Defending DUI Cases

San Diego Criminal Drunk Driving Convictions And Victim Restitution

July 31, 2012 | The Law Offices of Susan L. Hartman

money bag.jpg Once a DUI defendant pleads guilty or is convicted of drunk driving after a jury trial, the judge will pronounce sentence. If there was a victim who suffered any loss or damages as a result of defendant’s driving under the influence, the sentence will include court ordered restitution. The victim’s right to collect restitution is found in the Declaration of Rights of the California Constitution, Article I, Section 28.

Section (b) specifically states: “In order to preserve and protect a victim’s rights to justice and due process, a victim shall be entitled to the following rights…(13) To restitution.” Because it is the victim that holds this right, neither the court nor the prosecuting authority can use their discretion in negotiating the restitution amount during the plea bargaining stage. However, the court “shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” (See California Penal Code Section 1202.4(g).)

The California Constitution, Article I, Section 28(e), defines a victim to be “a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act. The term “victim” also includes the person’s spouse, parents, children, siblings, or guardian, and includes a lawful representative of a crime victim who is deceased, a minor, or physically or psychologically incapacitated.” This section also states that a victim is not “a person in custody for an offense, the accused, or a person whom the court finds would not act in the best interests of a minor victim.”
The amount of restitution that is ordered is governed by California Penal Code Section 1202.4, which states … “the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.”

Often, at sentencing, the amount of losses/damages to the victim or victims are not known. So, the judge will set a Restitution Hearing. At that hearing the victim presents their damages/losses to the court, usually in the form of documentary evidence or testimony. Under California Penal Code Section 1203.1d(d), the court shall not exclude “documentary evidence such as bills, receipts, repair estimates, insurance payment statements, payroll stubs, business records, and similar documents relevant to the value of the …damaged property, medical expenses, and wages and profits lost” as hearsay.

The defendant has a right to dispute the amount of the restitution under Penal Code Section 1202.4(f)(1).

Payment of the restitution is often a term of probation; however, if the defendant’s drunk driving probation is terminated and the restitution has not been paid in full, the judge will turn that Restitution Order into a Civil Judgment. This allows the victim or victims to use any legal means available under California law to collect on the judgment.

San Diego DUI Criminal Case Dismissed Or Not Filed, What Happens With The DMV Action?

July 24, 2012 | The Law Offices of Susan L. Hartman

A driver is arrested in San Diego County and is charged with drunk driving. Two processes begin: 1.) The criminal process involving the courts; and, 2.) The administrative action involving the California Department of Motor Vehicles, (DMV).

The San Diego criminal action is either not filed or the matter is filed but later it is dismissed by the prosecutor. How does this affect the administrative process and the driver’s license suspension?

Once arrested for driving under the influence, the driver has 10 days from the date of receiving the Administrative Per Se Suspension/Revocation Order and Temporary Driver License to request a DMV APS Hearing to challenge the automatic suspension of the driver’s license. If the DMV finds for the driver and reinstates their full driving privileges, there is nothing that the driver needs to do after finding out charges will not be filed or if the criminal case is dismissed.

However, if the DMV finds against the driver and subsequently suspends the licensee’s privilege to drive, but later the prosecutor decides not to file charges or dismisses the pending DUI charges due to lack of or insufficiency of the evidence, the DMV may grant a renewed right to request an administrative hearing under California Vehicle Code Section 13353.2(e).

In order to request this rehearing, the driver, (or his/her DUI defense attorney), must request from the DMV form DS 702, the Administrative Per Se Notice of Failure to File or Dismissal of Criminal Charges. The prosecutor must agree to fill out the form, indicating why the matter was dismissed or not filed. That form is then sent to the Sacramento DMV Office. This must be done within one year of the date of arrest.

The DMV has discretion in deciding to reopen the matter. If approved, the file is sent back to the local Drivers Safety Office for a rehearing. This is basically a new hearing, where all documents and testimony must be re-entered into evidence and any new evidence must be presented to the hearing officer.

Most often, the hearing office does not render a decision at the hearing. Instead, the Notice of Findings and Decision are sent in the mail.

If you have been arrested for drunk driving in San Diego County, you owe it to yourself to hire an exclusively, DUI defense firm that can advise you on your specific case. The above blog entry is not legal advice and may not pertain to your driving under the influence matter.

