Defending DUI Cases

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.

San Diego’s Drunk Driving Arrest Numbers For Holiday Announced

January 5, 2012 | The Law Offices of Susan L. Hartman

San Diego Sheriff’s Department announced their final driving under the influence numbers for the 2011 holiday season. Fourteen San Diego County law enforcement agencies and the California Highway Patrol, CHP, arrested 770 people on suspicion of drunk driving from 12:01 a.m., Friday, December 16th, 2011, through 12:00 a.m., Sunday, January 1st, 2012. Five deaths in San Diego have been blamed on drunk driving. This is up from 715 DUI arrests in 2010 for the same time period, according to californiaavoid.org.

The Sheriff’s have announced that they will be increasing their saturation patrols and drunk driving checkpoints around San Diego County during the Super Bowl weekend of February 5th, and again around the St. Patrick’s Day events in March.

As always, we recommend you plan ahead before heading out to celebrate to avoid the possibility of being arrested for drunk driving. Pack a bag and plan on staying at the home of the party host. Designate a driver to remain sober and be responsible to drive you home. Save a San Diego taxi company’s telephone number in your phone and use it. Use public transportation or call a sober friend or family member for a ride.

But, if you are arrested for drunk driving, hiring a skilled DUI defense attorney can help you evaluate your case, negotiate with the prosecuting authority, file motions when appropriate, mitigate your consequences, and possibly get your case reduced or dismissed!

Once arrested for drunk driving, there are two legal processes that occur: One is the California Department of Motor Vehicles’ administrative process and the other is the court process. Be advised that you only have ten days from the date of the arrest to contact the DMV to request an administrative hearing challenging the suspension of your license. If you fail to schedule the hearing within those ten (10) days, your license will automatically be suspended thirty (30) days after the arrest.

Besides the administrative process that occurs, there is also a court action. If you are arrested for drunk driving, do not just plead guilty even if your blood alcohol content, or BAC, was a .08% or more. There may be defenses in your case that can lead to reduced charges with less punishment or even a dismissal! Those defenses are usually not apparent until a DUI defense attorney can review all the evidence against you. That information is usually not known until after the arraignment and the discovery process begins.

Dry Reckless & Wet Reckless: What Is The Difference?

November 3, 2011 | The Law Offices of Susan L. Hartman

A dry reckless is defined under California Vehicle Code Section 23103. It states, “A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.”

The penalty for a guilty plea or a conviction under this statute is “imprisonment in a county jail for not less than five days nor more than 90 days or by a fine of not less than one hundred forty-five dollars ($145) nor more than one thousand dollars ($1,000), or by both that fine and imprisonment.”

Most often in San Diego County, the prosecutor offers three years of informal probation and a fine of approximately $855 on a dry reckless case. In addition, this is a non-alcohol, non-drug, and a non-injury charge; therefore, it is not a priorable offense. This means that if you are charged with drunk driving in the future, this conviction cannot be used to enhance the punishment of that case.

A wet reckless is a reduced drunk driving charge, California Vehicle Code Section 23103(a) per 23103.5.

The statutory penalty for a guilty plea or a conviction under this statute is the same as a dry reckless, with the addition of an alcohol and drug educational program. However, in San Diego County, the standard offer is three years of informal probation, a fine of approximately $1,036, a first conviction alcohol and drug education program, (either three months or twelve hours depending on the BAC), a one hour MADD (Mother’s Against Drunk Driving) panel class, and a referral to SAAU, (Substance Abuse Assessment Unit).

Unlike the dry reckless, the wet reckless conviction is priorable. So if you plead or are convicted of a wet reckless and you are facing another DUI within ten years, the wet reckless will be looked at as a DUI, thus enhancing the punishment in the new case.

Both a dry and wet reckless are lesser charges in drunk driving cases. Often the prosecutor will offer the reduced charge if the blood-alcohol content, or BAC, is close to the legal limit of a .08 percent or if there are problems with proving the DUI case. An experienced drunk driving attorney may be able to negotiate one of these lesser charges after evaluating the weaknesses in the prosecutor’s case.

The above blog article summarizing dry reckless and wet reckless is by no means all-inclusive and is not legal advice. Each case involves distinct facts which may change the offer given by the prosecution 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.

Is Drunk Driving A Misdemeanor Or Felony In California?

