Defending DUI Cases

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.

DUI Probation Violated, Warrant Issued, What Happens Now?

March 22, 2012 | The Law Offices of Susan L. Hartman

During a driving under the influence sentencing hearing, the court may offer to put the defendant on probation. (The defendant does not have to agree to probation; however, it lessens the amount of time spent in jail if any time has to be served at all.)

The judge may impose a sentence but then suspend the execution of that sentence. For instance, the defendant may be sentenced to six months in jail, but the execution of that sentence is suspended until ordered. In those cases, if the defendant violates probation and it is revoked, the judge has authority to deny reinstating probation and execute the six month sentence. Thus the defendant will be required to serve out the six months in jail. However, if the probationer successfully completes probation, the judge will not order the sentence to be executed and he or she will not have to serve any of that time in jail.

In misdemeanor DUI cases, most commonly the judge suspends the imposition of sentence, putting the defendant on probation without giving an indicated sentence. By doing this, if the probationer violates the terms of probation, the judge can ultimately sentence him or her to the maximum jail sentence allowed for that particular crime. In misdemeanor drunk driving cases, the maximum jail sentence imposed for a first DUI is 6 months. For subsequent misdemeanor DUI cases, the maximum jail sentence is one year. (Note, a fourth drunk driving conviction is considered a felony and felony DUI sentencing rules apply.)

Most San Diego judges sentence defendants to probation with standard terms and conditions. These terms and conditions include: 1.) Violate no laws; 2.) Do not drive with a measurable amount of alcohol/drugs in the blood; 3.) Submit to any test at the request of a peace officer for detection of alcohol/drugs in blood; 4.) Violate no laws regarding driving a motor vehicle while under the influence or in the possession of alcohol, drugs, or both; and, 5.) Do not drive without a valid driver’s license and liability insurance.

In addition, the defendant often has to complete an alcohol program, attend a MADD panel class, and pay fines/fees. Failure to do any of the above can result in a probation violation. The court, on its own motion, may revoke probation. If the probationer is out of custody, the court usually sends a notice with a time and date to appear. At that hearing, the probationer may not contest the probation violation and the judge will immediately address the violation. If the violation is contested, a date for a probation revocation hearing is set.

If the probationer does not show up for the initial prerevocation hearing, the court will issue a bench warrant for the probationer’s arrest. The warrant will remain until addressed. If the court preliminarily revoked probation, the probation term is tolled, meaning it’s not running; therefore, the probationer should go to court as soon as possible.

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 Cases: What Must The Defense Turn Over To The Prosecutor?

March 16, 2012 | The Law Offices of Susan L. Hartman

DUI discovery is the same as in all other criminal cases. There are reciprocal discovery rules, meaning that both the prosecutor and the defense are entitled to discovery.

The defense discovery is mandated by California Penal Code Section 1054.3. Under this code, the defense must disclose, “The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments or comparisons which the defendant intends to offer in evidence at the trial.”

Although both the prosecutor and defense must abide by these rules, the defense is often in a different position than the prosecutor. The prosecutor has the burden to prove its case beyond a reasonable doubt and the defense is not required to prove anything. The defendant’s drunk driving attorney may not have an affirmative defense, but instead, the defense may call witnesses to impeach the evidence of the prosecutor; thus, the defense counsel may not know it will call a particular witness until after the testimony of the witnesses in the prosecution’s case-in-chief. Once counsel forms the intent to call a witness, Penal Code Section 1054.3 applies.

In addition, the defense must also disclose, “Any real evidence which the defendant intends to offer in evidence at the trial.”

Discovery is vital in the preparation of a drunk driving case. The defendant has a right to know the evidence the prosecuting authority has against them. This information allows the defendant to make an educated decision on how to proceed with their case. They may want to accept the prosecutor or judge’s offer and plead guilty. They may decide to file motions to try to get the case dismissed or limit the evidence that may be used against them in trial. Or, after review of all the evidence, it may become clear that the defendant should take their drunk driving matter to trial.

In the same respect, the prosecutor may review the discovery and decide to dismiss the case, file additional charges, give an offer with more or less penalties, or decide to proceed with trial.

A skilled, DUI defense attorney will request and review all the discovery in your matter, negotiate with the prosecutor on your behalf, and advise you on how best to proceed with your case. If a trial is your best option, the attorney will provide discovery as required under the penal code section discussed above.

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 Discovery For The Defense

March 9, 2012 | The Law Offices of Susan L. Hartman

You have been arrested for drunk driving. The big question when facing your arraignment hearing is whether you should just plead guilty. The answer for most DUI defendants is no.

