News, Prevention, & Studies

Marijuana DUI: Law To Impose “Per Se” Criminal Penalties Failed

May 5, 2014 | The Law Offices of Susan L. Hartman

Assembly Bill 2500 was introduced in February 2014, by Democratic Assembly Member Jim Frazier of Oakland. It was supported by the Association of Highway Patrolmen, the California Council on Alcohol Problems, the California Police Chiefs Association, the California State Sheriffs’ Association, among others. The bill was opposed by the ACLU, American for Safe Access, California Attorneys for Criminal Justice, California DUI Lawyers Association, California NORML, Crusaders for Patients Rights, Drug Policy Alliance, among others. The original text of the bill sought to impose a “zero tolerance policy” but the bill was amended to a “per se” standard.

Under the proposed law, drivers who have even a trace amount, (“2 nanograms, or more, per milliliter of whole blood”), of Delta-9-tetrahydrocannabinol, or THC, in their blood regardless of whether the person was impaired, could be charged with drugged driving. (Note, this bill also addressed drugs other than THC, providing a level of detectable metabolite that has to be present for the driver to be impaired; however, we are only going to discuss marijuana in this blog).

There is a huge problem with this standard: There has not been any studies proving a correlation of a certain level of THC in the blood and impaired driving. There simply is no science to back up the 2 nanogram standard and impairment. The result of such a law would criminalize non-impaired drivers! This is unacceptable and the California Assembly Committee on Public Safety correctly rejected the amended legislation.

Can Cops Search Your Cell Phone Without A Warrant?

May 1, 2014 | The Law Offices of Susan L. Hartman

This is the very question that is currently before the Supreme Court of the United States, (see David Riley v. State of California). The ruling can potentially impact anyone who is arrested while having a cell phone in their possession.

In August of 2009, San Diego college student, David Riley, was pulled over by a cop from the San Diego Police Department, for having expired tags on his Lexus. The officer ran Riley’s information and found that he was driving on a suspended license. The vehicle was impounded and an inventory search of the vehicle was conducted to document the contents.

Riley was then arrested for carrying concealed and loaded weapons that were found during the search of his car. His cell phone was found and seized. It was a smartphone, with internet access, capable of storing photos, videos, voicemail messages, and emails. The officer conducted a cursory search of the phone at the scene and then a detective went through the phone more thoroughly at the police station. The officer found some text messages that contained the letters CK, which he believed referred to “Crip Killers,” a gang reference to the “Bloods.” In addition, the photos showed what appeared to be the defendant with a car that was thought to be used in a shooting.

Subsequent to the cell phone search, Riley was arrested in connection with the shooting. It was further alleged that the defendant was a member of a gang and the crimes were committed for the gang’s benefit, thus exposing him to enhanced penalties.

Prior to the trial, the defense motioned the court to suppress all of the evidence obtained by the cell phone search, as it was done without a warrant and without exigent circumstances, thus violating the Fourth Amendment of the United States Constitution. The judge denied the motion, finding that the search was legally conducted incident to the arrest.

The first trial hung but the second resulted in a guilty verdict. Riley appealed claiming the warrantless search of his phone was unconstitutional.

The Law Offices of Susan L. Hartman agrees with Riley, the Petitioner in this case. The new smartphones are not just phones. They are basically small computers that store a lot of personal information. If an officer confiscates a smartphone incident to a lawful arrest, law enforcement should be required to get a search warrant in order to search the contents of that phone. Without the warrant, any evidence found during that illegal search should be excluded from trial, as well as any evidence that is found because of the information that is gathered during the illegal search of the phone, (fruit of the poisonous tree doctrine).

Stay tuned as the Supreme Court of the United States is expected to announce its decision on this issue in June.

If you’re charged with a crime in San Diego, it is imperative that you know your rights and the law. Officers will use whatever they can to prosecute you. Protect your interests, hire a criminal defense attorney.

California Drunk Driving Laws Revised

April 14, 2014 | The Law Offices of Susan L. Hartman

Before January 1st, 2014, California law enforcement agencies were using California Vehicle Code (VC) Sections 23152(a) and (b) to prosecute cases involving alcohol, drugs, or a combination of alcohol and drugs.

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

As of January 1st, 2014, the State of California added two more driving under the influence code sections, 23152(e) and 23152(f), thus separating out the alcohol and drug cases.

VC 23152(a) has been updated to read, “It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.” Section 23152(b) has been changed to, “It is unlawful for a person who has a 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

The new VC 23152(e) provides, “It is unlawful for any person who is under the influence of any drug to drive a vehicle.” And, under VC Section 23152(f), “It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.”

After the first quarter of the year, it is unclear how the court will handle the new version of this vehicle code section. Still, the 2014 California Jury Instructions uses only the (a) and (b) sections as they were used before, (see CALCRIM No. 2110 and 2111).

