Penalties for Prostitution

In the United States, prostitution is illegal in every state except for Nevada, meaning that buying and selling sex comes with strict penalties. In addition, those caught acting as pimps or heads of brothels may be punished more harshly than others, commonly cited for felony-level charges on an initial offense. For many states, each offense tied to prostitution leads to greater penalties, eventually upgrading a misdemeanor into a felony.

The law illustrates a clear series of penalties directed at sex workers. Although state laws may make different rules regarding what is and is not exactly considered prostitution or illegal sexual conduct, the penalties are similar across the nation. Some states may increase these penalties, but each state provides a possible jail sentence as well as a fine. The result means that sentences may contain a brief prison term and / or a weighty fine.

These sentences grow in many states with each subsequent offense. Prostitutes and customers are generally treated equally under the law, meaning that both buyer and seller may face similar sentencing, depending on the circumstances of the crime. For many states, this means anywhere between a few months to two years in prison for a first offense. Fines may range from a few hundred dollars to several thousand dollars.

Unlike prostitutes or customers, those who manage the business aspect of prostitution are often considered to be coupled with organized crime, and may be given less leniency in court due to the willful and premeditated illegal sale of sex on multiple accounts. As a response to fighting the criminal organization of sex trading, felonies are regular, meaning that jail sentences tend to be more common.

For more information regarding the application of penalties for sex workers, contact a criminal attorney.

Tennessee Controlled Substance Tax

Recently, Tennessee has joined a number of states that have passed legislation to allow for the assessment of an excise tax upon arrest for possession of controlled substances. Alabama, Colorado (repealed), Connecticut, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Minnesota, Montana (repealed), Nevada (repealed Check) North Carolina, Rhode Island, South Carolina, Texas, Utah COMPLETE THE LIST

Most of the “Controlled Substance Tax” (CST) statutes are structured as follows:

First the term, “dealer,” is defined. A dealer is usually defined as a person who possesses more than a statutorily identified amount of particular controlled substances. States differ on the amount of controlled substances required for the possessor to be considered a dealer, but most states define a dealer as persons in possession of more than 42.5 grams of marijuana FILL IN REST OF DEFINITION

The statutes require dealers to purchase and affix stamps to the controlled substances in their possession. The stamp serves as evidence that the dealer has paid the required tax on the controlled substance.

When a person who meets the statutory criteria of a dealer is arrested in possession of controlled substances and no tax stamp is affixed, the statutes authorize the commissioner of the appropriate revenue department to assess a tax against the dealer. The amount of the tax usually correlates directly with the amount of the controlled substance.

States have varying miscellaneous requirements or constitutional safeguards. For example, several states’ statutes impose criminal penalties on Department of Revenue employees who disclose taxpayer information. Several states’ statutes specifically forbid the information obtained in acquiring a tax stamp to be used against the taxpayer in a subsequent criminal proceeding. Several states’ statutes forbid the Revenue Commissioner from collecting information that could be used to identify the taxpayer.

As one might expect, the constitutionality of these statutes has been vehemently challenged with mixed results.

“As a general matter, the unlawfulness of an activity does not prevent its taxation.” Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 1941 (1994). Thus, it appears that a state can tax controlled substances even though the possessor has no legal property interest in the controlled substance. However, the author urges counsel to thoroughly research precedent within the state of the assessment because the Supreme Courts of some states have found their respective CST to be unconstitutional.

Among the successful constitutional challenges are violations of the Fifth Amendment pertaining to the double jeopardy clause and the privilege against self-incrimination.

Double Jeopardy

The Fifth Amendment provides that “[n]o person shall … be subject for the same offence to be twice put in jeopardy of life or limb…” U.S. CONST. amend. V, § 2. “Although its text mentions only harms to ‘life or limb,’ it is well settled that the Amendment covers imprisonment and monetary penalties.” Kurth Ranch, 114 S.Ct. 1937, 1941 (1994). “In Benton v. Maryland, 395 U.S. 784, 794 (1969), we held that this guarantee ‘represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.'” Id.

In Kurth Ranch, the Supreme Court held that Montana’s CST was unconstitutional on the grounds that the CST violated the constitutional guarantee against double jeopardy.

In reaching its conclusion, the Court extensively cited its previous holding in United States v. Halper, 490 U.S 435, 109 S.Ct. (1989). In Halper the Court “rejected the Government’s submission that the Double Jeopardy Clause only applied to punishment imposed in criminal proceedings, reasoning that its violation ‘can be identified only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state.'” Kurth Ranch, 114 S.Ct. at 1944-45 (quoting Halper, 490 U.S. at 447). Whether the State labels the sanctions as “civil” or “criminal” is “not of paramount importance.” Id at 1945. “Halper thus decided that the legislature’s description of a statute as civil does not foreclose the possibility that it has a punitive character.” Id; See also Lipke v. Lederer, 259 U.S. 557 (1922); United States v. La Franca, 282 U.S. 568 (1931).

The Court “recognized in Halper that a so-called civil ‘penalty’ may be remedial in character if it merely reimburses the government for its actual costs arising from the defendant’s criminal conduct.” Kurth Ranch, 114 S.Ct. at 1945 (quoting Halper, 490 U.S. at 447). However, “[a] defendant convicted and punished for an offense may not have a nonremedial civil penalty imposed against him for the same offense in a separate proceeding.” Kurth Ranch, 114 S.Ct. at 1945. Thus, the ultimate question is whether the CST is punitive or remedial in nature.

Notably, the Kurth Ranch opinion contains no clear definition of what is meant by a “remedial tax.” In Kurth Ranch, the Court elaborated on the difference between a punitive civil penalty and a remedial civil penalty:

In Halper, we recognized that a civil penalty may be imposed as a remedy for actual costs to the State that are attributable to the defendant’s conduct. Yet as The Chief Justice points out, tax statutes serve a purpose quite different from civil penalties, and Halper’s method of determining whether the exaction was remedial or punitive ‘simply does not work in the case of a tax statute.’ Subjecting Montana’s drug tax to Halper’s test for civil penalties is therefore inappropriate. Even if it were proper to permit such a showing, Montana has not claimed that its assessment in this case even remotely approximates the cost of investigating, apprehending, and prosecuting the Kurths, or that it roughly relates to any actual damages that they caused the State. And in any event, the formula by which Montana computed the tax assessment would have been the same regardless of the amount of the State’s damages and, indeed, regardless of whether it suffered any harm at all.