At arraignment, the prosecutor usually does not have all the discovery to turn over to the defendant or the defendant’s attorney. The discovery is the evidence including the police report, statements made by the defendant and witnesses, photographs, real physical evidence, test results, among other things. Without being able to review all the evidence, you are not able to form an educated decision about accepting the prosecutor’s offer, pleading guilty, filing motions, or taking your case to trial. Most likely, your best option at this stage is to enter a plea of not guilty and let your attorney start the discovery process.

Discovery is governed by the federal and state constitutions and state statutes. In California, those statutes are found in Penal Code Section 1054. California has reciprocal discovery rules, meaning both the prosecutor and the defense are entitled to discovery. This is true in both misdemeanor and felony matters. However, this article only deals with the discovery that the prosecutor must turn over to the defense.

Between the arraignment and the readiness hearing, the defendant’s lawyer requests discovery. Often this is done informally by orally requesting such in court at the arraignment or by a written informal discovery request that is sent directly to the prosecuting agency. The prosecutor is required to turn over:

The names and addresses of people the prosecutor intends to call as witnesses at trial;
Statement made by the defendant;
All real evidence;
Felony convictions of witnesses whose credibility is at issue;
Relevant written and recorded statements and any reports of such statements of witnesses the prosecutor intends to call at trial;
Evidence favorable to the defendant; and,
Evidence that a third party was implicated.

If the prosecutor fails to comply with the informal discovery request, the defense attorney may file a formal discovery motion with the court to compel the prosecutor to comply with the informal request.

In addition to informal discovery, there are several motions that a drunk driving defense lawyer may file to obtain additional discovery. These include: 1.) A Pitchess Motion to discover the personnel files of the police officers that were involved in your case; 2.) Brady Motions to discover favorable evidence to the accused; and, 3.) Trombetta-Youngblood Motions for sanctions for the destruction of favorable evidence, (see California v. Trombetta and Arizona v. Youngblood).

If you or someone you know is arrested for driving under the influence, you owe it to yourself to hire an exclusively DUI defense firm that will effectively request and review all discovery and then advise you on how to proceed in your case. Remember, it’s the prosecutor who has to prove you are guilty of DUI, you do not have to prove you are innocent!

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 Arraignment, Should I Just Plead Guilty?

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

Once arrested for a misdemeanor or felony DUI, your first appearance in court is called the arraignment. At the arraignment hearing, you are informed of the charges against you, given a copy of the complaint, and you are given an opportunity to enter a plea of guilty or not guilty. The judge will also advise you of your rights, including your constitutional right to counsel. If you are indigent, and unable to pay for a DUI defense attorney, the court will appoint an attorney to handle your drunk driving case. Often your attorney will be employed by the local public defender’s office.

If you are charged with misdemeanor drunk driving and you hire an attorney to represent you, the arraignment is often done by fax or at the misdemeanor business counter at the courthouse. The defendant does not have to appear in court. If you are charged with felony drunk driving, you must be present in court at the arraignment even if you have retained a lawyer.

If you decide to attend your arraignment without a lawyer, and you get to court and change your mind, you can simply ask the court to continue your arraignment so that you have time to do so. In a misdemeanor case, the court will allow no more than a 7 day continuance for you to retain an attorney. If you are charged with a felony, the court will give you more than 1 day to obtain legal counsel. However, if the defendant has been charged with a misdemeanor under the vehicle code, a continuance of at least 5 days will be granted, (see California Vehicle Code Section 40306).

At the arraignment hearing, the defendant will be given an opportunity to enter a plea. The prosecuting authority, either a deputy district attorney or deputy city attorney, depending on where the case is filed, will give you an offer on the case. If you want to accept the offer and plead guilty you can do so. However, beware of accepting an offer at this stage! Often, the prosecutor will not have all the discovery to provide to you or your counsel. Therefore, you will not know the evidence they have against you for you to make an informed decision on whether to accept the offer. Often the offers at arraignment are generous, as the prosecutor has incentive to get people to plead guilty early in the case in order to minimize the cases that are set for follow-up hearings.

As an exclusively DUI defense attorney, I usually do not advise my clients to plead guilty until I am able to evaluate all the evidence the prosecutor has in your case. Often there are problems with drunk driving cases and a motion or trial can lead to a dismissal, a better offer with lesser charges and consequences, or an acquittal. So, even if you were over the legal limit of .08% blood-alcohol concentration, it is often in your best interest to enter a plea of not guilty, request all the discovery, evaluate the case, and then make an informed decision on what steps to take.

