Defending DUI Cases

San Diego Drunk Driving Arrest: Posting Bail

October 14, 2013 | The Law Offices of Susan L. Hartman

After making an arrest for driving under the influence, the officer often takes the suspect to jail to be booked. In most DUI cases, the defendant is told the amount of bail that can be posted in order to get out of jail. The amount of bail depends on the crime and the county bail schedule.

Bail can be posted by paying the entire amount in cash to the court clerk or to the arresting agency. At the end of the case, if the person made all their court appearances, the money is refunded in full. If the defendant failed to appear, FTA, the money is forfeited and the court keeps the full amount of the cash bail.

Most often, instead of paying cash, defendants use a bail bondsman or bail agent to obtain a bail bond. The bondsman posts the required bail for the defendant after receiving a non-refundable premium, and sometimes additional collateral. Under California law, the maximum the bondsman can charge is 10% of the bail. Typically, the bond contract lasts one year. If the case remains unresolved after a year, the defendant will have to pay to renew the contract.

If the defendant fails to appear in court, the bail is forfeited and a warrant may be issued for the person’s arrest. The bondsman will seek reimbursement from the defendant and their cosigner. In addition, the bondsman is obligated to find and arrest the person and bring them before the court.

Bail in a typical first misdemeanor DUI case, without any additional charges, is $2,500 in San Diego County. On a second misdemeanor drunk driving matter, bail is often set at $10,000. Bail on a third misdemeanor DUI goes up to $15,000. If there were injuries, the bail is $20,000. In felony driving under the influence cases that involves the death of another bail is often set at $100,000.

Ultimately, the judge has discretion in setting the bail amount. The amount can be increased, reduced, or the person may even be released on their own recognizance (promise to appear). When making a ruling on bail, the judge considers the defendant’s criminal history, flight risk, ties to the community, and the facts of the case.

If you or someone you know has been arrested for drunk driving, immediately contact a criminal defense attorney who specifically handles DUI cases. It is always best to get legal advice as early as possible in the case to ensure all your rights are protected.

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.

Drunk Driving Causing Injury: California Vehicle Code Section 23153

September 24, 2013 | The Law Offices of Susan L. Hartman

Recently, a young San Diego man was arrested after an intoxicated pedestrian stepped into oncoming traffic and was struck by his car, according to 10news.com. The pedestrian suffered a broken leg and arm and the driver was later arrested for felony hit and run because he left the scene. What if the driver had consumed an alcoholic beverage before this incident? He may have also been charged with DUI causing injury in addition to his current charges.

In San Diego and throughout California, if a person drives while under the influence of alcohol and/or a drug, and while driving either broke a law (other than DUI) or acted in a negligent manner, and that unlawful act or negligence injures another person, the prosecutor can bring charges under California Vehicle Code Section 23153. This statute is called a “wobbler” because it can be charged as a misdemeanor or a felony.

Under CA Vehicle Code Section 23153, the driver is under the influence, if as a result of drinking an alcoholic beverage, (and/or taking a drug), his or her mental or physical abilities are so impaired that he or she is no longer able to drive with the caution of a sober person, using ordinary care, under similar circumstances, (see California Jury Instructions, CALCRIM 2100).

So, if the prosecutor can prove that the driver would have been able to avoid hitting the drunk man who fell off the curb right into his driving path if he did not consume an alcoholic beverage or drugs, the driver could be charged with DUI causing injury.

The penalty for a misdemeanor DUI causing injury could include: Up to five years of informal, summary probation; Five days to a year in jail; $390-$5,000 in fines; A court-approved DUI program for three, nine, eighteen, or thirty months; One to three years suspension of your California driver’s license; And, restitution to the injured parties.

The penalty for a felony DUI causing injury could include: State prison sentence of two, three, or four years; Additional and consecutive three to six year prison sentence if any victim suffers great bodily injury; Additional and consecutive one year sentence for each additional person that suffers any injury (three year maximum); A “strike” on your record if anyone other than the driver suffers great bodily injury; $1,015-$5,000 in fines; A court-approved DUI program for eighteen or thirty months; Habitual Traffic Offender (HTO) status for three years; And, five year revocation of your California driver’s license.

The consequences for a DUI causing injury is severe. If you, or someone you know, has been arrested for violating California VC Section 23153, contact a drunk driving attorney in your area. Protect yourself and get help immediately!

The above blog 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.