Kurth Ranch, 114 S.Ct. at 1948. In light of the fact that the Halper analysis is not instructive when a tax is at issue, the Court offers very little guidance as to the meaning of a “remedial” tax. Perhaps the most accurate definition is if the four features (discussed below) of the Montana CST are present, then the tax is punitive. If the features are absent (especially the last two features discussed below), the punitive nature of the tax is at least questionable.

The first two features of the Montana CST discussed by the Court are the “high rate of taxation” and the “obvious deterrent purpose” of the CST. Kurth Ranch, 114 S.Ct. at 1946. “[N]either a high rate of taxation nor an obvious deterrent purpose automatically mark [CST’s] as a form of punishment.” Id. “[M]any taxes that are presumed valid, such as taxes on cigarettes and alcohol, are also both high and motivated to some extent by an interest in deterrence.” Id. While “these factors are not dispositive, they are at least consistent with a punitive character.” Id.

The difference between a tax on cigarettes and a CST is that cigarettes are possessed legally:

Taxes imposed upon illegal activities are fundamentally different from taxes with a pure revenue-raising purpose that are imposed despite their adverse effect on the taxed activity. But they differ as well from mixed-motive taxes that governments impose both to deter a disfavored activity and to raise money. By imposing cigarette taxes, for example, a government wants to discourage smoking. But because the product’s benefits – such as creating employment, satisfying consumer demand, and providing tax revenues are regarded as outweighing the harm, that government will allow the manufacture, sale, and use of cigarettes as long as the manufacturers, sellers, and smokers pay high taxes that reduce consumption and increase government revenue. These justifications vanish when the taxed activity is completely forbidden, for the legitimate revenue-raising purpose that might support such a tax could be equally well served by increasing the fine imposed upon conviction.

Kurth Ranch, 114 S.Ct. at 1947.

“Other unusual features, however, set the Montana statute apart from most taxes. First, this so-called tax is conditioned on the commission of a crime.” Id. at 1947. “The tax is exacted only after the taxpayer has been arrested for the precise conduct that gives rise to the tax obligation in the first place.” Id. “Persons who have been arrested for possessing marijuana constitute the entire class of taxpayers subject to the Montana tax.” Id.

The Massachusetts Supreme Court has expounded on this feature of the prior Massachusetts CST. See Commissioner of Revenue v. Mullins, 702 N.E.2d 1 (Mass. 1998). Specifically, the Massachusetts Supreme Court clarified that the tax does not have to assess upon arrest, but the mere fact that the tax is contingent upon illegal conduct is indicative of the punitive nature of the CST.

While assessment of the [Massachusetts] CST does not specifically depend on arrest, criminal activity is required before the tax is imposed as the statute makes the tax exclusively applicable to illegal activity. In particular, only acquisitions or possession over threshold quantities ‘in violation of Massachusetts law’ result in ‘dealer’ status under the act, and thus subject the individual to the CST. Moreover, lawful possession of marihuana and controlled substance is outside the scope of taxability by operation of two statutory provisions: the definition of ‘dealer’ in § 1, and the specific exclusion in § 6, This nexus between the CST and criminal conduct is emphasized by the provision precluding construction of the CST to give dealers immunity from prosecution.

Id. at 6.

As the Massachusetts Supreme Court observes in Mullins, many other courts “have distinguished Kurth Ranch on the basis that the Montana statute specifically imposed the tax after the taxpayer was arrested for possession of the contraband, rather than ‘immediately upon … possession’ as provided [in the Massachusetts statute].” Id. at 6 (citations omitted). However, many other courts have agreed with the Massachusetts Supreme Court’s view:

This attempt to distinguish Kurth Ranch is unpersuasive, and we agree with the broader interpretation given Kurth Ranch by those courts concluding that taxes similar to [the Massachusetts statute] are punitive, by relying on the express limitation of the tax to unlawful activitiy. . . In our view, the similarity between the two tax schemes is more compelling than the difference. . .

Id. at 6-7. (citing Lynn v. West, 134 F.3d. 582 (4th Cir. 1998), cert. denied, 525 U.S. 813; Wilson v. Department of Revenue, 662 N.E.2d. 415 (Ill. 1996); Bryant v. State, 660 N.E.2d 290, 294 (Ind. 1995), cert. denied, 519 U.S. 926 (1996)).

Most states have stipulated that a dealer may voluntarily pay the tax before the arrest, i.e. purchase a tax stamp. However, this statutory provision should not save the statute from unconstitutionality on double jeopardy grounds. Enforcement of most of the states’ taxes is

invariably limited to individuals who have been arrested for drug crimes. No dealers have voluntarily paid the tax, nor does the commissioner otherwise enforce the statute. ‘The existence of the voluntary payment option is at best illusory and does not . . . make the post-arrest imposition of the Tax any less a penalty for double jeopardy purposes.’

Id. at 7 (quoting People v. Maurello, 932 P.2d 851, 853 (Colo.App. 1997). “As Chief Justice Rehnquist wrote in his dissent in Kurth Ranch: ‘because the activity sought to be taxed is illegal, individuals cannot be expected to voluntarily identify themselves as subject to the tax.'” Id. at 7, n. 13 (quoting Kurth Ranch, 114 S.Ct. 1937, n. 2 (Rehnquist, C.J., dissenting)).

Despite this language, several states have held that their respective CST’s are constitutional because the “dealer” could have paid the tax voluntarily. String Cite

In every state, the CST assessment, by definition, is contingent upon illegal conduct by the taxpayer. GIVE EXAMPLES Further, every state imposing a CST also illegalized the possession of controlled substances. “[I]t is significant that the same sovereign that criminalized the activity also imposed the tax. Contrarily, most of our cases confirming that the unlawfulness of an activity does not prevent its taxation involve taxes on acts prohibited by other sovereigns.” Kurth Ranch, 114 S.Ct. at 1947, n. 22.

