Defending DUI Cases

SD University Study Finds BAC Below .08% Can Still Impair Drivers

June 27, 2011 | The Law Offices of Susan L. Hartman

UC San Diego sociologist David Phillips and coauthor Kimberly M. Brewer completed a study comparing blood alcohol content (BAC) and injury and death-related vehicle accidents, according to nbcbayarea.com. The results were published in the journal “Addiction.”

The study examined official data from the Fatality Analysis Reporting System (FARS). The dataset allegedly included information on all 1,495,667 persons who were involved in fatal car accidents in the United States from 1994 until 2008.

According to the article, the study found that blood-alcohol levels below the legal limit of 0.08 percent are still associated with injury and death-related vehicle accidents. They believe that even one drink can impair a driver enough to cause a fatal or severe accident. Phillips believed three mechanisms help explain the findings: “Compared with sober drivers, buzzed drivers are more likely to speed, more likely to be improperly seat-belted and more likely to drive the striking vehicle, all of which are associated with greater severity.”

San Diego’s MADD, Mother’s Against Drunk Driving, executive director Eloisa Orozco commented on the results stating, “If you’re going to drink at all, don’t drive.”

The sociologist commented that he hopes “our study might influence not only U.S. legislators, but also foreign legislators, in providing empirical evidence for lowering the legal BAC even more.” This is not necessary in California because there are two code sections that can be charged, California Vehicle Code Section 23152(a) and (b).

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

This is sometimes referred to as California’s DUI “per se” rule. The law presumes that if your BAC is 0.08% or greater at the time of your blood or breath test, you are guilty of DUI, regardless of whether you were actually under the influence of alcohol and/or drugs at the time of driving.

Can you still fight your DUI case if your BAC was .08 or higher? Absolutely! There are many defenses, even to the (b) count. Speak to a DUI defense attorney to find out about all your rights and defenses to your case.

If your BAC was below a .08, but law enforcement believed you were impaired while driving, you can be charged with VC Section 23152(a) , which states, “It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.”

Whether a person is under the influence for purposes of driving is a matter of fact. Current California law already accounts for the fact that most people are under the influence if there BAC is .08 or greater at the time of driving. Others are not. Some are under the influence at a lower blood alcohol content. That is why there is an (a) count under the code.

DUI For Being Under The Influence In A Horse-Drawn Buggy?

June 24, 2011 | The Law Offices of Susan L. Hartman

horse and buggy.jpg Can being under the influence while in control of the reins of a horse-drawn buggy subject you to the drunk driving laws in California? Yes, it may!

In Pennsylanvia, two people were allegedly in control of the reins of a horse-drawn buggy that ended up in the path of a car causing an accident, according to cumberlink.com. The people involved were not hurt; however, the horse suffered nonlife-threatening injuries. Both “drivers” were arrested for driving under the influence.

If this accident occured in California, the “driver” of the buggy could be charged with drunk driving. Under California Vehicle Code Section 21050, ” Every person riding or driving an animal upon a highway has all of the rights and is subject to all of the duties applicable to the driver of a vehicle by this division…”

Under the California Vehicle Code Section 670, a vehicle is defined as a “device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”

California law enforcement and prosecutors are always trying to expand the meaning of vehicle and highway, making more acts illegal under the DUI laws. However, any drunk driving case involving a horse or other animal should be challenged. Common sense says an animal is not a vehicle!

DUI Breath Test Machine, The Intoxilyzer 8000, Challenged In Court

June 2, 2011 | The Law Offices of Susan L. Hartman

Intoxilyzer 8000.jpg San Diego Police Department uses the Intoxilyzer 8000 to test the breath of suspected drunk drivers after they have been arrested. Not only are these tests used in San Diego and in other cities across California, but in other states such as Arizona, Florida, and Ohio.

Ohio is now challenging the admissibility of the results of the Intoxilyzer 8000 in an Athens County Municipal Court, according to athensnews.com. An evidentiary hearing is being held in one case to determine if the machine’s results are accurate, reliable, and therefore admissible.

Thomas E. Workman, a Massachusetts attorney who also has a master’s degree in electrical engineering, testified at the hearing. He said the data suggested some officers may be ignoring repeated failure results that should indicate they need to pull the machine out of service. Instead they are doing multiple tests until they get usable results.

He also suggested that the machine’s design and components make it more prone than other testers to error. It may misreport something else as alcohol, making the test results higher than the actual blood alcohol content of the subject. Heat, humidity, and radio interference can also affect the accuracy.

If the results of the Intoxilyzer 8000 are admitted into evidence and they are inaccurate unjust drunk driving convictions may result. If the Ohio courts determine that the Intoxilyzer 8000 test results are inaccurate, unreliable, and not inadmissible, other states such as California should also challenge the admissibility of these results.

Biking While Intoxicated, Can I Get Arrested For Drunk Driving?