Walk-And-Turn Test, Part Of The Field Sobriety Test (FST) Battery

September 19, 2013 | The Law Offices of Susan L. Hartman

The walk-and-turn test (WAT) is one of the three tests in the battery of field sobriety tests (FST’s) that the National Highway Transportation Safety Administration (NHTSA) recommends law enforcement use to evaluate a suspect to determine if they are under the influence, thus establishing probable cause to arrest for drunk driving.

Both the WAT and the one-leg stand tests are considered “divided attention” tests, where a person’s attention is on both mental and physical tasks. The third test in the battery is called the horizontal gaze nystagmus test (HGN), which tests the subject’s jerking or bouncing of the eye.

The walk-and-turn test if often referred to as the “walk the line” test. The officer first instructs the subject on how to do the test and then the test is performed. The officer is to explain to the suspect that s/he is to walk nine steps, heal to toe, with their arms at their sides, without stopping, while watching their feet the entire time, counting the steps out loud. Then the person is to turn on one foot and face back in the direction where s/he was before, and then walk another nine steps, heal to toe back to the original location.

While this is being done, the officer is looking for eight clues of impairment: 1.) The subject cannot keep balance while listening to the instructions; 2.) Begins the test before the instructions are done being given; 3.) Once the walking begins, the subject stops to regain balance; 4.) Does not touch heal-to-toe; 5.) Steps off the line; 6.) Uses arms to balance; 7.) Makes an improper turn; and, 8.) Takes an incorrect number of steps.

If the person is unable to stay on the line and steps off three or more times, or they are in danger of falling, the test is stopped, and the person fails this test.

Each clue is graded as one point even if the same clue is observed more than once. According to Stuster & Burns, the 1998 NHTSA study, if two clues are found, there is a .79% chance the person’s blood alcohol concentration (BAC) is .08% or higher. This still means that 2 out of every 10 people who were determined to be impaired using this test did not actually have a BAC of .08% or greater.

There are many factors that can make this test unreliable and invalid. It must be done on a level, hard, non-slip surface. The person should not be elderly, obese, frail, or suffering from a physical or mental disability. If the subject’s shoes have a 2″ or greater heal, they should be given the option to remove their shoes. In addition, there should not be any other distractions such as passing cars and the officer conducting the test should be still after giving the instructions.

If you have been arrested and charged with misdemeanor driving under the influence, you owe it to yourself to hire an exclusively DUI defense firm to vigorously defend your case. Each case is fact specific, and there may be defenses in your case that can lead to reduced charges with less punishment or even a dismissal!

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.

One-Leg Stand Test, A Standardized Field Sobriety Test (FST)

September 13, 2013 | The Law Offices of Susan L. Hartman

The National Highway Transportation Safety Administration, (NHTSA), has come up with three standardized tests that law enforcement uses in their drunk driving investigations to help determine if a suspect is under the influence. The three field sobriety tests, (FST’s), are the horizontal gaze nystagmus, (HGN), the walk-and-turn, and the one-leg stand. These together are called the FST battery. Officers use these and other non-standardized tests when conducting DUI investigations.

The one-leg stand test is considered a divided attention test because the subject has to focus on mental and physical tasks at the same time. It should be done on a hard, dry, non-slippery surface that is level. In addition, there should be adequate lighting.

At first the officer is supposed to give the subject instructions and demonstrate how to do the test. Then they ask the person if they understood the instructions and the subject performs the test. The subject is to stand with their heals together with their arms down by their side. Then the officer instructs the person to raise their leg six inches from the ground and while watching their raised foot, they are to count from 1001 to 1030. (See video demonstration.)

The test is performed while the officer looks for four clues. The clues are: 1.) The subject sways while balancing; 2.) Uses their arms for balance; 3.) They hop; and, 4.) They put their foot down. The officer gives one point for each clue seen during the test. Two or more points indicate the subject has a blood-alcohol level above .08. If the person puts their foot down three or more times within the 30-second test, it is considered a failure of this FST.

This test, when conducted using the NHTSA’s guidelines, has been determined in a 1981 study to be only 65% accurate in determining if a person’s BAC is above .10%. The studies were done again in 1998, using the .08 standard, and NHTSA claimed that the test is now 83% accurate in determining if a person’s BAC is at or above .08%. Still, this means about 2 out of every 10 people who were determined to have two or more clues were actually under the .08% standard.

A skilled San Diego drunk driving attorney can pick apart how the officer conducted the one-leg stand test, exposing flaws in the instructions, the demonstration, and how it was graded. If you have been arrested for DUI, do not just plead guilty! There may be defenses in your case that lead to reduced charges or even a dismissal!

