Reckless Driving during COVID-19

Written By: Christopher B. Dolan and Megan Irish

Kara from San Francisco writes:
I’m so frustrated by the attitudes of drivers on the road these days, what are people thinking? It seems like people are zooming past, zigzagging in and out of the lanes, and just going too fast. Don’t people know it’s dangerous to drive like that?

Dear Kara: You are right and the statistics are supporting your observations. People are driving faster and more erratically. Following several years of declining fatalities, the pandemic has killed in more ways than just the virus. When people were ordered to stay at home and shelter in place, many did.

Overall, the National Safety Council’s numbers are on target to show that 13% less miles were driven in 2020 as compared to 2019; that is clear evidence of many Californians’ abiding by the stay-at-home orders. Nonetheless, despite fewer miles driven, more people died in car crashes in 2020 than in 2019.

How is this possible? The simple answer is speeding.

Nationally there were 42,060 traffic collision deaths in 2020 as compared to 39,107 in 2019. Only nine states had fewer deaths in 2020 than in 2019. Of the over 42,000 deaths in the United States, 3,723 of these deaths occurred on California roadways. Many of these lives were lost due to reckless driving and speeding.

The National Safety Council tracks collisions on a national level and breaks down the collisions by state. The California Highway Patrol, Office of Traffic Safety, also tracks traffic collisions within California and analyzes how and why collisions occurred.

Unfortunately, with fewer cars on the roadway, it seems some drivers saw the less crowded roadway as an invitation to speed. Many of those who decided to drive recklessly caused severe collisions with fatalities to themselves and/or others.

Law enforcement made efforts to ticket bad actors, and anecdotally police have related that they stopped more speeders and issued more speeding tickets in 2020 than in years past, but they were unable to stop everyone. For a “standard” speeding ticket, drivers can get a point on their driver’s license and often they can go to traffic school.

But, when a driver is more than a few miles over the speed limit, or has other aggravating factors such as alcohol and driving under the influence, a driver’s actions can be considered “reckless.” California Vehicle Code Section 23103 defines reckless driving as “a person who drives a vehicle upon a highway in a willful or wanton disregard for the safety of persons or property.”

There are severe consequences for reckless driving that will impact a person’s life and finances. For instance, a driver can be sentenced to serve between five and 90 days in county jail. The fines can be up to $1,000 (CVC 23103(c)), and a conviction would also get them two points on their DMV record.

A reckless driving conviction will also drive up drivers’ insurance premiums and their car can be impounded. Retrieving an impounded car is expensive, as some impound yards charge as much as a $125 for the tow, a hundred or more in “release fees” and daily storage fees on top of that. Additionally, a driver’s license can be revoked by the DMV for up to six months, which would interfere with a person’s commute to work, and obligations to family members. Choosing to violate the suspended license would have a whole host of other severe consequences.

The reckless driving charge can be charged as a felony if it causes bodily injury. In addition to the monetary consequence of fines, court fees and increased insurance premiums, such a conviction can lead to anywhere from 16 months to three years in prison. Even if a driver only gets set with a misdemeanor, it will show up on background checks, and can deter a future employer from selecting them for a new job. Reckless driving can have severe and lasting consequences for a driver.

Separate and apart from reckless driving, there is “excessive speeding” which is driving at over 100 mph. Excessive speed can be an infraction under CVC 22348(b) and carries fines up to up to $500. If a driver is going over 30 mph above the freeway speed, or 20 mph on a roadway it can also be a criminal offense. Excessive speeding fines range from $900 for first time offenders to $4,190 for repeat offenders.

A driver’s license can be revoked from 30 days for a first-time offense, or up to a year for repeat offenders. As well, there can be two points added to a driver’s record with the Department of Motor Vehicles and increased insurance premiums.

With all of this one would think that responsible driving should be the rule, not the exception, and yet it often is not. Be safe out there.

