Defending DUI Cases

Walk And Turn (WAT): One Of The Standardized Field Sobriety Tests (SFST’s)

September 30, 2015 | The Law Offices of Susan L. Hartman

As you will recall, Susan Hartman, of the Law Offices of Susan L. Hartman, attended The National Highway Traffic Safety Administration (NHTSA) and The International Association of Chiefs of Police (ICAP) approved DWI Detection and Standardized Field Sobriety Testing Practitioner Course, as presented by Mr. Robert La Pier.

The course went through the three standardized field sobriety tests (SFST’s), as laid out by NHTSA: 1.) The horizontal gaze nystagmus; 2.) The walk and turn; and 3.) The one leg stand. These are the only tests that have been validated by NHTSA and should be used by law enforcement in evaluating each potential DUI. It should be noted that these tests were only validated to correlate to a specific blood alcohol content (BAC) and they are not be used to show impairment.

In the last blog article, the horizontal gaze nystagmus, or HGN, test was discussed. This article will address the walk and turn test, (WAT).

The NHTSA manual states that this “test should be conducted on a reasonably dry, hard, level, non-slippery surface.” If the person is wearing heels that are more than two inches, they should be given the choice to remove the shoes and perform the test barefooted.

There are many reasons why a person may not be able to adequately perform this test, regardless of their consumption of alcohol. Continue reading ›

The Standardized Field Sobriety Tests (SFST’s): Horizontal Gaze Nystagmus (HGN)

August 18, 2015 | The Law Offices of Susan L. Hartman

San Diego DUI defense attorney, Susan Hartman, of the Law Offices of Susan L. Hartman, recently attended The National Highway Traffic Safety Administration (NHTSA) and The International Association of Chiefs of Police (ICAP) approved DWI Detection and Standardized Field Sobriety Testing Practitioner Course, as presented by Mr. Robert La Pier. This is the very course law enforcement is trained in for DUI investigations, giving them the tools to determine if a person should be arrested for drunk driving.

During the training, which lasted three full days, Susan was tested through written exams and practical demonstrations. In the end, she passed the course and earned the certificate of completion.

According to NHTSA, there are only three standardized field sobriety tests (SFST’s): 1.) The horizontal gaze nystagmus; 2.) The walk and turn; and 3.) The one leg stand. These are the only tests that have been validated by NHTSA and should be used by law enforcement in evaluating each potential DUI. It should be noted that these tests were only validated to correlate to a specific blood alcohol content (BAC) and they are not be used to show impairment.

In this blog article, the horizontal gaze nystagmus, or HGN, will be discussed. The other two tests will be addressed in upcoming blog articles. Continue reading ›

San Diego DUI Sentencing Alternative: CPAC

December 3, 2014 | The Law Offices of Susan L. Hartman

In San Diego criminal courts, the judge sentences DUI defendants. For first time misdemeanor drunk driving offenders, that sentence usually does not include any jail time other than what was served at the time of the arrest. As for subsequent DUI’s, in custody time is very likely to be ordered.

However, San Diego has a program called CPAC, County Parole and Alternative Custody, that is run by the Sheriff’s Department. This is basically an electronic home confinement program where you wear a bracelet that uses GPS to track your whereabouts. It also has the ability to screen for alcohol use.

You cannot prequalify for this program. If your sentence included a jail term, the judge may authorize you to be screened for this program. The judge’s authorization must be on the Court Minute Order for the Sheriff to accept your application to start the screening process to see if you qualify for the program. Continue reading ›

First Time DUI: Do I Really Need A Drunk Driving Lawyer?

October 31, 2014 | The Law Offices of Susan L. Hartman

San Diego residents often call me for their free phone consultation after being charged with their first drunk driving offense. At the end of the call, the person often says, “I have been talking to my friends and I just don’t know if I need an attorney on a simple misdemeanor DUI.” Here’s my answer: You absolutely need an attorney! Any time you are charged with a crime, whether it’s drunk driving, domestic violence, or murder, you must have an advocate on your side.

