DUI Enforcement

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.

San Diego Felony DUI Cases In The News; Preliminary Hearings To Come

May 1, 2012 | The Law Offices of Susan L. Hartman

judge with gavel.jpg A Temecula man, accused of drunk driving and running his vehicle into a home in Escondido on February 9th, will have a preliminary hearing today in the Vista Courthouse. Brandon Morris, 23, had a prior DUI conviction in March 2011, according to 10news.com. He is currently charged with felony drunk driving causing injury and driving under the influence with a blood alcohol content at or above a .08 percent. He is facing four years in state prison if convicted.

At the conclusion of the hearing, the judge will determine if there is enough evidence to hold Morris for a trial or dismiss the charges. It is expected that Escondido police will testify at the hearing that the defendant was traveling eastbound on Country Club Lane around 7:30 p.m., lost control of his vehicle, hit an electrical transformer, and then hit a home on Eveningside Glen. Two people were injured in the home.

In Spring Valley, a suspected drunk driver led San Diego law enforcement on a short chase which ended in an arrest for DUI and auto theft, as reported by 10news.com. This happened on Austin Drive just after midnight on Tuesday morning.

San Diego Police chased a suspected drunk driver in Lincoln Park on Friday, around 7:30 p.m., according to 10news.com. The 27 year old woman allegedly refused to pull over, struck a pedestrian in the 4800 block of Logan Avenue, and then hit an electrical box causing a power outage. She ran a short distance before San Diego Police were able to arrest her for driving under the influence and other charges.

If a person is charged with felony DUI, there is a preliminary hearing. That hearing is conducted within 10 days of the arraignment unless the defendant waives time. The hearing is held in front of a judge. The prosecuting agency has the burden to present sufficient evidence to the court to show that there was probable cause to believe a crime was committed and this defendant committed it.

Witnesses testify and the defense is given an opportunity to cross examine them. Defense cross is limited in that it cannot be used as a discovery tool. The defense may cross examine and present evidence, but only to establish an affirmative defense, negate an element of a crime charged, or impeach a prosecution witness, (Penal Code Section 866). After the hearing, the judge decides if there is enough evidence to hold the defendant to answer in the trial court, (Penal Code Section 872).

A defendant has a constitutional right to an attorney at all stages of the proceedings in criminal cases, including the preliminary hearing. If you have been arrested for drunk driving, do not delay. Contact an exclusively, DUI defense firm today to protect you and your interests.

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 Or Blood Test Results Below A .08%, But Still Charged With DUI?

April 8, 2012 | The Law Offices of Susan L. Hartman

8 Ball.jpg San Diego law enforcement pulled you over on suspicion of drunk driving. They conducted a DUI investigation and then arrested you for driving under the influence. The police should have advised you that you must submit to a breath or a blood test per the implied consent law.

If your test came back below a .08 percent blood-alcohol content, or BAC, assuming there were no drugs in your system at the time, you may believe that you will not be charged with driving under the influence. However, the prosecutor may still file charges against you.

Under California law, it is unlawful to drive a vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. This is commonly called the “a” count because the California Penal Code Section for this charge is 23152(a).
However, people are often more familiar with the “b” count under California Vehicle Code Section 23152. This section states, “It is unlawful for any person who has a 0.08 percent or more, by weight, of alcohol in her or her blood to drive a vehicle.”

Under the California Jury Instructions, which lay out exactly what the prosecuting agency must prove, #2110 states: A person is under the influence if, as a result of drinking an alcoholic beverage, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

Therefore, the exact blood-alcohol content is irrelevant. As long as the prosecutor believes he or she can prove that the driver’s mental or physical abilities were impaired, and the driver was not able to drive the vehicle with the caution of a sober person, using ordinary care, under similar circumstances, the prosecutor could charge you with drunk driving. And, if you choose not to plead guilty to the DUI and instead have a trial, the jury can convict you of a DUI even though your BAC was under the legal limit of a .08%.

