Blog Jay Leiderman Law

In the NFL, what players put in their bodies is controlled by so-called substance policy. This can be termed and classed “Performance Enhancing Drugs” or PEDs, as they are commonly known.  Sometimes the NFL actually looks at this as substance abuse, for example when marijuana is used, notwithstanding the fact that the substance is legalized as a recreational drug in many states and medicalized in many others. Even so, legal drugs vary in some states (such as the aforementioned marijuana) to more intensive procedures such as gene or blood doping or HGH and steroids.

It was a much simpler decision back in the day, with only a minor test staring with Major League Baseball players (after Congressional hearings) with testing beginning on a trial period in the minor leagues, and not a real or “serious” steroid-test. If every NFL player is regularly tested for marijuana, how is it that a number of Major League Baseball players passed each drug test they took?  Certainly use is pervasive throughout both leagues.  The likely answer, from interviews with agents and former league medical staff, is mundane: the test is so, so easy to defeat, and some players were not idiots about it.


There has been a rapid proliferation in the suspensions handed down by the NFL

NFL players who are not already in the substance abuse program are tested for recreational drugs once a year, during a window on behalf of the collective negotiation policy substance-abuse. That window opens in the spring (this year, coincidentally, it is on 04/20) and ends at the beginning of the preseason. But largely because of the cost of the shipment of dope testers, the massive majority of players will be tested during training camp, when they’re all in one place.

If a player passes one test, he will not be tested again until the next April-August. A former medical staff called it an ‘intelligence test,” because it is once a year, and you know its coming.” An agent joked that players will throw some” smoking parties “as soon as their testing is complete.

That NFL drug testing is so predictable and so easy to beat is something of an open secret, but one no one wants to talk about for obvious reasons. (The league would rather not emphasize how toothless it is on recreational drugs, players do not like to rock the boat on a system that they have largely invented.)

Now, with a strict drug testing program in Major League Baseball – the penalty was increased from 10 games to 80 games in the past decade, performance-enhancing drug use is simply a roll of the dice. Or a referendum on the intelligence of the user.  Likewise in the NFL.

What are the rules?

The current NFL policy on drug abuse includes the misuse of prescription drugs, over-the-counter drugs, illegal drugs, and alcohol. The agreement prohibits the use, possession, and distribution of drugs such as cocaine, marijuana, opiates and opioids, MDMA, and PCP. Amphetamines are also covered under this policy unless the player documented a legitimate, legitimate need for treatment of a medical condition.

There is a separate policy for performance-enhancing substances, as agreed to by the NFL and NFLPA in 2014. The agreement covers the use of anabolic and androgenic steroids, stimulants, human or animal growth hormones and related substances. It also covers substances, like diuretics and agents which mask the presence of performance-enhancing drugs.

Test schedule

For both types of substances, players can also be penalized for refusing to test, not to test whether the manipulation of the sample.

Under the policy of drug abuse, players are tested:

  • Before being hired by a new team. This is also true for the testing of the design ineligible players combines the scouting.
  • Preseason at least once between April 20th and August 9th.
  • On a regular, predetermined intervals as a player in an intervention program.
  • By agreement if the NFL team and player accept it as part of his contract and if there is a reason to ask such tests.

Why are the rules so easily violated?

  • Alcohol & Breaking the Law

use of alcohol is not prohibited unless it is part of the treatment of a player’s plan. Alcohol- Casual related offenses fall under the substance abuse policy if the player has violated the law. The first offense results in a two-game suspension, while subsequent violations will result in an eight-game suspension. If a player breaks the law, while under the influence of other substances, it will be a four-game suspension face for the first offense and then to a 10-game suspension for subsequent offenses.

In fact, there are $ 500,000 fines for those who violate the confidentiality of a player

  • Confidentiality

The reason the public does not hear about violation until a suspension is announced is the result of the rules on confidentiality. Especially in Stage One, where the only consequences are fines, there is no reason would ever know the public about the offense. In fact, there are $ 500,000 fines for those who violate the confidentiality of a player in conflict when it comes to information about their diagnosis, treatment, test results and participation in the program.