As for the administrative portion of a drunk driving matter, the DMV Driver Safety Office does not address drug impairment at the APS Hearing. The hearing only focuses on alcohol and BAC. However, you can speculate that with the push for more legislation on DUI’s, such as the proposed AB 2500, drug DUI enforcement and penalties may become stricter in the future.

If you have been arrested for driving under the influence due to alcohol, drugs, or a combination of alcohol and drugs, you owe it to yourself to seek help from a criminal defense attorney who exclusively deals with DUI matters.

Cops Use Audio & Video Recording Devices And Use Of Force Declines

March 17, 2014 | The Law Offices of Susan L. Hartman

One California city tested the use of cameras by their officers last year and the results were just as one would expect. The use of force by officers dropped by over two thirds overall, and those not made to wear cameras were twice as likely to use force than those equipped with the recording devices! The conclusion of the study: “The majority of the time police use force is unnecessary. In other words, the majority of the time these officers used force they were simply committing acts of violence which they don’t feel comfortable committing if it’s captured on film.”

The Rialto police chief introduced the wearable cameras to his officers and he was met with opposition. Many officers were not happy with being watched. Despite their negative response, the chief randomly selected officers to wear the cameras, having one-half of the staff using a camera each shift. The study ran from February 2012 until July 2013. The cameras had to be manually turned on by the officers and they were required to do so as they got out of their patrol car to approach a citizen. The camera automatically saved about 30 seconds of prior to the officer’s activation, with the hopes of capturing the initial reason for the contact.

California Highway Patrol (CHP) officers have cameras inside their patrol vehicles. They are called MVARS, the Mobile Video Audio Recording System. They are mounted on the rear view mirror, facing out the front of the windshield. The officers also have microphones attached to their shirts to record the audio of their interactions.

In my experience, the officers often do not want their interactions recorded. When the recordings are subpoenaed, the part of the incident needed is not in the evidence. Law enforcement provides excuses such as the batteries were not charged or for some reason the equipment was not working at the time of the incident. In addition, when an officer has a driver get out of their car, they often bring the suspect to an area where the camera does not pick up what is going on.

It should be mandatory police policy that all law enforcement officers, including CHP, San Diego Sheriffs, and San Diego Police, be required to properly maintain audio and video recording devices, that they must be activated for each and every contact they have with citizens, and, the audio and video evidence must be maintained and provided to the defense when subpoenaed. If they are forced to do this, not only would the rate of complaints about officers using unnecessary force go down, but law abiding citizens would not find themselves arrested for crimes they did not commit. Officers have roughed up citizens, but then arrested them and charged them with resisting arrest. Having cameras would protect the citizens from this tactic. And, if properly used, the recording can also corroborate the police report. Unfortunately, prosecutors and judges always believe the cop even though they have motivation to lie to keep their job.

California Bartenders Liable For DUI Injuries & Deaths?

February 13, 2014 | The Law Offices of Susan L. Hartman

An alleged driving while intoxicated accident killed six people after a “girls night out” in eastern Los Angeles County, California, on February 9th, 2014. Horrific events such as this strikes up the debate about whether owners and/or bartenders of bars and restaurants should be held liable when their patrons consume alcoholic beverages, drive, and then injure or kill someone.

Olivia Carolee Culbreath, a 21-year-old Californian, was charged with six counts of murder, (felony drunk driving and felony manslaughter), but has yet to be arraigned. At 4:45 a.m., she was driving a red, Chevrolet Camaro the wrong way on westbound 60, the Pomona Freeway, in Diamond Bar, when she hit a Ford Explorer, killing all four in the Explorer. In addition, two of Culbreath’s passengers, her sister and a friend, both died. The defendant remains hospitalized but held on $6 million bail. As though this case is not sad enough, she is a mother of a new born and is now facing life in prison.

Culbreath had a prior DUI conviction when she was just 17, and her driving privilege restrictions from that incident were lifted just days before this catastrophic incident.

So can the owners and/or bartenders of the bars or restaurants where Culbreath was served be financially or criminally liable for this accident? The answer is found in the “dram shop laws,” which in California are found in the Civil Code Section 1714.

This law actually protects bar owners and bartenders from civil liability if their patron drives while intoxicated and injures or kills someone. The code specifically states, “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person…the furnishing of alcoholic beverages is not the proximate cause of injures resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.” Section (c) extends this provision to a social host.

The exception is found in Section (d), which states an adult who furnishes alcohol to a person that s/he knows or should have known is under 21, may be found to be the proximate cause of any resulting injuries or death.

