News, Prevention, & Studies

Misdemeanor DUI Arrest For Ditka’s Son, Charge Upgraded To Felony

May 20, 2011 | The Law Offices of Susan L. Hartman

A misdemeanor drunk driving charge was filed against Michael P. Ditka, 49, the son of former Chicago Bears Head Coach Mike Ditka, after an arrest on April 20th. However, that charge was upgraded to a felony because he has two prior DUI arrests, according to Lake County News-Sun.

Ditka was arrested in Highwood, Illinois, in 2004, and he was placed on probation. He was arrested again in Deerfield, Illinois, in 2008, and he was placed on probation after pleading guilty to reckless driving.

If convicted he faces a maximum of seven years in prison. He is currently free on bond.

If this drunk driving arrest was made in California, and the defendant only had two prior DUI convictions in the past ten years, this third DUI would only be charged as a misdemeanor, as long as it did not involve an injury accident and the driver did not commit another illegal act while driving under the influence.

Under California Vehicle Code Section 23550, if a person is convicted of drunk driving and the offense occurred within ten years of three or more separate DUI violations that resulted in convictions, that person shall be punished by imprisonment in the state prison, or in a county jail for not less than 180 days nor more than one year, and by a fine of not less than $390 nor more than $1,000.

Drunk Driving Charges For Vice Mayor of San Carlos

May 17, 2011 | The Law Offices of Susan L. Hartman

San Carlos’ Vice Mayor Andy Klein was arrested and charged with DUI in the early hours of May 13th, 2011, according to mercurynews.com.

Allegedly, Klein was parked on the exit ramp of northbound Interstate 280 at Edgewood Road when a San Mateo County sheriff’s deputy stopped thinking the parked car was disabled. After a brief discussion, the deputy believed Klein was under the influence so he called California Highway Patrol (CHP) to investigate.

Field sobriety tests were conducted and a preliminary alcohol screening (PAS) test was administered. Klein blew a .08 and he was subsequently arrested for DUI. He also provided a blood sample.

According to the San Mateo Daily Journal, Klein denied being under the influence, stating: “At no time did I feel that I was under the influence and would not be driving if I believed that I was unable to operate a vehicle responsibility.”

To be convicted, the prosecutor has to prove each element of the charged crime. In a DUI, (see CALCRIM 2110), they must show you were driving and while you were driving you were under the influence. A defense to drunk driving charges is the defendant was not driving.

In this case, the officer did not see Klein driving. He was pulled over at the time he was first approached by law enforcement. However, he may have admitted to driving and the prosecution will attempt to use that admission to prove that he was in fact driving the car just before he had contact with the officer.

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

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

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

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

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

DUI Charges For Passenger In Car?

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

A passenger in a vehicle was arrested for drunk driving where the driver was alleged to be intoxicated in Rutherford County, Tennessee. Glenee Taylor was arrested for allowing the driver, Parrish Harrell, to drive knowing he was intoxicated, according to wsmv.com.

Harrell was pulled over after he did not timely proceed through an intersection with a green light and then he crossed the center line a few times. A DUI investigation ensued and Harrell allegedly failed the field sobriety tests. He was subsequently charged with driving under the influence as was his passenger, Taylor.

In California, a passenger in a vehicle is not liable under the Vehicle or Penal Code for the actions of a drunk driver. In order for the person to be convicted under Vehicle Code Section 23152, the defendant had to drive a vehicle and when s/he drove, the defendant was under the influence of an alcoholic beverage and/or drug, or a combined influence of an alcoholic beverage and a drug, (see CALCRIM 2110).

Being a passenger alone would not warrant DUI charges for the passenger.

San Diego Officer Charged And Plead Not Guilty To Drunk Driving

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

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

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

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

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

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

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

Defective Breathalyzers, DUI Cases Could Be Dismissed Or Overturned

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

The Alco-Sensor V Breathalyzer, used by law enforcement as a preliminary alcohol screening test (PAS), was recently purchased and put into use in every law enforcement agency in Ventura County to replace the older Alco-Sensor IV model. However, the blood alcohol results from the newer model have been found to be erratic in tests taken from January 20th through March 31, 2011, and some devices have other defects as well.

All of these devices have been sent back to the manufacturer for further testing. Meanwhile, all Ventura County law enforcement agencies have resumed its use of the Alco-Sensor IV device.

So far, 294 alleged drunk driving cases have been identified where the Alco-Sensor V was used. There have been 157 guilty or no contest pleas, leaving 137 cases still pending.

Prosecutors claim they will not oppose a motion to withdraw a guilty or no contest plea if the Alco-Sensor V was “substantially relied upon” to prove the charges. Cases that are still pending will be dropped if this machine was the only method used to determine the blood alcohol content (BAC).

Often the PAS test is only one piece of evidence that is used to determine if you are under the influence for purposes of driving. Often, prosecutors will not just throw out cases they believe they can still prove with the mandatory breath or blood test that is taken after the arrest. You should fight any DUI charges that involve a PAS test using the defective Alco-Sensor V machine. Motions can be filed that may result in your case being reduced or even dismissed!

San Diego Officer Suspected Of Drunken Driving And Hit And Run

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

Another San Diego Police Officer, David Hall, is under investigation, according to 10news.com. This time for allegedly being involved in a hit-and-run crash while driving under the influence.

