News, Prevention, & Studies

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,

Drunk Driver Avoids Mandatory Prison Term As Prosecutor Fails To Prove Prior DUI’s

June 30, 2011 | The Law Offices of Susan L. Hartman

An alleged five-time drunk driver avoided the mandatory two year prison sentence, according to thesunchronical.com. Brian Hand, 55, of New Hampshire, was found guilty of DUI in a Attleboro District Court in Massachusetts last week. However, the jury did not hear evidence regarding the defendant’s alleged priors.

In a hearing on Monday, the judge ruled the prosecutors failed to prove the defendant was the person in some of the Registry of Motor Vehicle documents that were presented to the court and they lacked proper certification. Hand allegedly had two prior DUI convictions in New Hampshire and two others in Massachusetts before this current conviction. The court found that only two prior driving under the influence convictions were proved.

The prosecutor asked for the maximum 2 1/2 year jail term but instead Hand was ordered to serve only six months in jail, with the remaining 2 years suspended for 3 years of probation.

In every criminal case the burden of proof is on the prosecutor to prove each element of each charged crime and any special allegations or enhancements beyond a reasonable doubt, (see California Criminal Jury Instructions, CALCRIM, 103). If they fail to do so, the jury/court must find the defendant not guilty.

Because the burden of proof rests on the prosecution, the defendant is not required to prove their innocence. This right is guaranteed by the Fifth Amendment of the U.S. Constitution. Therefore, the defense does not have to cross examine witnesses, call any of their own witnesses, or present any evidence. All the defendant has to do is argue that the prosecution failed to prove its case beyond a reasonable doubt. If the trier of fact finds that the burden has not been met, the defendant is entitled to an acquittal under California Penal Code Section 1096.

SD University Study Finds BAC Below .08% Can Still Impair Drivers

June 27, 2011 | The Law Offices of Susan L. Hartman

UC San Diego sociologist David Phillips and coauthor Kimberly M. Brewer completed a study comparing blood alcohol content (BAC) and injury and death-related vehicle accidents, according to nbcbayarea.com. The results were published in the journal “Addiction.”

The study examined official data from the Fatality Analysis Reporting System (FARS). The dataset allegedly included information on all 1,495,667 persons who were involved in fatal car accidents in the United States from 1994 until 2008.

According to the article, the study found that blood-alcohol levels below the legal limit of 0.08 percent are still associated with injury and death-related vehicle accidents. They believe that even one drink can impair a driver enough to cause a fatal or severe accident. Phillips believed three mechanisms help explain the findings: “Compared with sober drivers, buzzed drivers are more likely to speed, more likely to be improperly seat-belted and more likely to drive the striking vehicle, all of which are associated with greater severity.”

San Diego’s MADD, Mother’s Against Drunk Driving, executive director Eloisa Orozco commented on the results stating, “If you’re going to drink at all, don’t drive.”

The sociologist commented that he hopes “our study might influence not only U.S. legislators, but also foreign legislators, in providing empirical evidence for lowering the legal BAC even more.” This is not necessary in California because there are two code sections that can be charged, California Vehicle Code Section 23152(a) and (b).

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

This is sometimes referred to as California’s DUI “per se” rule. The law presumes that if your BAC is 0.08% or greater at the time of your blood or breath test, you are guilty of DUI, regardless of whether you were actually under the influence of alcohol and/or drugs at the time of driving.

Can you still fight your DUI case if your BAC was .08 or higher? Absolutely! There are many defenses, even to the (b) count. Speak to a DUI defense attorney to find out about all your rights and defenses to your case.

If your BAC was below a .08, but law enforcement believed you were impaired while driving, you can be charged with VC Section 23152(a) , which 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.”

Whether a person is under the influence for purposes of driving is a matter of fact. Current California law already accounts for the fact that most people are under the influence if there BAC is .08 or greater at the time of driving. Others are not. Some are under the influence at a lower blood alcohol content. That is why there is an (a) count under the code.

DUI For Being Under The Influence In A Horse-Drawn Buggy?

June 24, 2011 | The Law Offices of Susan L. Hartman

horse and buggy.jpg Can being under the influence while in control of the reins of a horse-drawn buggy subject you to the drunk driving laws in California? Yes, it may!

In Pennsylanvia, two people were allegedly in control of the reins of a horse-drawn buggy that ended up in the path of a car causing an accident, according to cumberlink.com. The people involved were not hurt; however, the horse suffered nonlife-threatening injuries. Both “drivers” were arrested for driving under the influence.