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

California DUI Arrest With Out-Of-State Driver’s License, What Happens?

February 10, 2012 | The Law Offices of Susan L. Hartman

MA License.jpg If you were arrested in California for drunk driving, and you have an out-of-state driver’s license, you are subject to the same two processes that a California resident with a California driver’s license faces: The administrative process through the Department of Motor Vehicles (DMV) and the criminal process through the courts. In addition, you may face additional penalties in your home state.

The officer in California cannot take your out-of-state license. However, they typically give you notice that your privilege to drive in California will be suspended 30 days after the arrest date.

The DMV is immediately notified of your arrest and you only have ten days from the date of arrest to request an administrative per se, or APS, hearing challenging the suspension. If you do not schedule the APS hearing within those 10 days, your driving privileges will be suspended 30 days after the arrest. If you request a hearing, the suspension is stayed or postponed pending the outcome of the hearing.

If you fail to request a hearing or you do not prevail at the hearing, your privilege to drive in California will be suspended. The suspension period will depend on how many other prior drunk driving convictions you have on your DMV record.

So your privilege to drive in California is suspended, how does that affect your right to drive elsewhere? Well, the Interstate Drivers License Compact, or DLC, requires all states that are a part of it to share driving history with other states. The idea is for each driver to have one license and one record. California is a part of the DLC, so they report DUI’s to the state where the driver is licensed, except for the four states that are not part of the compact, (Michigan, Wisconsin, Georgia, and Massachusetts).

Once your home state receives notice of the drunk driving arrest, they may take action against your license. What penalty you will have depends on your specific state. Some states take action when California suspends your license. Others wait to see if you are convicted in court. Some states only penalize the driver if the California statute is the same or similar to the driving under the influence statute in the home state.

Separate from the administrative process with the DMV, the court process also involves the possible consequence of a license suspension. If you are able to get your matter dismissed or your charges reduced, you may not have your license suspended by the court and your home state may not take action against you.

If you have been arrested for DUI in California and you have an out-of-state license, it is imperative that you seek an exclusively, DUI defense firm that can assist you in trying to limit the negative consequences in California and your home state.

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.

Helmandollar Plea: Can It Help Get My License Back After The DMV Suspended It Due To A DUI?

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

The first thing to address is that there are two separate actions pending once you are arrested for drunk driving. One is the administrative portion through the Department of Motor Vehicles, or DMV, and the other is the court process. Although these two processes are separate and distinct, some of the rules and laws interact and influence the other.

For instance, if you requested a DMV administrative per se hearing to challenge the suspension of your license and you lost, or if you failed to request a hearing and your license was automatically suspended 30 days after the arrest, a Helmandollar plea in court can help you get your license back.

So, what is a Helmandollar plea? Under Helmandollar v. Department of Motor Vehicles, the defendant pleads guilty or no contest to a dry or wet reckless charge. Immediately after there is a bench trial, (a trial before a judge without a jury), on California Vehicle Code Section 23152(b). The trial is based on stipulated facts between defense counsel and the prosecutor, thus the prosecutor agrees not to put on any evidence about the blood-alcohol content, or BAC. The court then finds the defendant not guilty or acquitted of the (b) count.

The defense counsel then requests a certified copy of the court minutes showing the acquittal and forwards it onto the DMV’s mandatory actions unit in Sacramento. The court’s findings are binding on the DMV and the licensee is entitled to have the conviction on the DMV record set-aside.

The license suspension and DMV conviction is set-aside pursuant to California Vehicle Code Section 13353.2(e), which states, “If a person is acquitted of criminal charges relating to a determination of facts under [the administrative per se law]…the department shall immediately reinstate the person’s privilege to operate a motor vehicle.” (Note, this does not include a suspension due to a refusal to take a chemical test.)

The court and the prosecuting authority must agree to such a plea which makes it very difficult to get. Often one or both of them do not want to help the defendant get his or her license back and will refuse such a request for this type of plea. However, if you cannot afford to have a DUI on your driving record, this is an option that can be explored by a driving under the influence defense attorney in negotiating with the prosecutor.

The above summary on Helmandollar pleas is by no means all-inclusive and is not legal advice. Laws may have changed since our last update. For information and advice on the specific facts and laws that pertain to your driving under the influence case, contact a DUI attorney in your area.

DMV Notification Of Findings And Decision, Suspension Of Driver’s License Re-Imposed, What’s Next?

