DUI Enforcement

Drunk Driving Checkpoints Net More Impounded Cars Then DUI’s

July 9, 2011 | The Law Offices of Susan L. Hartman

San Diego law enforcement agencies have been racking up statistics at DUI checkpoints, and it is not on arresting drunk drivers, rather impounding cars, according to 10news.com. And even more surprising, most of those impounds are happening to sober drivers.

The roadblocks have been a revenue source of millions of dollars for cities and law enforcement agencies conducting the stops as impound fees are collected. This leads to the appearance that DUI checkpoints are being conducted specifically to raise money, not as a deterrent to drunk driving.

In a recent audit, a discrepancy was found between the number of cars that are impounded and the number of drivers arrested for being under the influence at these checkpoints throughout San Diego County.

Chula Vista Police arrested 105 people for DUI during roadblocks in 2010, but impounded 723 cars.
El Cajon Police arrested 5 drunk drivers at checkpoints but impounded 94 cars.
Escondido Police arrested 56 but impounded 654 cars in their sobriety checkpoints last year, making Escondido one of the highest impound to DUI arrest ratios in San Diego County.

These checkpoints are funded by grants given to local law enforcement agencies by the California Office of Traffic Safety. Those funds are provided by the National Highway Safety Act. The grant funds used for DUI checkpoints are supposed to address issues with alcohol and drugs, not impounding vehicles.

As a result of this audit, state lawmakers are pushing AB-1389 and AB-353 to curb the millions of dollars made by cities and law enforcement agencies off the cars that are impounded at sobriety checkpoints.

San Diego DUI Arrests Up As Cops Crack Down During The Holiday

July 5, 2011 | The Law Offices of Susan L. Hartman

4th of July Drink.jpg Chula Vista, National City, Coronado, and San Diego Police Departments held three separate operations targeting repeat drunk driving offenders from Saturday through Monday, according to 10news.com. Ten people were arrested for allegedly driving under the influence, 37 vehicles were confiscated and impounded from drivers who did not have valid licenses, and 23 others were cited for other violations.

DUI arrests totaled 95 in San Diego County by the California Highway Patrol (CHP) from 6:00 p.m. Friday through 6:00 a.m. Monday, according to signonsandiego.com. This was up from 86 drunk driving arrests in San Diego in 2010 during the 4th of July holiday.

Throughout California, DUI arrests increased to 1,358 this year with 22 fatalities. In 2010, 1,329 arrests were recorded by CHP with 18 fatalities.

The summer is here! All of San Diego law enforcement is out in full force seeking to arrest those who are suspected of drunk driving. If you drink, call a cab or a friend, designate a sober driver, use public transportation, or spend the night where you are. If you happen to get arrested for DUI,

North County Assemblyman To Face Drunk Driving Charges

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

Misdemeanor DUI charges for Assemblyman Martin Garrick, 58, following his arrest by California Highway Patrol officers on June 15th, in Sacramento, according to 10news.com.

Garrick, once the leader of Assembly Republicans, is the Assemblyman for the 74th Assessbly District with an office in Carlsbad, which serves Carlsbad, Del Mar, Encinitas, Escondido, Oceanside, San Marcos, Solana Beach, and Vista.

CHP officers riding bicycles saw Garrick’s sedan going 20 mph over the speed limit in the downtown Sacramento area and he did not stop for a stop sign. The officers attempted to stop the vehicle, but he turned onto another street and entered a basement parking garage at the Capitol building.

Allegedly, the officers observed signs of intoxication when they made contact with Garrick so they conducted field sobriety tests (FST’s). The officers believed he was driving under the influence and he was arrested. He was later released from the CHP station.

Garrick apologized for the drunk driving incident stating it was an isolated event and a wake up call.

Assuming this is the Assemblyman’s first DUI arrest, if he pleads guilty or is convicted under Vehicle Code section 23152 (a) or (b), he will likely face informal probation for three to five years. The conditions of probation will likely include that he violate no laws, not drive a vehicle with a measurable amount of alcohol in his blood, submit to any test at the request of a peace officer for the detection of alcohol and drugs, and not drive without a valid license and proof of insurance. Further, he may be ordered to complete a mandatory first conviction alcohol program, the length of which is determined by his blood alcohol content at the time of his arrest. He will also have to attend a MADD panel class and pay the mandatory fines and fees.

The arrest will also trigger an Adminstrative Per Se, APS, action against him by the Department of Motor Vehicles (DMV). Garrick will lose his license 30 days after his arrest unless he requests a hearing within 10 days of his arrest. If he loses his license, after 30 days he may be allowed to apply for a restricted license once he enrolls in a driving under the influence (DUI) First Offender Program, files proof of financial responsibility, and pays the $125 reissue fee.

The restricted license will be valid for five months, allowing Garrick to drive to, from, and during the course of employment and to and from the DUI program.

Costa Mesa Police Will Not Publish DUI Checkpoint Locations

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

Starting this Monday, the Costa Mesa Police Department will cease announcing the locations of their drunk driving checkpoints, according to dailypilot.com.

