News, Prevention, & Studies

Forced Blood Draws: Will San Diego Law Enforcement Get A Warrant?

May 23, 2013 | The Law Offices of Susan L. Hartman

California has an “implied consent” rule regarding chemical testing that is found in Vehicle Code Section 23612. This vehicle code section states, “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.”

When a person is arrested for drunk driving, they are given a choice between a blood or breath test. If a person refuses to give either sample, The Department of Motor Vehicles (DMV) will suspend or revoke a person’s driving privileges pursuant to California Vehicle Code Section 13352. The period of that suspension or revocation is at least one year.

In addition to the repercussions in the administrative DMV phase of a DUI case for a refusal, there are also increased penalties in the criminal court process.

Law enforcement cannot obtain a person’s blood without consent unless they have a warrant to do so. Failure to have a warrant constitutes a Fourth Amendment violation. Regardless, San Diego and other California law enforcement agencies have been forcibly taking blood from drivers without a warrant, citing the landmark case from 1966, Schmerber v. California. In that case, the court held police can, without a warrant, forcibly obtain a person’s blood for the purpose of chemical testing to determine intoxication after a lawful arrest if the sample is taken in a reasonable, medically approved manner, there is a reasonable belief that the person is intoxicated, and there is a need for prompt testing because the person’s blood alcohol is diminishing.

However, in April 2013, the United States Supreme Court ruled on this issue in Missouri v. McNeely. In this case, the Court ruled that a warrantless search of a person is reasonable only if it falls within an exception. The Court did not find any exceptions for exigency existed just because blood alcohol evidence is inherently evanescent.

Although the Court did not create a per se rule, it did state, “When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

The opinion also commented how much more expeditiously warrant processing is 47 years after Schmerber, and that exigency is determined on a case-by-case basis.

Since no bright line rule was created in this opinion regarding when the police can forcibly take blood from someone who was lawfully arrested, suspected of drunk driving, this issue will remain one that is heavily litigated.

If you have had a forced blood draw without a warrant, contact a criminal defense attorney who specifically handles driving under the influence cases. If there is a valid argument that your constitutional rights have been violated, a motion to suppress this evidence may be filed and ultimately, the prosecutor may not be able to use the results against you in court.

Driving Under The Influence Statutes Should Not Be Lowered To .05

May 15, 2013 | The Law Offices of Susan L. Hartman

California’s two most commonly charged drunk driving statutes are California Vehicle Code Section 23152(a) and 23152(b). Often they are charged together as misdemeanor drunk driving charges; however, they can be charged as felonies if the driver had been convicted of four or more other DUI’s in the previous ten years or the driver was convicted of one other felony DUI.

The (b) count is the “Per Se” DUI charge, which makes it unlawful to drive a vehicle with a blood alcohol concentration (BAC) of .08% or greater. In essence, this drunk driving statute creates a rebuttable presumption that if the driver’s BAC is at or above the legal limit, the driver is under the influence for purposes of driving. A jury may convict a person under this DUI statute without any proof that the driver was in fact under the influence at the time of driving.

California Vehicle Code Section 23152(a), however, does not have a BAC level associated with it. Instead it simply 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.” (Note: It is irrelevant if the drug is illegal, prescribed, or over-the-counter.)

A person can be charged and ultimately convicted of driving under the influence under this code section if their “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.” (CALCRIM 2110.)

This (a) statute already encompasses all driving while intoxicated scenarios where the person’s BAC is below .08% including the combined intoxication by drugs and alcohol and in situations where a person is impaired under the legal limit. However, now the The National Transportation Safety Board, NTSB, wants to lower the blood alcohol content to .05.

The Law Offices of Susan L. Hartman agrees with Sarah Longwell, the managing director of the American Beverage Institute who allegedly said, “This recommendation is ludicrous. Moving from 0.08 to 0.05 would criminalize perfectly responsible behavior. Further restricting the moderate consumption of alcohol by responsible adults prior to driving does nothing to stop hardcore drunk drivers from getting behind the wheel.” (Quoted by nbcnews.com.)

Law enforcement agencies should continue to enforce the laws that are already on the books as most people are not under the influence for purposes of driving at this low .05 threshold.

San Diego County’s Craft Beer Industry Makes A Huge Economic Impact

April 25, 2013 | The Law Offices of Susan L. Hartman

San Diego craft beer is not only some of the best beer in the country, our craft beer is driving the economy in Southern California. According to a craft brewery study done by National University, the craft beer industry generated “$299.5 million in wages, capital expenses and contracts in 2011”. Comic-Con, San Diego’s largest convention, accounted for $180 million, making the craft beer industry 1 1/2 times larger than Comic-Con!