So if you are charged with drunk driving, you owe it to yourself to hire an exclusively DUI defense firm that will aggressively defend your case. Do not just plead guilty whether your blood alcohol content (BAC) was below or above the legal limit of .08%. There may still be defenses in your case that can lead to reduced charges with less punishment, or even a dismissal!

The above blog article is by no means all-inclusive and is not legal advice. 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 Checkpoints Banned? Why California Lawmakers Should Follow The Utah House Of Representatives.

February 29, 2012 | The Law Offices of Susan L. Hartman

DUI checkpoints may be banned in Utah in the future. Last week the Utah House of Representatives voted to stop police agencies from conducting sobriety checkpoints because they invade people’s privacy and allow officers to stop vehicles without probable cause, according to stgeorgeutah.com. The next stop for this bill is the state senate; however, its passage will be challenged by the opposition including many representatives, residents, and, of course, Mother’s Against Drunk Driving (MADD).

The United States Supreme Court stated in 1990 that the state has “a grave and legitimate interest” in stopping drunk drivers. That court ruled that DUI roadblocks did not violate a person’s Fourth Amendment rights, (see Michigan Department of State Police v. Sitz).

In California, the California Supreme Court set out criteria to determine if the DUI checkpoint was conducted in a constitutional fashion, (see Ingersoll v. Palmer).

In conducting a drunk driving checkpoint, a law enforcement agency sets up a roadblock in an area where a high rate of alcohol related arrests and accidents happen. The area must be clearly marked off with warning signs and proper lighting. The officers are in full uniform and their vehicles are clearly visible. The time and duration of the operation is decided by effectiveness and safety. The intrusiveness to each motorist should be minimal. There should be a random formula for contacting a driver and the detention should brief. The contact should be just long enough to look for signs of impairment. If impairment is suspected, the officer can continue the investigation as they then have reasonable suspicion to detain.

If the driver is sent to the secondary area for further investigation, they are often asked to get out of their car. The officer then asks pre-field sobriety test questions such as, “What did you have to drink?” “When did you last eat?” “What time was your last drink?” “Where are you going?”
The officer may also ask the driver to perform a series of field sobriety tests such as the walk and turn test, the one leg stand test, and the finger to nose test. The officer may even ask the driver to do a preliminary alcohol screening (PAS) test. This is a breath test using a portable breath test machine.

Drivers should be aware that none of the field sobriety tests, including the PAS test and the pre-field sobriety test questions, have to be answered or performed. [However, if arrested, you must submit to either a blood or breath test.] During the investigation, the officer is trying to establish probable cause to arrest you for driving while intoxicated. Doing any of these things helps the officer in their investigation and how you perform will be used against you in court if you are eventually arrested.

Be advised, if you do refuse to answer questions or perform the tests, often the officer will arrest you and you will be booked into jail.

These investigations are different than other criminal investigation. In other matters, officers are not allowed to detain a person unless they have reasonable suspicion that a crime has occurred or is about to occur. In drunk driving checkpoint cases, the officer detains a driver just for driving through the checkpoint without any behaviors that would indicate a person in under the influence for purposes of driving. Although many people agree with checkpoints and there is a lot of political pressure to continue their operation, the courts should overturn precedent and find that checkpoints do amount to an invasion of privacy and they do violate a person’s Fourth Amendment rights.

A constitutional way to combat drunk driving should be employed such as saturation patrols where law enforcement actively looks for people who appear to be DUI.

The above blog entry 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.

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.

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.

San Marcos, Santee, Vista, and Lemon Grove Conduct DUI Checkpoints, More Scheduled Around San Diego County

December 21, 2011 | The Law Offices of Susan L. Hartman

San Diego Sheriff’s Department held drunk driving checkpoints in many areas in San Diego County this past weekend as part of their efforts to keep drunk drivers off the road this holiday season.