QUOTE LANGUAGE WHERE STATES HAVE IGNORED THIS

There is another feature of the Montana CST that the Court in Kurth Ranch found demonstrative of the punitive nature of the CST. The Court found that the Montana CST “purport[ed] to be a species of property tax – that is, a ‘tax on the possession and storage of dangerous drugs.'” Kurth Ranch, 114 S.Ct. at 1948 (quoting Mont.Code Ann. § 15-25-111 (1987)). However:

it is levied on goods that the taxpayer neither owns nor possesses when the tax is imposed. If a statute that amounts to a confiscation of property is unconstitutional (omitted citations), a tax on previously confiscated goods is at least questionable. A tax on ‘possession’ of goods that no longer exist and that the taxpayer never lawfully possessed has an unmistakable punitive character. This tax, imposed on criminals and no others, departs so far from normal revenue laws as to become a form of punishment.”

Id.

In other words, “the tax has no logical relationship to lawful possession. No ‘dealer’ has any ownership interest the law recognizes in goods the mere possession of which is criminal. . . Thus, the CST is levied on the possession of goods that the taxpayer never lawfully possessed in the first place.” Mullins, 702 N.E.2d at 7 (also finding it significant that the goods were confiscated at the time the tax was assessed).

Many states characterize their respective CST as an excise and/or privilege tax. String Cite Include T.C.A. Presumably, this characterization is an attempt to avoid the fallacy of taxing property in which the owner has no legal interest. However, most states levy the tax on “possession” of controlled substances. String Cite. Further, most states structure CST’s in a manner in which the tax rate is directly proportionate to the amount of the controlled substance possessed. String Cite Thus, there is a strong argument that the CST is a property tax .

Even if courts find that the CST is a privilege tax rather than a property tax, the argument that the possession of controlled substances is a “privilege” and therefore taxable as such, is at best strained. Again, “it is significant that the same sovereign that criminalized the activity also imposed the tax.” Kurth Ranch, 114 S.Ct. at 1947, n. 22. Obviously, the distinction between a state granted privilege, such as a license to operate a motor vehicle, and an activity in which the state has completely forbidden, and in fact criminalized, is irreconcilable.

Once it is established that the possession of controlled substances is in fact a crime rather than a privilege, the inescapable argument follows that the criminal possession of the controlled substance cannot be taxed as a privilege. “If payment of the Drug Tax conferred ownership, then the tax would amount to nothing more than an expensive licensing or excise fee. The fact that it does not is another strong indication that the tax is a criminal penalty.” Lynn, 134 F.3d at 592. “[T]he legislature cannot name something to be a taxable privilege unless it is first a privilege.” Jack Cole Company v. McFarland, 337 S.W.2d 453, 455 (Tenn. 1960); See United States v. Doremas, 249 U.S. 86 (distinguishing license tax on lawful possession of firearms and taxes where the subject the of tax is criminal) .
In conclusion, the key to convincing courts that CST’s violate constitutional prohibitions against double jeopardy is clearly establishing that the CST is punitive rather than remedial.

The Injustice Of California’s Record Sealing Statute

If you were arrested and tried for a crime where there was not even “reasonable cause” to believe that you committed the crime, you can be left with a criminal record that can prevent you from getting jobs, housing, volunteering in your children’s classroom, and other basic things that those with a clean criminal record can do. All this damage comes from a crime that you clearly did not commit.

California’s record sealing statute, Penal Code section 851.8. is designed to prevent this gross injustice by allowing people who are found factually innocent to have all records of the arrest and court case sealed and destroyed. In most situations, the statute successfully balance the state’s right to preserve information against an individual’s right to preserve their reputation. However, in a large number of situations, wrongfully-accused individuals are left with life-long damage caused by the records of arrests or court cases were they were factually innocent, but the statute does allow for the records to be sealed.

The California Department of Justice (CDOJ) keeps a complete criminal history of every person who has ever been arrested or charged in court with a criminal offense. This report is commonly referred to as a rap sheet or background report. Among other things, the rap sheet shows are the date, location, and reason for the arrest or court case. Even if a person is found innocent or if the charges are dropped, the record of the arrest and any court case is shown on the individual’s rap sheet.

Unlike reports kept by credit bureaus or the Department of Motor Vehicles, which only show negative history for a limited number of years, once something appears on the CDOJ rap sheet, it stays forever; unless the individual successfully petitions to have the record of the arrest and trial sealed. A successful petition to have a record sealed with wipe clean any evidence of the arrest or court case from the CDOJ rap sheet.

The CDOJ will only release the rap sheet to authorized state agencies for limited purposes or to the individual who requests their own rap sheet by filing a petition, submitting fingerprints, and paying nominal fee (which can be waived for individuals who cannot afford the fee). Despite an apparent attempt to keep the rap sheet from public disclosure, raps sheets are widely used for private purposes. According to a 2006 study by the Society for Human Resource Management, 80 percent of mid-size to large employers conducted criminal background checks to screen potential employees. That is up 26 percent from 1996. Rap sheets are often required by a wide range of other individuals and organizations, from landlords to Little Leagues.

The information contained on raps sheets often determines which applicant gets such things as housing, employment, or the ability to interact with their children. There is no law in California that prevents these decisions from being made on the basis of arrests or charges for which the person was factually innocent. Accordingly, it is good public policy to have raps sheets be accurate and free of information that would wrongly prejudice an individual. California’s record sealing law gives most wrongfully accused citizens a way to clear their rap sheet of negative information.

The procedure is put forth in section 851.8 states:

“in any case where a person has been arrested, and an accusatory pleading has been field, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court which dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made.”

If the individual is successful the statute states:

“The court shall also order the law enforcement agency having jurisdiction over the offense and the Department of Justice to request the destruction of any records of the arrest which they have given to any local, state, or federal agency, person or entity. Each state or local agency, person or entity within the State of California receiving such a request shall destroy its records of the arrest and the request to destroy such records, unless otherwise provided in this section.”

