Georgia Supreme Court: DUI Suspects Have the Right to Refuse Breath Tests

The United States Constitution provides everyone in the country with certain rights. States have their own constitutions, which can provide people in those jurisdictions with additional—or broader—rights. That dynamic is why, on October 16, Georgia became somewhat of an exception in the realm of DUI law.

Right Against Self-Incrimination

The Fifth Amendment to the U.S. Constitution provides a right against forced self-incrimination. So does Paragraph XVI of the Georgia Constitution. In Olevik v. State, the Georgia Supreme proved that it interprets the state version of that right differently than the U.S. Supreme Court  interprets the federal version.

The U.S. Supreme Court has decided that the Fifth Amendment applies to “testimony”—acts of communication—but not anything else. The Georgia Supreme Court, on the other hand, has determined that Paragraph XVI of its constitution protects people in that state “from being forced to perform acts that generate incriminating evidence.” What that means in DUI cases is the following:

  • Under the U.S. Constitution, it’s okay for a state government to impose criminal penalties for a motorist refusing to blow deep lung air into a breathalyzer after a valid DUI arrest.
  • Under the Georgia Constitution, the state government may not hand out criminal penalties for a breath-test refusal.

New Georgia DUI Rule

Combine the rule from Olevik and a blood-test rule from a 2016 U.S. Supreme Court decision, and you have the following principle in Georgia: A DUI suspect normally cannot receive criminal punishment for refusing either a warrantless blood test or a breath test. Georgians have a constitutional right to refuse to submit to either kind of test.

The wrinkle, though, is that it’s fine for the Georgia government to impose noncriminal penalties for refusing a blood or breath test. Put another way, the state government can still suspend a Georgia DUI suspect’s driver’s license for the act of refusing a chemical test. And, importantly, the standardized warning officers give suspects about agreeing to chemical testing in the Peach State remains valid.

More New Parents Have Access to Job-Protected Leave in California

Late last week, California Governor Jerry Brown signed a bill into law that will expand job-protected leave for new parents. Over 2.5 million California employees will now have the right to be reinstated to their jobs after taking up to 12 weeks of unpaid bonding leave. The law takes effect on January 1, 2018.

Until now, only employees who worked for employers with 50 or more employees could be eligible for job-protected leave to bond with a new child in California. Employees who worked for smaller employers could still receive paid family leave benefits from the state when taking time off for these purposes, but they did not have the right to job reinstatement when their leave was over.

The new law, called the New Parent Leave Act, requires employers with between 20 and 49 employees to provide up to 12 weeks of job-protected leave each year to bond with a new child. At the end of their leave, employees must be reinstated to the same job or a comparable one. They also have the right to continued group health care coverage during their leave.

Employees must meet the same eligibility requirements under the FMLA and the California Family Rights Act (CFRA): The employee must have worked for the employer for at least 12 months, have worked at least 1,250 hours in the year prior to the claim, and work at a location where the employer has at least 20 employees in a 75-mile radius.

The New Parent Leave Act extends job-protected leave only to employees who are taking family and medical leave to bond with a child arriving by birth, adoption, or foster placement. It doesn’t apply to employees taking FMLA or CFRA leave for their own serious health conditions or to care for a family member with a serious health condition. Those employees must still work for an employer with at least 50 employees in order to take job-protected leave.

Is AG Sessions Confusing Denied Asylum Applications With “Fake” Ones?

Attorney General Jefferson Beauregard Sessions wasn’t short on opinions regarding people who apply for asylum in the United States, as set forth in an October, 2017 speech to the Executive Office for Immigration Review (commonly known as U.S. Immigration Court).

Unfortunately, much of the information he presented was baseless or wrong.

Let’s start with Sessions’s assertion that the immigration court system is becoming “overloaded with fake claims.” Mr. Sessions provided no source for this information. Indeed, finding statistics on fake claims would be practically impossible in a setting where the immigration judge’s decision depends mostly on the applicant’s own account of what persecution occurred (or is likely to occur) and why.

But we do know that about half the people who apply for asylum in the U.S. are denied, and that denial rates are going up. Could this have led Mr. Sessions to believe that anyone who wasn’t granted asylum had filed a “fake” claim?

Such a conclusion would ignore one of the most obvious truths about U.S. asylum law: It’s complicated. Without getting too deep into the weeds, let’s just say that people who are really, truly terrified of returning to their home country can and often are refused asylum because they:

  • can’t connect the persecution they experienced to a personal characteristic such as race or religion, but were, for instance the victims of widespread violence
  • spent too long in another country on the way to the U.S.
  • made a few mistakes or minor inconsistencies when testifying, leading the judge to find them not “credible”
  • are part of a group (such as guerrillas) that may also have blood on its hands, leading to a conclusion that the applicant is barred as a persecutor of others, or
  • didn’t apply within a year of reaching the United States and wasn’t granted an exception to this rule.

(Find out more in Nolo’s article Bars to Receiving Asylum or Refugee Status.)

Ask any immigration lawyer. We’ve all seen heartbreaking cases where the client had obviously suffered, and might face death after being deported, but was denied asylum based on some fine point in the law. Those claims aren’t fake, they just don’t make the legal cut.

Then also consider that huge numbers of applicants have no attorney to clue them in to the details, and may lose a case that could have been a winner with better awareness of what aspects of it to highlight.

But should we defer to Sessions’s authority on this matter and assume he knows things we don’t? That’s hard to do, after noting the other errors in his speech: for example, where he states that “dirty immigration lawyers” are “encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”

Uh, nope. That’s technically impossible. The “credible fear process” only applies to people entering at U.S. borders or airports, and almost none of them have lawyers at that point. Plus, most of the immigration lawyers I’ve met are quite clean.