The San Marcos DUI checkpoint was held at 125 South Rancho Santa Fe Road on December 17th, at 7:00 p.m. until December 18th, at 2:00 a.m. The sheriff’s office reported that 2,271 vehicles passed through the checkpoint and 582 drivers were contacted. Five drivers were suspected of driving under the influence and they did the field sobriety tests. Four of those drivers were arrested for DUI. Two others were also arrested for driving while their license was suspended due to a prior DUI.

The Santee driving under the influence roadblock was held on December 17th. However, the exact location was not provided in the San Diego Sheriff’s Department press release. In that checkpoint, 525 drivers were contacted, 28 drivers were sent to secondary, 13 were given field sobriety tests because they were suspected of being under the influence, and 4 were arrested for drunk driving.

Vista’s drunk driving roadblock was held at 1450 East Vista Way on December 16th, from 7:30 p.m. until December 17th, at 2:00 a.m. The sheriff reported that 1,128 vehicles passed through the checkpoint and 677 drivers were contacted. Field sobriety tests were given to 7 suspected of being under the influence, resulting in 4 arrests.

Lemon Grove conducted a DUI checkpoint at the 7900 block of Broadway on December 16th, from 8:00 p.m. until 1:30 a.m. During this operation, 646 drivers were contacted, 43 were sent to secondary, and 2 drivers were arrested for allegedly driving under the influence.

Throughout San Diego County, 212 people have been arrested for DUI from 12:01 a.m. Friday, December 16th, through 11:59 p.m. Sunday, December 18th. This is up from 196 in 2010 during the same time period.

The San Diego Sheriff’s also just announced more saturation patrols and DUI checkpoints through New Year’s. They specifically stated they will be out in force around Qualcomm Stadium on December 21st during the Poinsettia Bowl football game. A checkpoint will be conducted in Poway and Oceanside on December 23rd, (exact location not provided). Further saturation patrols will be ongoing throughout San Diego County from December 23rd through the 24th.

You can expect that San Diego law enforcement will continue to conduct saturation patrols and drunk driving checkpoints throughout San Diego during the New Year’s weekend also. Make sure you are not a statistic! Plan ahead and either plan to stay the night or have alternative transportation lined up before you head out to indulge in holiday cheer.

SD County To Begin DUI Crackdown For Holidays

December 16, 2011 | The Law Offices of Susan L. Hartman

San Diego law enforcement will begin its drunk driving crackdown today. The increased patrols and checkpoints will continue through January 2, 2012. Local police departments have received grants from the Office of Traffic Safety, (OTS), through the National Highway Traffic Safety Administration, (NHTSA), to conduct the “Drive Sober or Get Pulled Over” campaign through the holiday season.

Before you go out to celebrate this holiday season, make sure you have a plan in case you over indulge in holiday cheer. 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. Do not be a statistic!

NHTSA announced this week drunk driving deaths were down in 2010. In fact, the 791 deaths due to an alcohol-related accident was the lowest number ever. In 2009, there were 950 deaths that were contributed to a DUI accident. OTS believes this decrease is due to their drunk driving checkpoint efforts, citing a cost savings of $6 for every $1 spent.

Millions of dollars have been spent on drunk driving enforcement. In 2009, $11.7 million was budgeted for 1,740 sobriety checkpoints statewide. Last year, that amount rose to $16.8 million dollars for 2,553 roadblocks.

DUI checkpoints are the most documented and cost the most money. Often DUI roadblocks result in only a couple of arrests for the massive amount of money and resources spent on setting up and manning these sites. Other studies show that saturation patrols cost less money, uses less resources, and result in more drunk driving arrests.

Many law enforcement departments are doing more saturation patrols. Costa Mesa Police Chief, Tom Gazsi, showed the council members that checkpoints are more of an educational service while saturation patrols take more drunk drivers off the street, according to latimes.com. Further, these patrols require half the staff which means a lot less overtime to be paid. In a time when city and county budgets are an issue, more and more agencies may move towards these campaigns over the roadblocks.