Misdemeanor Drunk Driving Charges: The Court Process

June 25, 2012 | The Law Offices of Susan L. Hartman

In California, including San Diego County, when a driver is arrested for driving under the influence, two processes start. There is an administrative process that is handled through the Department of Motor Vehicles, (DMV). That portion of the case addresses the status of the arrestee’s driver’s license. In addition, there is a criminal court process that addresses the crime of DUI. This article specifically addresses what happens in the court process. For information on the DMV, see “Driving Under The Influence And The DMV Hearing.”

The person suspected of drunk driving is often arrested and booked into the San Diego County Jail or the Las Colinas Women’s Detention Facility. They are given an opportunity to post bail and be released. Upon release, they are given a Bail Receipt which states the recommended charges and the date, time, and place of the first court hearing, the Arraignment.

At the Arraignment, the defendant is informed of the actual filed charges. Also, they are given a copy of the complaint and an opportunity to enter a plea of guilty or not guilty. (Be aware of accepting an offer at this early stage! You and your attorney will not have all the evidence to review to help make an informed decision about pleading guilty. However, the prosecutor often gives a decent offer at this stage in hopes of getting the case resolved quickly.)

If the defendant chooses not to plead guilty, a Readiness Hearing is scheduled. Between the Arraignment and the Readiness Hearing, the prosecuting agency will forward all of the discovery to the defendant or the defendant’s drunk driving attorney. The discovery is reviewed by the attorney and the defendant. The defense attorney may find issues with the case and proceed with filing motions to challenge the State’s case. Winning a motion can result in a better offer or even a dismissal of the entire case!

In addition, there is a negotiation meeting between the prosecutor and the DUI defense attorney and another offer is made on the case. The defendant may choose to accept the offer, and enter a change of plea at the next Readiness Hearing.

However, if the DUI defendant chooses not to accept the offer, the next step is a trial. At the conclusion of the trial, the jurors, (or the judge if it is a court trial), will decide if the defendant is guilty of the charges. If found guilty, the judge will proceed with drunk driving sentencing. If the defendant is found not guilty, the defendant is acquitted and the court no longer has jurisdiction over the case.

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

Drunk Driving Charges Reduced To Reckless Driving

June 4, 2012 | The Law Offices of Susan L. Hartman

Driving under the influence charges were filed against a Charleston, South Carolina sheriff’s deputy, Nicholas Wagner, after he crashed his personal vehicle on an on-ramp to Interstate 526 westbound on May 5th, according to postandcourier.com. Wagner was said to have “smelled of an alcoholic beverage, had glassy eyes, slurred speech, and he swayed as he walked.” He refused to do the field sobriety tests and he was arrested and charged with drunk driving.

The defendant, a ten year veteran of the sheriff’s department, was scheduled for a bench trial; however, the prosecutor offered to dismiss the DUI charge if he plead guilty to a lesser charge. He agreed and changed his plea to guilty of reckless driving.

In San Diego, California, if a person is charged with driving under the influence, the prosecutor has discretion in offering two lesser charges, a dry reckless or a wet reckless. If the blood alcohol content is significantly over the .08 limit, there are drugs (prescription or illegal) involved, there is personal injury or property damage, and the prosecutor believes they can prove the drunk driving case beyond a reasonable doubt, they will not give a reckless driving offer.

If the blood alcohol content was below or slightly above .08%, if there are mitigating factors in the case, and the prosecutor’s DUI case is not strong, they will often offer one of the reckless driving charges if the defendant agrees to plead guilty. If the defendant refuses to accept that offer, the matter often goes to trial on the original drunk driving charges.

There are benefits in accepting a reckless driving offer over the DUI. A dry reckless is not priorable. This means that if the defendant is convicted of another drunk driving incident within ten years, the dry reckless cannot be used to increase the penalty in the new case. A wet reckless is priorable. The fines and fees for a dry or wet reckless are less than a DUI and San Diego courts often give a three year period of informal probation for reckless driving verses five with a drunk driving conviction.

There are other differences between a dry and wet reckless and a DUI. The above blog article is by no means all-inclusive and is not legal advice. Each case involves distinct facts which may change the offer given by the prosecuter or the sentence imposed by the judge. In addition, laws may have changed since the last update. For the latest information on drunk driving cases, the penalties, and your specific facts and possible defenses, contact a DUI defense attorney in your area.

