degree rule in California

2018(Id. at p. 2187.) Weighing the degree to which a test intrudes upon an individual’s privacy against the government’s interest in obtaining test results, the Supreme Court adopted this rule: a breath test may proceed without a warrant as a search incident to a valid DUI arrest; a blood test may not. ( Birchfield, supra, 136 S.Ct. at pp. 2176, 2185.) The Court reasoned “that breath tests do not ‘implicat[e] significant privacy concerns’ ” and “entail ‘a minimum of inconvenience.’ ” (Id. at p. 2176 (quoting Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 625-626 ).) By contrast, b

2015There is no established “threshold quantity of improper questioning to qualify as a constitutional violation.” (U.S. v. Shannon (3d Cir. 2014) 766 F.3d 346, 359 (Shannon).) In Shannon, the prosecutor’s questioning of Shannon on cross-examination about his “pre-arrest and post-arrest silence received roughly the same degree of inquiry.” (Ibid.) Nonetheless, the Third Circuit found that “[e]ven if the government had, in fact, asked pages of questions regarding Shannon’s pre-arrest silence, the problem remains that it also asked inappropriate questions regarding Shannon’s post-arrest silence.” (I

2015There is no established “threshold quantity of improper questioning to qualify as a constitutional violation.” (U.S. v. Shannon (3d Cir. 2014) 766 F.3d 346, 359 (Shannon).) In Shannon, the prosecutor’s questioning of Shannon on cross-examination about his “pre-arrest and post-arrest silence received roughly the same degree of inquiry.” (Ibid.) Nonetheless, the Third Circuit found that “[e]ven if the government had, in fact, asked pages of questions regarding Shannon’s pre-arrest silence, the problem remains that it also asked inappropriate questions regarding Shannon’s post-arrest silence.” (I

2000Defendants assert Davis represents a unique situation because in that case the court noted the tribe had specifically provided in its tribal code that it would be “guided by federal or appropriate state law.” ( Davis, supra, 398 F.2d 83, 84 .) The court made that observation, however, only in addressing whether the tribe could be considered to have bestowed absolute immunity on its officers. {Ibid.) It did not suggest that, if the tribe had not adopted *1051 federal law, it could extend to its officers a degree of immunity beyond that enjoyed by officers of a sovereign under ordinary principle

1996(Moore v. Conliffe, supra, 7 Cal.4th at 654-655 ; Thiele v. RML Realty Partners, supra, 14 Cal.App.4th at 1526 ; American Arbitration Assn. v. Superior Court, supra, 8 Cal.App.4th at 1133 ; Coopers & Lybrand v. Superior Court, supra, 212 Cal.App.3d at 534-536 .) Under the terms of section 1280.1, such suits could no longer be maintained under the common law rule.

1996(Moore v. Conliffe, supra, 7 Cal.4th at 654-655 ; Thiele v. RML Realty Partners, supra, 14 Cal.App.4th at 1526 ; American Arbitration Assn. v. Superior Court, supra, 8 Cal.App.4th at 1133 ; Coopers & Lybrand v. Superior Court, supra, 212 Cal.App.3d at 534-536 .) Under the terms of section 1280.1, such suits could no longer be maintained under the common law rule.

1996(Moore v. Conliffe, supra, 7 Cal.4th at 654-655 ; Thiele v. RML Realty Partners, supra, 14 Cal.App.4th at 1526 ; American Arbitration Assn. v. Superior Court, supra, 8 Cal.App.4th at 1133 ; Coopers & Lybrand v. Superior Court, supra, 212 Cal.App.3d at 534-536 .) Under the terms of section 1280.1, such suits could no longer be maintained under the common law rule.

1996(Moore v. Conliffe, supra, 7 Cal.4th at 654-655 ; Thiele v. RML Realty Partners, supra, 14 Cal.App.4th at 1526 ; American Arbitration Assn. v. Superior Court, supra, 8 Cal.App.4th at 1133 ; Coopers & Lybrand v. Superior Court, supra, 212 Cal.App.3d at 534-536 .) Under the terms of section 1280.1, such suits could no longer be maintained under the common law rule.

