Monthly Archives: October 2017

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.