Articles Posted in Defending DUI Cases

|

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.

Continue reading ›

|

HOJ2.jpgIf 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.

Continue reading ›

|

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.

Continue reading ›

|

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.

Continue reading ›

|

Before January 1st, 2014, California law enforcement agencies were using California Vehicle Code (VC) Sections 23152(a) and (b) to prosecute cases involving alcohol, drugs, or a combination of alcohol and drugs.

VC 23152(a) stated, “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.” VC 23152(b) read, “It is unlawful for any person who has a 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

As of January 1st, 2014, the State of California added two more driving under the influence code sections, 23152(e) and 23152(f), thus separating out the alcohol and drug cases.

VC 23152(a) has been updated to read, “It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.” Section 23152(b) has been changed to, “It is unlawful for a person who has a 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

The new VC 23152(e) provides, “It is unlawful for any person who is under the influence of any drug to drive a vehicle.” And, under VC Section 23152(f), “It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.”

After the first quarter of the year, it is unclear how the court will handle the new version of this vehicle code section. Still, the 2014 California Jury Instructions uses only the (a) and (b) sections as they were used before, (see CALCRIM No. 2110 and 2111).

As for the administrative portion of a drunk driving matter, the DMV Driver Safety Office does not address drug impairment at the APS Hearing. The hearing only focuses on alcohol and BAC. However, you can speculate that with the push for more legislation on DUI’s, such as the proposed AB 2500, drug DUI enforcement and penalties may become stricter in the future.

If you have been arrested for driving under the influence due to alcohol, drugs, or a combination of alcohol and drugs, you owe it to yourself to seek help from a criminal defense attorney who exclusively deals with DUI matters.

Continue reading ›

|

An SR-22 is a certificate of insurance. It is proof that you have met the state’s minimum requirements for liability car insurance. This form is obtained from your insurance company and they file it with the California Department of Motor Vehicles, to show proof of financial responsibility.

The DMV may require an SR-22 when you reinstate your driving privileges after a suspension or revocation. This happens after a DUI arrest if you lose the Administrative Per Se (APS) Hearing challenging the license suspension, you do not request a hearing and your driving privileges were automatically suspended, or you were convicted or plead guilty to a drunk driving charge and the sentencing included a suspension or revocation.

After a specific amount of time, (depending on certain factors), you may be eligible for a restricted driver’s license. The restricted license allows you to drive to, from, and during the course of your employment and to and from the DUI program. The DMV will not issue the restricted license unless you register in and attend the requisite drunk driving program, pay the reissuance and restriction fee, and file an SR-22 with the department. The SR-22 must be maintained for a period of three years after a DUI suspension.

Most people request the SR-22 from the insurance company that is currently insuring them. However, that is not recommended. Insurance companies have millions of customers and it is not cost effective for them to run a record check on each and every customer. Instead, they rely on self reporting. Once you tell your insurance carrier that you need an SR-22, they will check your DMV record, looking for things like a DUI.

In many cases, the insurance company will not insure a driver with a DUI on their record, so they get dropped and the policy is cancelled. Other companies will issue the SR-22 but then raise the premium, as you may be deemed to be a “high risk driver.”

If you are dropped or you fail to maintain the SR-22 for the entire three years, the insurance company is required to notify the DMV. Your driving privilege will again be suspended unless you immediately obtain another policy.

The Law Offices of Susan L. Hartman recommends you do not self report. Instead, we provide our clients with the names of insurance brokers that specifically deal with drivers with driving under the influence matters. Through these brokers, the licensee can obtain a supplemental insurance policy and an SR-22; thus, maintaining their current car insurance. And, in the event that the original insurance carrier finds out about the DUI and raises the premium or cancels the policy, the brokers will help the client find another insurance company that will insure them regardless of their DUI arrest.

The above blog article is by no means all-inclusive and is not legal advice. Laws may change and may not apply to your case. For the latest information or to get legal advice, speak to a DUI attorney in your area.

Continue reading ›

|

In San Diego County and throughout California, driving under the influence penalties are getting harsher. In most cases, alleged DUI incidents are charged with two penal code violations:

  1. Driving a vehicle while under the influence of alcohol, drugs, or a combination of both; and,
  2. Driving with a blood-alcohol content (BAC) at or above .08 percent.