October 28, 2011 | The Law Offices of Susan L. Hartman

The majority of all DUI cases in California are filed as misdemeanors. Some are filed as felonies.

What is the difference between a misdemeanor and a felony? The California Penal Code Section 17 states, “A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.”

There is more of a stigma and the punishment is greater for those accused and convicted of a felony rather than a misdemeanor. Usually felony punishments require a sentence of a year or more in a state prison. Misdemeanor convictions carry the possibility of a year or less in the county jail.

As for drunk driving cases, most often first, second, and third DUI’s are charged as misdemeanors. However, if there are aggravating factors, the charges may be raised to a felony. For instance, if the DUI caused injury or death of another, the defendant has three or more prior DUI’s or wet reckless convictions within ten years, or the defendant has a prior felony DUI conviction, the new case will often be charged as a felony.

If the DUI caused injury or death to another, the driver may be charged with either: 1.) Driving under the influence causing injury under California Vehicle Code Section 23153; 2.) Vehicular manslaughter under California Penal Code Sections 191.5 and 192; or, 3.) Murder under Penal Code Section 187. The charges usually depend on the seriousness of the injury.

If the defendant has been convicted of three or more DUI’s and/or wet reckless offenses, the new case may be charged as a felony. This would include any out-of-state convictions that are equivalent to a California DUI.

If the defendant has a prior felony drunk driving conviction and then picks up another DUI, regardless that it would normally be charged as a misdemeanor, the new case can be charged as a felony.

Cases which may be charged as a misdemeanor or felony are called “wobblers.” The prosecutor has discretion to decide how to charge a particular matter; however, an experienced drunk driving defense attorney may be able to negotiate a plea agreement where the defendant pleads to a reduced misdemeanor charge. If the prosecutor refuses such an offer, a skilled DUI defense attorney may motion the trial court to reduce the felony to a misdemeanor.

Driving Under The Influence: What The Prosecutor Must Prove

October 19, 2011 | The Law Offices of Susan L. Hartman

You have been charged with drunk driving under California Vehicle Code Section 23152(a) or 23152(b) . In order for the jury to find you guilty, the prosecution has the burden to prove their case beyond a reasonable doubt.

Under 23152(a), driving under the influence of an alcoholic beverage, a drug, or under the combined influence of an alcoholic beverage and a drug, the state must prove that you drove a vehicle and when you drove, you were under the influence.

Under 23152(b), driving with a blood alcohol level of 0.08 percent or more, the state must prove that you drove a vehicle and when you drove, your blood alcohol level was 0.08 percent or more by weight.

In Louisiana, a man was arrested for drunk driving after he drove a lawn mower on northbound LA Highway 1, just south of Lockport, according to wdsu.com. He was driving with a long line of cars behind him as he swerved into the southbound lanes. An officer pulled him over and smelled alcohol on his breath. His speech was slurred and he allegedly could not complete the field sobriety tests. His blood-alcohol concentration, BAC, was estimated at .312 percent. He was arrested for DWI, driving while intoxicated, which is Louisiana’s version of California’s DUI laws.

So, is this a lawful arrest for drunk driving if this happened in San Diego County or anywhere in California? Assuming the facts in the article to be true and not having any discovery in the matter to review, the general answer is yes.

The courts have found that the defendant must have been driving which requires any volitional movement of the vehicle, (See Mercer v. DMV). The vehicle code describes a vehicle as a “device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device move exclusively by human power or used exclusively upon stationary rails or tracks.” Note that even though the vehicle code usually applies to “highways” under VC 23100, drunk driving laws may even apply to private property.

So, for the Louisiana case, the defendant was driving a lawn mower, powered by a gas motor, on a public roadway. Allegedly, he had a BAC over a .08, therefore, his arrest for drunk driving was lawful.

BAC: What Is It And How Does It Affect My DUI Case?

October 7, 2011 | The Law Offices of Susan L. Hartman

.08.jpg BAC is an acronym that stands for blood alcohol content or blood alcohol concentration. It is the percentage of alcohol that is in your blood at the time of the test. According to the National Highway Traffic Safety Administration, the higher your BAC, the more impaired you are.

In California, it is illegal to drive a vehicle while under the influence of any alcoholic beverage or drug, or a combination of both. Further, it is unlawful to drive a vehicle with a blood alcohol concentration at or above a .08 percent. (See California Vehicle Code Sections 23152(a) & (b).)