Hall is suspected of driving his GMC Yukon SUV into a Chevrolet Suburban on northbound Interstate 805 just north of Murray Ridge Road on February 22, 2011, at approximately 7:30 p.m. A CHP officer spotted Hall’s vehicle, which matched the description of the initial report, and followed him to his home. He took a breath test with a reported result of three times the legal limit.

The officer has not been arrested for drunken driving or hit and run; however, this matter is being investigated by the San Diego Police Department and the San Diego District Attorney’s Office.

An officer may arrest a person when the officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence, Penal Code Section 836. However, there are many exceptions to this “officer’s presence” requirement. Under California Vehicle Code Section 40300.5, a peace officer may arrest a person when the officer has reasonable cause to believe that person had been driving while under the influence and the person was involved in a traffic accident. It appears in this case that no one can identify Hall as the driver of the vehicle when the accident occurred, so this will be a tough case for the prosecution.

Ban Drinking and Driving Checkpoints?

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

One state is considering banning DUI checkpoints, according to boston.com. Rhode Island Representative Charlene Lima introduced a bill in the General Assembly to prohibit the police from conducting drunk driving checkpoints. Although the representative generally supports drunk driving laws, she believes this type of stop “smacks of a police state.” We agree.

Under the U.S. Supreme Court decision in City of Indianapolis v. Edmond, DUI checkpoints can be conducted for deterring crime, not for enforcing the laws. If the general interest in the checkpoint is crime control, the checkpoint violates the Fourth Amendment. The Fourth Amendment gives people the right to be free from unreasonable searches and seizures unless there is probable cause for the stop.

When the police conduct drunk driving checkpoints, they set up a roadblock and stop cars as they drive through regardless of the fact that there is no probable cause.

One of the first questions an officer asks is, “Have you been drinking?” Most people think they can talk their way out of the situation by saying things like, “Yes, I only had one beer,” or “Yes, I had a couple of drinks a few hours ago.” It is not to your advantage to tell the officer you had anything to drink that day, since that will be considered an admission of drinking and give the cop the probable cause needed to pull you into the secondary area for futher drunk driving investigation. right to remain silent.jpg

You do not have to answer this question. You have a right under the Fifth Amendment not to incriminate yourself. You also have a right to refuse participation in the field sobriety tests (FST’s) including the preliminary alcohol screening (PAS) breath test. Simply tell the officer you know your rights and you choose to remain silent and you will not participate in any of the FST’s. Do not help the officer build a case against you. They are not your friend.

However, as a licensed driver you are required to give either a breath or blood sample if you are arrested for drunk driving. If you refuse such a test, you will be forced to give a blood sample and the penalties you will face for drunk driving will be increased.

Drunk Driving Checkpoint Apps, Not Illegal And Should Not Be Banned

April 4, 2011 | The Law Offices of Susan L. Hartman

google.app.jpg The Attorney General of Maryland and Delaware are asking Google and Apple to discontinue applications for their mobile phones, the Android and iPhone respectfully, that show the location of DUI checkpoints, according to wmal.com.

Blackberry pulled its drunk driving checkpoint location application, PhantomALERT; however, many apps are still available through Google and Apple for a small fee, such as Checkpointer, Buzzed, and Checkpoint Wingman, (which also offers a free version).

There is nothing illegal about publishing this information. In fact, Ingersoll v. Palmer provided the criteria for law enforcement to follow to ensure the constitutionality of a DUI checkpoint. One such requirement was advanced publicity. People v. Banks has since stated that advanced publicity is not a requirement but one factor to be considered along with the other seven criteria. Therefore, these apps can actually assist law enforcement by providing such public notice.

It should also be noted that it is not illegal to avoid a roadblock. Law enforcement cannot lawfully stop a driver for going around a checkpoint as long as the driver is not doing anything unlawful or showing obvious signs of impairment.

SD Cop Investigated Drunk Drivers Then Requested Sexual Favors, Open DUI Cases Dismissed?

March 31, 2011 | The Law Offices of Susan L. Hartman

SDPD Arevalos.jpg San Diego Police Officer, Anthony Arevalos, was arrested and charged with 10 felony counts including sexual battery by restraint, receiving a bribe, assault and battery by an officer, and false imprisonment involving three alleged victims. The investigation continues and more charges may be filed as more than nine women may have been victimized by this cop, dating back to February 2010.

It is alleged that Arevalos would initiate a DUI investigation and then ask the women what they would be willing to do in order to have the charges go away. One woman gave the officer her underwear and another was taken to a 7-Eleven restroom where she was sexually assaulted.

Arevalos has plead not guilty and is out on $200,000 bail. The San Diego Police Department placed him on an unpaid suspension pending the outcome of this criminal matter. Arevalos faces more than 11 years in prison if convicted of the crimes currently charged.

So what does this mean for all the open drunk driving cases that involve this suspected rogue officer? They should be dismissed! After all, the officer’s credibility is directly at issue. His modus operandi (or M.O.) is to sexual assault during these types of investigations, calling into question the integrity of each and every DUI investigation he has performed. But, if they are not dismissed, it will be interesting to see if the San Diego City Attorney will put this officer on the stand to testify about how he investigates drunk driving cases.