  • Changes in New policy

This drug policy is relatively new. On the basis of this CBA, penalties are harsher for DUIs, while some penalties for marijuana use are lower (for example, in the third phase of the first offense for marijuana is now 10 games instead of a year). Also important player calls drug-related sentences are handled by a neutral arbitrator, not the commissioner.

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medical marijuana

The epidemic of heroin use and deaths associated with heroin use needs to be addressed by non-criminal methods.

Washingtom Post Editorial:  Heroin use is a public health emergency that calls for legislative solutions

This article makes some good points, and I’ll share them.


“….we are skeptical that some measures to further criminalize already illegal drugs such as heroin will be effective. One idea, pushed by some prosecutors, is to expose drug dealers to homicide charges if they sell what turns out to be a lethal overdose. The experience of the federal war on drugs suggests that harsher penalties fill up jails and prisons without doing much to extinguish the sale of illegal narcotics. A wiser tack is to treat heroin addiction as a public health emergency. That means establishing more readily available long-term treatment programs, preferably in residential settings that can help shield users from dealers. Such programs cost money.”

Life after a drug arrest

Life after a drug arrest can be very difficult


“There are other sensible steps that states can take. They include enacting so-called good Samaritan laws (in place in Maryland and the District but not yet in Virginia) that shield witnesses from prosecution — even if they abuse or sell drugs themselves — if they promptly report and help overdose victims.” Read more here…

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People Playing Pokemon Go in their cars and California Law on Texting

In California, it seems that the locals have had enough and now California Legislators are now trying to extend the law on texting while driving to playing Pokemon GO and any other such game in the future.

The California Assembly have reportedly (according to the Los Angeles Times) already sent a bill sent to the governor of California Jerry Brown of the law on the use of phones while driving to include Pokemon GO. Bill Quirk a politician from Los Angeles said quote “it’s time to expand the texting ban law get with the times.” The purpose of the bill is to prohibit any mobile device that can distract the driver. Quirk said: “It is an important step in reducing distracted driving accidents, injuries, and deaths,”

Pokemon Go

The Pokemon Go App

The bill would also make it easier for the driver laws already on the books regarding  driver diversion to be enforced by the police, which hopefully should discourage people from playing this game and other similar distracting activities while driving. Of course, people who are old enough to drive must be old enough to know that playing a video game while driving is dangerous, whether it is illegal or not. To date, there are a large number of car accidents directly related to Pokemon GO, like the woman in Japan who was slain by playing the game, the cop car that was sideswiped and there have been many other examples, so it is clearly a recurring problem.

The present law is Vehicle Code section 23123.5

(a) A person shall not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication, unless the electronic wireless communications device is specifically designed and configured to allow voice-operated and hands-free operation to dictate, send, or listen to a text-based communication, and it is used in that manner while driving.

(b) As used in this section “write, send, or read a text-based communication” means using an electronic wireless communications device to manually communicate with any person using a text-based communication, including, but not limited to, communications referred to as a text message, instant message, or electronic mail.

(c) For purposes of this section, a person shall not be deemed to be writing, reading, or sending a text-based communication if the person reads, selects, or enters a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call or if a person otherwise activates or deactivates a feature or function on an electronic wireless communications device.

(d) A violation of this section is an infraction punishable by a base fine of twenty dollars ($20) for a first offense and fifty dollars ($50) for each subsequent offense.

(e) This section does not apply to an emergency services professional using an electronic wireless communications device while operating an authorized emergency vehicle, as defined in Section 165, in the course and scope of his or her duties.

Present Prohibitions:

The annual observational study of California drivers found nearly 13 percent of motorists were using electronic communication devices while behind the wheel. That is up from nearly 10 percent in 2015. The state’s Traffic Safety Bureau called the results “discouraging, but not entirely unexpected.” The study says the metropolitan areas were most likely to see distracted driving, with Southern California motorists were holding the phone in their ear at a rate double that of other parts of the state. “Types” and “headings” were almost a third in the 2016 study. Not all of the use was illegal because the figures included drivers using hands-free devices.