Driving Under The Influence Of Marijuana In San Diego

May 28, 2012 | The Law Offices of Susan L. Hartman

Recently, the Colorado Senate attempted to treat driving under the influence of marijuana like driving under the influence of alcohol with a .08% or greater blood alcohol content, as reported by 9news.com. The proposed marijuana blood-level limit that was voted on and failed was 5 nanograms of THC, or delta-9-tetrahydrocannabinol, which is the psychoactive ingredient in marijuana.

Those sponsoring the marijuana, (otherwise known as pot, bud, weed, grass, Mary Jane, MJ, among others), DUI bill argued that THC levels are reliable and they are a scientific indicator that shows if someone used marijuana recently and if they are under the influence for purposes of driving.

Opponents of the bill stated the THC levels do not gauge impairment because even though the psychoactive ingredient is not active and the person is no longer feeling the effects of ingesting marijuana, the chemical remains in the body for an extended period of time. The blood test will show a THC level indicating the subject at some point used pot; however, it will not determine the amount that was ingested, when it was used, or the concentration of THC in the product that was consumed. In addition, each person’s individual tolerance to marijuana is different and it is affected by usage.

In California, under Penal Code Section 23152(a), “It is unlawful for any person who is under the influence of…[a] drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.” Therefore, a person can be charged with drunk driving if law enforcement suspects the person is under the influence of marijuana at the time that they are driving a vehicle.

As the law stands now, the THC level is only one of the factors that is considered to determine if a person is under the influence. These cases are fact specific, looking into the driving pattern, the driver’s appearance, how he or she performed on the field sobriety tests, (or FST’s), and the chemical test result which shows the THC level in the blood. Because there is no hard and fast rules about marijuana impairment, marijuana drunk driving cases are hard for the prosecutor to prove.

Because these cases are so hard to prove, they are great cases to take to trial. Often, especially if there are no other drugs or alcohol in your system, these cases get dropped or the charges are reduced because the prosecutor does not want to take the risk of a not guilty verdict after trial.

There are many strong defenses in marijuana DUI cases. If you have been charged with drunk driving involving marijuana, you owe it to yourself to find an exclusively DUI defense firm that can aggressively fight your case.

The above blog article on marijuana driving under the influence cases 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 drunk driving attorney in your area.

Benefits Of Expungement After A Drunk Driving Conviction

May 18, 2012 | The Law Offices of Susan L. Hartman

ball and chain.jpg
A standard sentence in misdemeanor DUI cases includes a term of probation. Depending on what charges you plead to or were convicted of depends on the standard term of probation. In San Diego, the courts often give a term of three years for a dry or wet reckless and five years for a misdemeanor driving under the influence offense.

Once probation is terminated, either due to expiration or a motion for early termination, you may want to apply for an expungement. There are many benefits to doing an expungement, but there are also things that an expungement does not provide for.

Penal Code Section 1203.4 provides, the probationer shall be permitted by the court to withdraw his or her guilty plea or the court shall set aside the guilty verdict. The court shall then dismiss the accusations and he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she was convicted. However, like anything else in the law, there are some exceptions.

The probationer still has an “obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.”

If a private employer asks if you have been convicted of a crime, you can answer, “No.” But, if you are applying to a government job or with a government licensing agency, and you are asked if you have ever been convicted of a crime, you must disclose the expunged case. In addition to the disclosure, you should also note in the application that your matter was expunged.

The expunged matter cannot be used against you when applying for jobs or in promotion opportunities.

In any subsequent prosecution for any other offense, the expunged matter can be plead and proved with the same effects as though an expungement was not granted. This means the expunged matter is still “priorable.” For instance, if you had a DUI expunged, and then you are charged with another drunk driving case within ten years, that first expunged case can still be used as a prior DUI to enhance the penalties of this new case.

If you are not allowed to possess a firearm, an expungement does not restore that right. You must wait the requisite time under the law to reinstate your firearm rights.
If you are prohibited from holding public office due to the conviction, an expungement does not allow you to hold public office.

Even though an expungement does not result in your records being permanently destroyed, many people want to have this done as a way of having closure. Another motivation is for better employment opportunities and to better position themselves in a licensing application.

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 drunk driving lawyer in your area.