However, the bartender can be charged with a misdemeanor under California Business and Professions Code Section 25602(a), which states, “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”

Affluenza Defense In Driving Under The Influence Cases In CA

February 3, 2014 | The Law Offices of Susan L. Hartman

We all remember the numerous news reports in December 2013, that a Texas judge sentenced 16-year-old Ethan Couch to ten years probation and a residential treatment program in California, after killing four people and severely injuring two others in a drunk driving accident. He was driving 70mph in a 40mph zone when the accident occurred. His blood-alcohol content was measured at .24 and he tested positive for valium. He faced a maximum of 20 years in jail with parole possible in just two years.

The judge sentenced Couch after hearing testimony from the defense psychologist Gary Miller, who argued that Couch suffered from “affluenza,” meaning the youth was not taught about consequences for bad behavior because his parents were so wealthy and did not set limits on him. Defense attorneys argued that the parents should share in the blame and stated the boy would greatly benefit from being away from his parents in an out-of-state treatment program.

In response to this case, State Assemblyman Mike Gatto, from Los Angeles, introduced a bill in January 2014, to try to prevent the afflueza defense in drunk driving cases in California. The bill, AB1508, states, “…when determining the punishment to be imposed in all misdemeanor and infraction cases, or when determining the term to be imposed when a statute specifies 3 possible terms of imprisonment, the fact that a defendant did not understand the consequences of his or her actions because he or she was raised in an affluent or overly permissive household shall not be considered a circumstance in mitigation of the crime.”

Although the word affluenza may not have been used in California DUI cases before, I think everyone can agree that judges hand down sentences on all types of criminal cases, including drunk driving matters, based on a lot of factors. Factors such as prior DUI’s, the severity of the crime, the blood-alcohol content at the time of the incident, the injuries/deaths involved, along with the defendant’s background, the possibility of reoffending, punishment, and protecting the community. Without using the word affluenza, which I believe is what is really upsetting people in this case, the plea negotiations and the sentencing should include all of these relevant factors.

In the Couch case, the minor is going to be under the jurisdiction of the court for at least 10 years. Within that time, I hope he learns that there are consequences to his actions regardless of this parents’ wealth and their apparent inability to teach him how to manage himself in a manner that is lawful and safe.

Having said that, it is my opinion that Assemblyman Gatto’s legislation should be struck down.

DUI Accident, Driver Killed & Friends Charged

December 13, 2013 | The Law Offices of Susan L. Hartman

Misdemeanor charges were brought against two minors in Connecticut after their friend, Jane Modlesky, drove while under the influence and hit a tree. She ended up dying in the crash that happened in July 2013.

Earlier that day, Modlesky and her friends were drinking at an underage party. She then got into the 2008 Honda Pilot with four minor males. A 16 year old male drove one of the boys to his home and dropped him off. He then proceeded to his own home, where he got out of the car. Then another 17 year old male drove to his home where he and the fourth boy exited. They then allowed Modlesky to get into the driver’s seat and drive the vehicle, allegedly knowing she was intoxicated. She only got 1/2 mile before crashing into a tree in Glastonbury, Connecticut. Her blood-alcohol content was measured at .26%, way above the zero tolerance laws for minors.

In the beginning of December 2013, the last two boys out of the car were charged with second degree reckless endangerment, as many in the community thought they should have prevented her from driving, according to wfsb.com.

This is a very rare case. I have never seen such a case prosecuted in my time as a criminal defense lawyer. What often happens in a case such as this, is that prosecutors feel pressure from the victims and the community to bring charges against someone in order to hold someone accountable for what had happened. But, bringing charges does not mean that the defendants will be found guilty in a criminal court.

In fact, according to California DUI lawyer Lawrence Taylor, “This is a highly unusual situation. It’s basically saying that they had a positive duty to stop her. But you cannot be prosecuted because you did not stop someone from engaging in criminal conduct…So I think the police are kind of overreaching here.”

Based on what is being reported by the media, the boys did nothing. They did not convince her to drive. They did not force her to drive. She made that choice on her own. Therefore, the charges should be dropped, but if not, I expect that the boys will be found not guilty as charged.

This blog is by no means legal advice. If you have questions about a drunk driving matter, contact a criminal defense lawyer in your area.

San Diego Cop Cited For Drunk Driving But Not Arrested

December 4, 2013 | The Law Offices of Susan L. Hartman

SD police officer, Amanda Estrada, was cited in November 2013, for operating a vehicle while intoxicated. She was driving on Rancho Bernardo Road, east of I-15, when California Highway Patrol (CHP) pulled her over on suspicion of drunk driving. She was taken to the CHP San Diego office where she took the required test to measure her blood-alcohol content (BAC).

The delayed test allegedly showed that Estrada was under the .08 blood-alcohol content standard. She was just cited and released from the CHP office to a designated driver, with a date to appear in court on December 2nd. That date has been continued and Estrada remains on administrative duties while her case is pending.

