Monthly Archives: November 2016

Expulsion for drug sales

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Prepare to fight if your child is scheduled for an expulsion hearing for drug sales. You are not alone. This is one of the most common offenses for which students are expelled in Orange County, California. Schools are the front line of the war on drugs. Possession and/or sale is almost always a ticket to an expulsion hearing. Between possession and sale, sale is the more easily defended because proof of the offense is often a he said/she said affair.

GOVERNING ED CODE

The governing ed code for this is 48900 (d) which states…

(d) Unlawfully offered, arranged, or negotiated to sell a
controlled substance listed in Chapter 2 (commencing with Section 11053) of Division 10 of the Health and Safety Code, an alcoholic beverage, or an intoxicant of any kind, and either sold, delivered, or otherwise furnished to a person another liquid, substance, or material and represented the liquid, substance, or material as a controlled substance, alcoholic beverage, or intoxicant.

SPECIAL EDUCATION/504 EXPULSION PROTECTIONS

As in any school discipline case, you must determine if the law provides your child with special rights due to a disability. If your child is currently attending school with either a 504 or an IEP, they have rights. These rights are applicable to a defense for sale of a drug. Any defense here must show that the sale was related to their disability. Especially relevant are such things as impulse control problems, failure to understand right versus wrong, and susceptibility to peer pressure. These things show that the student’s actions were caused by their disability.

WITNESSES

Lacking such rights, the most viable course of action is to dispute the truthfulness of the witness(es). Keep in mind here that usually the witnesses have their own issues. To win you must show that the person or persons accusing your child has a motive to lie. There is often little evidence here other than the witnesses to the sale. Importantly, through analysis of the facts and skillful questioning, often weakness and inconsistencies in their story(ies) can be used to score a win.

PROCEDURAL REQUIREMENTS

Additionally, procedural deadlines and requirements are sometimes unmet. The outcome is important. Have an individual knowledgeable in school expulsions review the paperwork, and determine whether all these important procedural requirements were met.

Finally, please do not minimize the importance of avoiding a school expulsion for your child. Keep in mind, you have a legal right to bring a lawyer to the expulsion hearing, 48918(5). Relevantly, I offer relatively inexpensive flat fee rates. Therefore, you will never be surprised by a big bill if you retain my firm to represent your child.

Finally, if you are unable to afford an attorney, review this  helpful guide.

 

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Fighting a Potential Expulsion for Terrorist Threats in California

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Over the past year I have been contacted by and represented parents whose children are being recommended for expulsion for the making of terrorist threats here in Orange County, California. Based on my experiences, I know that Southern California school districts are playing fast and loose with the definition of what constitutes a terrorist threat. If your child is currently suspended and/or faces an expulsion hearing for making a terrorist threat, make no mistake, this is a very serious matter. Fortunately, there are many defenses available in these matters.

This code governing this area of suspension states…

48900.7. (a) In addition to the reasons specified in Sections
48900, 48900.2, 48900.3, and 48900.4, a pupil may be suspended from
school or recommended for expulsion if the superintendent or the
principal of the school in which the pupil is enrolled determines
that the pupil has made terroristic threats against school officials
or school property, or both.
(b) For the purposes of this section, “terroristic threat” shall
include any statement, whether written or oral, by a person who
willfully threatens to commit a crime which will result in death,
great bodily injury to another person, or property damage in excess
of one thousand dollars ($1,000), with the specific intent that the
statement is to be taken as a threat, even if there is no intent of
actually carrying it out, which, on its face and under the
circumstances in which it is made, is so unequivocal, unconditional,
immediate, and specific as to convey to the person threatened, a
gravity of purpose and an immediate prospect of execution of the
threat, and thereby causes that person reasonably to be in sustained
fear for his or her own safety or for his or her immediate family’s
safety, or for the protection of school district property, or the
personal property of the person threatened or his or her immediate
family.

This code lays out some legally significant requirements that districts often either do not understand or choose to ignore.

First off, in order to prove an expellable offense, the school district must show that the student had the “specific intent” for the statement to be perceived as a threat. Specific intent is normally defined as intentionally or knowingly. In some cases I have handled, this element is entirely missing in the case brought by the district. There are many case specific facts which can be argued to show that a student had no specific intent for their statements to be taken as a threat.

Second, I have also handled cases where districts have not honored the requirement that there must be an “immediate prospect of execution of the threat.” Once again, this is a fact intensive analysis of the specific words used by the student. In many cases, there are strong arguments to be made that no reasonable person should have felt immediately threatened by the words written or spoken by the student.

Third, there is a requirement that threat be “unconditional.” Once again, an analysis of the statements which are basis for the disciplinary action can often undermine that the assertion was unconditional.

These three examples are some of the most common problems with terrorist threat school expulsion cases brought by school districts, but this list is far from exhaustive. There are many common mistakes that districts make and which an experienced attorney can leverage into either completely prevailing in establishing a child cannot be suspended or expelled or in reducing the consequences [contact-form][contact-field label=’Name’ type=’name’ required=’1’/][contact-field label=’Email’ type=’email’ required=’1’/][contact-field label=’Best number at which to reach you’ type=’text’ required=’1’/][contact-field label=’Comment’ type=’textarea’ required=’1’/][/contact-form] to something less severe.

School expulsion can have a permanent impact on a child’s future. If your child faces an expulsion hearing in Southern California, having proper representation can often be the difference between a successful defense versus a year-long removal from their home school. Please contact The Law Office of Gregory R. Branch if your child has been suspended or faces expulsion for making a terrorist threat. I offer flat fee expulsion rates so that there are no expensive surprises.