Blood alcohol concentration is at issue in almost every drunk driving case involving alcohol. Within the vehicle code there is a rebuttable presumption. If the driver took a chemical test within three hours of driving, and the result of that test is a .08 percent or more, it is presumed the person had a BAC at or above a .08 at the time of driving. Because this is a rebuttable presumption, the defense can attack this at trial during cross examination of the prosecution’s experts or with a defense expert.

Even if the driver did not exhibit any signs of impairment, having a BAC of a .08 or more at the time of driving is enough for the state to file charges against you.

If your BAC is under a .08, you can still be charged with driving under the influence if you exhibited signs of impairment while driving or if the officer determined that you failed the field sobriety tests (SFST’s).

Blood alcohol content is usually tested by breath, blood, or urine samples. The officer must have probable cause to arrest you before administering such tests. (Note: The breath test mentioned here is not the PAS, or preliminary alcohol screening test, used in the field.) As a licensed driver, you have given implied consent to such tests; this means, if you are arrested for DUI, you must give one of the samples.

A breath test is most favored by law enforcement because it gives the result quickly and no sample is saved for retesting. The breath test machine is very sensitive and many things may skew the results. For instance, the machine may not have been working properly when the test was completed or mouth alcohol may have been present in the sample. Both of these can artificially elevate the results.

The blood test is done by a qualified medical professional and the results are not immediately available. This is often considered the most accurate test. However, a byproduct of blood breaking down is alcohol. Therefore, if the preservative is not thoroughly mixed through the vial of blood, the test results will be inaccurate with the result showing an inflated number.

If you are arrested for drunk driving, you owe it to yourself to hire an exclusively DUI defense firm that is familiar with all the possible defenses in your case. The BAC result is only an estimate, and it alone does not accurately determine if you are under the influence for purposes of driving. It is a tool used by the prosecutor to determine how to charge and pursue your case. A good defense looks at all the facts, not just the test result provided by the state.

Do not just plead guilty because your BAC was a .08 percent or higher. There may still be defenses in your case that can lead to reduced charges with less punishment, or even a dismissal!

The above blog entry is by no means all-inclusive and is not intended to be legal advice. To get legal advice on your particular matter, speak to a DUI attorney.

Drunk Driving Defendant Has A Right To Confront Analyst That Tested Blood

September 29, 2011 | The Law Offices of Susan L. Hartman

Alleged drunk driver, Donald Bullcoming, was involved in a vehicle accident in New Mexico in August 2005. The other party believed he observed signs that Bullcoming was intoxicated so he called the police. Bullcoming left the scene but was later apprehended by police. He failed the field sobriety tests and was subsequently arrested for driving under the influence. He refused to provide a breath sample, so a warrant was served to take a blood sample.

The blood sample was sent to the New Mexico Department of Health, Scientific Laboratory Division (SLD) to determine Bullcoming’s blood alcohol concentration (BAC). A gas chromatograph machine was used to test the blood sample and the test was performed by Curtis Caylor, a SLD Forensic Analyst. He then certified the test results in a “Report of Blood Alcohol Analysis” form, which showed the result to be a .21.

At trial, the prosecutor did not call Caylor to testify. Instead the government attempted to introduce Caylor’s findings as a “business record” during the testimony of Gerasimos Razatos, another SLD scientist. Razatos did not observe or review Caylor’s analysis.

Defense counsel objected to the introduction of the analyst’s findings without his testimony at trial, stating the introduction of the report would violate the defendant’s Sixth Amendment right “to be confronted with the witnesses against him,” (Confrontation Clause).

The trial court overruled the objection and admitted the report as a business record. Bullcoming was convicted and appealed. The Court of Appeals upheld the conviction stating the report was “non-testimonial and prepared routinely with guarantees of trustworthiness.”

The case was taken to the US Supreme Court which ruled in Bullcoming v. New Mexico that the Confrontation Clause requires the scientist that performed the test testify at trial unless the scientist is unavailable at trial and the defendant had an opportunity to cross-examine that scientist before trial.

While this case was being appealed, the US Supreme Court ruled on this issue in Melendez-Diaz v. Massachusetts. In that case, the court admitted affidavits that reflected the results of forensic analysis that showed the material seized from the defendant was cocaine. The court found in that case that the affidavits were “testimonial, rendering the affiants ‘witnesses’ subject to the defendant’s right of confrontation under the Sixth Amendment.”

