The CURES For What Ails You

Speaking of prescription drugs, almost every state now has a prescription-drug monitoring program (or PDMP). The goal is to curb prescription-drug abuse by discouraging pill-pushing and doctor-shopping. So whether you’re a patient or provider, you should pay attention because law enforcement and licensing boards are watching.

In California, for example, the program is called CURES: the Controlled Substance Utilization Review and Evaluation System. By law, pharmacies must report to CURES every prescription for a Schedule II, III, or IV drug within seven days of dispensing it. And pretty soon, under a law passed last year, doctors will be required to check CURES before prescribing such drugs to a patient for the first time and every four months after that during treatment.

Last week, the California Supreme Court ruled that the California Medical Board could freely access CURES at any time. It didn’t need to get a warrant or show good cause beforehand. The doctor who was being investigated argued that this violated the privacy of his patients. But the Court held that, on balance, the Board’s access was justified by the need to protect the public from drug abuse and protect patients from impaired or negligent doctors.

Even if your state’s law is different, remember that federal law remains supreme. Last month, a federal court decided a case in which the Drug Enforcement Administration (DEA) subpoenaed data from Oregon’s PDMP. Unlike California’s program, Oregon required all agencies—even federal ones—to get a court order before it would respond to a subpoena. It sued to compel the DEA to comply with its law, but it lost. Federal law authorizes the DEA to issue subpoenas on its own, so Oregon couldn’t force it to follow state law.

Back to Basics, Again

Speaking of the U.S. Supreme Court, we shouldn’t have to rely on the country’s highest court to decide some questions correctly. But we do.

This week, the Court issued a friendly reminder about the presumption of innocence.

If you’re convicted of a crime, but your conviction is overturned on appeal, and there won’t be a retrial, the government has to return any money that you paid toward fines, fees, or restitution because you’re presumed innocent again. You’re presumed innocent until you’re proven guilty beyond a reasonable doubt in a fair trial where the verdict holds up. Until then, the government can’t make you prove your innocence to get your money back.

Here’s what happened. In two separate cases, a man and woman were convicted at trial, and they were ordered to pay fines, fees, and restitution as a result. Then both had their convictions reversed on appeal. One was retried but acquitted. The other wasn’t retried because the state dropped the case.

With the charges dismissed, the defendants asked for their money back, but they lost in the state courts because a new state law required them to sue for their money and prove their innocence by clear and convincing evidence.

But that can’t be right, and it wasn’t. Without a conviction, the state had no right to their money, and under the Due Process Clause of the U.S. Constitution, it couldn’t shift the burden of proof to them to prove their innocence.

Good for them that the court of last resort got it right.

But that court hears fewer than two percent of all potential cases each year. And it wouldn’t have heard these cases, either, if it weren’t for a pro bono clinic at the UCLA School of Law.

Take the Money and Run

Kudos to the California Court of Appeal for enforcing due process and the rule of law.

Earlier this month, the Court took another stand on the law of asset forfeiture by siding with people who had sued to get their stuff back.

In three separate cases, the Court ordered the trial court to reinstate lawsuits brought by eight people from whom local police had taken a total of three cars and $28,257 in cash.

In each case, after police seized the property, they didn’t refer the matter to the district attorney’s office like they were supposed to. No one from a prosecutor’s office reviewed the cases beforehand and signed off on them.

Instead, police just issued forfeiture notices themselves and left it to people to file a claim.

But you can’t do that. The law specifically authorizes only a county’s district attorney or the state’s attorney general to file a forfeiture case in court or, for property worth $25,000 or less, to issue a notice of administrative forfeiture like the police did. For more background on California’s forfeiture laws, see here.

None of the people filed claims at first, but eventually, they lawyered up and sued.

They lost in the trial court after the government argued that they didn’t file administrative claims before suing in court and that they waited too long to sue when they did.

But they won on appeal. The Court ruled that the government failed to comply with the forfeiture statutes, so the forfeitures were invalid to begin with, and the state had no right to their property. The Court had made this point three years ago in a prior opinion, and apparently, it meant what it said.

Can They Search My Phone at the Border?

Suppose you go to visit your aunt in Italy, and you take your phone and tablet with you.

When you come back through customs, can they just search your devices willy nilly?