The study found San Diego had 52 small-brewery licenses in 2011, twice that of Los Angeles. However, that number is believed to be much higher now, as there were 15 more licenses issued in 2011 and 18 in 2012.

San Diego breweries reported $680.8 in sales, plus they generated revenues for local hotels and restaurants as many people traveled to San Diego to sample the local brews. Especially big was the increase in tourism around annual beer festivals which included San Diego Beer Week. SDBW’s hotel revenue alone was estimated at $780,000. In addition, it was estimated that 2,796 jobs have been created or sustained by the brewery industry.

According to the Brewers Association, San Diego has 2 of the United States top 50 craft breweries based on sales. Stone Brewing Company in Escondido ranked 10th, Karl Strauss in San Diego ranked 39th, and Ballast Point of San Diego ranked 46th.

Shawn DeWitt, president of the San Diego Brewers Guild and the director of brewing operations at Coronado Brewing Company stated, “We feel that San Diego is now the craft beer capital of the United States.”

The San Diego Brewers Guild pamphlet for 2013 currently has 61 breweries listed. Many of those are located in Vista, Oceanside, Carlsbad, Poway, Santee, and San Diego. There are many local businesses helping locals and visitors alike enjoy the liquid gold without the fear of picking up an arrest for drunk driving.

There are many shuttles and beer tours that will take you to the breweries in a group or a private party. You can also take one of the free shuttles that run between local brew pubs on certain days/times where you can sample many different breweries at each establishment.

Driving Under The Influence Cases In The News

April 24, 2013 | The Law Offices of Susan L. Hartman

There were three big stories this week about drunk driving. First, Al Michaels, an NBC sports announcer best known for his commentary on Sunday Night Football, was arrested on Friday, April 19th, according to abclocal.com. Second, Reese Witherspoon’s husband, James Toth, was also arrested on suspicion of drunk driving on that same day, according to cbsnews.com. Lastly, San Diego Police Detective Jeffrey Blackford was sentenced Monday, April 22nd, after pleading guilty to misdemeanor DUI and reckless driving last week, according to utsandiego.com.

Allegedly, Al Michaels made an illegal U-turn near a DUI roadblock in Santa Monica, California. Officers conducting the checkpoint arrested him, took him to the police station and booked him on suspicion of drunk driving for allegedly having a blood alcohol content over the legal limit of .08 percent. He was released on his own recognizance (OR release) and is due in court on June 26th.

The California Supreme Court’s landmark case on DUI checkpoints is Ingersoll v. Palmer. In that opinion, the Court explained the specific requirements for a drunk driving roadblock to be constitutional. One requirement is there must be an opportunity for a driver to avoid the checkpoint if they choose and police cannot arrest someone just for using the outlet. Cops can stop the car, however, if the driver commits a moving violation or they display signs of intoxication.

According to the reports about Al Michaels arrest, he was seen making an illegal U-turn. This would give the officers probable cause to detain him. Once they smelled an odor of an alcoholic beverage, they would be able to legally initiate a drunk driving investigation.

James Toth was weaving while driving in Atlanta, Georgia, which prompted law enforcement to pull him over. Police allegedly saw evidence that Toth was under the influence including “droopy eyelids, watery, bloodshot eyes, and his breath smelled strongly of alcohol.”

Officers use these cues to legally begin a drunken driving investigation. Regardless of the reason why a person was pulled over, if the officer see signs of intoxication, they can prolong the detention and further investigate for DUI. Often, defendants argue that the officer never cited them for the underlying violation, and therefore, the case should be thrown out. The Court will not agree with this argument. The officer may pull over a vehicle on suspicion of any violation, regardless of the ultimate charges brought against the driver.

Lastly, this blog has previously commented on the Blackford matter, (see “SD Police Officers Investigated: Possible DUI Cover Up For One Of Their Own“). Although the San Diego District Attorney’s Office is still reviewing this matter for a possible officer cover up, Blackford was sentenced for the DUI in the San Diego Superior Court.

The San Diego Deputy City Attorney requested 60 days in custody to be served in jail or by another in-custody alternative. However, Judge Frederick Maguire ordered 25 days of public work service, 5 years of informal probation, the standard fines and fees, the MADD victim impact panel class, and a first conviction program.

Whether you are a famous sports announcer, an agent, or a cop, if you drink and drive and you are pulled over you will likely be charged with drunk driving. You owe it to yourself to hire a criminal defense attorney who handles drunk driving matters. Do not just plead guilty!