  • Mature drivers (18 and older) are banned from using mobile phones unless they employ hands-free phone calls.
  • Text messaging bans for all drivers. The law prohibits the use of electronic devices to “write, send, or read a text-based” Hands-free and voice-activated texting allowed.
  • Drivers under 18 are prohibited from the use of wireless phones while driving – with or without hands-free accessories.
  • School bus operators and transit bus drivers prohibited from using cell phones while driving.
Pokemon Go

The star of the show, Pikachu


How to Avoid the Problem

  • Having your teens downloading a ‘Driving Mode “app on their mobile phones, which automatically sends” I’m driving “reply to texts and calls and keep all messages until you arrive. There’s an app for Android devices, but also Apple phones and many other high-tech solutions for both teens and parents.
  • Having your kids a pledge to never text and drive: I promise to be an attentive driver.
  • An example setting for those around you, especially children and youth, and model safe behavior by keeping your attention on the road and away from flashing and ringing devices and tempted, no one to use electronic devices in the car, while preventing the vehicle operation – Parents and young people to an agreement together, they will not use a cell phone to call, text or e- mails at some stage in the driving of a car.
  • Pull over if you need to call or send a message.
  • Educating family members that distracted driving is extremely dangerous, like drunk driving and driving without a seatbelt.
  • Avoiding calling or texting friends, colleagues and family who you know that are driving.
  • Ask your employer to discourage work while driving, such as taking phone calls or answering e-mails and text messages.
  • Encouraging legislation to mandate safe driving.

Update 28 September 2016:

People might remember a few years back, People v. Spriggs (2014) 224 Cal.App.4th 150, which permitted the use of a cell phone in a car for non-talking non-texting purposes. Well, Spriggs is irrelevant now.

Governor Brown today signed AB1785.  The legislation bans “holding and operating,” not just talking or texting with a cell phone unless it is voice-operated and hands-free. Hands-on usage of a cell phone is only permitted if the phone is mounted to the windshield, dashboard, or center console, and only a single swipe or tap of the finger is used to manipulate the phone.

This is really going to hamper my ability to hit Poke Stops while driving.

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The fugitive disentitlement doctrine is discussed in detain in the case of People v. Kang (2d Dist. 2003) Cal.App.4th 43, the court recognized, in achieving a different result that: “If it is essential to vindicate judicial authority, the prosecution may charge Kang with failure to appear pursuant to Penal Code section 1320.5, although the penalty for that crime pales in comparison with the sentence imposed by the trial court. Put in perspective, disentitlement is largely symbolic. Also, any consideration that dismissal discourages escape is speculative at best.” (107 Cal.App.4th at 51-52.)  Kang fled to Korea after a guilty verdict and had to be extradited back to the U.S.

In this case, the prejudice suffered to the appellate process was less than that suffered in Kang.  “The most critical consideration is whether the absence of the appellant undermined the appellate process. Kang’s fugitive status prevented the consolidation of his appeal with the appeal of his codefendants.”  (Id. At 52)

Likewise, the summation of Kang is apposite:  “We agree with Clark II’s [People v. Clark (1927) 201 Cal. 474, 478] admonition that if the court has the power to reinstate the appeal “it should only be exercised in those cases where it is plainly made to appear that a denial of its exercise would work a palpable injustice or wrong upon the appellant.” (citation omitted)”  (Id. At 52-53)

Not only does the petitioner fit within the “palpable injustice or wrong” category, in light of the fact that his flight was coerced, but the appeal should be reinstated because Petitioner alleges that he fits within the fundamental miscarriage of justice exception to the fugitive disentitlement doctrine. Polanski v. Superior Court (People) (2009) 180 Cal.App.4th 507[1] tells us that when issues of great concern to the criminal justice system are raised, they should be dealt with by the trial court notwithstanding the fugitive disentitlement doctrine.

when issues of great concern to the criminal justice system are raised, they should be dealt with by the trial court

Accordingly, twice, in both Kang and Polanski our circuit has decided that it is best that courts resolve these issues rather than disentitle the litigant.  Indeed, a reading of Kang and Polanski together operates to create the rule of law that once a person is back in custody the court cannot disentitle the litigant from, his appeal.  Likewise, this court must reconsider its earlier position and reinstate the appeal.