Probably. Here’s a good overview of your rights at the border, along with some practical considerations. It’s worth reading ahead of time because the government is stepping up its enforcement at points of entry, and there have been some heavy-handed run-ins lately between agents and travelers, including U.S. citizens.

The general rule is that customs and border agents may conduct routine, reasonable searches of you and your belongings, including your electronic devices, for any reason or no reason at all. They don’t need a warrant, and they don’t need any basis to believe they’ll find evidence of a crime. It’s known as the Fourth Amendment’s border-search exception.

But how far can they go?

Can they conduct full, forensic searches or force you to give up your passwords?

According to this 2009 policy memo, the answer is yes. It says agents can seize your device, copy its contents, and search them. To do so, they can hold a device for up to five days with a supervisor’s approval. For longer periods, they must get further approval at higher levels. Ordinarily, they must conduct the search in the presence of a supervisor, too, but if that’s not feasible, they must inform a supervisor about their search as soon as possible. If they find probable cause to believe your phone contains evidence of a crime, you may not get it back for a while, if at all. If they don’t, you should get your phone back eventually, and they’re supposed to destroy any copied information.

The law is evolving, however, to require at least a reasonable suspicion for a full forensic search. That’s already the case in the federal circuit that covers California and eight other states, and the law should continue to trend in that direction. What is a reasonable suspicion? It’s a particularized and objective basis for suspecting someone of a crime.

Still, reasonable suspicion is not a tough legal standard to meet.

Plus, agents can always just ask you to unlock your phone or give up your passwords, and if you refuse, they have plenty of ways to coerce you. They can take your phone; detain you, too; search your bags more thoroughly; deny you entry if you’re visiting; or scrutinize your green-card status. Most folks just want to be on their way.

So happy trails, traveler. Leave the phone, perhaps, but take the cannoli.

New California Criminal Laws: Do-Over

Speaking of new laws, last year we wrote about Senate Bill 227, which changed the Penal Code so that grand juries could no longer criminally indict or investigate a police officer’s deadly use of force. The stated rationale behind the law was that grand juries undermined the public’s trust in such cases because they lacked transparency and accountability. For more on grand-jury secrecy and the overall process, see here.

Well, never mind that new law because the California Court of Appeal just threw it out.

The Court held that the Legislature could not, by statute, restrict the power of grand juries to indict or investigate criminal cases because that power flowed from the state’s Constitution.

“The Legislature is not powerless to remedy the problem it has identified. It may submit a constitutional amendment to the electorate to remove the grand jury’s power to indict in cases involving a peace officer’s use of lethal force. It could also take the less cumbersome route of simply reforming the procedural rules of secrecy in such cases, which are not themselves constitutionally derived or necessary to the grand jury’s functioning….”

New California Criminal Laws: Part Deux

To conclude our series on new criminal laws, here are two more notable ones.

You have more protection against abusive asset forfeiture. This is Senate Bill 443. It amended the Health and Safety Code to curb law enforcement’s ability to take and keep your property without convicting you of a crime. For more background see here.

Under the new law, the authorities must convict you of a crime in order to take your cash if it’s less than $40,000. The prior threshold was $25,000. As before, they also must prove up their forfeiture case against the money beyond a reasonable doubt. For cash of $40,000 or more, they still don’t need to convict you of a crime, but as before, they must prove their forfeiture case by clear and convincing evidence.

Furthermore, the authorities may no longer bypass state law by asking federal agents to adopt the forfeiture under federal law. Even in cases of a joint task force or investigation, they may not share in the proceeds of a federal forfeiture if state law would’ve required a conviction but there wasn’t one.

You’ve got a much better shot at getting a new trial based on newly-discovered evidence. This is Senate Bill 1134. It amended the Penal Code to include a new standard for writs of habeas corpus based on new evidence. Before, you would only get a new trial if your new evidence pointed “unerringly to innocence” and completely undermined the state’s case. That was a nearly impossible standard to meet.

Now, you can get a new trial if you present new evidence that’s “credible, material, presented without substantial delay, and of such decisive force and value that it would have more likely than not changed the outcome at trial.” Much better.

The Lowdown on California’s Proposition 57

Last week it was Proposition 64; this week, it’s Prop 57.

Voters approved it by a wide margin, but what does it do?

Two things.