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Parents Rights on Children Education during COVID-19

Written by Christopher B. Dolan and Aimee E. Kirby

This week’s question comes from Sunny:

Dear Mr. Dolan: I am a mother that lives in San Francisco and I have two children. My son is in seventh grade and my daughter is in high school. Both my husband and I work full-time, and my husband is required to go into his office. My employer has allowed employees to work remotely since the pandemic began. While I appreciate the hard work teachers have put into their instruction during this pandemic, both my children are falling behind and having issues emotionally with being confined to a tiny home. Early on, my son had an IEP (Individualized Education Plan) that then became a 504. (A 504 plan provides services and changes to learning environments to let students with a disability learn alongside peers.) My son has transitioned out of the 504, but now his issues have returned, and are worse. I am exhausted trying to work, help my kids learn and maintain any sanity. I read recently that we will transition soon back to full-time instruction in California, yet I am not getting a clear picture from our school district. The possible return makes me both excited and nervous. I am rambling, but I guess my question is, what are our rights as parents to our children’s education?

Dear Sunny: I am so sorry to hear that your children are struggling. The 2020-21 school year has been a challenging time for parents and working parents. Your question, although it seems simple, is quite complicated. We found ourselves trying to juggle a pandemic and our children’s educational instruction. California has been a hotbed for COVID infections and has endured complete stay-at-home orders and modified stay-at-home orders, which frequently vary between counties. Both private and public schools have sought educational waivers to reopen under state guidelines issued by the California Department of Public Health. While private schools have been granted waivers, the public school system seems to be taking longer to be granted exemptions, and these students have primarily been remote for a year. The staff of our school systems and their unions also has to examine the fact that educators weren’t placed on the first tier of immunizations. Many classrooms did not comply with distance guidelines, and schools didn’t have a plan for outbreak tracking/containment. Getting one student through the different periods in a day became impossible without exposing everyone multiple times a day.

The California Constitution has guaranteed children a free primary and secondary education since 1879 under Article IX, Section 5. The article states:

“The Legislature shall provide for a system of typical school by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established.”

Therefore, your children are entitled to a free education which includes computers and materials as needed to be supplied to them under California Education Code Section 43503. But how does one provide a proper education during a worldwide pandemic?

Under the state Education Code 43500, distance learning means instruction in which the pupil and instructor are in different locations and pupils are under the general supervision of a certificated employee of the educational agency. Because of the outbreak, schools were forced to go remote entirely and then attempt a hybrid approach at times for special education.

Parents have struggled with the time dedicated to online courses. I have heard parents complain that courses have either been too much or lack proper support and understanding for complicated subjects such as math and chemistry. Sadly, just as the term “distance learning” is new to the Education Code, the mixture of remote, hybrid, and in-person instruction is something that we had lacked an outline for before this pandemic. Due to health concerns with COVID-19, in-person instruction has been limited because the state guidelines could not be followed in most middle schools and high schools. Elementary schools had more freedom due to the curriculum being primarily based on a single classroom assignment. Many elementary schools have now opened or are scheduled to open, with districts considering what to do with middle-school and high-school students.

The Education Code provides free education; however, it does not dictate how a school district administers a program (whether through remote, hybrid or in-person). In-person instruction becomes even more complicated during a pandemic when IEPs (Individualized Education Programs) and 504 plans are in effect. These students need in-person instruction, sometimes with further accommodations and often cannot progress with complete online instruction.

Sadly, besides providing free instruction, there is very little guidance about mandating in-person education instead of remote learning. We have to look to the state’s opening guidelines and the U.S. Centers for Disease Control and Prevention’s recommendations and try to do the best we can with weighing our children’s emotional and physical health with the value of being in a classroom. I am hopeful that life will return to life, albeit a different one, shortly.

