life or withhold and watch her friend die. "This," I told the Judge, "was a no-brainer. She was faced with a life and death decision and she chose life." In contrast, the attorney for the State EMS Authority argued that my client was a rogue medic with a Wild West mentality who had no regard for the rule of law. In response to my argument, the State's attorney argued that her license should be revoked because "Paramedics are not there to determine what is or isn't a life and death situation" And, much like your reaction, all eyes in the court drew wide open and all jaws dropped. That, however, is the position of the State EMS Authority.
When it was all said and done, the Judge agreed that my client exceeded her California scope of practice, but that her conduct was neither reckless nor unreasonable. He recognized that the confluence of circumstances was a freak of fate and timing and not likely to ever happen again to anyone anywhere, much less to my client. He said that although she admitted she would do it again, the circumstances would never present themselves to make it possible to do so. With that, he ruled that a simple fine was appropriate and no further punishment necessary. Months later, with a very minor adjustment, the State agreed.
When I am asked about doing what's right versus doing what's allowed, my answer is this: For every action there are consequences, sometimes positive, sometimes negative, but always consequences. You have to sleep at night and you have to look yourself in the eye every day. If you can sleep at all, what do you dream? When you look at yourself, who do you see? Finally, ask yourself a simple question…What consequences are you prepared to face and how willing are you to face them?
Thursday, May 13, 2010
Did You Know?
When you are charged with DUI/DWI in California, two legal processes are set into motion:
- A criminal case involving the state court system
- An administrative process involving the Department of Motor Vehicles
Protect Your Rights
The arresting officer will probably ask you to take a breathalyzer test and perform field sobriety tests, such as the "walk and turn" or "put your finger on your nose" test, in order to determine your blood alcohol level.
In California, if you are 21 or older, these tests are voluntary. If you refuse, you will be arrested. But, your license will not be automatically suspended.
The officer is not required to explain your right to refuse these roadside coordination tests and will most likely not tell you of your right to refuse.
Know your rights. Protect them.
I'm Here to Help
To discuss how I can help you fight a DUI/DWI charge, contact me online or call my office locally at 310-699-0070.