May 25, 2011 | The Law Offices of Susan L. Hartman

bike and beer.jpg While intoxicated, Richard W. Walker, 20, was riding a dirt bike in the street in Channahon, Illinois. He was arrested and charged with DUI and other crimes, according to heraldnews.suntimes.com.

In California, it is illegal to be under the influence of an alcoholic beverage or drug, or a combination of both, while driving a vehicle. The question is whether a dirt bike is considered a vehicle for purposes of applying the DUI sections of the Vehicle Code.

California Vehicle Code Section 670 states: “A ‘vehicle’ is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”

California courts have interpreted this code section in Tomson v. Kischassey, bicycles without motors are not considered vehicles, and in People v. Jordan, bicycles with motors are considered vehicles under the Vehicle Code.

In this case, since the dirt bike had a motor, it would be considered a vehicle and the defendant would be charged with drunk driving. If the bicycle was self propelled, the defendant would not face DUI charges; however, he could be charged with violating California Vehicle Code Section 21200.5, which makes it illegal “to ride a bicycle upon a highway while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug.” The penalties for a conviction under this section are less severe than a standard DUI.

Drunk Driving Charges For Vice Mayor of San Carlos

May 17, 2011 | The Law Offices of Susan L. Hartman

San Carlos’ Vice Mayor Andy Klein was arrested and charged with DUI in the early hours of May 13th, 2011, according to mercurynews.com.

Allegedly, Klein was parked on the exit ramp of northbound Interstate 280 at Edgewood Road when a San Mateo County sheriff’s deputy stopped thinking the parked car was disabled. After a brief discussion, the deputy believed Klein was under the influence so he called California Highway Patrol (CHP) to investigate.

Field sobriety tests were conducted and a preliminary alcohol screening (PAS) test was administered. Klein blew a .08 and he was subsequently arrested for DUI. He also provided a blood sample.

According to the San Mateo Daily Journal, Klein denied being under the influence, stating: “At no time did I feel that I was under the influence and would not be driving if I believed that I was unable to operate a vehicle responsibility.”

To be convicted, the prosecutor has to prove each element of the charged crime. In a DUI, (see CALCRIM 2110), they must show you were driving and while you were driving you were under the influence. A defense to drunk driving charges is the defendant was not driving.

In this case, the officer did not see Klein driving. He was pulled over at the time he was first approached by law enforcement. However, he may have admitted to driving and the prosecution will attempt to use that admission to prove that he was in fact driving the car just before he had contact with the officer.

Defective Breathalyzers, DUI Cases Could Be Dismissed Or Overturned

April 22, 2011 | The Law Offices of Susan L. Hartman

The Alco-Sensor V Breathalyzer, used by law enforcement as a preliminary alcohol screening test (PAS), was recently purchased and put into use in every law enforcement agency in Ventura County to replace the older Alco-Sensor IV model. However, the blood alcohol results from the newer model have been found to be erratic in tests taken from January 20th through March 31, 2011, and some devices have other defects as well.

All of these devices have been sent back to the manufacturer for further testing. Meanwhile, all Ventura County law enforcement agencies have resumed its use of the Alco-Sensor IV device.

So far, 294 alleged drunk driving cases have been identified where the Alco-Sensor V was used. There have been 157 guilty or no contest pleas, leaving 137 cases still pending.

Prosecutors claim they will not oppose a motion to withdraw a guilty or no contest plea if the Alco-Sensor V was “substantially relied upon” to prove the charges. Cases that are still pending will be dropped if this machine was the only method used to determine the blood alcohol content (BAC).

Often the PAS test is only one piece of evidence that is used to determine if you are under the influence for purposes of driving. Often, prosecutors will not just throw out cases they believe they can still prove with the mandatory breath or blood test that is taken after the arrest. You should fight any DUI charges that involve a PAS test using the defective Alco-Sensor V machine. Motions can be filed that may result in your case being reduced or even dismissed!

Forced Blood Draws In DUI Cases, Courts Deciding On The Legality

April 22, 2011 | The Law Offices of Susan L. Hartman

forced blood draw.jpg The Florida Fifth District Court of Appeal heard arguments this week on whether law enforcement can forcibly draw blood from certain DUI suspects. Currently, Florida law allows forced blood draws without a search warrant in suspected drunk driving cases involving death or serious injury.

In this case, no injury or death was involved when the defendant was charged with driving under the influence. The defendant failed to keep his car in a single lane so he was stopped by Melbourne police. Law enforcement did obtain a search warrant for the blood sample.

Circuit Judge Maxwell did not allow the blood evidence into court; thereby prompting this appeal by the state. This issue has not come before any appeal court in Florida before and the ruling will impact 13 counties and become a benchmark for other judicial circuit courts in Florida.

In California, there is an implied consent law for chemical testing, Vehicle Code Section 23612. Under this statute, “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.”