One of the major problems is that that statute does not expressly allow for the partial sealing of an arrest record. Courts have yet to interpret PC 851.8 as allowing “surgical excision of certain parts of arrest records.” People v. Matthews 7 C. A. 4th 1052 (1992). So if an individual who is charged with two crimes is found factually innocent of one the crimes and guilty of the other, no part of the record can be sealed. Consider this scenario that leads to an unjust and unexpected result:

A couple is having a heated argument. A neighbor who fears violence calls the police. When the police arrive one of the suspects, who is in fit of rage, wrongfully accuses the other of sexual assault. The police arrest the accused for sexual assault and disturbing the peace. An hour later, the accuser calms down, loses the anger and recants the testimony to the police. The wrongful charge of sexual assault is never filed in court. However, the accused goes to court and pleads guilty to a misdemeanor of disturbing the peace and is sentenced with a $200 fine. Unbeknownst to this defendant, and most defendants, is that there is another sentence that they will have for life. Whenever someone else views their rap sheet, they will see that the defendant was arrested for a felony charge of sexual assault. The defendant will have to spend a lifetime hoping people believe the explanation for the negative history on the rap sheet and dealing with the likelihood that it will cause unfair prejudice.

This unjust and unexpected result hurts the individual and society by placing large, life-long obstacles in a path of a person trying to reach their personal and professional potential.

The legislative history makes it clear that the legislature found it unjust for a citizen to be burdened by an arrest record for a crime that was not committed. There is nothing in the plain language of the statute or in logic that suggests that the legislature would tolerate the unjust burden of one charge simply because the defendant is justly burdened by separate charge.

Can Bankruptcy Discharge Casino Marker and Other Gambling Indebtedness?

Excessive gambling losses and gambling debts do lead to filing for bankruptcy. In fact, in the official forms needed to file a bankruptcy, there is a question that specifically asks about gambling losses. For the most part, gambling debts are dischargeable in bankruptcy since gambling debts are considered unsecured. Thus, they can generally be completely eliminated in a Chapter 7 Bankruptcy. There are of course exceptions to the general rule, one of them being from where in particular you incurred your gambling debts.

In Nevada, gambling debts are fully enforceable. If you borrowed money to gamble in Nevada knowing beforehand that you would not be able to honor the marker should you lose your bet, then the casino would have a very good claim against you that the debt was non-dischargeable in the event of bankruptcy.

If you take huge credit card cash advances at a casino a few months before filing bankruptcy, or you make material misrepresentations to obtain credit at a casino such as knowingly writing bad checks which induced the casino to extend you credit, you would certainly have problems discharging the debt. As a matter of course, any debt incurred 90 to 180 days prior to your bankruptcy filing will be scrutinized and you have the burden of proof to show the debts incurred were reasonable and necessary before they can be discharged. If they or some of them are gambling debts, it may be difficult to get them discharged. The casinos for their part would certainly raise their objections to a discharge and possibly even bring criminal charges against you depending on the amount of the checks and whether you incurred the debt by fraud or deception.

The Nevada Supreme Court has consistently ruled that casino markers are considered to be check-like negotiable instruments, which if dishonored by a bank can bring criminal bad-check charges. Even if you do manage to get your gambling debts discharged in bankruptcy, you will still be criminally prosecuted for violating NRS 205.130, Nevada’s bad checks law. Once convicted, you can get fined and/or imprisoned and you will still be required to pay restitution money to the casinos. No matter which way you cut it, in the end you really have to pay your debt back the casino.

Even if you are not a resident of Nevada, if your case goes forward, you can and you will be arrested where you are and you will be held there until your extradition to Nevada.

Marijuana Crimes

Different states across the nation have different laws regarding drug crimes. Marijuana, in particular, is one of the most controversial, illegal substances in the United States. Some states have legalized it for medicinal purposes, although the majority has not. Some states base the severity of punishment on the amount of marijuana found on the offender while others base the punishment on the age of the offender.

The state of Nevada has legalized marijuana for medical use, has decriminalized the substance, and penalizes violators based on their ages and not on how much cannabis they have on person when caught.

Possession of Marijuana

An offender will be charged with possession of marijuana if he or she caught by a law enforcement officer with this illegal substance, and without medical proof that it was prescribed to treat a physical ailment.

Because Nevada punishes criminals based on their age, all offenders under 21 years old will be charged with a Class E felony, no matter how much marijuana they possessed when caught. They will face penalties of 1-4 years in jail and a $5,000 fine.

Offenders over age 21 will be charged with a misdemeanor for their first and second offenses. They face submission to a treatment program and fines of up to $1,000. Third time offenders will be charged with gross misdemeanor, and they face 1 year of jail time and a fine of up to $2,000. Finally, fourth time offenders will be charged with a Class E felony, which is punishable by 1-4 years in jail and a fine of up to $5,000.

Sale and Cultivation of Marijuana

The sale and cultivation of marijuana is punished depending on the number of convictions the offender has previously had and on the amount of the substance for sale. All sale and cultivation offenses are charged as felonies, but their penalties vary depending on each situation.

The sale of less than 100 pounds of marijuana will result in up to 15 years of jail time, depending on the number of prior offenses, and a fine of $20,000. The sale of 100-2,000 pounds will be punished by 5 years in prison and a fine of $25,000. Finally, the sale of over 2,000 pounds will be penalized by up to 20 years in prison and a fine of $50,000.

The sale of marijuana to a minor is considered to be a very serious offense in Nevada. First time offenders will face up to 20 years of jail time, and second time offenders will be charged with a life sentence.

Three Strikes Laws

Legislatures and law enforcement agencies are always looking for ways to reduce the number of individuals who commit crimes. Because of this goal, a chief objective of many of the punishments for crimes is deterrence. One way in which agencies and state and the federal legislatures have attempted to decrease the number of crimes being committed is by implementing “three strikes” laws. Just like in baseball, three strikes and you’re out.

The basic premise behind the three strikes laws in existence now is that recidivism should be punished. A person should be punished more severely for subsequent crimes since he or she clearly didn’t learn not to commit crimes the first time. This principle can be seen in various drunk driving conviction rules as well as in the three strikes laws. Here, a person is given two convictions with “ordinary” terms of incarceration and then, with the third crime, a person is sent away for life. Fortunately, not just any crime warrants application to the three strikes law. Generally only serious criminal offenses, like felonies, are considered eligible.

