News, Prevention, & Studies

Driving Under The Influence: What The Prosecutor Must Prove

October 19, 2011 | The Law Offices of Susan L. Hartman

You have been charged with drunk driving under California Vehicle Code Section 23152(a) or 23152(b) . In order for the jury to find you guilty, the prosecution has the burden to prove their case beyond a reasonable doubt.

Under 23152(a), driving under the influence of an alcoholic beverage, a drug, or under the combined influence of an alcoholic beverage and a drug, the state must prove that you drove a vehicle and when you drove, you were under the influence.

Under 23152(b), driving with a blood alcohol level of 0.08 percent or more, the state must prove that you drove a vehicle and when you drove, your blood alcohol level was 0.08 percent or more by weight.

In Louisiana, a man was arrested for drunk driving after he drove a lawn mower on northbound LA Highway 1, just south of Lockport, according to wdsu.com. He was driving with a long line of cars behind him as he swerved into the southbound lanes. An officer pulled him over and smelled alcohol on his breath. His speech was slurred and he allegedly could not complete the field sobriety tests. His blood-alcohol concentration, BAC, was estimated at .312 percent. He was arrested for DWI, driving while intoxicated, which is Louisiana’s version of California’s DUI laws.

So, is this a lawful arrest for drunk driving if this happened in San Diego County or anywhere in California? Assuming the facts in the article to be true and not having any discovery in the matter to review, the general answer is yes.

The courts have found that the defendant must have been driving which requires any volitional movement of the vehicle, (See Mercer v. DMV). The vehicle code describes a vehicle as a “device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device move exclusively by human power or used exclusively upon stationary rails or tracks.” Note that even though the vehicle code usually applies to “highways” under VC 23100, drunk driving laws may even apply to private property.

So, for the Louisiana case, the defendant was driving a lawn mower, powered by a gas motor, on a public roadway. Allegedly, he had a BAC over a .08, therefore, his arrest for drunk driving was lawful.

CA Law Limits Cops From Impounding Cars At DUI Checkpoints

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

San Diego County police departments and other California law enforcement agencies will have new limitations on towing unlicensed drivers’ vehicles when they conduct drunk driving checkpoints starting on January 1st, 2012. AB-353, which was sponsored by Assemblymen Gibert Cedillo, D-Los Angeles, and Michael Allen, D-Santa Rosa, was signed into law by Governor Jerry Brown on October 9th, according to californiawatch.org.

Officers working a sobriety roadblock often evaluate possible DUI drivers and ensure drivers have valid driver’s licenses. Many, mostly illegal immigrants, are cited for not having a license. Under current California law, their cars are then impounded for 30 days. This practice has generated tens of millions of dollars a year for towing companies and local governments, as the government receives a portion of the fines and fees collected from the contracts they have with the tow yards. (See previous blog entry, “CA Lawmakers Take Steps To Limit Money Made Off Impounded Vehicles At Drunk Driving Checkpoints.”)

Under AB-353, the police are no longer able to immediately impound the cars of sober, unlicensed drivers at these checkpoints. Instead, the cars will be released to a qualified driver representing the registered owner. In application, the vehicles will remain at the DUI checkpoint during the operation, giving the owner an opportunity to claim the vehicle. If the car is not claimed before the operation concludes, it is towed; however, it will be released as soon as a representative of the owner claims it at the tow yard and pays the city release fee and the tow and storage fee. This eliminates the mandatory 30 day impound and all the additional daily storage fees. The difference can be between a few hundred dollars and a few thousand dollars, the owner’s ability to pay, and the possibility of the owner losing the car.

This new law does not affect the officers’ ability to cite a driver and impound the vehicle for 30 days if that driver is driving on a suspended or revoked license.

The bill that would have restricted how DUI checkpoints are run, AB-1389, was vetoed by the governor.

San Diego DUI Charges Against SD Cop Blamed For Suicide

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

San Diego Police Officer David Hall committed suicide on August 1st, 2011. He did not leave a note; however, the medical examiner’s office released a report about their investigation into the suicide, according to msnbc.com.