Sessions also states that, “DHS found a credible fear in 88 percent of claims adjudicated. That means an alien entering the United States illegally has an 88 percent chance to avoid expedited removal simply by claiming a fear of return.” I’m no statistician, but given that each applicant must convince the border official of the merits of his or her own claim of fear, there’s no way that a general average equates to an 88% chance of success for each entrant.

And finally, let’s look at Sessions’s statement that, “There are almost no costs, but potentially many rewards, for filing a meritless asylum application.” It’s true that the U.S. government charges no asylum application fee, but as mentioned, applying for asylum without an attorney is likely to get one nowhere—and by the time an applicant takes a challenging case through immigration court, the Board of Immigration Appeals, and the federal circuit court, thousands of dollars in legal fees are inevitable. Sure, a few applicants can find attorneys to work pro bono, but only those with the strongest cases are likely to be able to do that.

If this is what Sessions calls a “generous system,” it’s frightening to imagine what an un-generous one might look like.

Five Practical Things EVERYONE Should Know About Trump’s DACA Termination

President Donald J. Trump . (Official White House Photo by D. Myles Cullen)

I was tempted to put this entire title in capital letters, as hysterical as that might look. But for thousands of people in the United States today, the recently announced ending of the Deferred Action for Childhood Arrivals program (DACA) feels like a true emergency.

And indeed, the decision will eventually mean that huge numbers of undocumented young people, students, and workers—who came forward, were vetted, and applied for a temporary work permit—may (unless Congress acts) see that grant stripped from them. And, thousands of schools and employers will lose the benefit of their work and other contributions.

But in other ways, the current situation is not quite as dire as it sounds—or doesn’t need to be, with the proper actions taken going forward.

So if you are a DACA holder or know someone who is (you might be surprised!), or you are an employer, here are some key things to understand and share:

  1. No one is being deported right away. This is a phaseout. DACA holders still have a legal basis upon which to remain in the United States. Immigration attorneys and advocates are keeping watch around the country for any official action taken to the contrary. USCIS has not changed its policies regarding sharing DACA applicants’ personal information with ICE for followup enforcement; and will do so only in cases that don’t involve serious crimes or threats to public safety. Despite a few widely reported cases, enforcement actions against DACA holders remain rare.
  2. People who hold valid DACA work permits can use them up through the day they expire. The new policy specifically says that current recipients will not have their status revoked unless some separate reason arises (such as a criminal conviction). So if, for example, your DACA work permit expires on March 6, 2018, you can work up to and including the entire day of March 6, 2018.
  3. An important renewal opportunity exists for the next few weeks. Some, but not all current DACA holders can apply to renew their status. That renewal will be good for an entire two years, even as the rest of the program gets phased out. The only people who can renew are those whose DACA grant expires between September 5, 2017 and March 5, 2018 (assuming they meet the other criteria). Unfortunately, people whose DACA grant had already expired before September 5 cannot renew; and no one can apply for a first-time DACA grant going forward.
  4. The renewal opportunity depends on getting an application into USCIS’s hands by October 5, 2017. Pick a trusted mail or delivery service, because it doesn’t matter when your renewal application is postmarked. It has to be received and “accepted” by USCIS by October 5. There’s some question about what “accepted” means. It certainly doesn’t mean “approved.” But it might mean that if USCIS looks at it and says, “This isn’t complete, we can’t let it in the door,” you will have missed out. (Normal USCIS practice would, however, be to issue a Request for Evidence,” so don’t panic—but do triple check your renewal application and fee before mailing it.)
  5. Employers cannot ask an employee whether he or she has DACA, nor take action (such as firing or termination) based on knowing that someone currently has DACA. Even well-meaning employers should beware of crossing this line. The employer may simplify notify an employee that he or she will need to present an updated work permit (EAD) on the date of its expiration.

As tense as the situation is, a good deal of help is becoming available to people who currently have DACA, or have had it in the past. Large employers are looking into providing legal help; and some DACA holders may have even become eligible for another status, such as permanent residence.

Also, community organizations are mobilizing to provide free or low-cost help. Start calling around—but do so soon, if you’re looking at renewal.

And as always, beware of scammers who take advantage of a tough situation! Check lawyers’ credentials, and avoid mere “immigration consultants” and “notarios.”

Texas Federal Court Invalidates Overtime Rule

Late last week, a Texas federal court judge struck down the Obama-era overtime rule that would have extended overtime pay to millions of workers.

In 2016, the Department of Labor (DOL) passed a final rule to increase the minimum salary required for employees to qualify as exempt from receiving overtime. By raising the annual salary requirement from $23,660 to $47,476, the DOL estimated that 4.2 million employees would become eligible to receive overtime pay. However, several states and business groups filed legal challenges in court to block the rule from taking effect. In November of 2016, a federal court judge in Texas delayed the rule from taking effect until it could be reviewed and decided upon.

Last week, the same judge ruled that the DOL overstepped its legal authority by raising the salary threshold so high. To be exempt from overtime, an employee must not only earn the minimum salary, he or she must also perform certain types of work—for example, executive, administrative, or professional work. (To learn more, see our article on the white-collar exemptions.) The judge held that the DOL’s rule placed too much importance on a worker’s salary rather than his or her job duties, effectively weeding out millions of workers based on salary alone.

Signs point to the DOL considering a new rule that would create a minimum salary that is higher than the current threshold of $23,660, but lower than $47,476. The Department of Labor has already issued a request for information so that it can seek input from the public on the matter. This is typically the first step in the rulemaking process. While it’s unclear what the new threshold will be, it will likely be a much more modest increase. Earlier this year, Labor Secretary Alexander Acosta stated that he would support a salary threshold around $33,000.