Fugitive disentitlement, however much it may advance legitimate policies (United States v. Veliotis (S.D.N.Y. 1984) 586 F.Supp. 1512, 1515 (Veliotis)), is not an automatic rule but a discretionary tool of the courts that may only be applied when the balance of all equitable concerns leads the court to conclude that it is a proper sanction for a party’s flight. (United States v. Van Cauwenberghe (9th Cir. 1991) 934 F.2d 1048, 1054 (Van Cauwenberghe) [“The disentitlement doctrine . . . is not one of jurisdictional dimensions, but rather one based on equitable considerations”].) The doctrine is a blunt weapon, not appropriate in every matter in which a party has fled criminal prosecution. (Polanski v. Superior Court (People) (2009) 180 Cal.App.4th 507, 531)

California courts, too, have declined to apply the disentitlement doctrine when the equities did not support it. In Kang, supra, 107 Cal.App.4th at page 48, the Court of Appeal addressed the question of whether a former fugitive whose initial appeal had been dismissed could pursue an appeal anew after his recapture. Considering the factors traditionally evaluated in the disentitlement analysis, the court concluded that it should decide Kang’s appeal on its merits. (Id. at p. 51.) Enforceability was no longer a problem, because Kang was back in custody. (Ibid.) Moreover, “[i]t may be true that Kang flouted the authority of the trial court when he failed to appear for sentencing and became a fugitive, but disentitlement of Kang to foreclose appellate review is not desirable. If it is essential to vindicate judicial authority, the prosecution may charge Kang with failure to appear pursuant to Penal Code section 1320.5, although the penalty for that crime pales in comparison with the sentence imposed by the trial court. Put in perspective, disentitlement is largely symbolic. Also, any consideration that dismissal discourages escape is speculative at best.” (Id. at pp. 51-52.) The court considered the most significant factor to be the impact that Kang’s fugitive status had on the appellate process: his appeal could have been combined with that of his codefendants had he been present. (Id. at p. 52.) The court questioned whether there would be prejudice to the government because “it would be impossible to convene a new trial due to the unavailability of witnesses and other evidence,” but found no evidence of prejudice. (Ibid.) The court concluded, “Even though Kang’s fugitive status precluded consolidation of his appeal with his codefendants‟ appeals, which resulted in the loss of an efficient disposition of these related appeals, that is an inadequate basis by itself to disallow appellate review.” (Ibid.) (180 Cal.App.4th at 536-37)

This court, in 2003, was prevented from balancing “all equitable concerns” (180 Cal.App.4th at 533)

[1]  Polanski dealt with a writ of mandate, not a petition for a writ of habeas corpus.  Even so, the overarching principle is one of justice, and that applies to any type of proceeding.

fugitive dismantlement doctrine

When a fugitive fails to appear for court proceedings, he or she loses their right to appeal

The case of In re Grunau, though it discusses a habeas  proceeding and not a direct appeal, has considerable application herein.  In the case of In re Grunau (2008) 169 Cal.App.4th 997 the court excused a 10 year delay in bringing a habeas petition seeking to reinstate an appeal and found good cause for the delay after it was established appellate counsel had mislead his client into believing the appeal had been filed.

The new Polanski Case also has practical application herein.  Though movie director Roman Polanski remains a fugitive who is currently fighting extradition from Switzerland, the appeals court has stated that his claims should nonetheless be heard because they raise serious issues.  Polanski v. Superior Court (People) (2009) 180 Cal.App.4th 507:

“Polanski’s resistance to extradition does not automatically “disentitle” us from considering his petition. (United States v. Gonzalez (9th Cir. 2002) 300 F.3d 1048, 1051 [because fugitive disentitlement “is an equitable doctrine, application is discretionary”].) Because of the very serious allegations of judicial and prosecutorial misconduct raised by Polanski in this matter and their implications for the integrity of the criminal justice system, we decline the People’s request to apply the disentitlement doctrine to Polanski’s petition for writ of mandate and instead consider it on its merits. (See Eisler v. United States (1949) 338 U.S. 189, 196 (Eisler) (dis. opn. of Jackson, J.) [“I do not think we can run away from the case just because Eisler has.”].)” (180 Cal.App.4th at 530)