If this accident occured in California, the “driver” of the buggy could be charged with drunk driving. Under California Vehicle Code Section 21050, ” Every person riding or driving an animal upon a highway has all of the rights and is subject to all of the duties applicable to the driver of a vehicle by this division…”

Under the California Vehicle Code Section 670, a vehicle is defined as 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 law enforcement and prosecutors are always trying to expand the meaning of vehicle and highway, making more acts illegal under the DUI laws. However, any drunk driving case involving a horse or other animal should be challenged. Common sense says an animal is not a vehicle!

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.

San Diego City Attorney Dismisses 15 Driving Under The Influence Cases

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

San Diego City Attorney dismissed 15 drunk driving cases that involved former San Diego police officer, Anthony Arevalos, according to 760kfmb.com.

Arevalos, an 18 year veteran of the department, was arrested and charged with 18 felony counts, including false imprisonment, assault under the color of authority, sexual battery by restraint, and receiving a bribe for separate traffic stops between 2009 and 2011. The San Diego County District Attorney’s office anticipates filing more charges against him, bringing the total number of victims from six to eight, as reported by signonsandiego.com. case dismissed.jpg In 14 of the dismissed cases, it was alleged in the complaints that the blood alcohol level (BAC) of the defendants exceeded the legal limit of .08%. In the 15th case, the defendant was under 21 and her BAC was alleged to be .05%.

In California, under Vehicle Code section 23136, it is unlawful for a person under the age of 21 years who has a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test, to drive a vehicle. This is a zero tolerance law. If the under 21 driver submitted to a preliminary alcohol screening test (PAS), and the BAC was .01 percent or greater, their driving privilege will be suspended for one year.

Three other DUI cases involving Arevalos were not dismissed because the City Attorney did not need the former San Diego officer’s testimony to prove its case.

[This is a follow-up story previously blogged about on March 31st, 2011, on this site. See SD Cop Investigated Drunk Drivers Then Requested Sexual Favors, Open DUI Cases Dismissed?]

Drunk Driving Checkpoint Apps Banned By Apple

June 8, 2011 | The Law Offices of Susan L. Hartman

DUI checkpoints have been publically announced on apps available for Apple, Google, and RIM (Blackberry) cell phones. In a prior drunk driving blog posting, we announced that some U.S. Senators and State Attorney Generals have asked these companies to stop publishing this information to the public.

While Google and RIM’s guidelines remain unchanged, Apple recently announced new App Store Review Guidelines for their iOS-based devices, according to cnet.com. Section 22.8 specifically states “apps which contain DUI checkpoints that are not published by law enforcement agencies, or encourage and enable drunk driving, will be rejected.”

The ban only covers those checkpoints that are unpublished by law enforcement. In California you can search the law enforcement websites to find out when and where checkpoints will be conducted. If you want to know if there is a DUI checkpoint scheduled in San Diego and you don’t have an app for that on your cell phone, check the San Diego Police Department, the San Diego Sheriff’s Department, CHP, and other local law enforcement websites such as El Cajon Police, Chula Vista Police, National City Police, and Oceanside Police.

DUI Breath Test Machine, The Intoxilyzer 8000, Challenged In Court

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

Intoxilyzer 8000.jpg San Diego Police Department uses the Intoxilyzer 8000 to test the breath of suspected drunk drivers after they have been arrested. Not only are these tests used in San Diego and in other cities across California, but in other states such as Arizona, Florida, and Ohio.

Ohio is now challenging the admissibility of the results of the Intoxilyzer 8000 in an Athens County Municipal Court, according to athensnews.com. An evidentiary hearing is being held in one case to determine if the machine’s results are accurate, reliable, and therefore admissible.

Thomas E. Workman, a Massachusetts attorney who also has a master’s degree in electrical engineering, testified at the hearing. He said the data suggested some officers may be ignoring repeated failure results that should indicate they need to pull the machine out of service. Instead they are doing multiple tests until they get usable results.

He also suggested that the machine’s design and components make it more prone than other testers to error. It may misreport something else as alcohol, making the test results higher than the actual blood alcohol content of the subject. Heat, humidity, and radio interference can also affect the accuracy.

If the results of the Intoxilyzer 8000 are admitted into evidence and they are inaccurate unjust drunk driving convictions may result. If the Ohio courts determine that the Intoxilyzer 8000 test results are inaccurate, unreliable, and not inadmissible, other states such as California should also challenge the admissibility of these results.

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“.]