Hall was arrested for an alleged drunk driving incident on February 22nd. He plead not guilty to two counts of DUI causing injury and one count of felony hit and run with an allegation that his blood alcohol content (BAC) was above .15 percent. He was facing a maximum sentence of three years and eight months in prison if convicted. The week of his suicide, he was due back in court for a pre-trial hearing.

Hall was battling an alcohol addition and was depressed. He was sober for five months after the incident, but he relapsed just before taking his life. He believed the driving under the influence charges could result in the loss of his career as a San Diego police officer. Hall was on administrative leave and was attending counseling sessions with the department’s Wellness Unit. He was specifically worried about the hearing that was scheduled the week of his suicide.

Hall’s wife, Michelle, believes that the DUI case played a major role in the suicide.

Psychiatrist Dr. Clark Smith commented, “More people commit suicide after a DUI arrest than any other kind of arrest including rape-murder. Often people who are very depressed drink a lot more and both factors increase suicide risk.”

Although Dr. Smith’s conclusion sounds very plausible, no specific studies were found that backed this conclusion. However, many news stories have reported on others who contemplated, attempted, or completed suicide after being arrested for DUI.

These stories include former republican congressman from New York, John Sweeney. He was interviewed by The Saratogian in March 2011. In that interview he recalled April 5th, 2009, when he laid in bed after his second drunk driving arrest in two years. He admitted, “I was contemplating hanging myself. I found myself in a place of despair that I couldn’t get out of. I had reached an end.”

Another man in Chicago, Jeffrey Weiten, committed suicide in June 2010, after he was charged with drunk driving after an accident that killed a woman, according to chicagobreakingnews.com.

The Hartford Courant reported Matthew Tuttle, a senior police commander in New Britain, Connecticut, was found dead with a self-inflicted gunshot wound hours after he was arrested on DUI charges after a car accident in May 2011.

A prosecutor in Connecticut’s Middlesex Judicial District, John Cashmon, was found dead of an apparent suicide days after he was arrested for alleged drunken driving in August 2011. The New Haven Register reported that he was pulled over for driving erratically and was subsequently arrested. Cashmon was released a few hours later after posting bond and was not heard from again. He was found near a police station.

Criminal allegations, facing jail or prison time, and the possibility of losing your job can cause great stress for criminal defendants. If you have been charged with a crime and the stress has become unbearable, consider seeking help from mental health professionals.

Also, it is very beneficial to seek out legal counsel to help you through the process. If you are facing drunken driving charges, contact an exclusively DUI defense firm that can help you through the legal process by explaining legal procedure, defenses in your case, and your options.

Other Related Blog Entries:

San Diego Officer Charged With DUI Commits Suicide

San Diego Officer Charged And Plead Not Guilty To Drunk Driving

San Diego Officer Suspected Of Drunken Driving And Hit And Run

Talmadge DUI Car Wreck Leaves 4 Year Old Injured, Bail Set At $100,000

August 28, 2011 | The Law Offices of Susan L. Hartman

bail bond.jpg San Diego resident, Albert Pruitt, 27, was allegedly driving under the influence when he crashed his Ford Explorer on August 27th, at 7:00 a.m., according to 10news.com. Pruitt was northbound on Aldine Drive near Monroe Avenue when he hit the curb, lost control, and rolled his vehicle.

Two children, ages 2 and 4, were in the back seat. The 2 year old was in a booster seat and was uninjured. The 4 year old was restrained by an adult seatbelt which did not hold her. She was ejected from the vehicle. Her injuries are not known.

Pruitt is being held in the San Diego Central Jail with bail set $100,000.

Under the Eighth Amendment of the United States Constitution and the California Constitution, Article I, Section 12, excessive bail shall not be required.

Bail is a sum of money that is paid to the court in exchange for the release of the accused before trial. This money is used as a guarantee that the accused will appear in court. If the defendant fails to appear, the money is forfeited and a bench warrant is usually issued for the arrest of the accused.

A bail bond is purchased from a bail bondsman. The fee of the bond is usually 10% of the bail amount. The bond document is then provided to the court in lieu of the bail money. Once the document is signed by the accused, he or she is released from jail on the promise that they will appear in court. Again, if the defendant fails to appear, the bail bond may be forfeited.

