When is it a crime to spit? | SierraSun.com
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When is it a crime to spit?

Jim Porter

Boy, you gotta be careful these days. You can’t even spit without being hauled off to jail.

I remember when I was a kid, I would pin my younger brothers down on their backs and then drool spit right down until it almost touched their noses and then suck it back up. Those were the days. A few times I was not able to get that spit back up.

“Oops, sorry.”

Now 50 years later, I learn I “assaulted” my brothers. Jail bait.

Jeffery Lewellyn worked at the Veterans Administrative Medical Center in Walla Walla, Wash. Lewellyn got into a bit of a tiff with a drug rehab patient who previously used Sudafed to make methamphetamine. Lewellyn wanted to know how to do it.

The patient got upset. He felt Lewellyn was encouraging him to make meth, and he called Lewellyn a “lowlife piece of crap.” Actually we cleaned up that last word to protect the innocent.

Lewellyn then approached the rehab patient and faked throwing a punch at him. Instead, Lewellyn got right up in his face and … and spit on him. (The case did not provide details on the volume or consistency of the spittle.)

Lewellyn was charged and convicted of an assault. He filed an appeal arguing that spitting is not an assault, especially when the spitter does not have HIV.

An assault is a willful attempt to inflict injury upon the person of another ” an attempt to commit an unlawful touching is a battery.

The Court of Appeal discussed battery cases that involve a very minor touching. (I remember from law school ” a battery is where you punch someone, an assault is where you fake a punch. My experience is that faking a punch is not a smart thing to do unless you want to find out what a battery is).

One person was convicted of battery for intentionally touching a flight attendant on the buttocks. Another idiot/defendant urinated on a person who was sleeping.

Reminds me of YMCA Summer Camp. Another battery was committed when an alleged criminal pushed a deputy sheriff away. In another case a fellow grabbed a women’s wrist to stop her from reviewing his trade show permit. A battery.

I would think that Lewellyn could have been convicted of a battery, but he was charged with assault ” an attempted battery.

What do I know, because the Court of Appeal upheld Lewellyn’s conviction of assault, finding that he “intentionally spit on another person in an offensive touching which falls within the ambit of assault.”

Lewellyn proved he was a “lowlife piece of crap,” and that cost him two years of probation and 50 hours of community service. I suspect Lewellyn is not working at the VA hospital, but my bet is the victim is still using Sudafed.

Jim Porter is an attorney with Porter – Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at porter@portersimon.com or at the firm’s Web site http://www.portersimon.com.


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