This type of law initially became popular during the early 1990s when California became the first state to enact a provision like this. Since 1994, 23 other states have followed California’s trend and enacted their own similar statutes. The statutes enacted by roughly half of the states in the country require a state court to hand down a mandatory and extended period of incarceration (like life in prison) for those who have been convicted of serious criminal offenses on three or more separate occasions.

While the states have enacted these bits of legislation with the best intentions, they have been met with some hostility from other states saying that the statutes don’t work. Some argue that there is virtually no difference between the crime rates of states with statutes and those without. This is untrue, at least for the example below.

In 1993, the year before it enacted its statute, California recorded 336,381 separate incidents of violent crimes. In 2000, the number of violent crimes had dropped to 210,531 separate incidents for a 37% or so reduction in the number reported. Minnesota, a state without a three strikes statute in place as of 2000, had 183,347 violent crimes reported in 1993. In 2000, Minnesota reported 157,798 violent crimes which results in a reduction in crime of 13%. Obviously, California’s reduction was greater than Minnesota’s by twenty four percentage points.

How to Prepare for an OSHA Investigation

I. Purpose and Application of OSHA

1. History and Applicability of OSHA

The Occupational Safety & Health Act of 1970 (“OSH Act”) was signed into law December 29, 1970. The Occupational Safety & Health Administration (“OSHA”) began operations on April 28, 1971. OSHA’s first standards were promulgated May 29, 1971. The OSH Act was passed to assure, so far as possible, every working man and woman in the nation safe and healthful working conditions and to preserve our human resources. See 19 U.S.C. § 651, also known as the General Duty Clause.

The OSH Act applies to all employers and their employees in all fifty states, the District of Columbia, Puerto Rico and all other territories under federal government jurisdiction. Under the OSH Act, an “employer” means a person engaged in a business affecting commerce who has employees, but does not include the United States (not including the United States Postal Service) or any state or political subdivision of a state. 29 U.S.C. § 652(5).

OSHA regulations apply either directly through the federal OSHA program or through a federally approved OSHA state program. Any state may submit a state OSHA plan, which the federal Secretary of Labor shall approve if it is at least as effective as the OSH Act. 29 U.S.C. § 667. The following twenty-six states and territories currently have OSHA-approved safety and health plans: Alaska, Arizona, California, Connecticut, Hawaii, Iowa, Idaho, Indiana, Kentucky, Maryland, Michigan, Minnesota, North Carolina, New Jersey, New Mexico, Nevada, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Virginia, Virgin Islands, Vermont, Washington, and Wyoming.

Most states have adopted plans that are identical to the federal standards and have procedures similar to the federal system. However, there are some differences between the federal system and OSHA-approved states plans. This paper focuses on federal standards and regulations. If you practice in a state with an OSHA-approved plan, you should be cognizant that your state may have slightly different standards and regulations than those discussed in this paper.

2. Who is the Employer? The Issue of Multi-Employer Work Sites

Construction sites often involve multiple employers working alongside or with one another. The prospect thus exists for an employer’s violation of an OSHA standard to cause injury to another company’s employee working at the same job site. OSHA may penalize an employer for exposing another company’s employee to a hazard. See Brennan v. OSHRC, 513 F.2d 1032 (2nd Cir. 1975). In Brennan, OSHA penalized a subcontractor at a construction site for violating OSHA regulations by leaving construction materials near the edge of an elevated, open-sided floor, above workers employed by other subcontractors. On appeal from the citation, the United States Occupational Safety & Health Review Commission (“OSHRC”) found no violation because the subcontractors’ own employees were not exposed to any danger. OSHA appealed the OSHRC’s finding to the Second Circuit. The Second Circuit found that the General Duty Clause, which provides that employers must “comply with Occupational Safety & Health Regulations promulgated under the Act,” was not limited to its own employees’ exposure to a hazard. See Brennan, at 1037-38. The Brennan court held that an employer may be cited if anyone in an area under that employer’s control was exposed to a regulation violating hazard. See Brennan at 1038.

Subsequent to Brennan, the OSHRC has further articulated an employer’s obligations to other employers’ workers at multi-employer construction sites. The OSHRC formerly adopted the principle established by Brennan in Anning-Johnson Co., 4 O.S.H. Cas. (BNA) 1193 (1976). The principle established by Brennan was expanded to all multi-employer work sites by another OSHRC decision. See Harvey Workover, Inc. 7 O.S.H. Cas. (BNA) 1687 (1979).

The OSHRC has also expanded its definition of the type of action at multi-employer work sites that employers can be liable for when workers are exposed to hazards. In Red Lobster Inns of AM., Inc., 8 O.S.H. Cas. (BNA) 1762 (1980), the OSHRC held that an employer that “could be reasonably expected to prevent or detect and abate violations due to its supervisory authority and control over the work site,” may be liable for OSHA violations which occur on the work site. Thus, a general contractor, or other employer with control over a work site, may be subject to citation even though its employees did not actually cause the hazard for which the OSHA citation was issued.

The OSHA Field Inspection Reference Manual contains standards for multi-employer work sites. See Multi-Employer Citation Policy, OSHA Instruction CPL 2-0.124 (December 10, 1999). The Field Inspection Reference Manual lists the following four categories of employers who are subject to citation:

A. The Creating Employer:

The Creating Employer is the employer that caused a hazardous condition that violates an OSHA standard. An employer that does so may be cited even if the only employees exposed to the hazard are those of other employers at the work site.

Example:

Employer Host operates a factory. Host contracts with company K to service machinery. Host fails to cover drums of a chemical despite K’s repeated request that it do so. This results in K’s employees’ exposure to airborne levels of the chemical that exceeds the Permissible Exposure Limit.

Analysis:

Step One: Host is the Creating Employer because it caused employees of K to be exposed to the air contaminant above the Permissible Exposure Limit.

