Preemption
Category > Preemption
Vehicle Code section 10501 preempts a perjury charge under Penal Code section 118, subd. (a) where a defendant is charged with falsely reporting a vehicle theft.Defendant was convicted of perjury by declaration under Penal Code section 118, subd. (a). However, Vehicle Code section 10501, subd. (a) report of a vehicle theft, preempts section 118, subd. (a) and that conviction was reversed.id: 26101
Statutory scheme regulating the conduct of registered sex offenders preempted the local ordinance restricting sex offenders access to city parks.Defendant was charged with violating a local ordinance that prohibits registered sex offenders from entering city parks without written permission from the city’s police chief. However, the state statutory scheme imposing restrictions on a sex offender’s daily life fully occupies the field and therefore preempts the city’s efforts to restrict sex offenders from visiting parks and rec centers. State law also preempts the ordinance’s requirement that sex offenders obtain written permission from the police chief before entering a park because this regulation is a de facto registration requirement. id: 23459
A juvenile court cannot require an alien subject to its supervision to receive written permission before reentry into the United States.The juvenile court's order requiring the nonresident alien appellant to obtain written permission before reentering the United States was invalid. Such a requirement clearly conflicts with governing federal immigration policy and regulation by requiring additional state-imposed conditions on one's right to enter the United States. Written notice to the juvenile court will satisfy the intended purpose and afford the juvenile an established contact with the proper supervisorial person or agency.id: 9314
Local rules were inconsistent with law to the extent they imposed a noticed motion procedure on suppression motions made during preliminary hearings.Defendant was illegally committed because the magistrate, relying on local court rules refused to let him move for suppression of evidence at the preliminary hearing on the ground the motion was untimely under local rules. However, the relevant portions of the local rules are invalid because they conflict with state law which provides that neither written nor oral notice of motion should be required for suppression motions made at preliminary hearings.id: 9315
Specific solicitation statute preempted prosecution under the more general attempted possession provision where defendant simply asked to buy drugs from the officers and waited while the officer went to the car.Defendant was arrested in a reverse sting operation and charged with attempted possession of cocaine under Penal Code section 664 and Health and Safety Code section 11350. The trial court granted defendant's motion to dismiss after finding defendant's conduct was governed by the more specific charge of solicitation pursuant to Penal Code section 653f, subdivision (d). Defendant approached the officer and asked for the drugs. The officer told him to wait while he retrieved the drugs. The evidence did not support the attempt charge because defendant did not commit a direct and unequivocal act toward the commission of possession. Defendant's act of waiting while the officer went back to the car did not constitute such an act. The trial court properly determined the more specific solicitation statute preempted prosecution under the more general statute.id: 15161
Local ordinance could not justify an arrest where it was preempted by state law and there could be no good faith reliance on the ordinance by the police where the preemption issue was decided long ago.Defendant was arrested for violating an Oakland ordinance that prohibits standing in a roadway in a manner that interferes with traffic. In a search incident to arrest, the police found drugs on her person. The trial court properly granted the motion to set aside the information since the Oakland ordinance used as the basis for arrest and search was preempted by state law published in the California Vehicle Code. The continuing enforceability of the ordinance had been so undermined by earlier precedents that the police could no longer reasonably rely upon it as basis for making an arrest.id: 16736
Federal preemption did not apply to state law prosecution for worker’s compensation fraud.Defendant was a postal service employee who was convicted of making fraudulent statements to obtain California worker’s compensation benefits in violation of Insurance Code section 1871.4(a)(11). He argued that as a federal employee, his workers comp benefits were provided under the Federal Employment Compensation Act, and therefore federal preemption barred his prosecution under California law. Federal preemption did not apply under FECA because Congress expressly intended that such prosecutions would be brought. However, the evidence was insufficient to support the conviction since section 1871.4 only applies to false statements made to obtain benefits under California’s workers’ compensation law, which does not apply to federal employees.id: 25991