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.

Horizontal Gaze Nystagmus Test (HGN), Why HGN Cannot Be Deemed Reliable

August 29, 2013 | The Law Offices of Susan L. Hartman

The National Highway Transportation Safety Administration, NHTSA, has come up with three “standardized field sobriety tests” for law enforcement to use to aid in drunk driving investigations. One of the three tests is the horizontal gaze nystagmus, or HGN, test. (The HGN test was previously discussed in “Horizontal Gaze Nystagmus Test (HGN), How It Is Used In DUI Investigations.”)

Law enforcement is supposed to administer the HGN test using the guidelines that NHTSA has laid out to ensure the results are valid and reliable. Cops look for six clues, three in each eye. If four clues are found, the officer can determine that the subject’s blood-alcohol content is at or above a .10%.

There are many problems with the HGN test and how it is used by law enforcement to determine if someone is under the influence when conducting a DUI investigation. First off, many people have a natural nystagmus. Prior to the encounter in question between the cop and the suspect, the degree of the natural jerk or bounce in the eye is not known. Therefore, the officer cannot accurately correlate this to impairment.

Another issue is that many drunk driving investigations are done at night, on the side of the road with minimal lighting, with cars passing, and with the cop’s flashing lights on. This is an issue because lighting can affect the results of the test.

However, the biggest and most concerning issue with the HGN test comes from the 1983 NHTSA study that was conducted to prove that HGN and blood-alcohol content are related. NHTSA actually funded this study with the hopes of proving their hypothesis that the HGN test was valid and reliable. This presents a conflict of interest and is a biased study. According to ordinary scientific principles, an independent study by an unbiased group should have funded and conducted the research.

Additionally as alarming, the study found that the HGN test was 77% accurate in detecting whether a person’s blood-alcohol content, or BAC, was .10 or higher. This means that the findings actually proved that almost 1 in 4 people who law enforcement deemed to have a BAC of .10% or higher was in fact under the .10 standard!

So, assuming the officer conducts the test correctly using the NHTSA’s guidelines, the subject does not have a natural nystagmus, and the test is performed with proper lighting, according to the study, almost 1 out of every 4 people tested would be found to be under a .10% BAC. (Note: There has not been a study done using the current legal limit of .08%.) With such issues, this evidence should never come into a criminal courtroom to prove a person was under the influence for purposes of driving a motor vehicle…but it does.

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.

Horizontal Gaze Nystagmus Test (HGN), How It Is Used In DUI Investigations

August 20, 2013 | The Law Offices of Susan L. Hartman

The National Highway Transportation Safety Administration, NHTSA, has come up with three “standardized field sobriety tests” for law enforcement to use to determine if someone is under the influence. One of the three tests is the horizontal gaze nystagmus, or HGN, test. (The two others are the walk-and-turn test and the one-leg-stand test.)

Nystagmus is the involuntary jerking or bouncing of the eyeball. HGN is the horizontal bouncing when the eye gazes to the side. As a person drinks alcoholic beverages or consumes central nervous system depressants, the brain loses its ability to control the eye muscles, causing the jerking or bouncing. The greater the impairment, the greater this involuntary movement.

Before the test begins, the officer should have the subject remove their glasses and inquire if the person is wearing contacts. They should be faced away from any blinking lights including the officers flashing lights and passing cars.

The subject is then asked to follow an object that is 12-15 inches from their eyes and slightly higher than eye level, without moving their head. The officer should then check for equal tracking and equal pupil size. This is done by having the subject quickly follow an object through their field of vision. Lack of equal tracking or pupil size can indicate an injury or a medical issue and the test should be discontinued.

The test is then administered and three clues for each eye is checked, for a total of six possible clues. If four or more clues are found, the officer can determine that the subject’s BAC is at or above a .10.

The first is lack of smooth pursuit. The officer starts at the middle of the subject’s face and moves the object towards their left ear. The test is then done on the right eye. The eye being tested should follow the object smoothly. If nystagmus is observed in either eye, the officer notes that as a clue.

Then the officer checks for distinct nystagmus at maximum deviation. Again, the officer starts at the center of the subject’s face, moving the object toward the left ear. However, this time, the object is brought as far as the eye can go, holding it there for at least 4 seconds. Then the test is repeated on the right side. If nystagmus is observed in either eye, the officer notes that as a clue.