January 21, 2012 | The Law Offices of Susan L. Hartman

suspended dl.jpg If you are arrested for driving under the influence in San Diego County, your license is usually taken by law enforcement and you are given a temporary driver’s license. The temporary license allows you to continue to drive with the same restrictions, classifications, and endorsements that your original California driver’s license had. Make sure you sign the document and carry it with you when you drive. The temporary license is valid for thirty days after the DUI arrest.

After the thirty days, your license is automatically suspended unless you contact the Department of Motor Vehicles, DMV, Driver Safety Office within 10 days from the date of arrest to schedule an administrative per se hearing. This hearing with be telephonic unless an in-person hearing is requested. By requesting this hearing, the DMV will put a stay on the suspension of your license until a decision has been made on your matter, unless you request otherwise. A stay means you will be able to continue to drive and often a second temporary license with an extended date will be mailed to the driver.

After the administrative per se hearing, the DMV will mail the Notification of Findings and Decision with the decision to either end the stay on the license suspension, thus beginning the suspension period*, or set aside the suspension, thus giving back the driver’s license.

If the DMV’s findings end the stay, the driver has 15 days from the effective date of the notice to request a Departmental Review of the findings. This request must be in writing, addressed to the Driver Safety Office where the hearing was conducted, and received and date stamped by the DMV by the statutory date. In addition, the request must include a fee of $120. No stay on the suspension will be issued pending review; therefore, the license is suspended as of the date noted in the notification.

Often these reviews end with a confirmation of the hearing officer’s decision. However, the matter may be sent back to the hearing officer to clean up any issues, still resulting in a license suspension. In a few instances, the DMV review board will find that the hearing officer acted outside his or her authority and set aside the suspension, returning the license to the driver.

If the DMV confirms the hearing officer’s findings and decision after the Departmental Review, the licensee may appeal that decision by filing a Writ of Mandamus with the courts. Under California Vehicle Code Section 14401, the driver has 90 days from the date the order was noticed to bring an action in the court to review the administrative agency’s decision.

This code section specifically requires all administrative appeals be final before filing a petition in the courts; however, since the license suspension is not stayed pending the Departmental Review, the driver may consider filing a writ without the review or simultaneously with the review.

*The suspension time is determined by factors including how many prior DUI’s the driver has, if a chemical test was refused, and the age of the driver.

The above summary of the DMV’s Departmental Review and writ procedures are by no means all-inclusive and is not legal advice. Laws may have changed since our last update and this article may not apply to your case. For the latest information on this, or any other DUI matter, contact an exclusively DUI defense attorney to find out more information on your individual case.

Probation Violation: Misdemeanor Driving Under The Influence Matter

January 14, 2012 | The Law Offices of Susan L. Hartman

When a DUI defendant pleads guilty or is found guilty after a trial, the judge may put the defendant on probation as part of the sentence. Probation is “the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer,” per California Penal Code Section 1203(a). In other words, the defendant is released into the community with certain terms or conditions that must be fulfilled.

In misdemeanor drunk driving cases, the judge has the authority to grant probation without referring the defendant to a probation officer. This means the probationer reports directly to the court, not to a probation officer. This is often called court probation, summary probation, or informal probation.

A judge has discretion to impose any reasonable terms of probation that are reasonably related to the underlying offense. However, the standard terms and conditions on a first time, misdemeanor drunk driving conviction in San Diego County include, but are not limited to: 1.) Paying the fines and fees to the court; 2.) Enrolling and completing an alcohol program per the recommendation of the SAAU Unit; 3.) Not driving with a measureable amount of alcohol or drugs in the system; 4.) Submitting to a drug or alcohol test at the request of law enforcement; 5.) Not violating the law; 6.) Public work service; and, 7.) Attending a MADD panel class.

In many misdemeanor matters, probation is a three year term. San Diego Courts commonly order five years of probation on drunk driving cases. Within that period of time, if a probationer fails to comply with any of the specific terms of his or her probation, the judge will revoke the probation and the clock will stop running on the probation. The probationer will be notified either by a letter or a warrant may be issued, ordering the probationer to come before the judge.

On the day of court, the probationer may admit the violation or request a hearing contesting the violation. If there is an admission or if the probationer is found in violation of the terms of probation after a hearing, the judge has authority to punish the probationer. The punishment may include modifying the terms of probation by adding additional requirements or ordering him or her to serve time in jail for a period not to exceed the maximum possible jail sentence under the charges plead to or found guilty of.

If you are probation for driving under the influence and you have received notice of a probation violation or warrant is out for your arrest, do not handle this matter on your own. Consult an exclusively, DUI defense firm to properly advise you on your rights, negotiate on your behalf with the judge, and represent your interests in court.