San Diego Prom And Graduation Season & The Dangers Of Drunk Driving

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

Southern California springtime brings with it beautiful weather, blooming flowers, high school proms and graduation celebrations. There is the potential for young adults to drink alcohol in celebration even though it is illegal for anyone under the age of 21 to ingest an alcoholic beverage. These teens are inexperienced drinkers. Often, they do not understand how their bodies react to alcohol consumption, how it slows motor function, and how it makes them easily distracted and more likely to make choices they would not normally make if they were sober.
In addition to being inexperienced drinkers, they are also inexperienced drivers. Adding alcohol to the mix can lead to car accidents, bodily injury, property damage, the loss of their driving privileges, driving under the influence charges with fines, fees and a criminal record, and worse, possibly deadly consequences for the driver, the passengers, pedestrians, and other drivers.

Often teens feel invincible not believing bad things will happen to them. This is dangerous thinking in the realm of drinking and driving. There may be peer pressure to drive after drinking or to ride in a car with someone after they have had alcohol.

USA Today and MADD (Mothers Against Drunk Driving) warn of the dangers. MADD reports the leading cause of death for teens is car accidents. Of those accidents, 1/3 are alleged to involve alcohol. The Centers for Disease Control and Prevention claims teenage DUI’s are down 54% since 1991, but almost one million teenagers reported drinking alcohol and then driving in 2011.

The best thing you can do as a parent is educate your young adult children of the dangers of drinking and driving. Encourage them to call you anytime for a ride without questions. Let them know they can be seriously injured or killed as a passenger in a car that is driven by another young adult who is under the influence.

One bad choice made while under the influence can change not only the teen’s life, but the lives of those around them.

Happy spring, prom and graduation time! Make it a safe one!

But, if you happen to get arrested for drunk driving and you are under 21 years old, you owe it to yourself to hire a criminal defense attorney that exclusively deals with drunk driving matters. Do not just plead guilty! A criminal conviction can affect your life long after the incident occurred. Find out your rights and protect yourself.

SD Police Officers Investigated: Possible DUI Cover Up For One Of Their Own

March 22, 2013 | The Law Offices of Susan L. Hartman

cop arrest.jpg San Diego Police Sergeant John Iammarino, Detective Daniel Caropreso, Sergeant William Brown, and Sergeant Christopher Tivanian are all assigned to desk duty as the San Diego City Attorney’s Office investigates their involvement in a drunk driving incident involving SDPD Detective Jeffrey Blackford, according to San Diego’s 10news.com.

Allegedly, on December 6th, 2012, off-duty officers of SDPD were out drinking. Before 1:00am, on December 7th, Detective Blackford drove off then spun out and hit a utility box. Within a short period of time, off-duty officers, Sergeant Iammarino and Detective Caropreso, came to save the day. Unlucky for the officers, there was video surveillance of their arrival on scene which provided a timeline to what happened, or didn’t happen, next.

It was not until about 2:15am that on-duty officers were called and Sergeant Brown and Sergeant Tivanian responded. The four officers waited until approximately 3:59am to give Blackford a preliminary alcohol screening (PAS) test at the scene. It is surprising that the officers conducted this test at all, since they should be well aware that this test is considered a field sobriety test and it is not required for people over 21 and not on DUI probation. The results of the PAS test were not reported.

What did these officers do from before 1:00am until just about 4:00am? Why the delay? You would expect a quick response after an officer involved car accident, wouldn’t you? There is an obvious answer rooted in California’s driving under the influence laws, and you know the San Diego Police officers are well aware of the three hour presumption in California Vehicle Code (VC) Section 23610.

Under the drunk driving statutes in the California Vehicle Code, in order for the defendant to be found guilty, the prosecutor must prove that the defendant was driving a vehicle and while driving the person was under the influence of an alcoholic beverage, a drug, or a combination of both. In addition, there are rebuttal presumptions regarding being under the influence. VC Section 23610(3) states: “If there was at the time 0.08 percent or more, by weight, of alcohol in the person’s blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of driving.” VC Section 23152(b) states the rebuttable presumption applies if the chemical test was conducted within three hours of driving.

It seems very apparent that the officers were trying to get their fellow officer outside the presumption window before subjecting him to the PAS test and the subsequent arrest in hopes that he would either be below the legal limit of a .08% BAC and they would not to arrest him for DUI, or he would be able to rebut the presumption that he was under the influence at the time that he was actually driving.

The San Diego City Attorney has filed documents to obtain the internal investigation documents from the SDPD. The Law Offices of Susan L. Hartman will continue to follow this story to see exactly what happened on the night in question.

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.

Drunk Driving No Longer An Issue With New Technology?