Under the old policy the locations and times were announced. “Those that listen or read about our checkpoints can plan to steer clear of the area with little fear of apprehension. We no longer issue press releases stating the upcoming checkpoint locations in order to add to the deterrent factor to keep people from driving under the influence,” stated Sgt. Dave Makiyama.

In People v. Banks, a 1993 California Supreme Court decision, the court ruled that the police are not required to provide advance notice when scheduling DUI sobriety checkpoints. However, it is still one of the eight factors to be considered in determining its constitutionality.

Even though this ruling was effective in 1993, many law enforcement agencies still publish the date, time, and location of their sobriety checkpoints. To find this information, you can look up the police department’s website and look under “press releases” to find announcements for upcoming roadblocks. There are also smartphone applications which allow users to find the locations online.

Even though the unannounced checkpoint can be found to be constitutional, Mayor Pro Tem Jim Righeimer believes drunk driving roadblocks cause unnecessary traffic delays and are a waste of government funds. He stated the checkpoint hours, 6 p.m. until midnight, are at the end of a shift, giving officers more overtime pay which is paid by the federal government. Roadblocks are funded by a grant from the California Office of Traffic Safety, which receives funding from the federal National Highway Traffic Safety Administration.

Oceanside Announces DUI Checkpoint

June 10, 2011 | The Law Offices of Susan L. Hartman

oceanside pd.jpg Oceanside Police Department scheduled a drunk driving checkpoint that will be conducted on Friday, June 10th, from 8:00 p.m. until 3:00 a.m. in the City of Oceanside. The exact location has not been announced.

This DUI checkpoint will be conducted just two weeks after the Memorial Day weekend where law enforcement conducted sobriety checkpoints and saturation patrols throughout San Diego County.

San Diego Police reported that on Friday, May 27th, they conducted a saturation patrol in the Pacific Beach area. Eighteen drivers were arrested for DUI. On Sunday May 29th, another saturation patrol of Pacific Beach ended with fifteen drivers being arrested for drunk driving.

California Highway Patrol (CHP) reported eighty three drivers were arrested suspected of drunk driving in San Diego County during the Memorial holiday weekend, according to lemongrove.patch.com.

With graduation ceremonies, holidays, and the summer months upon us, you can bet the San Diego County law enforcement agencies will spend some of its grant money from the California Office of Traffic Safety to continue its efforts to arrest suspected drunk drivers.

DUI Charges NOT To Be Filed Against A California Vice Mayor

May 26, 2011 | The Law Offices of Susan L. Hartman

The District Attorney’s Office decided not to file drunk driving charges against the San Carlos Vice Mayor, Andy Klein, according to ktvu.com.

Klein was sitting in his car on the shoulder of the Edgewood Road exit off Interstate 280 talking on his phone when a San Mateo County Sheriff’s deputy stopped to see if his car was disabled. The deputy suspected Klein was under the influence. Field sobriety tests (FST’s) were performed at the scene and Klein was subsequently arrested. He then provided a blood sample which later came back with a .07 blood alcohol concentration, or BAC, result.

The legal limit in California is a .08 BAC. Vehicle Code (VC) Section 23152(a) does not mention the .08 BAC. It merely 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.”

The statute also creates a rebuttable presumption that the defendant was not under the influence if his or her blood alcohol level was less than 0.05 percent, (see People v. Gallardo.)

So to be convicted of the (a) section, the prosecution only has to prove that the defendant drove a vehicle and at the time of driving the defendant was under the influence.

The jury instructions, CALCRIM 2110, state that a person is under the influence if 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. The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence; however, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.

In this case, even though Klein’s BAC was a .07, the District Attorney could have decided to prosecute under VC Section 23152(a). Apparently, the DA did not think there was enough evidence to support the theory that Klein was under the influence and the charges were dropped.

[This is a follow-up to the initial story that was posted on May 17th, 2011, entitled “Drunk Driving Charges For Vice Mayor of San Carlos“.]

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.

San Diego Officer Arrested for Alleged Drunken Driving Incident In Chula Vista

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

San Diego Police Officer and 12-year veteran of the department, William Johnson, may have been under the influence on May 7th, 2011, at about 11:30 p.m., when his Lexus rear-ended a BMW at Paseo Ladera in Chula Vista, according to 10news.com.
police.accident.jpg After the incident, he was taken to Chula Vista Police Department and booked on suspicion of DUI. He was then released on his own recognizance. Johnson will work a desk job pending the outcome of this case.

This was the 9th San Diego police officer to face criminal charges or an internal investigation in just a few short months. Just after learning of Officer Johnson’s troubles, another 3-year veteran officer, Daniel Edward Dana, was arrested and charged with rape, assault, kidnapping and other felony charges.

With the image of the San Diego Police Department and the recent legal troubles of many of its officers, it will be interesting to see how prosecuting agencies handle pending cases that these officers were involved in. If an officer is called to testify in a matter, their credibility is always an issue. Having pending charges or a criminal record could taint their testimony.