First off, all criminal matters are very serious. Regardless of whether your case is a misdemeanor or a felony, it can impact your criminal record throughout your lifetime. Your record influences the jobs and promotions you may seek, your housing, loans, and many other aspects of your life that you will not realize until you are getting a background check done. Don’t you want to try to get the charges dismissed or reduced and your penalties lessened?

A criminal defense attorney knows the law and protects your rights. In addition, the lawyer knows the system, how it works and what to expect. With the attorney’s legal insight, discovery is requested and then reviewed to look for issues with the case which can lead to reduced charges and possibly even a dismissal of your case.

If you don’t hire an attorney, would you know what defenses are available to you? Would you be able to review your discovery packet to look for issues the prosecutor will have proving their case? Would you know if you have any motions to file to challenge the State’s evidence, or if your case is worth a trial? Do you know what a fair offer is on your particular case? Do you know what things the prosecutor and judge want to hear about you and the facts of your case that can persuade them to reduce the charges or lighten the sentence? Continue reading ›

Drunk Driving & Refusing To Submit A Chemical Test, Criminal Ramifications

September 23, 2014 | The Law Offices of Susan L. Hartman

California has an implied consent law, which requires a driver that is lawfully arrested, suspected of driving under the influence, to submit to a chemical test. The tests that are typically offered for suspected alcohol intoxication is a breath and blood test. A blood test is usually offered for suspected drug intoxication. Occasionally, a urine test may be offered if it believed the driver is under the influence of drugs and is unable to give a blood sample for medical reasons, or the blood and /or breath test is not available.

The officer is only required to give you one chance to complete the test. If you refuse, but then change your mind, or you fail to pick one of the tests offered, that can be considered a refusal.

If you refuse, the police may forcibly draw your blood if they obtain a warrant or they can show exigent circumstances that justify the blood draw without a warrant. In addition to the administrative penalties through the DMV regarding your privilege to drive, there are also enhanced criminal penalties for refusing to submit to a chemical test.

For a first DUI with a refusal enhancement, an additional 48 hours in jail will be added to the penalty. In addition, instead of the 3-month First Conviction Program, the 9-month program will be ordered. With a second drunk driving conviction within 10-years, 96 hours in jail is added. For a third driving under the influence conviction within 10-years, 10 additional days in jail are added to the sentence. And, lastly, for a fourth or subsequent DUI conviction within 10-years with a refusal, the enhanced penalty is 18 additional days in jail. Continue reading ›

California DMV & Chemical Test Refusals In DUI Cases

July 31, 2014 | The Law Offices of Susan L. Hartman

If you are driving a vehicle in California, you have agreed to a chemical test of your breath or blood to determine the alcohol and/or drug content, if you are lawfully arrested and suspected of driving under the influence of alcohol, drugs, or a combination of alcohol and drugs, (implied consent). The required chemical test must be given after a lawful arrest. If you refuse, you may suffer harsher consequences through the DMV and in the court.

The preliminary alcohol screening (PAS) test, the handheld breath test that is given at the scene, is just a field sobriety test. You can and should refuse to take that test, as well as any other field sobriety tests, unless you are under 21 or on DUI probation.

Once arrested, you must provide a sample of your breath or blood. However, in some instances, such as the other tests are not available, drugs are suspected and you cannot provide a blood test, or you have a medical condition that does not allow you to provide a breath or blood sample, a urine test may be offered instead.

If you fail to submit to a chemical test after a lawful arrest, the DMV will take immediate action on your driving privileges. You will be given notice that your driver’s license will be suspended 30 days after the arrest unless you request a hearing within 10 days after the arrest date. If you fail to request the hearing, or if the DMV does not set aside the license suspension after the hearing, your license will suspended for one year on your first offense, revoked for two years on your second offense within 10 years, and revoked for three years on your third offense within 10 years. (Note, this is separate from any action that the court may take against your license in the criminal portion of your case.)