Once arrested for drunk driving, the person has a choice between a blood or breath test. If a person refuses to give either sample, and they are eventually convicted of drunk driving, their penalty will be increased according to Vehicle Code Section 23577.

Can an officer force you to take a blood test if you refused to give a sample? Yes, if the following conditions are met (People v. Sugarman): 1.) The circumstances require prompt testing; 2.) The arresting officer has reasonable cause to believe the arrestee is intoxicated; and, 3.) The test is conducted in a medically approved manner incident to a lawful arrest.

So how do you defend a drunk driving case that involves a refusal? You can challenge the lawfulness of the arrest itself. The officer must have had probable cause to stop and arrest you. Also, the prosecution must prove you were the driver of the car and you were in fact under the influence. Further, the officer may not have told you that you are obligated to submit to a chemical test or the admonition was confusing.

Your drunk driving charges may be dismissed if any of the defenses above fit your case. (Note, this is not an exhaustive list of defenses.) Contact an exclusively DUI defense firm if you want more information on how to defend you matter.

San Diego Officer Suspected Of Drunken Driving And Hit And Run

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

Another San Diego Police Officer, David Hall, is under investigation, according to 10news.com. This time for allegedly being involved in a hit-and-run crash while driving under the influence.

Hall is suspected of driving his GMC Yukon SUV into a Chevrolet Suburban on northbound Interstate 805 just north of Murray Ridge Road on February 22, 2011, at approximately 7:30 p.m. A CHP officer spotted Hall’s vehicle, which matched the description of the initial report, and followed him to his home. He took a breath test with a reported result of three times the legal limit.

The officer has not been arrested for drunken driving or hit and run; however, this matter is being investigated by the San Diego Police Department and the San Diego District Attorney’s Office.

An officer may arrest a person when the officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence, Penal Code Section 836. However, there are many exceptions to this “officer’s presence” requirement. Under California Vehicle Code Section 40300.5, a peace officer may arrest a person when the officer has reasonable cause to believe that person had been driving while under the influence and the person was involved in a traffic accident. It appears in this case that no one can identify Hall as the driver of the vehicle when the accident occurred, so this will be a tough case for the prosecution.

SD Cop Investigated Drunk Drivers Then Requested Sexual Favors, Open DUI Cases Dismissed?

March 31, 2011 | The Law Offices of Susan L. Hartman

SDPD Arevalos.jpg San Diego Police Officer, Anthony Arevalos, was arrested and charged with 10 felony counts including sexual battery by restraint, receiving a bribe, assault and battery by an officer, and false imprisonment involving three alleged victims. The investigation continues and more charges may be filed as more than nine women may have been victimized by this cop, dating back to February 2010.

It is alleged that Arevalos would initiate a DUI investigation and then ask the women what they would be willing to do in order to have the charges go away. One woman gave the officer her underwear and another was taken to a 7-Eleven restroom where she was sexually assaulted.

Arevalos has plead not guilty and is out on $200,000 bail. The San Diego Police Department placed him on an unpaid suspension pending the outcome of this criminal matter. Arevalos faces more than 11 years in prison if convicted of the crimes currently charged.

So what does this mean for all the open drunk driving cases that involve this suspected rogue officer? They should be dismissed! After all, the officer’s credibility is directly at issue. His modus operandi (or M.O.) is to sexual assault during these types of investigations, calling into question the integrity of each and every DUI investigation he has performed. But, if they are not dismissed, it will be interesting to see if the San Diego City Attorney will put this officer on the stand to testify about how he investigates drunk driving cases.

Stopped For Drunk Driving, Breath Or Blood Test Results Over .08%, Plead Guilty?

February 22, 2011 | The Law Offices of Susan L. Hartman

not guilty.jpg You are pulled over by a police officer suspected of driving under the influence. You take a breath or blood test. The result — .12 (or even higher). You are over the legal limit of .08% blood alcohol content (BAC) and you are arrested and charged with Vehicle Code Section 23152, driving under the influence of alcohol.

You ask yourself, “Should I just plead guilty? Do I need to hire an attorney?” You should never plead guilty at the arraignment stage. And yes, you need to hire a skilled, exclusively DUI defense attorney.

It is never recommended that a person plead guilty at the arraignment. At this early stage, the discovery documents are not available to the defendant or the defendant’s attorney. DUI defenses become apparent during the discovery phase of the case.

Even though the chemical test results showed you were over the legal limit, you may still have defenses in your case. Before you can even consider your breath or blood test results, you have to evaluate the prosecution’s entire case against you.

A skilled trial attorney will review all the discovery documents, evaluate the prosecutor’s case, and advise you on any defenses. Appropriate motions may be filed, which can result in your matter being dismissed or reduced.

Since a DUI conviction will be on your driving record for 10 years, it will be used as a prior to enhance the penalty of any other drunk driving cases you may pick up during that time period. Therefore, it is important to aggressively fight to get the case reduced or dismissed.