Physician’s conviction for paying illegal fees for referrals was not preempted by the federal anti-kickback statute.Defendant, a physician, was convicted of paying illegal fees to persons who referred patients under Business and Professions Code section 650. She argued the statute was preempted by the federal Medicaid anti-kickback statute (42 USC 1320a). However, conflict preemption did not apply because the statute supplements the remedy under section 650. Obstacle presumption was not established because the purpose of section 650 was consistent with the purpose underlying the federal anti-kickback statute. Moreover, section 650 was not unconstitutionally vague and did not improperly infringe on the marketing of physician’s services to the uninsured.id: 22685
City ordinance which permits medical marijuana collectives was preempted by federal law.The City of Long Beach’s ordinance, which permits and regulates medical marijuana collectives rather than merely decriminalizing specific acts, was preempted by federal law. id: 22409
County ordinance prohibiting minors from appearing in public with a blood alcohol level of .01 percent or more was not preempted by state law.The minor was found to have violated a Del Norte County Code section which makes it a misdemeanor for a person under 21 to have a blood alcohol level of .01 percent or more while in a public place in the county. Contrary to the minor’s claim, the ordinance was not preempted by state law as the “field” of underage drinking is not fully occupied by the state, and the ordinance which was enacted to prohibit consumption does not duplicate a state law.id: 21101
Federal law did not preempt the state firearms control laws.Defendant was convicted of unlawfully possessing a machine gun and illegal assault weapons. Contrary to his claim, federal law does not preempt Penal Code sections 12220, subd.(a) and 12280, subd.(b).id: 19409
Even though the steroid GBL is not listed as a controlled substance under federal law, defendant's conviction did not violate the supremacy clause.Defendant was convicted of possessing steroids for personal use and possessing for sale gammabutyrolactone (GBL), which is listed as a controlled substance under California law. Because GBL is not listed as a controlled substance under federal law, defendant argued his conviction violated the supremacy clause of the federal constitution. However, notwithstanding Congress' failure to designate GBL as a controlled substance, it is still illegal to possess the drug for private use or sale under federal law. Therefore, defendant's conviction for possessing GBL for sale was not inconsistent with federal law.id: 18834
Campus police had authority to detain defendant a block off campus late at night due to his acceleration of speed and loss of traction.Defendant's acceleration of speed and loss of traction at 1:30 a.m. on a street just outside of the San Diego State University campus was sufficient to give the officer reasonable suspicion to stop the car. Moreover, the campus police officer possessed the authority to stop and arrest defendant less than one-tenth of a mile off campus because Penal Code section 830.2 grants state university police authority that extends throughout the state. Finally, the statutes granting police officers authority to act beyond campus boundaries do not unconstitutionally conflict with the authority of charter cities.id: 18611
Defendant failed to show that Penal Code section 206 was preempted by the ratification of the Convention Against Torture.Defendant challenged his torture conviction by claiming the United States ratification of the Convention Against Torture has preempted Penal Code section 206. However, the Convention applies to torture committed under the color of law and outside the United States. Defendant failed to show that section 206 has been preempted by a federal law or any international instrument.id: 18314
City law prohibiting viewing of illegal street races is not preempted by state law.San Diego Municipal Code section 52.5203 makes it unlawful to be present at an illegal motor vehicle speed contest or exhibition of speed. Defendant argued the city had no authority to create such an offense since the regulation of such activity has been preempted by state law. However, the Vehicle Code sections dealing with speed contests and exhibitions are complimentary to and not in conflict with the San Diego Municipal Code sections dealing with spectators at such activities. The local provision was not preempted by state law.id: 17804
General/special statute rule does not apply where the general statute does not provide a more severe penalty than the special statute.Defendant argued felony child abuse under Penal Code section 273a, a general statute, for which he was charged and convicted, is preempted by corporal injury to a child under section 273d, a special statute, for which he was not charged; and therefore his conviction must be reversed. However, the general/special statute rule does not apply because the general statute (section 273a) does not provide a more severe penalty than the special statute (section 273d).id: 17405