Along with these (or other possible) charges, the prosecuting agency may also add penalty enhancements to the complaint. Just as it sounds, if alleged, these can increase the penalty imposed if a person pleads guilty or is found guilty of the enhancement.

Typical enhancements include prior convictions within the past 10 years, high BAC, refusals, speeding, child endangerment, and accidents/injuries.

If a person was convicted or pleaded guilty to a DUI or a wet reckless within 10 years of the current offense, the sentence for the new drunk driving matter will be increased in the criminal court proceeding. Also, the DMV will suspend the driving privileges for a longer period and the driver will have to attend a longer DUI program. Each prior offense will increase the penalties. If the person has 3 prior DUI offenses on their record, the 4th could be charged as a felony, thus exposing him or her to a prison sentence. This is true even if none of the drunk driving offenses involved an accident or any injuries.

If a person’s blood-alcohol content is proven to be .15% or more or .20 or more, additional penalties may be imposed. On a first DUI with a .20 BAC, the 9-month alcohol program will be ordered instead of the 3-month program. In addition, the judge may also impose additional terms such as mandatory AA meetings, public work service, or an ignition interlock device.

If the driver refused to do a chemical test after a lawful arrest, additional administrative penalties are imposed through the DMV. For instance, on a first DUI with a refusal, the DMV will suspend the driving privileges for one year, instead of the usual 4 months. Plus the court will use this to enhance the sentence, including 2 days of mandatory jail time.

If a person was driving 20+ mph over the speed limit on surface streets or 30+ mph over the speed limit on the highway, the enhancement is called reckless driving. Under California Vehicle Code Section 23582, the judge will order a mandatory 60 days in custody in addition to all the other penalties imposed for the DUI.

If the DUI driver had a minor under the age of 14 in the car when the offense occurred, they will likely be charged with the child endangerment enhancement. The court may enhance the drunk driving sentence by adding an additional 10 days of jail time.

If an accident was involved and there was property damage, the court will order restitution. If a person was injured in the accident, the charges will often be felony DUI or a misdemeanor DUI with injuries, both will include enhanced penalties.

The above blog article is by no means all-inclusive and is not legal advice. Laws may change and may not apply to your case. For the latest information or to get legal advice, speak to a DUI attorney in your area.

Continue reading ›

|

bigstock-Man.Don-t-Drinking-and-Driving-42276163.jpgIn most drunk driving cases, something initially happens that draws the police officer’s attention to the car. There are rare instances when the officer does not witness driving; for instance, when the officer responds to an accident. In those cases, driving is determined by inferences, circumstantial evidence, and statements made by witnesses and the defendant.

If the officer observes a moving violation, the driver will be pulled over. If the contact ends up with an arrest for DUI, the initial observations, including the driving pattern, is documented by the officer in the police report. That report is forwarded to the prosecutor, either the San Diego City Attorney’s Office or the District Attorney’s Office, depending on where the case is filed, to be reviewed to determine if official charges will be filed in the San Diego Superior Court.

If the case is litigated through motions or a trial, or a plea deal is being negotiated, the officer’s initial observations of the defendant’s driving pattern become very important. A moving violation gives law enforcement probable cause to pull the driver over and cite them. It can also provide reasonable suspicion that a crime is or is about to be committed, making the initial contact to investigate constitutionally legal.

In driving under the influence cases, officers and prosecutors look to the driving pattern as one of the factors in evaluating the case. Speeding, being unable to maintain a steady speed, weaving, crossing over the painted lines, not using headlights when appropriate, stopping beyond a limit line, failing to stop at a stop sign or stop light, driving on the curb or off the road, and failing to respond to the police car’s emergency lights and sirens, among others, will be viewed as evidence of the defendant’s inability to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances, (see California Jury Instructions, CALCRIM 2100).

It is the defense attorney’s job to explain to the prosecutor, the judge, and the jury that the driving pattern is not indicative of intoxication, but as ordinary and reasonable driving mistakes.