SD DUI Conviction, Early Termination Of Probation & Expungement

May 11, 2012 | The Law Offices of Susan L. Hartman

justice scales.jpg Once a driving under the influence defendant pleads guilty or is convicted after a jury trial, their criminal record will reflect this indefinitely. Since criminal records are public records, they can be easily searched and found by law enforcement agencies, employers, and state licensing agencies. Most probationers want to get their criminal record cleaned up as soon as possible so their record does not hinder them.

A standard DUI sentence includes a term of probation. Under California law, Penal Code Section 1203.4, a person is eligible for an expungement “in any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation.” There are a few exceptions to this rule where an expungement is not available. Examples of this are when the person served time in prison for this offense or the offense was a sex crime.

Most drunk driving cases are eligible for expungement.

Successful completion of probation is when the probationer paid all the fines and fees related to their case, attended all court ordered programs and community service, appeared at each court hearing or had their attorney appear on their behalf, had not picked up any new violations, and did not violate any of the terms of probation.

At the natural termination of probation, if the probationer is not serving a sentence for any offenses, is not on probation for any other matters, or currently charged with another crime, he or she can petition the court for an expungement.

If however, the term of probation has yet to expire, the probationer can still petition the court for an early termination of probation. The court has complete discretion to decide if early termination will be granted. The court often looks at several factors in making their decision including the seriousness of the underlying conviction, criminal history, and community ties. If the motion for early termination of probation is granted, the probationer than can petition the court for an expungement.

If probation was not successfully completed, the probationer can still ask the court for an expungement; however, the judge has discretion to grant or deny the request.
If an expungement is granted, the person is permitted to withdraw the guilty plea or plea of nolo contendere and enter a plea of not guilty. If convicted, the court will set aside the conviction. The court will then dismiss the case and the person is then “released from all penalties and disabilities resulting from the offense” with some exceptions.

A skilled drunk driving defense attorney, Susan L. Hartman, can assist you in filing the necessary motions to terminate your probation early and get your matter expunged.

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 Case Dismissed, Judge Ruled Officer Not Credible At Suppression Hearing

April 26, 2012 | The Law Offices of Susan L. Hartman

A drunk driving charge was the end result of a traffic stop in Utah where the officer initially pulled over Theron Alexander, a convicted felon, for a broken license plate light, according to The Salt Lake Tribune News. Alexander’s lawyer filed a motion to suppress evidence, challenging the initial traffic stop.

The officer, Utah Highway Patrol Cpl., Lisa Steed, testified at the motion hearing that she had reasonable suspicion to detain the defendant because his license plate light was not working. However, the court found the officer gave false testimony regarding personnel reprimands. Because of the false testimony, the judge could not find the officer to be credible on the issue of reasonable suspicion. So, the evidence against Alexander was suppressed and the prosecutor immediately dismissed the DUI charges. no DUI.jpg In every criminal case, including driving under the influence matters, the first question to be answered is did the officer have reasonable suspicion that a crime was being committed. The officer must be able to articulate the reason for the traffic stop but that initial basis does not have to be included in the actual charges.

A skilled DUI defense attorney will file a motion to suppress, under California Penal Code Section 1538.5, if it is believed that the officer did not have reasonable suspicion to detain a driver. In this case, the officer testified, (and probably wrote in the police report), that the defendant’s license plate light was not working properly. Under Utah law, this would have been a violation of the vehicle code, thus making this a lawful stop.

However, the judge found that the officer was not credible because she gave false testimony. Even though that testimony was about her reprimands and not the particulars of this stop, the judge could not believe any of her testimony and all the evidence against Alexander was suppressed.

Typically, what happens at most motion hearings is the officer testifies to the facts in the report and the judge takes their word over the defendant’s. Because the DUI defense counsel was able to cross examine the officer and the officer lied on the stand, the judge was forced to dismiss the other testimony that she provided.

Regardless of the other facts in the drunk driving case, since the court did not find that the officer made a lawful traffic stop, the entire DUI case was dismissed.

If you are charged with drunk driving, do not just plead guilty. You owe it to yourself to hire a skilled, DUI defense attorney that will evaluate your case. If you have a motion to suppress to file and you win, your case could get dismissed!

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.