1996Hence both judicial and private arbitrators had the same degree of immunity and to that extent, the two statutory schemes were not "mutually exclusive and independent of each other." Section 1280.1 was enacted in response to the court's decision in Baar v. Tigerman, supra, 140 Cal.App.3d 979 , discussed above, which held that a private arbitrator may be sued by a party to the arbitration for the failure to render a decision.

1996Hence both judicial and private arbitrators had the same degree of immunity and to that extent, the two statutory schemes were not "mutually exclusive and independent of each other." Section 1280.1 was enacted in response to the court's decision in Baar v. Tigerman, supra, 140 Cal.App.3d 979 , discussed above, which held that a private arbitrator may be sued by a party to the arbitration for the failure to render a decision.

1993Grace & Co. (D.Mass. 1986) 628 F.Supp. 1219, 1226-1227 [subcellular harm or harm affecting body’s ability to fight disease and causing harm to body’s organ systems sufficient to support claim for emotional distress]; cf. Barth v. Firestone Tire and Rubber Co. (N.D.Cal. 1987) 661 F.Supp. 193, 196 [hereafter Barth] [determining that, under California law, injury to immune system is form of actionable physical injury]; 7 Brafford v. Susquehanna Corp. (D.Colo. 1984) 586 F.Supp. 14 [although availability of emotional distress damages not specifically discussed, claim for physical injury allowed to

1993Grace & Co. (D.Mass. 1986) 628 F. Supp. 1219, 1226-1227 [subcellular harm or harm affecting body's ability to fight disease and causing harm to body's organ systems sufficient to support claim for emotional distress]; cf. Barth v. Firestone Tire and Rubber Co. (N.D.Cal. 1987) 661 F. Supp. 193, 196 [hereafter Barth ] [determining that, under California law, injury to immune system is form of *983 actionable physical injury]; [7] Brafford v. Susquehanna Corp. (D.Colo. 1984) 586 F. Supp. 14 [although availability of emotional distress damages not specifically discussed, claim for physical injury

1993To support this contention, Firestone relies on a case in which workers' claims for fear of cancer from asbestos exposure were denied because they had failed to show that their fear was based on knowledge that their lungs were functionally impaired. ( In re Hawaii Federal Asbestos Cases (D.Hawaii 1990) 734 F. Supp. 1563, 1569-1570 .) There it was held that a physical injury was not established by the mere presence of asbestos fibers in the lungs or by evidence of physiological changes in the lungs such as pleural thickening and pleural plaques. ( Id., at p. 1567.) Firestone also relies on case

1990(Id. at p. 440 [80 L.Ed.2d at pp. 436-437].) Beginning with the rebate scheme the union used to refund the fees for activities to which dissenters objected, the court held “the pure rebate approach is inadequate.” (Id. at p. 443 [ 80 L.Ed.2d at p. 439 ].) The court stated that for a union to use and then refund the money of an objector in effect charges the objector for the unauthorized activities; the refund, even if with interest, merely minimizes the degree of the violation because it still amounts to an involuntary loan.

1990“Given the existence of acceptable alternatives [such as advance reduction of dues and/or interest bearing escrow accounts], the union cannot be allowed to commit dissenters’ funds to improper uses even temporarily.” (Id. at p. 444 [ 80 L.Ed.2d at p. 439 ].) Turning to the various expenditures, the court noted at the outset that to the extent it could resolve the matter as a question of what expenditures were authorized by Congress in enacting the RLA, it would not need to reach the constitutional question. (466 U.S. at pp. 444-445 [80 L.Ed.2d at pp. 439-440].) While the RLA has no explicit li

1987As we noted in In re Dorothy B., supra, 182 Cal.App.3d 509 , rule 1355(f)(5)’s procedures give the court the opportunity to “exercise leniency by declaring an offense to be of the lesser degree despite the fact the circumstances of the offense alone might justify sustaining the petition for a higher degree.” (Id., at pp. 520-521; italics in original.) Thus, though the judge found the allegations of residential burglary to be true, and though residential burglary is defined as first degree burglary, the judge was still obliged to consider whether to find the degree of burglary justified by the

