Defending DUI Cases

Forced Blood Draws In DUI Cases, Courts Deciding On The Legality

April 22, 2011 | The Law Offices of Susan L. Hartman

forced blood draw.jpg The Florida Fifth District Court of Appeal heard arguments this week on whether law enforcement can forcibly draw blood from certain DUI suspects. Currently, Florida law allows forced blood draws without a search warrant in suspected drunk driving cases involving death or serious injury.

In this case, no injury or death was involved when the defendant was charged with driving under the influence. The defendant failed to keep his car in a single lane so he was stopped by Melbourne police. Law enforcement did obtain a search warrant for the blood sample.

Circuit Judge Maxwell did not allow the blood evidence into court; thereby prompting this appeal by the state. This issue has not come before any appeal court in Florida before and the ruling will impact 13 counties and become a benchmark for other judicial circuit courts in Florida.

In California, there is an implied consent law for chemical testing, Vehicle Code Section 23612. Under this statute, “any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purposes of determining the alcoholic content of his or her blood if lawfully arrested for an alleged DUI.”

Once arrested for drunk driving, the person has a choice between a blood or breath test. If a person refuses to give either sample, and they are eventually convicted of drunk driving, their penalty will be increased according to Vehicle Code Section 23577.

Can an officer force you to take a blood test if you refused to give a sample? Yes, if the following conditions are met (People v. Sugarman): 1.) The circumstances require prompt testing; 2.) The arresting officer has reasonable cause to believe the arrestee is intoxicated; and, 3.) The test is conducted in a medically approved manner incident to a lawful arrest.

So how do you defend a drunk driving case that involves a refusal? You can challenge the lawfulness of the arrest itself. The officer must have had probable cause to stop and arrest you. Also, the prosecution must prove you were the driver of the car and you were in fact under the influence. Further, the officer may not have told you that you are obligated to submit to a chemical test or the admonition was confusing.

Your drunk driving charges may be dismissed if any of the defenses above fit your case. (Note, this is not an exhaustive list of defenses.) Contact an exclusively DUI defense firm if you want more information on how to defend you matter.

San Diego Officer Suspected Of Drunken Driving And Hit And Run

April 13, 2011 | The Law Offices of Susan L. Hartman

Another San Diego Police Officer, David Hall, is under investigation, according to 10news.com. This time for allegedly being involved in a hit-and-run crash while driving under the influence.

Hall is suspected of driving his GMC Yukon SUV into a Chevrolet Suburban on northbound Interstate 805 just north of Murray Ridge Road on February 22, 2011, at approximately 7:30 p.m. A CHP officer spotted Hall’s vehicle, which matched the description of the initial report, and followed him to his home. He took a breath test with a reported result of three times the legal limit.

The officer has not been arrested for drunken driving or hit and run; however, this matter is being investigated by the San Diego Police Department and the San Diego District Attorney’s Office.

An officer may arrest a person when the officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence, Penal Code Section 836. However, there are many exceptions to this “officer’s presence” requirement. Under California Vehicle Code Section 40300.5, a peace officer may arrest a person when the officer has reasonable cause to believe that person had been driving while under the influence and the person was involved in a traffic accident. It appears in this case that no one can identify Hall as the driver of the vehicle when the accident occurred, so this will be a tough case for the prosecution.

SD Cop Investigated Drunk Drivers Then Requested Sexual Favors, Open DUI Cases Dismissed?

March 31, 2011 | The Law Offices of Susan L. Hartman

SDPD Arevalos.jpg San Diego Police Officer, Anthony Arevalos, was arrested and charged with 10 felony counts including sexual battery by restraint, receiving a bribe, assault and battery by an officer, and false imprisonment involving three alleged victims. The investigation continues and more charges may be filed as more than nine women may have been victimized by this cop, dating back to February 2010.

It is alleged that Arevalos would initiate a DUI investigation and then ask the women what they would be willing to do in order to have the charges go away. One woman gave the officer her underwear and another was taken to a 7-Eleven restroom where she was sexually assaulted.

Arevalos has plead not guilty and is out on $200,000 bail. The San Diego Police Department placed him on an unpaid suspension pending the outcome of this criminal matter. Arevalos faces more than 11 years in prison if convicted of the crimes currently charged.

So what does this mean for all the open drunk driving cases that involve this suspected rogue officer? They should be dismissed! After all, the officer’s credibility is directly at issue. His modus operandi (or M.O.) is to sexual assault during these types of investigations, calling into question the integrity of each and every DUI investigation he has performed. But, if they are not dismissed, it will be interesting to see if the San Diego City Attorney will put this officer on the stand to testify about how he investigates drunk driving cases.

Stopped For Drunk Driving, Breath Or Blood Test Results Over .08%, Plead Guilty?

February 22, 2011 | The Law Offices of Susan L. Hartman

not guilty.jpg You are pulled over by a police officer suspected of driving under the influence. You take a breath or blood test. The result — .12 (or even higher). You are over the legal limit of .08% blood alcohol content (BAC) and you are arrested and charged with Vehicle Code Section 23152, driving under the influence of alcohol.

You ask yourself, “Should I just plead guilty? Do I need to hire an attorney?” You should never plead guilty at the arraignment stage. And yes, you need to hire a skilled, exclusively DUI defense attorney.

It is never recommended that a person plead guilty at the arraignment. At this early stage, the discovery documents are not available to the defendant or the defendant’s attorney. DUI defenses become apparent during the discovery phase of the case.

Even though the chemical test results showed you were over the legal limit, you may still have defenses in your case. Before you can even consider your breath or blood test results, you have to evaluate the prosecution’s entire case against you.

A skilled trial attorney will review all the discovery documents, evaluate the prosecutor’s case, and advise you on any defenses. Appropriate motions may be filed, which can result in your matter being dismissed or reduced.

Since a DUI conviction will be on your driving record for 10 years, it will be used as a prior to enhance the penalty of any other drunk driving cases you may pick up during that time period. Therefore, it is important to aggressively fight to get the case reduced or dismissed.

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.