If a DMV hearing is requested, the Administrative Per Se (APS) Hearing will only address four issues:

Under 21 Driving Under The Influence & The DMV APS Hearing

July 15, 2014 | The Law Offices of Susan L. Hartman

Whether you are 21 years old or older, or under 21 years old, if you are arrested for driving under the influence, two separate actions are triggered. The first is the Administrative Per Se, or APS, action from the California Department of Motor Vehicles, which deals with the suspension of your driving privileges. The second is the criminal process through the Superior Court, which deals with criminal penalties such as probation, fines, DUI programs, community service, possible jail time, and a range of other possible penalties. This blog article deals specifically with the Zero Tolerance Law and the DMV APS action.

In California, it is illegal for anyone under the age of 21 to consume alcohol. It is also illegal for anyone under 21 to drive if they have any measurable amount of alcohol in their system. Once the under 21 year old is detained or arrested, they must submit to a preliminary alcohol screening test, PAS, or other chemical test. If their blood alcohol content (BAC) is found to be .01% or greater, they will be given notice that their license will be automatically suspended in 30 days unless they request a hearing challenging the suspension within 10 days of the arrest. The suspension for a first offense is one year.

If the under 21 driver submitted a PAS sample or completed another chemical test, there are only 3 issues that the hearing officer will consider at the hearing. 1.) Did the peace officer have reasonable cause to believe you had been driving a motor vehicle in violation of sections 23136, 23140, 23152, 23153, or 23154 of the Vehicle Code? 2.) Were you lawfully placed under arrest, or if the alleged violation was of section 23136 or 23154 of the Vehicle Code, were you lawfully detained? 3.) Were you driving a motor vehicle…under 21 years of age and had a blood alcohol concentration of .01% or more as measured by a preliminary alcohol screening test, or any other chemical test?

You have a right to retain a DUI defense attorney to represent your interests at the APS hearing.

Seal and Destroy Drunk Driving Arrest Records

July 7, 2014 | The Law Offices of Susan L. Hartman

If you were arrested for DUI in San Diego but criminal charges were never filed, the case was eventually dismissed in court, or you were acquitted after a jury trial, you may be able to have your arrest records sealed and destroyed under California Penal Code Section 851.8.

Why would you want to do this? Criminal records are stored indefinitely unless law enforcement is ordered to destroy them. In addition, they are public records so they can be found in any criminal background check. And, in the age of computers, these records are easy for anyone to find which can cause you difficulty in gaining employment, housing, a state license, etc.

If you are successful, you can answer any question about whether you have been arrested for a crime by saying, “No, I have never been arrested.” So you want to try to get them sealed and destroyed.
The motion must be filed within two years of the date of arrest or the filing of the accusatory pleading, whichever is later. But, if you file beyond the two years, the judge may still grant the motion if you can show good cause.

The process to seal and destroy records can be done in one or two steps. If you were arrested but the prosecutor did not file charges, you must first file the petition with the law enforcement agency that arrested you. If the police agency believes you are factually innocent of the crime, they will seal the arrest record for three years and then destroy them themselves without further action needed by the courts.

If they refuse to grant your petition, or if they do not respond within 60 days of being served with your papers, you can then petition the court for relief. In addition, if charges were filed in court and then dismissed, or you were acquitted by a jury, you can petition the court directly for relief, skipping step one.

Biking: A Good Alternative To Driving My Car While Under The Influence?

June 19, 2014 | The Law Offices of Susan L. Hartman

Summer 2014 is here! The summer brings BBQ’s, parties, boating, beach time, Sunday Fundays, cold beers and margaritas, and lots of fun times. It is important, however, to plan ahead so your fun does not end with criminal charges.