1985Prejudice is presumed when relief is sought on section 1382 grounds pretrial because the statute commands that the court "must order the action to be dismissed." However, when this and other statutory rights to speedy trial have been violated, a felony defendant who seeks relief on appeal must demonstrate actual prejudice. ( People v. Wilson, supra, 60 Cal.2d 139, 153 ; see also People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [ 165 Cal. Rptr. 851 , 612 P.2d 941 ].) Because the statutory time within which a defendant must be brought to trial is short, it is not unreasonable to require a felony

1984The court explained (at pp. 243-244 [53 L.Ed.2d at pp. 315-316]) that “It is true that we have said that the question of whether the purpose of a new constitutional rule is to enhance the integrity of the factfinding process is a question of ‘degree,’ [citation]; and when the degree to which the rule enhances the integrity of the factfinding process is sufficiently small, we have looked to questions of reliance by the State on the old rule and the impact of the new rule on the administration of justice in deciding whether the new rule is to be applied retroactively. [Citations.] But we have ne

1984The court explained (at pp. 243-244 [53 L.Ed.2d at pp. 315-316]) that “It is true that we have said that the question of whether the purpose of a new constitutional rule is to enhance the integrity of the factfinding process is a question of ‘degree,’ [citation]; and when the degree to which the rule enhances the integrity of the factfinding process is sufficiently small, we have looked to questions of reliance by the State on the old rule and the impact of the new rule on the administration of justice in deciding whether the new rule is to be applied retroactively. [Citations.] But we have ne

1984The court reviewed the various formulations of the doctrine here in issue, and found their common denominator to be that “any rule which raises substantial doubts about the reliability of the jury’s verdict should be applied retroactively.” ( 447 U.S. at p. 330, fn. 6 [ 65 L.Ed.2d at p. 167 ] [plur. opn.].) The opinion then concluded that the Burch rule was designed to preserve the right to trial by jury and assure the reliability of its verdict, and hence that its purpose “clearly requires retroactive application.” (Id. at p. 334 [ 65 L.Ed.2d at p. 169 ].) During the past two years the United

1984The court reviewed the various formulations of the doctrine here in issue, and found their common denominator to be that “any rule which raises substantial doubts about the reliability of the jury’s verdict should be applied retroactively.” ( 447 U.S. at p. 330, fn. 6 [ 65 L.Ed.2d at p. 167 ] [plur. opn.].) The opinion then concluded that the Burch rule was designed to preserve the right to trial by jury and assure the reliability of its verdict, and hence that its purpose “clearly requires retroactive application.” (Id. at p. 334 [ 65 L.Ed.2d at p. 169 ].) During the past two years the United

1984The court reviewed the various formulations of the doctrine here in issue, and found their common denominator to be that “any rule which raises substantial doubts about the reliability of the jury’s verdict should be applied retroactively.” ( 447 U.S. at p. 330, fn. 6 [ 65 L.Ed.2d at p. 167 ] [plur. opn.].) The opinion then concluded that the Burch rule was designed to preserve the right to trial by jury and assure the reliability of its verdict, and hence that its purpose “clearly requires retroactive application.” (Id. at p. 334 [ 65 L.Ed.2d at p. 169 ].) During the past two years the United

1984The court reviewed the various formulations of the doctrine here in issue, and found their common denominator to be that "any rule which raises substantial doubts about the reliability of the jury's verdict should be applied *404 retroactively." ( 447 U.S. at p. 330, fn. 6 [ 65 L.Ed.2d at p. 167 ] [plur. opn.].) The opinion then concluded that the Burch rule was designed to preserve the right to trial by jury and assure the reliability of its verdict, and hence that its purpose "clearly requires retroactive application." ( Id. at p. 334 [ 65 L.Ed.2d at p. 169 ].) During the past two years the

1979To ignore the prospective cumulative harm under such circumstances could be to risk ecological disaster. . . . [f] . . . [T]he [Council on Environmental Quality] Guidelines for preparation of impact statements emphasize that consideration should be given not only to the action that is the subject of the EIS but also to ‘related Federal actions and projects in the area, and further actions contemplated . . . [citation], and direct that the ‘interrelationships and cumulative environmental impacts of the proposed action and other related Federal projects shall be presented in the statement,’ [cit