San Diego DUI Lawyers Blog

Driving Under The Influence And The DMV Hearing

April 18, 2012 | The Law Offices of Susan L. Hartman

drunk caution.jpg San Diego law enforcement will issue a temporary driver’s license to a driver who is arrested for driving under the influence. That driver’s license gives you the right to continue driving for thirty days after the arrest with the same driving privileges and restrictions that you had prior to the DUI arrest. If your license was already expired, suspended, revoked, canceled, or denied, the temporary driver’s license does not allow you to drive.

If you do nothing, your driving privilege will be suspended after the thirty day period. However, if you, or your attorney, call the Department of Motor Vehicles (DMV) Driver Safety Office and request an Administrative Per Se Hearing within ten days of the drunk driving arrest, the license suspension will be stayed pending the outcome of the DMV hearing. You have a right to legal counsel at this hearing; and you do not have to be present if your attorney appears on your behalf.

After the DUI arrest, the arresting officer submits his police report and the DMV report, the DS367, to the DMV. The hearing officer, who acts as the prosecutor and the judge, has to determine by a preponderance of the evidence the following:

Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Section 23152, 23153, or 23154 of the California Vehicle Code?
Were you lawfully detained while on DUI probation or lawfully arrested?
Were you driving a motor vehicle when you had either:

.01% Blood Alcohol Content, or BAC, or more by weight of alcohol while on DUI probation;
.04% BAC or more by weight of alcohol while driving a commercial vehicle; or,
.08% BAC or more by weight of alcohol?

In addition, the hearing officer decides issues of refusal to submit to or a failure to complete a chemical test. In those cases, the hearing officer must find by a preponderance of the evidence:

Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of the California Vehicle Code Sections 23152, 23153, or 23154?
Were you lawfully detained while on DUI probation, or lawfully arrested?
Were you told that your driving privilege would be suspended, or revoked for one, two, or three years if you refused to submit to, or failed to complete a chemical test?
Did you refuse to submit to, or fail to complete, a chemical test, or PAS test (if on DUI Probation) after being requested to do so by a peace officer?

After the hearing, if the DMV finds in your favor, your driving privileges will be restored. Keep in mind that if you plead guilty or are convicted later in court on the drunk driving charge, the court will impose a license suspension.

If the DMV finds against you, you are over 21, you took a required chemical test, and it’s your first DUI, you will have your license suspended for four months. However, after thirty days, you can ask for a restricted license which will allow you to drive to, from, and during the course of your employment, and to and from any DUI programs. The license restriction will continue for a period of four months, making the total time you do not have your full driving privileges to be five months.

The driver’s license suspension and restriction time is increased depending on several factors. For more information regarding your drunk driving case and the DMV and court implications, contact the exclusively DUI defense firm, The Law Offices of Susan L. Hartman.

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.

Breath Or Blood Test Results Below A .08%, But Still Charged With DUI?

April 8, 2012 | The Law Offices of Susan L. Hartman

8 Ball.jpg San Diego law enforcement pulled you over on suspicion of drunk driving. They conducted a DUI investigation and then arrested you for driving under the influence. The police should have advised you that you must submit to a breath or a blood test per the implied consent law.

If your test came back below a .08 percent blood-alcohol content, or BAC, assuming there were no drugs in your system at the time, you may believe that you will not be charged with driving under the influence. However, the prosecutor may still file charges against you.

Under California law, it is unlawful to drive a vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. This is commonly called the “a” count because the California Penal Code Section for this charge is 23152(a).
However, people are often more familiar with the “b” count under California Vehicle Code Section 23152. This section states, “It is unlawful for any person who has a 0.08 percent or more, by weight, of alcohol in her or her blood to drive a vehicle.”

Under the California Jury Instructions, which lay out exactly what the prosecuting agency must prove, #2110 states: A person is under the influence if, as a result of drinking an alcoholic beverage, 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.

Therefore, the exact blood-alcohol content is irrelevant. As long as the prosecutor believes he or she can prove that the driver’s mental or physical abilities were impaired, and the driver was not able to drive the vehicle with the caution of a sober person, using ordinary care, under similar circumstances, the prosecutor could charge you with drunk driving. And, if you choose not to plead guilty to the DUI and instead have a trial, the jury can convict you of a DUI even though your BAC was under the legal limit of a .08%.

So if you are charged with drunk driving, you owe it to yourself to hire an exclusively DUI defense firm that will aggressively defend your case. Do not just plead guilty whether your blood alcohol content (BAC) was below or above the legal limit of .08%. There may still be defenses in your case that can lead to reduced charges with less punishment, or even a dismissal!

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.

Breath Test Then Admonishment, Should I Take The Blood Test Too?