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

hippy car.jpg In California, the drunk driving statutes are found in the California Vehicle Code. The code states it is illegal to drive a motor vehicle on a highway while under the influence of alcohol, drugs, or a combination of alcohol and drugs. In addition, it is unlawful to drive with a blood alcohol content, or BAC, of .08 percent or greater. There is a rebuttable presumption that if the BAC result is .08% or greater and the test was done within three hours of driving, it may be concluded that the driver’s blood alcohol was at or above a .08 at the time of driving.

California is among the states that have already implemented the use of ignition interlock devices (IID’s) for those convicted of driving under the influence. The device is installed in the defendant’s car. In order to start the car, the driver must first blow into the machine. If alcohol is not detected, the car will start. If it is detected, the car will not start.

A Massachusetts company, Qinetiq, received $10 million in total funding from the federal government and all sixteen major car makers, to develop a technology that would prevent a car from operating if a driver has alcohol in their system, according to cbsnews.com. The intention is to make this a safety feature just like seatbelts, putting it into every new car requiring everyone to use it.

Qinetiq is currently testing a breath-based and a touch-based system. The breath-based system uses a sensor on the steering wheel that tests the driver’s breath. The touch-based system uses a sensor in the start/stop button which sends an infrared light into the driver’s finger when the vehicle is started. If alcohol is detected, the car will start but not be operational.

The American Beverage Institute (ABI) is concerned that the sensors can be inaccurate, it targets all drivers, and it can eliminate a person’s ability to have a drink at dinner, a ballgame, or a wedding, which is not illegal.

With the current political view and pressure about drinking and driving, it seems inevitable that we will have zero tolerance laws in place as soon as this technology is thought to be perfected. A driver will not be able to drive after consuming alcohol until the alcohol has been eliminated from their system, and many people will choose not to drink at all.

If you are arrested for DUI, you owe it to yourself to hire a criminal defense attorney that only practices drunk driving defense. These cases and the science behind the law and evidence is very technical and fact specific.

San Diego Sheriff’s Announced The Following DUI Checkpoints

December 7, 2012 | The Law Offices of Susan L. Hartman

The San Diego Sheriff’s website, (see press release dated December 5th), announced the following drunk driving roadblocks and saturation patrols during this holiday season:

December 14- Sobriety Checkpoint in Vista and Santee, 8:00 p.m. to 3:00 a.m.
December 15 – Warrant Sweep, South Bay
December 15- Sobriety Checkpoint in Lemon Grove and Encinitas, 8:00 p.m. to 3:00 a.m.
December 20 – DUI Saturation Patrol for the Poinsettia Bowl, 5:00 p.m. to midnight
December 21 – Sobriety Checkpoint in San Marcos, 8:00 p.m. to 3:00 a.m.
December 22 – Sobriety Checkpoint in Rancho San Diego (AVOID), 8:00 p.m. to 3:00 a.m.
December 28 – Sobriety Checkpoint in Poway and Imperial Beach, 8:00 p.m. to 3:00 a.m.
December 29 – Sobriety Checkpoint in Chula Vista, 8:00 p.m. to 3:00 a.m.
December 30 – DUI Saturation Patrol for Chargers/Raiders game, 5:00 p.m. to midnight
December 31 – DUI Saturation Patrol, Sheriff’s Department contract cities: San Marcos, Vista, Poway, Encinitas, Lemon Grove, Imperial Beach, and Santee.

Keep in mind, this is not an exhaustive list. Other local law enforcement, including the California Highway Patrol (CHP), San Diego Police, and others, may conduct their own driving under the influence patrols over the coming weeks.

“Like” The Law Offices of Susan L. Hartman on Facebook for more drunk driving information and notifications of other DUI patrols by law enforcement in San Diego County. And, get real time DUI checkpoint alerts text to your cell phone through Mr. Checkpoint.

These tools are not meant to help you drink and drive. Use them for informational purposes only. The best holidays start with safe, undistracted driving. If you think you will be drinking, plan ahead to avoid being a DUI statistic.

SD County Drunk Driving News

December 4, 2012 | The Law Offices of Susan L. Hartman

San Diego County Division of the California Highway Patrol (CHP) reported driving under the influence arrests were down from 33 to 23 during the Thanksgiving holiday, according to swrnn.com. The reporting period was from the evening of Wednesday, November 21st, through 6:00 a.m. on Friday, November 23rd. In addition, one person was killed during this period, as opposed to zero in 2011.