First, it amended the California Constitution to ensure parole eligibility for people who have been convicted of a nonviolent felony, once they have served the full term for their primary offense. In layman’s terms, that means that you’re eligible for parole once you’ve served the meat and potatoes of your sentence, even if you were sentenced to additional, consecutive time on lesser counts or for sentencing enhancements. But this just means you’re eligible; it doesn’t mean you get released. It just means you’ve got a shot at parole, and something to work toward. No one is automatically released, and no one is entitled to parole.

Second, Prop 57 mandates that a judge must always decide whether a minor age 14 or older should be prosecuted and sentenced in adult court. (Kids 13 and younger don’t go to adult court.) Before, you automatically went to adult court, even at 14, if you were charged with murder or an aggravated sex crime. Or the prosecutor could file your case directly in adult court if you were 16 or 17 and charged with a serious or violent felony or you were 14 or 15 and charged with an especially serious or violent felony. In all cases, the prosecutor could request the juvenile court to transfer your case to adult court, even for a misdemeanor.

Under Prop 57, there’s no direct filing of juvenile cases in adult court, and prosecutors have less discretion to request their transfer. For ages 14 or 15, they may request a transfer only if the kid is charged with a serious or violent felony. For ages 16 or 17, it can be any felony but not a misdemeanor.

Some things haven’t changed, like the criteria for deciding whether a minor’s case should be transferred to adult court. These include the following:

  • the nature and seriousness of the charges
  • the degree of criminal sophistication he displayed, given his age, maturity, intelligence, environment, and upbringing
  • his prior history of delinquency, if any
  • whether he can be rehabilitated by the time he comes of age or close to it

California’s Next Gold Rush Is Green

Last week, California legalized recreational marijuana. So did Maine, Nevada, and Massachusetts, and four other states passed medical-marijuana laws: Arkansas, Florida, Montana, and North Dakota.

It marked the end of prohibition as we know it, which didn’t work for alcohol and doesn’t work for pot. Too many millions of people enjoy it responsibly or know others who do, and it’s safer than alcohol or tobacco. As a much-beloved sportscaster used to say, the game’s now in the refrigerator; the door’s closed, the light’s out, the eggs are cooling, the butter’s getting hard, and the Jell-O is a-jigglin’. Hopefully, Uncle Sam does the right thing, too.

Through Proposition 64, California voters enacted the Control, Regulate, and Tax Adult Use of Marijuana Act of 2016. It’s called the Adult Use of Marijuana Act for short. For a deep dive on the issues, see the state’s official voter guide to the election. It’s a big file, but a summary of Prop 64 starts on page 90, and the full text follows on page 178.

What do you need to know right now? These six things.

It legalized recreational marijuana for adults age 21 or older. You may now grow up to six plants on your property, and you may buy or possess up to 28.5 grams of cannabis, which is an ounce, or eight grams of concentrated cannabis.

It taxes the sale and cultivation of marijuana. It imposes an excise tax of 15% on retailers, on top of existing state and local sales taxes, as well as a cultivation tax on growers of $9.25 per ounce of flower and $2.75 per ounce of leaf. It will generate billions of dollars in tax revenue in the coming years, and it will save millions of dollars in costs to law enforcement.

It imposes standards on the testing, labeling, packaging, and marketing of marijuana. It prohibits marketing to minors, and it bars shops from operating within 600 feet of a school, daycare center, or youth center unless the local government approves. It also bars them from selling alcohol or tobacco.

It continues to punish those who use, grow, or sell outside the rules. It’s a misdemeanor to have more than 28.5 grams, grow more than six plants, or sell without a license. It’s punishable by up to six months in county jail, a $500 fine, or both, and you’re subject to large civil monetary penalties for each day you’re in business. Or you could face a felony based on your criminal history, your selling to or employing underage people, or the environmental impact of your unlicensed grow. Separate penalties continue to apply to minors and people age 18 to 21. Finally, you can’t use pot on the road, in a public place (except for shops that allow it), or anywhere that you can’t use tobacco.

It allows people to petition to clear their records. If you’re currently serving or have ever served a sentence for an eligible marijuana offense, you can petition the court to reduce your conviction and sentence or dismiss your case entirely. The court will presume that you’re entitled to this relief unless prosecutors prove by clear and convincing evidence that you’re not. If they can’t, the court will grant your petition unless it finds that doing so would endanger public safety. Many counties have already prepared to process these petitions.

