Family Justice Center

Archive for July 16th, 2010

If you’re pulled over for suspicion of DUI, you should understand your rights. In Florida, DUI is a criminal offense and a DUI conviction has long-lasting consequences.

What a Florida law enforcement officer looks for

In order to make a case for DUI, it has to be proven beyond a reasonable doubt:

· That you had a blood alcohol level above the legal limit while driving (.08 percent or higher if you’re an adult;.02 percent or higher if you’re under 21) OR

· That your normal faculties were impaired while driving

Some of the signs an officer may look for after pulling you over include:

· Slurred speech

· Red eyes

· An odor of alcohol

· Poor coordination

Field sobriety tests

An officer may conduct a “field sobriety test” (FST) to determine if there’s probable cause to arrest you for driving while impaired. An FST is a physical agility exercise that requires you to do more than one thing at a time

An officer may ask you to:

· Stand on one leg

· Walk and turn

· Follow a penlight or finger moving left and right with your eyes, while you stare straight ahead

You can challenge an FST

· Your DUI case may be thrown out if an officer fails to follow proper procedures in administering an FST.

· You also can challenge the interpretation of FST results. For example, you may have medical issues that affect your balance and this can affect the test’s reliability.

You also can refuse to take an FST. Refusing to take an FST does not mean that you won’t be arrested for DUI. However, if you’re arrested, you have a right to an attorney and an officer should read you your Miranda rights. It’s important to contact an attorney who is experienced in drunk driving cases.

Blood-alcohol concentration tests

After you’re arrested and taken to jail or a DUI intake unit, a blood-alcohol concentration (BAC) tests is typically conducted using a breathalyzer. Breathalyzer devices are not infallible. An officer has to be certified to use the device and must administer the test following certain procedures. Breathalyzers also have to be maintained properly. A blood or urine test may be conducted if you pass a breathalyzer test and an officer suspects drug use.

You should pay attention to the circumstances under which a BAC test is administered, since just as with an FST, you may be able to challenge the results.

You also can refuse a BAC test; however, If you refuse:

· Your refusal can be used as evidence in your DUI case

· Your driver’s license will be suspended for 1 year after your first refusal and for 18 months if you refuse again, even if you are not convicted of a DUI.

An officer should read you an “Implied Consent Warning” that outlines the consequences of refusing a BAC test. An officer’s failure to read this warning can affect the length of time your license is suspended.

Dealing with the aftermath of an arrest

It’s important to get the advice of an experienced DUI attorney as soon as possible to understand your rights and to determine if the police followed proper procedures.

HAWAII EMPLOYMENT LAW BASICS: PREGNANCY DISCRIMINATION LAW UNDER FEDERAL AND HAWAII LAW

 INTRODUCTION:

Along with other types of claims, there has been a significant increase in pregnancy discrimination complaints nationwide.  The increase in the number of complaints has outpaced the increase in percentage of women in the workforce during the same period.  

Accordingly, it is clear that employers need to become more aware of their obligations towards pregnant employees, especially under Hawaii state law, which covers all employers, and permits not only individual liability for violations of the law, but also unlimited punitive and compensatory damages to be awarded a plaintiff.

 FEDERAL LAW AND HAWAII LAW ARE SIGNIFICANTLY DIFFERENT WITH RESPECT TO PREGNANCY DISCRIMINATION:

Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful for an employer to limit, segregate or classify employees or applicants for employment in any manner which deprives or tends to deprive an individual of employment opportunities because of the individual’s race, color religion, sex or national origin.  Generally, the law covers all employers engaged in an industry affecting commerce with 15 or more employees.

Title VII was amended by the Pregnancy Discrimination Act (“PDA”) to prohibit all forms of discrimination in employment based on pregnancy, childbirth, or related medical conditions.  Under PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances.

Under the PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances.  Thus, an employer that refuses to hire or promote a female because of pregnancy has violated PDA.  Also, an employer that forces a pregnant employee to take a leave of absence despite being able to perform her job has violated PDA.  Conversely, it is unlawful to force a pregnant employee to continue performing work she is incapable of doing due to her pregnant condition from which other similarly situated disabled employees are excused.

If the employee litigates her federal PDA claim the available remedies include the Court: Issuing an injunction prohibiting the employer from committing future violations of the law; granting equitable relief such as reinstatement or promotion; awarding back pay limited for a period beginning two years before the date the charge of discrimination was filed, less any interim earnings; awarding front pay, and; reasonable attorneys’ fees.

In addition, the total amount of compensatory and punitive damages are limited depending on the size of the employer.  Specifically, the caps are set by statute as follows:

Number of Employees            Cap

015-100 employees                $ 050,000

101-200 employees                $ 100,000

201-500 employees                $ 200,000

500 plus employees                $ 300,000

Under the Hawaii Employment Practices Act, HRS Chapter 378, covered employers are prohibited from discriminating in public and private employment on the basis of “sex.”  Like PDA, Hawaii law prohibits discriminating against women in employment because of “pregnancy.” 

There are significant differences between PDA and Hawaii law.  First, the Hawaii statute covers any employer with “one or more” employees, thus affecting many small business owners that perhaps lack resources to fully educate themselves on the law or implement risk reduction policies and procedures. 

Second, while it is clear under federal law that individual employees cannot be held individually liable for adverse decisions deemed unlawful under the law, there is virtually uniform authority amongst state court judges that no such protection is afforded under state law.  Thus, supervisors along with the employer are commonly named as individuals in lawsuits filed by plaintiffs in Hawaii state court pursuant to HRS Chapter 378.

Third, while federal law simply requires the employer to treat a pregnant employee as it would similarly situated non-pregnant employees under Hawaii law employers are required to do much more.  Specifically, Hawaii law requires by regulatory mandate that employers “make every reasonable accommodation to the needs of the female affected by disability due to and resulting from pregnancy, childbirth, or related medical conditions.”

Regardless of the policies applicable to non-pregnant disabled employees, female employees who are disabled due to pregnancy, childbirth, or related medical conditions must be permitted to take a leave of absence, paid or unpaid, for a “reasonable period of time.”  A “reasonable period of time” is that time determined by the employee’s health care provider.

Hawaii law requires the reinstatement of an employee returning from pregnancy leave to her original job or to a position of comparable pay, without loss of accumulated service credits and privileges.  Prior to the employee’s return to work the employer may request a physician’s certificate approving her return to work.

Finally, and in many cases most significantly, under Hawaii law a court may award unlimited punitive and compensatory damages in cases brought under HRS Chapter 378.   

 CONCLUSION:

            PDA and the Hawaii Employment Practices Act are significantly different in scope and breadth.   Under federal law employers must remember to treat pregnant employees the same as similarly situated employees.  However, under Hawaii law employers are required to afford pregnant special protections regardless of how similarly situated employees are treated. Employers should seek counsel if they have questions regarding the law.

Roman Amaguin, Esq.; romanamaguin@yahoo.com; www.amaguinlaw.com

Roman Amaguin, Esq. is a Hawaii lawyer specializing in employment law, labor law, and civil litigation.