March 31, 2012 | The Law Offices of Susan L. Hartman

Drunk driving investigations often include the officer asking the suspect if they will submit a breath test in the field. This test is called a PAS, or preliminary alcohol screening, test which measures your blood-alcohol content. It is another field sobriety test, or FST, that the officer uses as a tool to help determine if the driver is under the influence of alcohol.

If you are not on probation for a prior DUI matter, this test is optional. If you are on DUI probation, a standard term of probation is for the probationer to submit to any test at the request of a peace officer for detection of alcohol and/or drugs. If you refuse such a test, you will be in violation of your probation terms.

It is not advisable for anyone who is not on DUI probation to submit to the PAS test or any other FST’s. The officer is simply building a case against you.

Once an officer has probable cause to arrest you for drunk driving, you will be asked to submit to a breath, blood, or urine test. Under California law, (Vehicle Code Section 23612), licensed drivers have given “implied consent” to provide a chemical test if lawfully arrested. Therefore, you must submit to one of the tests, otherwise it will be considered a refusal and the officer will forcibly take a blood sample from you. There are additional penalties with the California Department of Motor Vehicles and in the California courts for refusing such a test.

In San Diego County, if you choose to do the breath test, it is often done on an Intoxilyzer machine.

After the test is completed, the officer must give you an admonishment called a Trombetta Admonishment. This advises the suspect that their breath sample is not retained and therefore cannot be retested. The defendant is then offered an additional blood test which is stored at the crime lab. The defense can later retest that sample at an independent lab to test its accuracy. Taking that second test could backfire because there are now two separate tests that may confirm the same result. It is best to just choose one test. Then the defense can attack the testing process, procedures, and results of the one chosen.

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.

DUI Probation Violated, Warrant Issued, What Happens Now?

March 22, 2012 | The Law Offices of Susan L. Hartman

During a driving under the influence sentencing hearing, the court may offer to put the defendant on probation. (The defendant does not have to agree to probation; however, it lessens the amount of time spent in jail if any time has to be served at all.)

The judge may impose a sentence but then suspend the execution of that sentence. For instance, the defendant may be sentenced to six months in jail, but the execution of that sentence is suspended until ordered. In those cases, if the defendant violates probation and it is revoked, the judge has authority to deny reinstating probation and execute the six month sentence. Thus the defendant will be required to serve out the six months in jail. However, if the probationer successfully completes probation, the judge will not order the sentence to be executed and he or she will not have to serve any of that time in jail.

In misdemeanor DUI cases, most commonly the judge suspends the imposition of sentence, putting the defendant on probation without giving an indicated sentence. By doing this, if the probationer violates the terms of probation, the judge can ultimately sentence him or her to the maximum jail sentence allowed for that particular crime. In misdemeanor drunk driving cases, the maximum jail sentence imposed for a first DUI is 6 months. For subsequent misdemeanor DUI cases, the maximum jail sentence is one year. (Note, a fourth drunk driving conviction is considered a felony and felony DUI sentencing rules apply.)

Most San Diego judges sentence defendants to probation with standard terms and conditions. These terms and conditions include: 1.) Violate no laws; 2.) Do not drive with a measurable amount of alcohol/drugs in the blood; 3.) Submit to any test at the request of a peace officer for detection of alcohol/drugs in blood; 4.) Violate no laws regarding driving a motor vehicle while under the influence or in the possession of alcohol, drugs, or both; and, 5.) Do not drive without a valid driver’s license and liability insurance.

In addition, the defendant often has to complete an alcohol program, attend a MADD panel class, and pay fines/fees. Failure to do any of the above can result in a probation violation. The court, on its own motion, may revoke probation. If the probationer is out of custody, the court usually sends a notice with a time and date to appear. At that hearing, the probationer may not contest the probation violation and the judge will immediately address the violation. If the violation is contested, a date for a probation revocation hearing is set.

If the probationer does not show up for the initial prerevocation hearing, the court will issue a bench warrant for the probationer’s arrest. The warrant will remain until addressed. If the court preliminarily revoked probation, the probation term is tolled, meaning it’s not running; therefore, the probationer should go to court as soon as possible.

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.

Drunk Driving Cases: What Must The Defense Turn Over To The Prosecutor?

March 16, 2012 | The Law Offices of Susan L. Hartman

DUI discovery is the same as in all other criminal cases. There are reciprocal discovery rules, meaning that both the prosecutor and the defense are entitled to discovery.

The defense discovery is mandated by California Penal Code Section 1054.3. Under this code, the defense must disclose, “The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments or comparisons which the defendant intends to offer in evidence at the trial.”