Driving Under The Influence And The DMV Hearing

April 18, 2012 | The Law Offices of Susan L. Hartman

drunk caution.jpg San Diego law enforcement will issue a temporary driver’s license to a driver who is arrested for driving under the influence. That driver’s license gives you the right to continue driving for thirty days after the arrest with the same driving privileges and restrictions that you had prior to the DUI arrest. If your license was already expired, suspended, revoked, canceled, or denied, the temporary driver’s license does not allow you to drive.

If you do nothing, your driving privilege will be suspended after the thirty day period. However, if you, or your attorney, call the Department of Motor Vehicles (DMV) Driver Safety Office and request an Administrative Per Se Hearing within ten days of the drunk driving arrest, the license suspension will be stayed pending the outcome of the DMV hearing. You have a right to legal counsel at this hearing; and you do not have to be present if your attorney appears on your behalf.

After the DUI arrest, the arresting officer submits his police report and the DMV report, the DS367, to the DMV. The hearing officer, who acts as the prosecutor and the judge, has to determine by a preponderance of the evidence the following:

Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Section 23152, 23153, or 23154 of the California Vehicle Code?
Were you lawfully detained while on DUI probation or lawfully arrested?
Were you driving a motor vehicle when you had either:

.01% Blood Alcohol Content, or BAC, or more by weight of alcohol while on DUI probation;
.04% BAC or more by weight of alcohol while driving a commercial vehicle; or,
.08% BAC or more by weight of alcohol?

In addition, the hearing officer decides issues of refusal to submit to or a failure to complete a chemical test. In those cases, the hearing officer must find by a preponderance of the evidence:

Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of the California Vehicle Code Sections 23152, 23153, or 23154?
Were you lawfully detained while on DUI probation, or lawfully arrested?
Were you told that your driving privilege would be suspended, or revoked for one, two, or three years if you refused to submit to, or failed to complete a chemical test?
Did you refuse to submit to, or fail to complete, a chemical test, or PAS test (if on DUI Probation) after being requested to do so by a peace officer?

After the hearing, if the DMV finds in your favor, your driving privileges will be restored. Keep in mind that if you plead guilty or are convicted later in court on the drunk driving charge, the court will impose a license suspension.

If the DMV finds against you, you are over 21, you took a required chemical test, and it’s your first DUI, you will have your license suspended for four months. However, after thirty days, you can ask for a restricted license which will allow you to drive to, from, and during the course of your employment, and to and from any DUI programs. The license restriction will continue for a period of four months, making the total time you do not have your full driving privileges to be five months.

The driver’s license suspension and restriction time is increased depending on several factors. For more information regarding your drunk driving case and the DMV and court implications, contact the exclusively DUI defense firm, The Law Offices of Susan L. Hartman.

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.

Breath Test Then Admonishment, Should I Take The Blood Test Too?

March 31, 2012 | The Law Offices of Susan L. Hartman

Drunk driving investigations often include the officer asking the suspect if they will submit a breath test in the field. This test is called a PAS, or preliminary alcohol screening, test which measures your blood-alcohol content. It is another field sobriety test, or FST, that the officer uses as a tool to help determine if the driver is under the influence of alcohol.

If you are not on probation for a prior DUI matter, this test is optional. If you are on DUI probation, a standard term of probation is for the probationer to submit to any test at the request of a peace officer for detection of alcohol and/or drugs. If you refuse such a test, you will be in violation of your probation terms.

It is not advisable for anyone who is not on DUI probation to submit to the PAS test or any other FST’s. The officer is simply building a case against you.

Once an officer has probable cause to arrest you for drunk driving, you will be asked to submit to a breath, blood, or urine test. Under California law, (Vehicle Code Section 23612), licensed drivers have given “implied consent” to provide a chemical test if lawfully arrested. Therefore, you must submit to one of the tests, otherwise it will be considered a refusal and the officer will forcibly take a blood sample from you. There are additional penalties with the California Department of Motor Vehicles and in the California courts for refusing such a test.

In San Diego County, if you choose to do the breath test, it is often done on an Intoxilyzer machine.

After the test is completed, the officer must give you an admonishment called a Trombetta Admonishment. This advises the suspect that their breath sample is not retained and therefore cannot be retested. The defendant is then offered an additional blood test which is stored at the crime lab. The defense can later retest that sample at an independent lab to test its accuracy. Taking that second test could backfire because there are now two separate tests that may confirm the same result. It is best to just choose one test. Then the defense can attack the testing process, procedures, and results of the one chosen.

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.