“[T]he disentitlement doctrine does not bar relief when a matter presents systemic issues and interests of higher importance than the values that would be advanced by disentitling a litigant because of his or her flight.” (180 Cal.App.4th at 554)

The disentitlement doctrine does not bar relief when a matter presents systemic issues and interests of higher importance

“As the trial court may use its inherent power to fashion “a remedy for deprivation of a constitutional right to suit the needs of the case” ([People v.] Flores, [ ], 214 Cal.App.3d at p. 144), the court may consider any suitable options.”  (180 Cal.App.4th at 556)

Suitable options in this case involve putting petitioner back in the situation he was in prior to the harm he suffered at the hands of his attorneys, ordering a new trial, conducting a new sentencing hearing, hearing and considering all of petitioner’s claims that are ordinarily suited for appeal in this habeas proceeding, or all of the above.

Habeas can be a substitute for appeal in certain circumstances, as here, where petitioner was denied an appeal because of the fugitive disentitlement doctrine, a doctrine that should have not been applied in this case because of the unique facts that led to petitioner’s flight, and the issues raised on habeas that are ordinarily suited for appeal go to the constitutionality of petitioner’s conviction and incarceration.

While habeas may not “ordinarily” be a substitute for appeal (In re Harris (1993) 5 Cal.4th 824), from the start, this has been anything but an ordinary case. That is not why petitioner is entitled to extraordinary relief.  Here, petitioner is entitled to the extraordinary relief that he requests because petitioner was acting under duress at times and out of necessity at others.  The duress and necessity that prompted petitioner’s actions was never explained to the appellate court that applied the fugitive disentitlement doctrine to strip petitioner of his appeal rights.  Accordingly, this court should either reinstate his appeal or consider all of the issues that would ordinarily be suited for appeal in this habeas.   Petitioner sets forth some more factual argument and case law to buttress this conclusion.

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Washington Post

Can the government use the fugitive disentitlement doctrine to prevent residents of foreign countries from contesting the seizure of their property? (“In an important case currently before the US Court of Appeals for the Fourth Circuit, the federal government is claiming that they can use the ‘fugitive disentitlement’ doctrine to prevent criminal suspects living abroad from contesting the seizure of their property by asset forfeiture. They argue that this doctrine applies even if the suspects are not fugitives at all, but merely exercising their legal right to contest extradition to the United States….Cato, the Institute for Justice, and the National Association of Criminal Defense Lawyers have filed a joint amicus brief which explains why the government’s position is dangerous and unconstitutional.”)

fugitive dismantlement doctrine

When a fugitive fails to appear for court proceedings, he or she loses their right to appeal

“[A]n appellate court may employ dismissal as a sanction when a defendant’s flight operates as an affront to the dignity of the court’s proceedings.” ( Ortega-Rodriquez v. United States (1993) 507 U.S. 234, 246 [l22 L.Ed.2d 58l, 595].)  The United States Supreme Court is clear on the issue.  “It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” The explained rationale for this rule is that there could be no assurance that any judgment the appellate court issued would prove enforceable. [like the restraining order in this case has proven to be]  The court concluded that it is ” ‘clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render.’ ” Id. at 239-240.

the court, independent of statutory authority, has power to dismiss the appeal

“That the court, independent of statutory authority, has power to dismiss the appeal of an appellant who is a fugitive from justice has long been accepted as a proper exercise of the jurisdiction of the appellate courts of this state.” (People v. Clark (1927) 201 Cal. 474, 477 [259 P. 47].) The fugitive disentitlement doctrine dates back to 1880 in California with People v. Redinger (1880) 55 Cal. 290 [ ], in which the Supreme Court dismissed an escaped defendant’s appeal because “[i]t would be a farce to proceed in a criminal cause, unless the Court had control over the person charged, so that its judgment might be made effective.” (Id. at p. 298.)[1] The California disentitlement doctrine is frequently explained in these terms: “A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state.” (MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277 [89 P.2d 382].)

[1]People v. Redinger (1880) 55 Cal. 290 is the seminal authority in California for the proposition that a convicted fugitive defendant has no right to appeal.”  People v. Kang (2003) 107 Cal.App.4th 43, 48.


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