Defending DUI Cases

DMV’s License Suspension Set Aside, Breath Test Inaccurate

February 15, 2011 | The Law Offices of Susan L. Hartman

The California Department of Motor Vehicles (DMV) suspended Derek Brenner’s license after he gave a breath sample that read .08 percent blood alcohol concentration (BAC). However, Mr. Brenner challenged this ruling and won, according to the San Francisco Chronicle. cartoon.dmv.jpg

During the DMV Hearing, he presented a forensic toxicologist’s report that claimed the breath testing device consistently overstated blood-alcohol levels by 0.002 percent. Since the test result is only given in two decimal places, the actual result could have been has high as .089 percent, but as low as .078 percent, which is below the .08 BAC limit.

A Superior Court judge set the suspension aside. That ruling was upheld by the First District Court of Appeal in San Francisco in October 2010, and the State Supreme Court denied review of the DMV’s appeal. The court stated the DMV must show that Brenner’s blood alcohol was over the legal limit of .08 percent. Once he presented evidence that the readings were too high, “The burden shifted back to the department to prove the test was nonetheless reliable.”

This ruling opens the door to future challenges by drivers facing a license suspension due to a DUI where a breath sample was taken and the result of such test is at or near the legal limit of .08 percent.

If you have been charged with a DUI, you only have 10 days from the date of the arrest to contact the DMV to schedule a hearing to challenge the suspension of your license.

If you are over the age of 21 and this is your first DUI, or your first one within the past 10 years, the DMV will automatically suspended your license for 4 months after the 30 day temporary license expires. Once you have completed a 30 day hard suspension, you may be eligible for a 5 month restricted license once you provide the DMV with proof of insurance, proof of enrollment in an approved alcohol treatment program, and you pay all the DMV fees. This restricted license will allow you to drive to, from, and during work and to and from the alcohol treatment program.

If this is a second or subsequent DUI within the past 10 years, there is a one year license suspension and you are not eligible for the restricted license.

If you refused to take a blood alcohol test, the consequences are greater. There is a one year license suspension for the first offense; a two year revocation for the second; and, a three year revocation for three or more refusals within a ten year period. If you refused to take a BAC test, you are not eligible for a restricted license, even if it is your first offense.

Lakeside Woman To Stand Trial For Alleged DUI in Alpine

February 10, 2011 | The Law Offices of Susan L. Hartman

Lakeside resident, Kathleen Lucinda Sloan, 20, had a preliminary hearing in El Cajon Court on February 9th, according to 10news.com. She is accused of being under the influence of an over-the-counter medication, driving, and then crashing head-on into another motorist in Alpine on November 1st, 2010. Sergio Chan Mora, 54, of National City, was killed in the crash.

El Cajon Judge William McGrath ordered Sloan to stand trial on second degree murder and other charges on March 28th. She faces 15 years to life in prison if convicted of second degree murder.

Preliminary hearings pertain to felony cases. It is usually held within 10 days of the arraignment or when the defendant enters a plea, whichever is later. At the hearing, the prosecutor must present sufficient evidence that there is probable cause to believe a crime has been committed and this defendant comitted it.

If probable cause is shown, the judge will hold the defendant to answer in the trial court. The prosecutor then has 15 days to file the information with the trial court and within 60 days the trial will begin unless time is waived.

If the judge finds that there is not sufficient evidence, the case is dismissed. The prosecutor may refile the case as long as there has not been two dismissals unless an exception under Penal Code Section 1387 applies.

Prescription Medications and Driving = Driving Under the Influence?

January 28, 2011 | The Law Offices of Susan L. Hartman

pills.martini.jpg You are legally on a prescription or even an over-the-counter medication. You are driving your vehicle. Can you be pulled over, cited, and convicted of a driving under the influence (DUI) charge?

The answer is yes, if you are in fact under the influence and driving!

Driving under the influence, Vehicle Code Section 23152, provides: “It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.”