Escondido Drunk Driving Checkpoint Challenged

May 6, 2011 | The Law Offices of Susan L. Hartman

Escondido Police conducted a sobriety checkpoint in February 2011. According to 10news.com, one of the drivers passing through, Angel Navarrete, and his passenger, Daniel Alfaro, challeged the officers’ reason for the detention and videotaped the outcome. After not complying with the officers’ request to roll down his window and show his driver’s license, the officer proceeded to smash his window and arrest both men for resisting a police officer. Both plead not guilty and are due back in court in July 2011.

Resisting arrest is addressed under Penal Code Section 148, which states: “Every person who willfully resists, delays, or obstructs any public officer…in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”

The California Criminal Jury Instructions (CALCRIM) provide what the prosecutor must prove beyond a reasonable doubt for a conviction for resisting, delaying, or obstructing an officer, (see CALCRIM 2656): 1.) The person was a peace
officer lawfully performing or attempting to perform his duties as a peace officer; 2.) The defendant willfully resisted, obstructed, and/or delayed the person in the
performance or attempted performance of those duties; and, 3.) When the defendant acted, he knew, or reasonably should have known, that the person was a peace officer performing or attempting to perform his duties.

So was the officer acting lawfully? If not, the defendant must be found not guilty. CALCRIM 2670 provides: A peace officer is not lawfully performing his or her duties if he is unlawfully arresting or detaining someone or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention.

Unlawful Detention: A peace officer may legally detain someone if the person consents to the detention or if specific facts known or apparent to the officer lead him to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime; and, a reasonable officer who knew the same facts would have the same suspicion. Any other detention is unlawful.

Unlawful Arrest: A peace officer may legally arrest someone if he has probable cause to make the arrest. Any other arrest is unlawful. Probable cause exists when the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime.

DUI checkpoints must be conducted under the guidelines of Ingersoll v. Palmer in order for it to be constitutional. One of the criteria is the length and nature of the detention. “Each motorist stopped should be detained only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, and glassy or bloodshot eyes. If the driver does not display signs of impairment, he or she should be permitted to drive on without further delay. If the officer does observe symptoms of impairment, the driver may be directed to a separate area for a roadside sobriety test. At that point, further investigation would of course be based on probable cause, and general principles of detention and arrest would apply.”

It should be further noted that a driver can avoid the checkpoint and the officers cannot detain him or her unless “in avoiding the checkpoint the driver did anything unlawful, or exhibited obvious signs of impairment.”

In this case, the driver was not intoxicated and he had a valid driver’s license. He chose to drive through the checkpoint. He spoke to the officers through his window. The officers said he was detained, but they would not state a reason why. They threatened to arrest him for obstructing or delaying an officer because he refused to produce his license. Since he did not have signs of impairment, the officers should have let him proceed after a brief encounter.

San Diego Officer Charged And Plead Not Guilty To Drunk Driving

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

San Diego Police Officer David Hall was off duty at 7:30 p.m. on February 22nd, 2011, when he allegedly drove his vehicle into another on northbound 805, just north of Murray Ridge Road. He was confronted by law enforcement at his home in Linda Vista where he agreed to a preliminary alcohol screening (PAS) test. The result was three times the legal limit of .08 blood alcohol concentration (BAC).

Although he was not arrested that night, he was notified of the charges by mail and ordered to show up at the downtown jail on Sunday to be arrested and released, according to 10new.com. At his arraignment on May 2nd, he plead not guilty to two counts of DUI causing injury, one count of felony hit-and-run, and an allegation that his BAC was above .15. He is facing a maximum of three years and eight months in prison if convicted. He is due back in court on June 9th for a readiness conference and the preliminary hearing is scheduled for June 30, 2011.

Usually, a warrant is issued for the arrest of the person accused of committing a crime; however, the prosecutor may request a summons instead, (see “summons” under Penal Code Section 813).

A summons issued must be in substantially the same form as an arrest warrant. It shall contain: 1.) The name of the defendant; 2.) The date and time the summons was issued; 3.) The city or county where the summons was issued; 4.) The signature of the magistrate, judge, justice, or other issuing authority who is issuing the summons with the title of his or her office and the name of the court or other issuing agency; 5.) The offense or offenses with which the defendant is charged; 6.) The time and place at which the defendant is to appear; 7.) Notification that the defendant is to complete the booking process on or before his or her first court appearance, as well as instructions for the defendant on completing the booking process; 8.) A provision for certification by the booking agency that the defendant has completed the booking process which shall be presented to the court by the defendant as proof of booking.

If a defendant has been properly served with a summons and fails to appear at the designated time and place, a bench warrant for arrest shall issue.

In this case, Officer Hall complied with the notice and turned himself into the San Diego Central Jail for arrest and booking. Since he also appeared at the arraignment, a warrant will not be issued for his arrest.