Step Two: Host failed to implement measures to prevent the accumulation of the air contaminant. It could have met its OSHA obligation by implementing the simple engineering control of covering the drums. Having failed to implement a feasible engineering control to meet the Permissible Exposure Limit, Host is citeable for the hazard.

B. The Exposing Employer:

An Exposing Employer is one whose own employees are exposed to the hazard. If the Exposing Employer also created the violation, it likewise may be cited for the violation as a Creating Employer. If the violation was created by another employer, the Exposing Employer is citeable if it: (1) knew of the hazardous condition or failed to exercise reasonable diligence to discover the condition; and (2) failed to take steps consistent with its authority to protect its employees.

If the Exposing Employer has authority to correct the hazard, it must do so. If the Exposing Employer lacks the authority to correct the hazard, it is citeable if it fails to do each of the following: (1) ask the creating and/or controlling employer to correct the hazard; (2) inform its employees of the hazard, and; (3) take reasonable alternative protective measures.

In extreme circumstances (e.g., immanent danger situations), the Exposing Employer is citeable for failing to remove its employees from the job site to avoid the hazard.

C. Correcting Employer:

The Correcting Employer is one who is engaged in a common undertaking, on the same work site as the Exposing Employer, and is responsible for correcting a hazard. This usually occurs where an employer is given the responsibility of installing and/or maintaining particular safety/health equipment or devices.

D. The Controlling Employer:

The Controlling Employer has general supervisory authority over the work site, including the power to correct safety and health violations itself, as well as require others to correct them. Control can be established by contract or, in the absence of explicit contractual provisions, by exercise of control in practice. A Controlling Employer must exercise reasonable care to prevent and detect violations on a job site. The extent of the measures that a Controlling Employer must implement to satisfy this duty of reasonable care is less than what is required of an employer with respect to protecting its own employees. This means that the Controlling Employer is not normally required to inspect for hazards as frequently or to have the same level of knowledge of the applicable standards or of trade expertise as the employer it has hired.

II. OSHA Inspections

The OSH Act authorizes OSHA to conduct workplace inspections and investigations to determine whether employers are complying with standards issued by OSHA for safe and healthful workplaces.

1. Inspection Priority

There are one hundred eleven million (111,000,000) workplaces covered by the OSH Act. See OSHA Publication 2098, 2002 (Revised). Since OSHA cannot inspect every workplace covered by the OSH Act, it has established a system of inspection priorities.

A. Immanent Danger

Immanent danger situations receive top priority. An immanent danger is any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately or before the danger can be eliminated through normal enforcement procedures.

B. Catastrophes and Fatal Accidents

Accidents resulting in a death or hospitalization of three or more employees receive second priority. The employer must report such catastrophes to OSHA within eight hours of the occurrence.

C. Complaints and Referrals

Formal employee complaints of unsafe or unhealthful working conditions and referrals from any source about a workplace hazard receive third priority.

D. Programs Inspections

Inspections aimed at specific high-hazard industries, including the construction industry, workplaces, and occupations receive fourth priority.

E. Follow Up Inspections

Follow-up inspections to determine if the employer has corrected previously cited violations receive fifth priority.

2. Preparing for an OSHA Inspection

Inspections are generally conducted without advance notice. When notice is given, it is generally given less than twenty-four hours before the inspection. Preparation for an OSHA inspection should therefore occur well in advance of OSHA’s arrival at the job site. Counseling clients, the following suggestions may be useful:

A. Maintain Records

OSHA places special importance on posting and record keeping requirements. Employers should maintain complete OSHA records. The OSHA 300, OSHA 300-A and OSHA 301 forms, which detail recordable injuries or illnesses, as well as the employer’s Hazard Communication Program, should be maintained and posted in compliance with OSHA requirements.

B. Monitor Developments

Monitor developments in the law to ensure that all applicable health and safety programs are being followed. OSHA regulations change as OSHA focuses on new perceived hazards on job sites. These standards are often motivated by OSHA census data concerning workplace injuries.

C. Designate a Coordinator

A company employee should be designated as the health and safety coordinator responsible for developing and implementing OSHA plans for the job site.

D. Implement Incentives

Implement incentives for employees to follow OSHA guidelines, and enforce disciplinary procedures when employees refuse to comply with the procedures.

E. Know the Statistics

Know the statistics for injury and death in your client’s industry. OSHA is required to maintain statistics on work injuries and illnesses. 29 U.S.C. § 673(a). Based on the information gathered, OSHA releases an annual list of most violated workplace safety and health standards. Many of the standards frequently on the list are routinely encountered on typical construction job sites. The 2005 list of most violated standards included scaffolding (29 C.F.R. §1910.1200), fall protection (29 C.F.R. § 1926.501), hazard communication, including failure to develop and maintain a written safety program (29 C.F.R. § 1910.134), lockout/tag out (19 C.F.R. § 1910.147), and ladders (29 C.F.R. § 1910.1053).

The top ten most violated standards generally account for approximately 50% of the citations issued in a given year. Concentrating on compliance with those standards is a good way for a company to greatly reduce the likelihood of receiving an OSHA citation.

3. Notice and Authority to Inspect

A. Authority

An OSHA compliance officer may enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, to question privately any such employer, owner, operator, agent, or employee. 29 U.S.C. § 657(a).

B. Notice

Inspections are generally conducted without advance notice. 29 C.F.R. § 1903.6. Under special circumstance notice may be provided to the employer, but such notice will normally be less than twenty-four hours.

C. Warrants

OSHA may not conduct warrantless inspections without the employer’s consent. See Marshall v. Barlow, 436 U.S. 307 (1978). A warrant is not required when OSHA receives employer consent, when premises are in open view to the public, or where there is “immanent danger.”

If the OSHA compliance officer arrives at the job site without a search warrant, the employer may deny access to the job site thereby delaying the inspection process. Obtaining the warrant generally takes a couple of days. However, it is often suggested that employers who require OSHA to take this additional step are more likely to receive a citation once the inspection is concluded.

4. Inspection Process

A. Inspector’s Credentials

The OSHA compliance officer is required to display official credentials when arriving at the job site. 29 C.F.R. § 1903.7(a). The OSHA Inspection Manual directs the compliance officer to ask “to meet an appropriate employer representative.” At a construction site this will generally be a representative of the general contractor.