So what constitutes a drug? According to California Vehicle Code Section 312: “The term “drug” means any substance or combination of substances, other than alcohol, which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions.”

The fact that you are legally entitled to use the drug is not a defense to a DUI case, per California Vehicle Code Section 23630.

According to the DUI jury instructions (2110), you are under the influence “if, as a result of…taking a drug…[your] mental or physical abilities are so impaired that [you are]…no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances. The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of…a drug…However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.”

San Diego Driving Under The Influence Accident: Sleep Apnea Defense Rejected, Defendant Guilty

January 21, 2011 | The Law Offices of Susan L. Hartman

The Carmel Mountain Ranch driving under the influence (DUI) accident that resulted in the death of Marc Durham, 65, concluded with a guilty verdict for Anthony Guarino, 57, on Thursday. Guarino was convicted of gross vehicular manslaughter while intoxicated and two DUI charges, according to 10news.com.

The defense conceded the misdemeanor DUI charges in closing, as Guarino’s blood alcohol content (BAC) measured .15 percent about two and a half hours after the crash. However, Guarino’s defense to the gross vehicular manslaughter charge was he was unconscious at the time of the crash due to “microsleep” that was brought on by severe sleep apnea. His car drifted, he never hit the brakes, and he had no memory of the accident.

Sleep apnea is a condition that causes a person to stop breathing repeatedly during sleep. This can happen hundreds of times during the night, causing the sufferer to be exhausted for much of their waking hours. Driving is especially challenging because fatigue can lead to a “microsleep” espisode where the driver spontaneously falls asleep at the wheel.

La Mesa DUI Crash Results in the Death of a Pedestrian

January 3, 2011 | The Law Offices of Susan L. Hartman

The San Diego Sheriff’s Department announced a pedestrian was killed in a suspected DUI crash just after 1:00am on New Year’s. This is San Diego County’s second fatal DUI collision this holiday season. The first occurred on December 18th, 2010, in El Cajon.

The DUI incident happened on Murray Drive in La Mesa, according to 10news.com. The pedestrian was identified as Kelly McPherson of Mission Valley. The driver of the Ford Mustang was identified as Dana Lohner of La Mesa, a fourth grade teacher at Freese Elementary School. She was released after posting $100,000 bail and is due in court on January 10th, 2011. Pending the outcome of the La Mesa Police Department’s investigation, Ms. Lohner may also be charged with vehicular manslaughter.

There are two possible vehicular manslaughter while intoxicated charges: Gross vehicular manslaughter and vehicular manslaughter. [Penal Code Section 191.5(a) and (b) respectively.]

Poway Station of the San Diego Sheriff’s Department Conducts Driving Under The Influence Checkpoint

December 6, 2010 | The Law Offices of Susan L. Hartman

The Poway Station of the San Diego Sheriff’s Department announced in a press release that it conducted a DUI checkpoint on Friday, December 3rd, 2010, from 7 p.m. until 3 a.m., near the 11700 block of Poway Road. 1,328 vehicles passed through; however, no DUI arrests were made.

During that time, the deputies stepped up their patrol for DUI suspects in a saturation patrol and two suspected DUI arrests were made.

In their press release, the Sheriff’s Department claimed such checkpoints have been proven effective to lower the number of DUI deaths. They specifically cited the National Highway Traffic Safety Administration (NHTSA) which claims the total traffic fatalities are at their lowest levels in six decades and in California DUI deaths declined by 16 percent, from 1,132 in 2007 to 950 in 2009.

California Court of Appeal Rules Evidence of a Refusal to Submit to a PAS Test is Not Admissible.

November 22, 2010 | The Law Offices of Susan L. Hartman

pas.officer.jpg The California Court of Appeal ruled in People v. Jackson that the trial court incorrectly allowed evidence in at trial that the defendant refused to take a preliminary alcohol screening test (PAS).