This is the second San Diego officer to be charged with driving while intoxicated after a delayed test within the past year. Detective Jeffery Blackford was involved in an accident after drinking, so he reached out to other San Diego officers to assist him. His BAC test was also delayed and he eventually plead guilty to drunk driving and was sentenced to probation and community service.

Do the citizens of San Diego have different standards than San Diego cops when it comes to DUI laws? Based on these two cases, I would say YES! If you are pulled over on suspicion of drunk driving and the officer smells alcohol on your breath, you more than likely will be arrested and charged with drunk driving, and you will be taken to jail, as the CHP states in its ad campaigns. You will not be allowed to call a designated driver to take you home, with a simple citation and promise to appear in court.

Further, the officers will take whatever steps they can to ensure they test your breath or blood post arrest as close to the time of driving as possible, in an attempt to get the BAC reading within the 3-hour presumption. [Note: 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.]
The community should be outraged by the double standards and complaints should be filed with the San Diego Police Department and CHP.

The above blog article is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.

DUI Confession Leads To Prison Term

November 4, 2013 | The Law Offices of Susan L. Hartman

A confession to drunk driving that was posted online and subsequently went viral ended with a guilty plea and a prison sentence on October 23, 2013.

Matthew Cordle, a 22-year old Ohio man, plead guilty to aggravated vehicular homicide and drunken driving after driving the wrong way on a highway on June 22nd, and killing Vincent Canzani, 61. Cordle blamed drinking on anxiety and depression and said he often drove while under the influence. On this occasion, his blood was tested with a result of a .19% blood-alcohol content.

After the accident, he consulted with DUI lawyers. According to Cordle, the criminal defense lawyers told him they were able to get other defendants with similar circumstances off or they were able to negotiate lesser sentences or charges by lying. Cordle said he did not want to lie. Instead, he believed he made a big mistake and decided to take full responsibility for the crash by confessing to the world online. The video was posted on YouTube on September 3rd, and as the date of this blog, has been viewed 2 1/2 million times!

At the drunk driving sentencing, criminal defense attorneys argued for a lighter sentence due to Cordle’s willingness to take responsibility for his actions. Regardless of the remorse, admission, and the public service announcement not to drink and drive, the judge still sentenced this DUI defendant to 6 1/2 years in prison. (The maximum sentence allowed would have been 8 1/2 years.)

The Law Offices of Susan L. Hartman does not encourage or suggest that a defendant should lie about the facts of their case at the time of the incident or after. In fact, if you do lie to police, you can be charged with additional crimes such as obstruction of justice or providing a false statement. However, every person is guaranteed a constitutional right against self-incrimination and EVERY person suspected of a crime should invoke that right!!! Whether you are under investigation or have been arrested and charged, statements that you make will be used against you. So say nothing and demand to speak to a lawyer!

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.

San Diego Pride Week: Use Alternative Transportation To Avoid DUI Charges

July 11, 2013 | The Law Offices of Susan L. Hartman

This is San Diego’s Pride Week and there are many festivities planned for Hillcrest. This year’s theme, Freedom to Love and Marry, is so appropriate after the United States Supreme Court struck down DOMA, the Defense of Marriage Act, and ruled against California’s Proposition 8, effectively allowing the LGBT community to marry in California.

Because of all the tremendous energy around the rulings, San Diego’s Pride celebration is going to be larger than ever. It is already the nation’s 4th largest, with over 200,000 spectators, media participation, a 2-hour parade, a two-day festival, many huge circuit parties and a rally and flag raising to kick it off on Friday.

Needless to say, Pride is a party! Many champagne bottles will be popped and lots of adult beverages consumed. And, with all those people in one place, you can bet there will be lots of police presence. So it’s imperative that before you head out to your celebration, you plan accordingly so you don’t need the help of The Law Offices of Susan L. Hartman for assistance with your driving under the influence charge that you picked up while celebrating!

Here are a few things you can do to make sure you remain safe and arrest-free during this wonderful holiday:

1. Take a cab from your champagne brunch to the parade/festival. Continue cabbing it around San Diego to all the parties throughout the day and night. For convenience, you can use text a cab by Go Fast Cab. They have a convenient app for your smartphone that allows you to just text them your location and they will pick you up.
2. Try the FREE Hillcrest trolley. It is running Friday night and throughout Saturday and Sunday, bringing party-goers from the east side of Hillcrest to Mission Hills and down to the festival in Balboa Park. You can download their app and track the trolleys in real time.

3. Use one of the many pedicabs that will be around Hillcrest and Balboa park.

4. Plan to stay with a friend that lives near the festivities or book a nearby hotel.

If you end up picking up a DUI, call The Law Offices of Susan L. Hartman immediately for your FREE telephone consultation to find out about your rights and options with no obligation.

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.