Often, people use their bikes as transportation when they know they are going to be drinking alcoholic beverages thinking it will prevent them being arrested for drunk driving. But, they are still at risk of being arrested and here is the law.

If the bike can be propelled, moved, or drawn upon a highway, such as a motor bike, you can be charged with driving under the influence of alcohol, drugs, or a combination of both. All the penalties of a standard drunk driving offense involving an automobile would apply. However, if your bike is self-propelled, you will not be subjected to the DUI statutes. Instead, you can be charged with BUI or CUI, biking or cycling under the influence, under California Vehicle Code Section 21200.5.

This code section specifically states: “…it is unlawful for any person to ride a bicycle upon a highway while under the influence of an alcoholic beverage or any drug or under the combined influence of an alcoholic beverage and any drug. Any person arrested for a violation of this section may request to have a chemical test made of the person’s blood, breath, or urine for the purpose of determining the alcoholic or drug content of that person’s blood…”

The biggest difference between a DUI and a BUI is that there is no specific blood alcohol limit in a BUI case. In a criminal DUI matter, the “Per Se” limit is a .08. Also, the penalty for a conviction for BUI is a fine of not more than $250.00, which is a substantially lesser penalty than in a standard DUI case.

Riding a bicycle while under the influence is a hard case for the prosecutor. These cases can be attacked on several fronts. If you have been arrested and/or charged with riding a bicycle while under the influence, you deserve to hire the Law Offices of Susan L. Hartman, an exclusively DUI defense firm that will aggressively defend your case.

Can Cops Search Your Cell Phone Without A Warrant?

May 1, 2014 | The Law Offices of Susan L. Hartman

This is the very question that is currently before the Supreme Court of the United States, (see David Riley v. State of California). The ruling can potentially impact anyone who is arrested while having a cell phone in their possession.

In August of 2009, San Diego college student, David Riley, was pulled over by a cop from the San Diego Police Department, for having expired tags on his Lexus. The officer ran Riley’s information and found that he was driving on a suspended license. The vehicle was impounded and an inventory search of the vehicle was conducted to document the contents.

Riley was then arrested for carrying concealed and loaded weapons that were found during the search of his car. His cell phone was found and seized. It was a smartphone, with internet access, capable of storing photos, videos, voicemail messages, and emails. The officer conducted a cursory search of the phone at the scene and then a detective went through the phone more thoroughly at the police station. The officer found some text messages that contained the letters CK, which he believed referred to “Crip Killers,” a gang reference to the “Bloods.” In addition, the photos showed what appeared to be the defendant with a car that was thought to be used in a shooting.

Subsequent to the cell phone search, Riley was arrested in connection with the shooting. It was further alleged that the defendant was a member of a gang and the crimes were committed for the gang’s benefit, thus exposing him to enhanced penalties.

Prior to the trial, the defense motioned the court to suppress all of the evidence obtained by the cell phone search, as it was done without a warrant and without exigent circumstances, thus violating the Fourth Amendment of the United States Constitution. The judge denied the motion, finding that the search was legally conducted incident to the arrest.

The first trial hung but the second resulted in a guilty verdict. Riley appealed claiming the warrantless search of his phone was unconstitutional.

The Law Offices of Susan L. Hartman agrees with Riley, the Petitioner in this case. The new smartphones are not just phones. They are basically small computers that store a lot of personal information. If an officer confiscates a smartphone incident to a lawful arrest, law enforcement should be required to get a search warrant in order to search the contents of that phone. Without the warrant, any evidence found during that illegal search should be excluded from trial, as well as any evidence that is found because of the information that is gathered during the illegal search of the phone, (fruit of the poisonous tree doctrine).

Stay tuned as the Supreme Court of the United States is expected to announce its decision on this issue in June.

If you’re charged with a crime in San Diego, it is imperative that you know your rights and the law. Officers will use whatever they can to prosecute you. Protect your interests, hire a criminal defense attorney.