Defendant was arrested and was subsequently on trial for driving under the influence, DUI, in violation of Vehicle Code Section 23152 (a) & (b) . An officer was allowed to testify that the defendant refused to take the PAS test, even though he did agree to perform all the other field sobriety tests (FST’s).

After a conviction, the defendant appealed, claiming that the officer’s statements about his refusal should not have been admitted. The defendant cited Vehicle Code Section 23612(i), which states, “If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. The person’s obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that person’s blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person’s right to refuse to take the preliminary alcohol screening test.”

In the appeal, the Respondent claimed that the trial court correctly admitted the evidence because the PAS test is simply another FST. When the defendant refused to submit a sample, he was demonstrating consciousness of guilt.

The Court of Appeal agreed with the Appellant “because it is logically consistent with the clear intent of the statute [VC 23612] and serves to protect the statutory right defined therein.” However, in this case, it was found to be harmless error and the Appellant’s conviction stood.

California’s Sobriety Checkpoint/Roadblock Criteria (Part II)

November 8, 2010 | The Law Offices of Susan L. Hartman

checkpoint sign.jpg The California Supreme Court set forth criteria for DUI checkpoints to ensure they are in compliance with the Federal and California’s State Constitution and to minimalize the intrusiveness of the stop in Ingersoll v. Palmer. The following is the last four of the ambiguous guidelines.

5. Time and duration. The time of day and how long the DUI checkpoint lasts bears on the intrusiveness to the motorist. Law enforcement is expected to use good judgment in setting the times and duration, considering effectiveness and safety.

6. Indicia of official nature of roadblock. The roadblock should be highly visible with warning signs, flashing lights, adequate lighting, and official police vehicles and officers in uniform.

7. Length and nature of detention. Motorists should be detained for a minimum amount of time. This brief encounter should allow the officer to question the driver to look for signs of intoxication. If there are signs of impairment, the driver can be asked to move to another area for sobriety tests. This has to be based on probable cause and principles of detention and arrest would apply.

8. Advance publicity. This was a requirement, but as of People v. Banks advanced publicity is just another factor to be considered.

The foregoing criteria are just guidelines. If law enforcement fails in one or more of these areas, the checkpoint is not automatically deemed illegal or unconstitutional. A skilled attorney may argue to the court such failure rises to the level of a constitutional violation. If this motion is won, your DUI case may be reduced or even dismissed.

Part I was posted on November 1st, 2010.

California’s Sobriety Checkpoint/Roadblock Criteria (Part I)

November 1, 2010 | The Law Offices of Susan L. Hartman

checkpoint sign.jpg Sobriety checkpoints or roadblocks were found to not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures in Michigan Department of State Police v. Sitz (1990).

The California Supreme Court set forth criteria for checkpoints to ensure they are in compliance with the Federal and California’s State Constitution in Ingersoll v. Palmer (1987). However, the court did not require all the factors be present for the checkpoint to be deemed constitutional.

The California Court decided driving under the influence (DUI) checkpoints should function as a deterrence and not solely to increase the number of DUI arrests. In this opinion, the Court explained the ambiguous guidelines law enforcement must use to minimalize the intrusiveness of the stop.

1. Decisionmaking at the supervisory level. The decision to conduct the DUI checkpoint, the location of the site, and the operation procedures are to be established by supervisory law enforcement not field officers.

2. Limits on discretion of field officers. There must be a neutral formula to determine which cars are to be stopped. This is not to be left in the discretion of the field officers.

3. Maintenance of safety conditions. This is done by employing proper lighting, signs and signals, and having clearly identifiable official vehicles and personnel.

4. Reasonable location. The location should be determined by policy-making officials not field officers. The site should be one that has a high rate of alcohol related accidents and arrests. Safety should also be considered when choosing the location.

The last four criteria will be discussed in another future posting, “California’s Sobriety Checkpoint/Roadblock Criteria (Part II).”