B. Opening Conference

During an opening conference the compliance officer should explain the purpose of the visit and the scope of the investigation. 29 C.F.R. 1903.7(a). The employer should be sure to get this information from the compliance officer in order to limit the inspection, if necessary. The compliance officer should give the employer a copy of any employee complaint that may be involved (with the employee’s name deleted, if the employee requests anonymity). The compliance officer will ask the employer to select an employer representative to accompany the compliance officer during the inspection.

C. Walk Through

After the opening conference, the compliance officer will proceed through the work site to inspect work areas for safety and health hazards. A representative of the employer may accompany the compliance officer on the inspection of the work site. 29 U.S.C. § 657 (e); 29 C.F.R. § 1903.8. Generally, it is best for a trained manager to accompany the compliance officer during the inspection. The compliance officer may employ reasonable investigative techniques. 29 C.F.R. 1903.7. The following are steps a compliance officer might typically take during an inspection:

o Observe safety and health conditions and practices.

o Interview non-supervisory employees privately.

o Take photos, videotapes, and instrument readings.

o Examine records.

o Collect air samples.

o Measure noise levels.

o Survey existing engineering controls.

o Monitor employee exposure to toxic fumes, gases, and dust.

o Interview supervisory employees with a member of management or an attorney present.

The employer representative, who is accompanying the compliance officer, should take photos and videotapes of all items observed and recorded by the compliance officer in advance of the encounter with the compliance officer. If possible, the employer should explain the interview process to employees in advance of the encounter with the compliance officer. The employees should be directed to answer only the questions posed by the compliance officer and to not speculate. Of course, employees should also be told to tell the truth and that no retaliation will be taken against them for cooperating with OSHA.

a. Scope of Walk Through

The walk through may cover part or all of an establishment. If the compliance officer finds a violation in open view, he or she may ask permission to expand the inspection. The employer may refuse access if the request goes beyond the scope of the warrant.

b. Report of Unsafe Conditions

The OSHA Inspection Manual directs the compliance officer to point out to the employer any unsafe or unhealthful conditions observed by the compliance officer. The compliance officer is directed to discuss possible corrective action if the employer so desires. The employer representative who accompanies the compliance officer should take advantage of this opportunity, but should be aware that any information provided by the employer representative during this dialogue should be based on personal knowledge. Further, the employer representative should be advised not to volunteer any information to the compliance officer, but respond only to questions posed by the compliance officer. Any information obtained from the employer representative can be used by the compliance officer as a basis for issuing a citation. Under no circumstances should the employer representative admit to an OSHA violation.

If possible, the employer should correct violations noted by the compliance officers on the spot. The OSHA Inspection Manual provides that such quick action by the employer should serve to help judge the “employers good faith in compliance.” However, the noted violations may still serve as a basis of a citation.

D. Closing Conference

At the closing conference, the compliance officer will discuss with the

employer all unsafe or unhealthful conditions observed during the inspection and indicate all apparent violations for which he/she may issue or recommend a citation and a proposed penalty. 29 C.F.R. 1903.7(e). During the closing conference, the employer shall be afforded the opportunity to bring to the attention of the compliance officer any pertinent information regarding the conditions of the workplace. 29 C.F.R. 1903.7(e). The employer should be prepared to support a defense based on “unpreventable employee misconduct,” if applicable. The defense requires the employer to demonstrate an effective documented and published safety program that has been consistently enforced by the employer. Written proof of enforcement measures, such as written warnings to offenders, will be needed to support the employer’s defense.

The Best Defense

As with all States, the state of Nevada has very serious consequences for anybody charged or arrested of a suspected offense, and whether convicted or not the impact on your life can have long-lasting, sometimes disastrous repercussions. A good Domestic Abuse Attorney will work towards getting municipal, federal or state criminal charges reduced to lesser offenses or dismissed altogether. Primarily focusing on defending the accused, a domestic violence attorney and his office will sometimes cover municipal, state and federal crimes, and will provide the best possible defense no matter what the charges are. While your lawyer might specialize in domestic battery, he will usually be qualified to defend all types of criminal charges. These charges can include, but are not limited to:

• Assault
• Appeals
• Battery
• Bail Hearings
• Drug Offenses
• DUI’s
• Fraud
• Probation Violations
• Sex Offenses
• Theft Crimes
• Trespass

In the State of Nevada, being charged for battery is considered to be an enhancement crime, and after receiving a conviction an individual is open to further enhanced penalties on any subsequent convictions. If a third conviction is obtained within seven years there is a mandatory prison sentence given in Nevada Department of Corrections.

A first offense conviction for battery in Nevada is not permitted to be removed from a criminal record for seven years minimum. One conviction means that the individual is denied their Second Amendment right to bear arms. It can also be a major factor if you are involved in any child custody hearings or proceedings.

A first offense battery conviction in Nevada also means a two-day minimum stay in jail and confinement of up to six months, a $1000,00 fine, forty-eight hours minimum community service, and battery counseling for six months.

If a second offense for battery is obtained within seven years of the first one it will mean a ten-day minimum stay in jail with a confinement of up to six months, and a fine of up to $1000. It can also, include a minimum community service arrangement of one hundred hours and battery counseling of twelve months.

If a third offense for battery is obtained within seven years of the first it is then classed as a category C felony offense and will mean imprisonment for one to five years in the Department of Corrections in Nevada.

Ensuring that you get the best lawyer possible for your case can mean the difference between a possible custodial sentence and your charges being dismissed. A good lawyer will, at trial, focus on any possible motives of the accuser, and hopefully demonstrate that the charges are unwarranted or unfounded.

If you have been arrested or charged with domestic or spousal battery, it is extremely important that you make sure you do not make any statements or answer questions without your lawyer being present. It is always best to let your lawyer make any such statements on your behalf, rather than you make one while you are in an emotional state or in the tense settings of an interrogation room or police station.

DUI Causing Bodily Injury Can Be Charged Against the Wrong Person

Alcohol-related accidents are a leading cause of death in all fatal car crashes. However, it is not uncommon for an innocent driver to be “deemed” at fault when they were in fact innocent just because they had a couple of drinks.