The last is angle of onset of nystagmus prior to 45 degrees. For this test, the officer again starts at the center of the subject’s face, moving the object towards the left shoulder at a speed that would take approximately four seconds. It is estimated that the edge of the shoulder is 45 degrees from the center of the subject’s face. The officer notes a clue if nystagmus is seen prior to reaching 45 degrees. This is repeated on the right eye.

There are many problems with the HGN test and how it is used by law enforcement as part of their investigation to determine if someone is under the influence when conducting a DUI investigation. Those issues will be addressed in another future driving under the influence blog article.

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.

Field Sobriety Tests (FST’s), What Are They?

August 13, 2013 | The Law Offices of Susan L. Hartman

Field sobriety tests, or FST’s, are exercises, that are used by law enforcement to help determine if a person is under the influence of alcohol and/or drugs. If a person performs poorly on the tests, they may be arrested and charged with drunk driving. Prosecutors then use the results of the FST’s to decide what charges to file and they will present FST evidence in court to prove their case.

There are only three tests that have been deemed reliable in determining if someone is under the influence. These tests are called the “standardized field sobriety tests.” They are the horizontal gaze nystagmus test (HGN), the walk and turn test, and the one-leg stand test. However, cops often use other non-standardized tests when conducting DUI investigations, including the finger-to-nose test, the Rhomberg balance test, and the finger count test.

According to the National Highway Transportation Safety Administration (NHTSA), there is a correlation between poor performance on the standardized FST’s and impairment for purposes of driving. They have published proper test protocols for law enforcement to determine if someone is under the influence. However, these tests are unreliable.

Often they are conducted using improper procedures and the clues are not assessed correctly, as they are often subjective. The instructions may be given erroneously or the person may not have understood them.

Even when the FST’s are administered properly, their reliability is questionable. There are many other factors that can make the test results inaccurate. For instance, a person may have a physical or mental impairment that makes his/her ability to perform a test difficult. There may be environmental issues that invalidate the test, such as inappropriate lighting, an uneven surface, or other distractions. In addition, the suspect’s “normal performance” or baseline for any of these tests is not known so there is no way to gauge performance on this occasion to determine if the person is under the influence.

If you have been arrested for drunk driving, and you have questions about the field sobriety tests that you performed and how they may impact your matter, contact The Law Offices of Susan L. Hartman today.

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.

San Diego Craft Beer Warning, Look Out For The ABV

July 8, 2013 | The Law Offices of Susan L. Hartman

San Diego is quickly becoming the craft brew capital of the world. Sandiego.org has dubbed San Diego the “Napa of beer” because of the number of craft breweries in the county. Many local tasting rooms, brew pubs and restaurants are now listing on their menus the beer style, the size of the glass each beer is served in, and the ABV, (alcohol by volume).

Why is the ABV important? The ABV is the measurement of the amount of alcohol within the total volume of liquid, or the strength or potency of the beer. The amount of alcohol in the beer plus the size of the glass will depend on how quickly you will feel intoxicated and be under the influence for purposes of driving.

The guidelines for drinking and driving use a standard formula for one 12-ounce beer averaging 5% ABV. Most large beer makers, such as Budweiser and Coors, use 12-ounce bottles and their ABV usually ranges from 4 to 6%.

If you drink a 12-ounce beer that is 7.5% ABV, that is 1 1/2 times that of the 5% ABV beer. If you have a pint of beer that is 16-ounces, that is 1/3 more beer than a standard serving. If you drink a beer with a higher ABV or is poured into a larger glass, your blood-alcohol content, (BAC), will increase at a rate higher than the standard guidelines. And, if you are arrested by law enforcement for DUI, you can expect your BAC will be higher than if you had a standard size beer with a standard amount of alcohol.

Keep in mind that the drinking guidelines are just that, guidelines. Many things factor into whether or not you will be under the influence such as your sex, weight, if, when and/or what you ate, some medical conditions, among others.

The best way to avoid a drunk driving arrest is simply not drink alcoholic beverages and drive. There are many alternatives to taking this risk while still enjoying your beer or other cocktail: Use Car2Go to the location and take a cab home; Take a cab in both directions and to make it cheaper, split it with friends; Use public transportation; Designate a sober driver; Or, stay where the party is until you are sober.

If you are out enjoying San Diego’s craft brews and you happen to be pulled over and arrested for drunk driving, you owe it to yourself to hire a criminal defense attorney that handles DUI matters.

(Note: Some breweries use ABW, (alcohol by weight), instead of ABV. Alcohol measured by weight instead of volume will actually be stronger. To convert the ABW to ABV, multiply the ABW by 1.25.)

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.