These cases are expanding the Crawford v. Washington case, where the court held, “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”

Drunk Driving And It’s Effects On A Pilot’s License

September 13, 2011 | The Law Offices of Susan L. Hartman

Driving under the influence charges can pose a threat to your livelihood. If your profession, business, or service requires you to have a state license, a criminal conviction may impact obtaining or renewing your license.

If you are a pilot, there are stringent rules and procedures that must be followed if you are arrested for DUI. A conviction or motor vehicle action (MVA) may result in sanctions against you, so you need to seek legal counsel immediately to know and understand your rights and responsibilities.

The Federal Aviation Administration is governed by the Federal Aviation Regulations (FAR) which are found under the Code of Federal Regulations (CFR). 14 CFR Section 61.15 deals with alcohol or drug offenses, not involving the use or operation of an aircraft, and the effects on a pilot’s license.

The pilot has 60 days from the effective date of the administrative action, (driver license suspension, revocation, or cancellation), or conviction to report the MVA to the FAA. Notification must be done in writing and not over the phone. The FAA provides a standard “Notification Letter” on their website.

Each event, conviction, or administrative action must be reported. This means that one incident that leads to an administrative action and a conviction requires two notifications to the FAA. Even though two notification letters are sent, it will be deemed as one alcohol-related event for investigation purposes.

The reporting requirements for a MVA does not include a conviction for reckless, careless, or negligent driving, but it does include any administrative action. However, arrests, administrative actions, and convictions are reportable under the airman application for a medical certificate.

Once a MVA is reported, an investigation will be initiated. Investigators will ensure that the MVA was timely reported and that no other reportable actions were involved. If the MVA is reported after the required 60 days, but before the FAA discovers the MVA, that will be considered a mitigating factor in determining the sanction. Failure to notify the FAA within the 60 days may result in the denial of an application for any certificate, rating, or authorization issued for up to one year after the date of the MVA or a suspension or revocation of any certificate, rating, or authorization issued.

Due to a provision in the “Application for Airmen Medical” form 8500-8, the pilot gives consent for the National Driver Register, or NDR, to release the pilot’s driving record to the FAA. So eventually, the FAA will find out about MVA’s regardless of the pilot reporting it on their own.

If the FAA finds out about the MVA and it was not self reported, a formal investigation will be initiated. The pilot will be given a Letter of Investigation with an opportunity to respond.

DUI Conviction: How Can It Impact Professional Licenses?

September 7, 2011 | The Law Offices of Susan L. Hartman

In California, many professions require a license by the State of California. When applying for or renewing a license, the applicant is usually asked if they have ever been convicted of a crime, this includes the crime of driving under the influence.

These licensing agencies are governed by the California Business and Professions Code (B&P Code). B&P Code Section 480 explains the process by which a board may deny a license to an applicant.

Under B&P Code Section 480(a)(3)(B), “The board may deny a license pursuant to this subdivision only if the crime or act is substantially related to the qualifications, functions, or duties of the business or profession for which application is made.”
When filling out the forms, it is imperative that you are truthful because under B&P Code Section 480(c), “A board may deny a license regulated by this code on the ground that the applicant knowingly made a false statement of fact required to be revealed in the application for the license.”

If the conviction has been expunged under California Penal Code Section 1203.4, you are not relieved from the obligation of disclosing the conviction in response to any direct questions in any questionnaire or application for licensure by any state or local agency. However, you can indicate on the form that the conviction was expunged.

If you already have a license, B&P Code Section 490 provides the criteria for license suspensions and revocations. This is basically the same as B&P Code Section 480, stating: “In addition to any other action that a board is permitted to take against a licensee, a board may suspend or revoke a license on the ground that the licensee has been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued.”

Each agency is required to have guidelines or criteria to reference when considering denying, suspending, or revoking a license. The guidelines are used to determine if the conviction is “substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued.” Therefore, the guidelines of the individual agency, which issued the license or is considering your application, should be reviewed to see if a drunk driving conviction would result in the loss of your professional license or the denial or your application.

Some agencies require licensees, such as doctors and pilots, to self report. Failure to notify the licensing agency within a specified amount of time may result in denial, suspension, or revoking of your license.