The state will tax, license, and regulate marijuana businesses, and it will issue its first licenses by January 1, 2018. Cities and counties may further tax or regulate the industry or just ban it outright (but not ban its transportation through their jurisdiction). The main state agencies are as follows:

  • The Bureau of Marijuana Control (formerly the Bureau of Medical Cannabis Regulation): to license and regulate retailers, distributors, and testing facilities
  • The Department of Food and Agriculture: to license and regulate growers
  • The Department of Public Health: to license and regulate edibles
  • The Department of Fish and Wildlife: to regulate the environmental impacts of growing
  • The State Water Resources Control Board: to regulate the environmental impacts of growing on water quality
  • The Department of Pesticide Regulation: to regulate the use of pesticides in growing
  • The Marijuana Control Appeals Panel: to hear appeals from people and businesses affected by an agency’s decision

Every Man’s Evidence, Everywhere

They say the public has a right to every man’s evidence, but in a world full of digital evidence, what if it’s stored on servers in other countries?

We wrote about this case two summers ago. Back then, the Microsoft Corporation had just defied a federal search warrant that demanded a subscriber’s emails (and other data) as part of a criminal investigation. Microsoft had already produced all of the data that it stored on servers in the United States, but it refused to access and turn over the emails because they were stored in the Republic of Ireland. Instead, the company moved to quash the warrant, which the magistrate denied, and it was appealing that denial to the district court when we last wrote about it. As it happened, the district judge agreed with the magistrate and held the company in contempt of court for not obeying the warrant.

Well, three weeks ago, Microsoft won big in the court of appeals. In a unanimous decision, the court ruled that the warrant couldn’t be enforced against the emails because the federal law in question—the Stored Communications Act—did not authorize warrants to reach beyond the territorial jurisdiction of the United States. Courts must presume that a law applies only within the United States unless Congress clearly says otherwise, and it hadn’t done so here. One judge wrote separately to explain why it was a closer case and to urge Congress to update the Stored Communications Act for the 21st century.

For now, the decision binds federal courts in New York, Vermont, and Connecticut.

Double, Triple Whammies and Rewards

Speaking of the False Claims Act, get ready to buckle up.

Starting Monday, an interim final rule by the U.S. Justice Department will nearly double the statute’s civil monetary penalties for each false claim. The minimum penalty will go from $5,500 to $10,781, and the maximum penalty will go from $11,000 to $21,563.

For defendants, this means you’re looking at a minimum fine of $10,781 for every allegedly false claim. Multiply that by hundreds or thousands of bills that the government may deem suspect, and you quickly run up some big numbers.

Already, the FCA’s penalties have implicated the Eighth Amendment’s ban on excessive fines in cases where they’ve far surpassed the government’s actual losses. In many of those cases, the Justice Department has avoided the constitutional question by forgoing or reducing the penalties it sought under the statute.

Now throw these new penalties in with the specter of treble damages, which means the government can recover three times its actual losses in addition to the penalties, and you’ve got double and triple whammies for government contractors—with corresponding rewards for the whistleblowers who sue them.

The new rule was required by the Bipartisan Budget Act of 2015, which directed all federal agencies to update their civil monetary penalties every year to account for inflation. For the False Claims Act, this first update catches up on inflation since 1986, which was the last time the Justice Department raised the penalties in such cases. Actually, that’s not true; the last time was 1999, but the new rule disregarded that because the Bipartisan Budget Act had repealed the underlying legislation.

The DOJ’s new penalties apply in both its civil and criminal division and across constituent agencies like the Drug Enforcement Administration (DEA), the Federal Bureau of Investigation (FBI), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

The rule may also budge many states to conform their own penalties to federal law. That’s because the federal government lets states keep ten percent more than their pro-rata share of a Medicaid-fraud recovery when they bring a case under state law. To be eligible, however, a state’s civil penalties must meet or exceed the federal ones.

The new rule is effective August 1, and it will apply to all cases that allege false claims after November 2, 2015, which is when the Bipartisan Budget Act became law. Although the Justice Department is soliciting public comment through August 29, the rule is already final and will go effective next week.

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