In San Diego, the courts use the San Diego Bail Schedule to determine the starting point for the bail amount that the judge will impose. The judge also will consider other factors to determine if the bail should be reduced or increased, (Penal Code section 1275). Such factors include: Good standing in the community; employment; homeownership; criminal record; seriousness of the crime; probability that defendant will show up at court hearings and trial; dangers that the accused poses to the community; and, family and friend’s presence in court.

Once bail is set, a motion may be brought requesting that the judge lower the bail amount or release the defendant on his or her own recognizance, (O.R. Release). Again, the court will consider the same factors in determining to grant such a motion.

Sorrento Valley Drinking and Driving Ends With Driver Killed In Crash

August 19, 2011 | The Law Offices of Susan L. Hartman

San Diego motorists called the California Highway Patrol (CHP) to report a driver on southbound Interstate 5, in the Leucadia area, throwing beer cans out the window and driving erratically around 4 p.m., according to 10news.com.

The driver then headed south on Interstate 805, through Sorrento Valley. He pulled over to urinate on the side of the road and then continued driving. CHP followed as he lost control of the vehicle and rolled over. The unidentified driver was partially ejected and was pronounced dead at the scene.

In California, it is not only illegal to drive while under the influence, it is also illegal to drink any alcoholic beverage while driving a vehicle, (see California Vehicle Code section 23220). In additional, it is unlawful for a driver to have any open bottle, can, or other receptacle, containing any alcoholic beverage in his or her possession, (see California Vehicle Code section 23223, Open Container Law).

Tierrasanta Youth Involved in Alleged DUI Felony Case Pleads Not Guilty

August 15, 2011 | The Law Offices of Susan L. Hartman

San Diego resident and recent Serra High School graduate, Joseph Walsh, 18, plead not guilty to two felony drunk driving charges on August 11th, according to 10news.com.

On May 18th, Walsh was drinking beer at a friend’s home when he decided to drive to get some food. Allegedly, he was driving 50 mph in a 25 mph zone when his car hit a sport utility vehicle and rolled four times. His two passengers were injured along with the driver of the SUV. He was subsequently charged with one count of DUI causing injury and one count of driving with measurable blood alcohol causing injury.

Members of the community showed up at the arraignment and wrote letters in support Walsh. He was allowed to remain free on his own recognizance and was ordered to appear at the preliminary hearing which is scheduled for August 24th.

Walsh’s blood alcohol content, or BAC, was a .19. The legal limit is .08 percent for drivers over the age of 21. Since he was only 18 at the time of the incident, he could also be charged with:

1. California Vehicle Code section 23136, the Zero Tolerance Law, a civil offense that is handled through the DMV;
2. California Vehicle Code section 23140, under 21 with a BAC of .05 – .07 percent, an infraction;
3. California Vehicle Code section 23152, driving under the influence, a misdemeanor.

San Diego Voters Opposed To Drunk Driving Checkpoints

August 11, 2011 | The Law Offices of Susan L. Hartman

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San Diego’s Equality Alliance did a checkpoint study of over 6,000 voters in San Diego County from May 21st through June 15th, 2011, asking, “Do you think law enforcement should be able to set up checkpoints to question drivers without suspicion of wrongdoing.” Approximately 64% oppose DUI checkpoints; while only 27% are in support. Opposition is highest among the younger population, 18-24 year olds, 69%, and African-Americans, Latinos, and low income voters, 68%.

Drunk driving checkpoints are supposed to be conducted in a manner that would deter drunk driving using the criteria set out by the California Supreme Court in Ingersoll v. Palmer. (Also see previous blog entries, California’s Sobriety Checkpoint/Roadblock Criteria Part I and Part II.) However, according to the Executive Director of Equality Alliance, Andrea Guerrero, many people complain that DUI checkpoints harass, discriminate, inconvenience, and invade privacy.

10news.com reported that law enforcement agencies are currently using the checkpoints to not only deter drunk driving, but also to check on immigration and license status by targeting certain neighborhoods.

Equality Alliance is asking California lawmakers to pass legislation that would regulate DUI checkpoints for sobriety checks only. The bill comes before the Appropriations Committee, which is headed by State Senator Christine Kehoe, on August 15th.