Although both the prosecutor and defense must abide by these rules, the defense is often in a different position than the prosecutor. The prosecutor has the burden to prove its case beyond a reasonable doubt and the defense is not required to prove anything. The defendant’s drunk driving attorney may not have an affirmative defense, but instead, the defense may call witnesses to impeach the evidence of the prosecutor; thus, the defense counsel may not know it will call a particular witness until after the testimony of the witnesses in the prosecution’s case-in-chief. Once counsel forms the intent to call a witness, Penal Code Section 1054.3 applies.

In addition, the defense must also disclose, “Any real evidence which the defendant intends to offer in evidence at the trial.”

Discovery is vital in the preparation of a drunk driving case. The defendant has a right to know the evidence the prosecuting authority has against them. This information allows the defendant to make an educated decision on how to proceed with their case. They may want to accept the prosecutor or judge’s offer and plead guilty. They may decide to file motions to try to get the case dismissed or limit the evidence that may be used against them in trial. Or, after review of all the evidence, it may become clear that the defendant should take their drunk driving matter to trial.

In the same respect, the prosecutor may review the discovery and decide to dismiss the case, file additional charges, give an offer with more or less penalties, or decide to proceed with trial.

A skilled, DUI defense attorney will request and review all the discovery in your matter, negotiate with the prosecutor on your behalf, and advise you on how best to proceed with your case. If a trial is your best option, the attorney will provide discovery as required under the penal code section discussed above.

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.

Driving Under The Influence Discovery For The Defense

March 9, 2012 | The Law Offices of Susan L. Hartman

You have been arrested for drunk driving. The big question when facing your arraignment hearing is whether you should just plead guilty. The answer for most DUI defendants is no.

At arraignment, the prosecutor usually does not have all the discovery to turn over to the defendant or the defendant’s attorney. The discovery is the evidence including the police report, statements made by the defendant and witnesses, photographs, real physical evidence, test results, among other things. Without being able to review all the evidence, you are not able to form an educated decision about accepting the prosecutor’s offer, pleading guilty, filing motions, or taking your case to trial. Most likely, your best option at this stage is to enter a plea of not guilty and let your attorney start the discovery process.

Discovery is governed by the federal and state constitutions and state statutes. In California, those statutes are found in Penal Code Section 1054. California has reciprocal discovery rules, meaning both the prosecutor and the defense are entitled to discovery. This is true in both misdemeanor and felony matters. However, this article only deals with the discovery that the prosecutor must turn over to the defense.

Between the arraignment and the readiness hearing, the defendant’s lawyer requests discovery. Often this is done informally by orally requesting such in court at the arraignment or by a written informal discovery request that is sent directly to the prosecuting agency. The prosecutor is required to turn over:

The names and addresses of people the prosecutor intends to call as witnesses at trial;
Statement made by the defendant;
All real evidence;
Felony convictions of witnesses whose credibility is at issue;
Relevant written and recorded statements and any reports of such statements of witnesses the prosecutor intends to call at trial;
Evidence favorable to the defendant; and,
Evidence that a third party was implicated.

If the prosecutor fails to comply with the informal discovery request, the defense attorney may file a formal discovery motion with the court to compel the prosecutor to comply with the informal request.

In addition to informal discovery, there are several motions that a drunk driving defense lawyer may file to obtain additional discovery. These include: 1.) A Pitchess Motion to discover the personnel files of the police officers that were involved in your case; 2.) Brady Motions to discover favorable evidence to the accused; and, 3.) Trombetta-Youngblood Motions for sanctions for the destruction of favorable evidence, (see California v. Trombetta and Arizona v. Youngblood).

If you or someone you know is arrested for driving under the influence, you owe it to yourself to hire an exclusively DUI defense firm that will effectively request and review all discovery and then advise you on how to proceed in your case. Remember, it’s the prosecutor who has to prove you are guilty of DUI, you do not have to prove you are innocent!

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.

DUI Checkpoints Banned? Why California Lawmakers Should Follow The Utah House Of Representatives.

February 29, 2012 | The Law Offices of Susan L. Hartman

DUI checkpoints may be banned in Utah in the future. Last week the Utah House of Representatives voted to stop police agencies from conducting sobriety checkpoints because they invade people’s privacy and allow officers to stop vehicles without probable cause, according to stgeorgeutah.com. The next stop for this bill is the state senate; however, its passage will be challenged by the opposition including many representatives, residents, and, of course, Mother’s Against Drunk Driving (MADD).

The United States Supreme Court stated in 1990 that the state has “a grave and legitimate interest” in stopping drunk drivers. That court ruled that DUI roadblocks did not violate a person’s Fourth Amendment rights, (see Michigan Department of State Police v. Sitz).