Another drunk driving roadblock was held in downtown San Diego on November 24th, in the 1500 block of First Avenue from approximately 11:00 p.m. until 3:00 a.m. As reported by scoopsandiego.com, 1397 cars passed through the checkpoint, 836 drivers were contacted by law enforcement, and 28 drivers were evaluated in the secondary area. 19 arrests were made on suspicion of driving under the influence.

San Diego County Sheriff’s Department was awarded another grant to continue its DUI enforcement efforts in 2013 through Avoid the 15 DUI Task Force. Thecoastnews.com reported the California Office of Traffic Safety (OTS) gave $300,000 to the sheriffs to conduct more DUI and license suspension checkpoints, drunk driving saturation patrols, warrant sweeps, and court sting operations that specifically target drunk driving and DUI probation violations.

San Diego Probation Department was given a $500,000 grant by the National Highway Traffic Safety Administration (NHTSA) to help in its supervision of high risk DUI offenders through its DUI Enforcement Team, according to utsandiego.com. High risk offenders include those convicted of multiple drunk driving cases or felony DUI’s where someone was severely injured.

SD Probation reported 124 arrests in 2012, including those who failed to stop drinking alcohol or continued to drive without a valid license.

Chula Vista resident, Arlene Hernandez, 22, was ordered to stand trial after a preliminary hearing on November 27th. Cbs8.com reported that Hernandez was charged with manslaughter, DUI causing injury, and felony child abuse stemming from an accident where her car ended up in the Otay Reservoir on August 5th. Both Hernandez’s 5 year old daughter and her friend were killed in the accident.

A Point Loma accident involving a San Diego Police car ended with a short chase and the eventual arrest of Kaveri Fields, 24, on suspicion of drunk driving and hit-and-run on November 30th, according to nctimes.com. No further details were available.

Drivers should heed the warning….law enforcement is out in full force over the holiday season looking for drunk drivers. Don’t end your holiday celebrations in tragedy. Make sure you have a plan before heading out to your holiday party. Plan to stay at the host’s home, use public transportation or a cab, call a sober friend, designate a person in your group to abstain from drinking, or simply enjoy the party without consuming alcohol.

But, if you should find yourself in the driver’s seat with blue lights flashing behind you, keep these tips in mind:

You do not have to say anything to the officer. Keep in mind, the officer is looking to build a drunk driving case against you. What you say will end up in the police report and it will be used against you.
You can refuse to do the field sobriety tests, (i.e. the walk and turn, counting, alphabet, etc.).
You do not have to breathe into the PAS (preliminary alcohol screening) test UNLESS you are on DUI probation or under 21 years old. However, if arrested, you must submit to a breath or blood test.

If you are cited for driving under the influence, you owe it to yourself to hire an exclusively DUI defense firm.

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 To Pay Victims Of DUI Investigation Scam After Cop Found Guilty

November 20, 2012 | The Law Offices of Susan L. Hartman

San Diego Police officer, Anthony Arevalos, was arrested in March 2011, and eventually charged with 18 felony counts including sexual battery by restraint, receiving a bribe, assault and battery by an officer, and false imprisonment, after citizens reported they were driving in the Gaslamp and were pulled over by this San Diego Police officer. According to the victims, he initiated a drunk driving investigation and then asked the women what they would be willing to do in order to have the charges go away. One woman reported she gave Arevalos her underwear and another was taken to a 7-Eleven restroom where she was sexually assaulted.

In light of these allegations, the San Diego City Attorney dismissed 15 driving under the influence cases that were investigated by Arevalos.

After a jury trial, Arevalos was found guilty of 8 felonies and 4 misdemeanors. He was taken into custody and sentenced in February 2012. He faced nine years and eight months in prison, and the judge sentenced him to eight years and eight months. In addition, he has to register as a sex offender for the rest of his life.

Just last week, the City of San Diego approved a $1.2 million settlement with some of Arevalos’ victims, according to fox5sandiego.com. Of that settlement, $675,00 will be paid to victim Melisa W, (full name withheld because she is a victim of a sex crime), as her case was the most severe.

If you witness or a victim of police misconduct involving a San Diego officer, report the officer to the Citizens’ Review Board on Police Practices. The complaint will be reviewed and forwarded onto the Commanding Officer and the Department of Internal Affairs and an investigation is conducted.

Do not let rogue cops who misuse their power, like Arevalos, patrol our San Diego streets. Our community needs to ensure if an officer is not professionally performing his or her duties they are reported, investigated, reprimanded, and if needed, terminated. Even if you think your complaint is minimal or not a big deal, it may be important to another citizen. When charges are pending against a defendant, other citizens’ complaints involving that same officer may be discoverable, thereby helping another person defend their case.