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What you need to know about hate crimes in the Bay Area

Written By: Christopher B. Dolan and Mari Bandoma Callado

This week’s question comes from Lin S. in Oakland who asks: 

Q: It’s been devastating to hear about the increase in anti-Asian hate incidents and violence against the Asian American and Pacific Islander community, including attacks on the elderly and the recent mass shooting in Atlanta. It does not seem like many of these incidents are being charged as a “hate crime.”  What is a “hate crime” under the law? What should I do if I am a victim of a hate crime or if I witness a hate crime? 

A: Thank you for this important concern shared by many. Dolan Law Firm is appalled by the increasing displays of violence and hate targeting Asian Americans and Pacific Islanders (AAPI), including the shootings in Atlanta which left eight dead, six of which were AAPI women, as well as the vicious attacks on elderly AAPI in the SF Bay Area over the last few weeks. Our deepest sympathies go out to the friends and family of the victims of these horrifying acts of violence. See our statement here.

Unfortunately, discrimination and violence against AAPI communities are not new. The United States has a long and well-documented history of discrimination and hate-based incidents against AAPI communities. Since the arrival of Chinese immigrants as laborers in the 1850’s, Asian Americans have always been the subject of racist violence. For example, the Chinese Exclusion Act in 1882 was enacted as Asian immigrants were viewed as threats, Japanese Americans were incarcerated during World War II, Chinese Americans faced persecution during the Cold War McCarthyism of the 1950s, and Asian Muslims and Sikh communities were targeted post-911. At the beginning of the COVID-19 pandemic, elected officials referred to the Coronavirus as the “Chinese virus” or “Kung-Flu,” fueling anti-Asian sentiment. While hate crimes decreased generally, anti-Asian hate incidents surged by nearly 150% in 2020. The targets of violence have disproportionately been older people and women, according to a report published by Stop AAPI Hate.

To answer your question, California Penal Code section 422.55 defines a “hate crime” as “a criminal act committed because of the victim’s actual or perceived disability, gender, nationality, race, or ethnicity, religion, sexual orientation, or association with a person or group with one or more of these actual or perceived characteristics.” Hate incidents, on the other hand, involve actions or behavior motivated by hate, but are legally protected by the First Amendment right to freedom of expression. This includes hate speech, which is often intended to intimidate or incite violence or discrimination against certain groups. The U.S. Constitution allows hate speech as long as it does not interfere with the civil rights of others. However, race-based or anti-LGBTQ slurs can be evidence of a hate crime when used during a commission of an underlying crime, such as threats to a person or property.

California Penal Code section 422.6 makes it a stand-alone crime to willfully interfere, by force or threat of violence, with someone else’s civil rights, or knowingly damage or destroy their property because of that person’s actual or perceived protected characteristic(s). There are also related civil remedies under the Ralph Act and Bane Act that can be enforced through the civil courts, as well as other available causes of action, theories of liability, and potential defendants to address the heinous attacks on individuals or groups based on race, national origin, and ethnic background in civil court.

If you are a victim or witness of a hate crime, first and foremost, dial 911 if it is an emergency and get yourself to safety. Second, get medical help if necessary. Third, document any and all details of the crime as soon as you can after the incident. It will be important to note the physical appearance of the perpetrator (e.g., age, height, weight, clothes, gender, race, and other distinguishing characteristics) and to make notes about what happened, including the exact words that were said (e.g., any racial or anti-LGBTQ slurs). If it is safe to do so, save potential evidence by taking photos and by getting the names, phone numbers, and emails of other victims and witnesses. 

To report the incident, contact your local police department and/or the FBI to file a report. Make sure to get the responding officer’s name and badge number, as well as the case number. We also recommend urging the police officer to check the hate/bias-motivation or hate crime/incident box on the police report. It is also important to report the incident to organizations like Stop AAPI Hate, which has been tracking and responding to incidents of hate, violence, harassment, discrimination, etc. against AAPIs since March 2020.

If you feel you have been a victim of a hate crime, contact an attorney immediately to better understand your rights. Dolan Law Firm is committed to representing victims of hate crimes, harassment, and discrimination that are members of the AAPI community and other marginalized communities statewide. 

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