Forced Blood Draws: Will San Diego Law Enforcement Get A Warrant?

May 23, 2013 | The Law Offices of Susan L. Hartman

California has an “implied consent” rule regarding chemical testing that is found in Vehicle Code Section 23612. This vehicle code section states, “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.”

When a person is arrested for drunk driving, they are given a choice between a blood or breath test. If a person refuses to give either sample, The Department of Motor Vehicles (DMV) will suspend or revoke a person’s driving privileges pursuant to California Vehicle Code Section 13352. The period of that suspension or revocation is at least one year.

In addition to the repercussions in the administrative DMV phase of a DUI case for a refusal, there are also increased penalties in the criminal court process.

Law enforcement cannot obtain a person’s blood without consent unless they have a warrant to do so. Failure to have a warrant constitutes a Fourth Amendment violation. Regardless, San Diego and other California law enforcement agencies have been forcibly taking blood from drivers without a warrant, citing the landmark case from 1966, Schmerber v. California. In that case, the court held police can, without a warrant, forcibly obtain a person’s blood for the purpose of chemical testing to determine intoxication after a lawful arrest if the sample is taken in a reasonable, medically approved manner, there is a reasonable belief that the person is intoxicated, and there is a need for prompt testing because the person’s blood alcohol is diminishing.

However, in April 2013, the United States Supreme Court ruled on this issue in Missouri v. McNeely. In this case, the Court ruled that a warrantless search of a person is reasonable only if it falls within an exception. The Court did not find any exceptions for exigency existed just because blood alcohol evidence is inherently evanescent.

Although the Court did not create a per se rule, it did state, “When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

The opinion also commented how much more expeditiously warrant processing is 47 years after Schmerber, and that exigency is determined on a case-by-case basis.

Since no bright line rule was created in this opinion regarding when the police can forcibly take blood from someone who was lawfully arrested, suspected of drunk driving, this issue will remain one that is heavily litigated.

If you have had a forced blood draw without a warrant, contact a criminal defense attorney who specifically handles driving under the influence cases. If there is a valid argument that your constitutional rights have been violated, a motion to suppress this evidence may be filed and ultimately, the prosecutor may not be able to use the results against you in court.

San Diego DUI Lawyer: Why Hire One If Charged With Drunk Driving?

April 18, 2013 | The Law Offices of Susan L. Hartman

If you are arrested for driving under the influence in San Diego County, you may wonder about your options to represent yourself, ask for a public defender, or hire your own counsel. (In a past blog, “Should I hire A San Diego Drunk Driving Attorney To Handle My DUI?” these options are discuss more thoroughly.) It is highly recommended that you have a criminal defense lawyer represent your interests for any criminal matter because of the distinct advantages that are discussed below.

Many DUI defendants have never been in trouble with the law or arrested before. Often, they are confused about the process and do not understand the interaction between the DMV portion of the case and the criminal court process. A DUI defense attorney can help you navigate the system, explain the steps and procedures and help you make informed decisions about your case. This assistance makes the entire process less stressful.

Most misdemeanor drunk driving cases can be handled by a criminal defense attorney without the client being present at the DMV APS Hearing and for all court dates including the arraignment, readiness and motion hearings. (Note, it is not advisable to conduct a jury trial without the defendant’s presence.) This means the client does not miss valuable time at work. Often hearings that should take less than an hour actually require a lot more time due to the busyness of the DMV and Superior Court’s calendar.

Another advantage of hiring a criminal defense attorney that specifically handles driving under the influence cases, is the attorney will request and review the discovery. The discovery is the government’s proof that you committed a crime. Upon the review, the attorney will be able to evaluate the strengths and weaknesses of the State’s case. The attorney can also consult with investigators and experts to see if your case can be strengthened. Once all the facts of your case are known, the DUI attorney can advise you on whether you should accept the prosecutor’s offer, file motions to dispute an issue with the evidence, or take the case to trial.

The criminal defense lawyer is trained on researching, preparing and conducting hearings, motions and trials. In addition, the lawyer can negotiate with the prosecutor to make sure you are getting the best deal possible considering the specific facts of your DUI case. A skilled DUI attorney who handles matters in San Diego is also familiar with the standard offers given in San Diego County courthouses and what judges and the prosecutors are likely to accept in exchange for a guilty plea.

Lastly, the drunk driving lawyer will educate you on process, go through all your options, and weigh the potential costs and benefits of each option; ultimately, helping you make clear decisions on how to proceed with your case.

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving lawyer in your area.