Drinking and driving, for obvious reasons, does not mix. The state of Nevada makes it unlawful to drink and drive with a BAC of 0.08% or greater for drivers over the age of 21. That, however, doesn’t mean that someone can’t have a drink or two at a bar or restaurant and still be below the legal limit.

Just how much someone has to drink to become legally “intoxicated” is not clear and precise. Factors such as sex, height and weight affect a person’s blood alcohol concentration. Therefore, it is possible for a person to enjoy a glass or wine or two at dinner and drive home with a legal level of alcohol in their bloodstream – people do it all the time.

If that person, however, had six or seven glass of wine on an empty stomach, the picture would be quite different. If they were to get behind the wheel of an automobile with a high BAC, the chances of them getting into a serious car accident are much higher than if they had been driving sober. They would undoubtedly be putting their own life and that of others at risk.

Just how much then is too much? Nobody can really answer that question. The safest answer is to not drink and drive, but in reality, people do. As drunk driving accidents pose such a serious threat to society, law enforcement and legislatures crack down hard on drunk drivers across the nation. People who are convicted of drunk driving are at risk for driver’s license suspension or revocation, jail or prison sentencing, community service and monetary fines. On top of all that, they could be required to install an ignition interlock device and face mandatory enrollment in an alcohol treatment program.

Aside from administrative penalties, drunk driving convictions carry criminal charges. Although most drunk
driving convictions are prosecuted as misdemeanors, more serious cases such as third-time convictions or DUI’s involving bodily injury or death are prosecuted as felonies in Nevada.

This means that if someone was injured or killed as a result of a drunk driver, the person responsible (namely the drunk driver) could potentially face felony consequences. In the state of Nevada, DUI causing bodily injury or death is punishable from 2 to 20 years in prison and fines ranging from $2,000 to $5,000. This is pretty grim considering the fact that most people charged with DUI are normally law-abiding citizens, not criminals.

The unfortunate thing to take into consideration when discussing DUI accidents causing bodily injury is that in some cases, the person who had a drink or two did not cause the accident. For example, a husband and wife are driving home from dinner in their SUV, the husband (driver) happened to have two beers at the restaurant an hour and a half earlier. While driving home, a small compact car blows through a stop sign and broadsides his SUV, killing the passenger inside the compact car.

When the law enforcement arrives, they notice the smell of alcohol on the husband’s breath. Even though he did not cause the accident, the police are too quick to pin the blame on him because there is no evidence stating otherwise. He is slapped with DUI with injury before he can even explain his case. Although he had the right of way, he winds up facing criminal charges anyway.

In this instance, it would be up to a tough DUI attorney to prove his innocence. If this example sounds too close to home, you should contact a DUI lawyer before it is too late. You don’t want to jeopardize your freedom by hiring an inexperienced or weak defense attorney. A good attorney can make all the difference in the final outcome of the charges against you.

The Law Office of Chip Siegel, Esq. is an experienced DUI defense firm representing clients throughout Las Vegas, Henderson and surrounding areas in Clark County, Nevada. Their firm is dedicated to defending clients who are charged with all forms of DUI offenses ranging from first-time convictions to multiple convictions to even felony DUIs. If you have been charged with DUI, you don’t have to throw in the towel on your driving privileges and your future. If you choose to hire a Las Vegas DUI defense lawyer from their firm, you can breathe easy knowing that your attorney would be bringing years of experience to the table.

Criminal Attorney Information

Las Vegas, Nevada is the playground of America. Americans flock to Las Vegas from every corner of the country in order to bask in the glamor and excitement of this country’s most famous city. Most of the time, Las Vegas is synonymous with fun. Sometimes, though, things can go horribly wrong. When they do go wrong, that’s when you need to find a Las Vegas Criminal Attorney.

Especially if you have never been charged with a crime before, you will probably be in shock from the experience. Remember, whether you are guilty of the crime or not, you still have the constitutional right to an attorney. If you have been charged with a crime in LV, it is imperative that you exercise that right immediately.

It is best to contact an experienced local attorney first, even if you have your own attorney elsewhere. Your own attorney cannot help you as quickly or efficiently as a local criminal defense attorney can, because he will not have the connections or local knowledge that an experienced Las Vegas, Nevada Criminal Attorney will.

You do have the right to defend yourself in a court of law and you do have the right to use a court appointed attorney, but these are not options you should even consider. You are far more likely to get a favorable outcome if you hire an experienced, competent local criminal attorney.

In Las Vegas, a competent and experienced criminal lawyer will have dealt with a broad range of legal issues. LV lawyers, in fact, frequently represent clients who are charged with a crime that is unique to the city – casino fraud. The casinos take even minor cases of fraud with the utmost seriousness and attempt to get the highest sentence possible imposed by the court.

In a city like Las Vegas, where emotions are so often running high, there are occasions when anger and aggression take over. If this has happened to you or someone you know and you are facing arrest on battery charges, don’t waste a minute. Engage the services of an LV criminal attorney immediately. If you have been incarcerated, he will start by posting your bail for you. Then, he will stand at your side throughout the legal proceedings.

The State of Nevada does not look on assault and battery charges lightly. Even a first offence, committed in the heat of the moment, can result in a 6 months sentence. On top of that, you can face stiff fines, court costs and other monetary penalties. You are likely also to be ordered to perform as many as 120 hours of service to the community. With your defense attorney at your side, you stand the best chance of having your charges either dismissed or reduced to the minimum sentence and fine.

With experience in everything from traffic violations the violent crime, a competent Las Vegas Criminal Attorney has the expertise you need to help you out of a crisis. He has taken a pledge to be your legal advocate and he takes that pledge seriously. Don’t deny yourself of your constitutional right to the services of an attorney. He is the only one who can help you get the best result out of a bad situation.

It is known by many people that the use of a good Las Vegas criminal lawyer [http://www.lasvegas-criminaldefenseattorney.com] can substantially improve your chances in court when you are facing criminal charges. Always be sure to use good legal representation when defending yourself in court.