Continue reading ›

|

We all remember the numerous news reports in December 2013, that a Texas judge sentenced 16-year-old Ethan Couch to ten years probation and a residential treatment program in California, after killing four people and severely injuring two others in a drunk driving accident. He was driving 70mph in a 40mph zone when the accident occurred. His blood-alcohol content was measured at .24 and he tested positive for valium. He faced a maximum of 20 years in jail with parole possible in just two years.

The judge sentenced Couch after hearing testimony from the defense psychologist Gary Miller, who argued that Couch suffered from “affluenza,” meaning the youth was not taught about consequences for bad behavior because his parents were so wealthy and did not set limits on him. Defense attorneys argued that the parents should share in the blame and stated the boy would greatly benefit from being away from his parents in an out-of-state treatment program.

In response to this case, State Assemblyman Mike Gatto, from Los Angeles, introduced a bill in January 2014, to try to prevent the afflueza defense in drunk driving cases in California. The bill, AB1508, states, “…when determining the punishment to be imposed in all misdemeanor and infraction cases, or when determining the term to be imposed when a statute specifies 3 possible terms of imprisonment, the fact that a defendant did not understand the consequences of his or her actions because he or she was raised in an affluent or overly permissive household shall not be considered a circumstance in mitigation of the crime.”

Although the word affluenza may not have been used in California DUI cases before, I think everyone can agree that judges hand down sentences on all types of criminal cases, including drunk driving matters, based on a lot of factors. Factors such as prior DUI’s, the severity of the crime, the blood-alcohol content at the time of the incident, the injuries/deaths involved, along with the defendant’s background, the possibility of reoffending, punishment, and protecting the community. Without using the word affluenza, which I believe is what is really upsetting people in this case, the plea negotiations and the sentencing should include all of these relevant factors.

In the Couch case, the minor is going to be under the jurisdiction of the court for at least 10 years. Within that time, I hope he learns that there are consequences to his actions regardless of this parents’ wealth and their apparent inability to teach him how to manage himself in a manner that is lawful and safe.

Having said that, it is my opinion that Assemblyman Gatto’s legislation should be struck down.

Continue reading ›

|

Misdemeanor charges were brought against two minors in Connecticut after their friend, Jane Modlesky, drove while under the influence and hit a tree. She ended up dying in the crash that happened in July 2013.

Earlier that day, Modlesky and her friends were drinking at an underage party. She then got into the 2008 Honda Pilot with four minor males. A 16 year old male drove one of the boys to his home and dropped him off. He then proceeded to his own home, where he got out of the car. Then another 17 year old male drove to his home where he and the fourth boy exited. They then allowed Modlesky to get into the driver’s seat and drive the vehicle, allegedly knowing she was intoxicated. She only got 1/2 mile before crashing into a tree in Glastonbury, Connecticut. Her blood-alcohol content was measured at .26%, way above the zero tolerance laws for minors.

In the beginning of December 2013, the last two boys out of the car were charged with second degree reckless endangerment, as many in the community thought they should have prevented her from driving, according to wfsb.com.

This is a very rare case. I have never seen such a case prosecuted in my time as a criminal defense lawyer. What often happens in a case such as this, is that prosecutors feel pressure from the victims and the community to bring charges against someone in order to hold someone accountable for what had happened. But, bringing charges does not mean that the defendants will be found guilty in a criminal court.

In fact, according to California DUI lawyer Lawrence Taylor, “This is a highly unusual situation. It’s basically saying that they had a positive duty to stop her. But you cannot be prosecuted because you did not stop someone from engaging in criminal conduct…So I think the police are kind of overreaching here.”

Based on what is being reported by the media, the boys did nothing. They did not convince her to drive. They did not force her to drive. She made that choice on her own. Therefore, the charges should be dropped, but if not, I expect that the boys will be found not guilty as charged.

This blog is by no means legal advice. If you have questions about a drunk driving matter, contact a criminal defense lawyer in your area.

Continue reading ›

Contact Information
8880 Rio San Diego Dr
Suite 800, PMB 846
San Diego, CA 92108
Phone: (619) 260-1122Fax: (619) 756-7033

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2014 – 2025, The Law Offices of Susan L. Hartman
JUSTIA Law Firm Blog Design