Attempted possession charge was not preempted by the more specific solicitation provision where defendant took direct acts toward the commission of the possession.Defendant was charged with attempted possession of cocaine under Penal Code section 664 and Health and Safety Code section 11350. His arrest was the result of a reverse sting operation where undercover officers posed as dope dealers. The trial court granted the defense motion to dismiss which was based on the theory that the more specific statute of solicitation, Penal Code section 653f, subdivision (d) - preempted prosecution under the more general statutes charged. However, the attempted possession charge requires a "direct, unequivocal act" toward commission of the crime of possession. Defendant offered his car stereo and vest, while the other officer was allegedly retrieving the drugs. These acts took the case outside of the solicitation provision. Had defendant merely asked the officer to sell him the drugs, he would have only faced the misdemeanor solicitation charge. The order granting the motion to dismiss was reversed.id: 15158
Provision which prohibits the use of false documents to conceal immigration status is not preempted by federal law.Penal Code section 114 prohibits the use of false documents to conceal one's true citizenship or resident alien status. Defendant argued that this provision, like other provisions of Proposition 187, should be deemed preempted by federal law. However, because there is no similar scheme of federal regulation of the production or use of false identification, there is no basis to infer that Congress intended to prevent state action in this field.id: 14805
Municipal Code provision was not preempted by general law section where the trespass provisions dealt with different sections of the airport.Appellant was charged with trespassing in a forbidden area in an airport under Los Angeles Municipal Code section 56.30, subdivision (e). He argued the provision was preempted by general law and therefore void as Penal Code section 602, subdivision (t) regulates trespass of restricted areas at airports. However, the municipal code deals with access to any fenced or enclosed and posted area of the airport while the state law deals only with areas of airport operations. The subject matter of airport access is therefore not fully and completely covered by the general law and the municipal code provision was not preempted. Moreover, the municipal code provision was not vague as applied to appellant who was arrested in a posted, gated, and locked area of the airport.id: 9316
Repeal of statute did not preclude the court from sentencing thereon where the law was reenacted in substantially the same form.Appellant argued she could not be sentenced for violating Penal Code section 396 (welfare fraud), because that section was repealed before her sentence was imposed. However, the statute was repealed and reenacted in substantially the same form, and the conduct and nolo contendere plea occurred before repeal and reenactment of the statute.id: 9317
Specific Vehicle Code statute did not prohibit prosecution under general murder statute.Defendant was convicted of second degree murder based on the commission of an inherently dangerous felony - evasion of arrest by use of a vehicle in wanton disregard for others (Vehicle Code section 2800.2). Defendant argued the Vehicle Code provision is a special statute governing punishment for the offense, which prohibits his prosecution under the more general murder statute. However, the element of malice is absent from the special statute. Moreover, the Vehicle Code statute punishes those who inflict death <U>or</U> serious bodily injury, while a murder prosecution requires death. Thus, a violation of the Vehicle Code statute would not necessarily or commonly result in a violation of the general murder statute. Thus, the preemption rule is inapplicable.id: 9318
State law regarding discharge of pollutants was not preempted by federal law.Defendant was convicted of discharging pollutants into water under Water Code section 13387, subdivision (a)(4). He argued the state was precluded from prosecuting him because federal law provides for no criminal penalties and preempts California law. However, federal law does provide criminal penalties under 33 U.S.C. section 1319, subdivision (c)(2). Moreover, Congress expressly recognized that control of water pollution is primarily the responsibility of the states, and the matter was therefore not preempted by federal law.id: 9319
Statute prohibiting the interception of cordless telephone communications was not preempted by federal law.Defendant was convicted of intercepting cordless telephone communications pursuant to Penal Code section 632.6, subdivision (a). He argued section 632.6 was invalid because the area is preempted by federal law. However, intrastate communications are outside the purpose and scope of the Federal Communications Act. Moreover, the eavesdropping and wiretapping statutes are equally unavailing because Congress excluded cordless telephones from the definitions of wireless communication and electronic communication.id: 9320
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850