San Diego Officer Charged With DUI Commits Suicide

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

Drunk driving charges were brought against San Diego Police Officer, David Hall, after he allegedly crashed his car into another on Interstate 805’s onramp from Murray Ridge Road while off duty on February 22nd. A woman in that car was injured and Hall left the scene. Police officers found him at his home and field sobriety tests were conducted. His blood alcohol content (BAC) was .32, four times the legal limit of .08. (The incident was previously posted on this blog on May 3rd and April 13th, 2011.)

On May 2nd, Hall plead not guilty to two counts of DUI causing injury and one count of felony hit and run with an allegation that his BAC was above .15. He was put on paid administrative leave from the department. If convicted, Hall faced a maximum sentence of three years and eight months in prison.

A pretrial hearing was scheduled for Thursday. Apparently, the stress was too much for Hall to bear. On August 1st, he took his own life with one gunshot wound to his head. He was found by his wife in the backyard of their Clairmont Mesa home around 10 a.m., according to latimes.com.

SDPD Chief, William Lansdowne admitted the department was aware of the stress Hall was under after the drunk driving arrest, according to signonsandiego.com. He was utilizing the department’s Wellness Unit; his last appointment was the day before he took his life.

Criminal allegations, facing jail or prison time, and the possibility of losing your job can cause great stress for criminal defendants. If you have been charged with a crime and the stress has become unbearable, consider seeking help from mental health professionals.

CA Lawmakers Take Steps To Limit Money Made Off Impounded Vehicles At Drunk Driving Checkpoints

July 12, 2011 | The Law Offices of Susan L. Hartman

state capital.jpg San Diego and other California counties have been making millions of dollars off vehicle impounds at drunk driving checkpoints, according to 10news.com. 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. Most of the impounds are happening to drivers that are sober.

The DUI 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 Traffic Safety Administration (NHTSA) and they are to be used to address alcohol and drug issues on the roadways, not impounding vehicles.

As a result of the 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.

As the law currently stands, law enforcement can conduct a combined vehicle inspection and sobriety checkpoint to check for violations of motor vehicle exhaust standards in addition to DUI offenses. During a drunk driving roadblock, if an officer determines that a person is driving without ever being issued a driver’s license, they may be immediately arrested and their car impounded for 30 days. If the driver had a valid license at some point, but is driving through the sobriety checkpoint without a valid license, their vehicle may be impounded for a shorter period of time upon issuance of a notice to appear in court and the registered owner presents a valid license and proof of current registration.

AB-1389 states a combined vehicle inspection and sobriety checkpoint will no longer be allowed. Instead, local law enforcement would be allowed to establish a sobriety checkpoint program to identify drivers who are in violation of specified DUI offenses. Each motorist stopped would be detained so law enforcement may briefly question the driver and look for specified signs of intoxication. All provisions of DUI roadblocks under Ingersoll v. Palmer (1987) would be followed, including providing advanced notice of the general location within 48 hours of conducting the operation.

Further, AB-1389 does not allow for impounding vehicles at the checkpoints unless one of the specified conditions applies.

The existing law also authorizes law enforcement to immediately arrest a person and cause the removal and seizure of the vehicle they were operating if the officer determines the person was driving the vehicle while their driving privilege was suspended or revoked or without having been issued a license. A vehicle is subject to forfeiture as a nuisance if it is driven on a highway by a driver with a suspended or revoked license, or by an unlicensed driver. The vehicle is to be impounded for at least 30 days if its driver is unable to produce a valid driver’s license.

Under AB-353, the registered owner of the vehicle would be able to retrieve a vehicle that was impounded pursuant to a sobriety checkpoint program, the following day, upon a showing proof of a currently valid driver’s license and vehicle registration.

Recently, there have been allegations that drunken driving checkpoints and vehicle impound policies have been used to harass illegal immigrants, see caivn.org and 10news.com. Now, this audit shows local government and law enforcement agencies are actually profiting financially. Because of this, they should not be able to qualify for the grants which have an intended purpose of deterring drunk driving offenses.

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.