In California, the California Supreme Court set out criteria to determine if the DUI checkpoint was conducted in a constitutional fashion, (see Ingersoll v. Palmer).

In conducting a drunk driving checkpoint, a law enforcement agency sets up a roadblock in an area where a high rate of alcohol related arrests and accidents happen. The area must be clearly marked off with warning signs and proper lighting. The officers are in full uniform and their vehicles are clearly visible. The time and duration of the operation is decided by effectiveness and safety. The intrusiveness to each motorist should be minimal. There should be a random formula for contacting a driver and the detention should brief. The contact should be just long enough to look for signs of impairment. If impairment is suspected, the officer can continue the investigation as they then have reasonable suspicion to detain.

If the driver is sent to the secondary area for further investigation, they are often asked to get out of their car. The officer then asks pre-field sobriety test questions such as, “What did you have to drink?” “When did you last eat?” “What time was your last drink?” “Where are you going?”
The officer may also ask the driver to perform a series of field sobriety tests such as the walk and turn test, the one leg stand test, and the finger to nose test. The officer may even ask the driver to do a preliminary alcohol screening (PAS) test. This is a breath test using a portable breath test machine.

Drivers should be aware that none of the field sobriety tests, including the PAS test and the pre-field sobriety test questions, have to be answered or performed. [However, if arrested, you must submit to either a blood or breath test.] During the investigation, the officer is trying to establish probable cause to arrest you for driving while intoxicated. Doing any of these things helps the officer in their investigation and how you perform will be used against you in court if you are eventually arrested.

Be advised, if you do refuse to answer questions or perform the tests, often the officer will arrest you and you will be booked into jail.

These investigations are different than other criminal investigation. In other matters, officers are not allowed to detain a person unless they have reasonable suspicion that a crime has occurred or is about to occur. In drunk driving checkpoint cases, the officer detains a driver just for driving through the checkpoint without any behaviors that would indicate a person in under the influence for purposes of driving. Although many people agree with checkpoints and there is a lot of political pressure to continue their operation, the courts should overturn precedent and find that checkpoints do amount to an invasion of privacy and they do violate a person’s Fourth Amendment rights.

A constitutional way to combat drunk driving should be employed such as saturation patrols where law enforcement actively looks for people who appear to be DUI.

The above blog entry 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.

Drunk Driving Arraignment, Should I Just Plead Guilty?

February 24, 2012 | The Law Offices of Susan L. Hartman

Once arrested for a misdemeanor or felony DUI, your first appearance in court is called the arraignment. At the arraignment hearing, you are informed of the charges against you, given a copy of the complaint, and you are given an opportunity to enter a plea of guilty or not guilty. The judge will also advise you of your rights, including your constitutional right to counsel. If you are indigent, and unable to pay for a DUI defense attorney, the court will appoint an attorney to handle your drunk driving case. Often your attorney will be employed by the local public defender’s office.

If you are charged with misdemeanor drunk driving and you hire an attorney to represent you, the arraignment is often done by fax or at the misdemeanor business counter at the courthouse. The defendant does not have to appear in court. If you are charged with felony drunk driving, you must be present in court at the arraignment even if you have retained a lawyer.

If you decide to attend your arraignment without a lawyer, and you get to court and change your mind, you can simply ask the court to continue your arraignment so that you have time to do so. In a misdemeanor case, the court will allow no more than a 7 day continuance for you to retain an attorney. If you are charged with a felony, the court will give you more than 1 day to obtain legal counsel. However, if the defendant has been charged with a misdemeanor under the vehicle code, a continuance of at least 5 days will be granted, (see California Vehicle Code Section 40306).

At the arraignment hearing, the defendant will be given an opportunity to enter a plea. The prosecuting authority, either a deputy district attorney or deputy city attorney, depending on where the case is filed, will give you an offer on the case. If you want to accept the offer and plead guilty you can do so. However, beware of accepting an offer at this stage! Often, the prosecutor will not have all the discovery to provide to you or your counsel. Therefore, you will not know the evidence they have against you for you to make an informed decision on whether to accept the offer. Often the offers at arraignment are generous, as the prosecutor has incentive to get people to plead guilty early in the case in order to minimize the cases that are set for follow-up hearings.

As an exclusively DUI defense attorney, I usually do not advise my clients to plead guilty until I am able to evaluate all the evidence the prosecutor has in your case. Often there are problems with drunk driving cases and a motion or trial can lead to a dismissal, a better offer with lesser charges and consequences, or an acquittal. So, even if you were over the legal limit of .08% blood-alcohol concentration, it is often in your best interest to enter a plea of not guilty, request all the discovery, evaluate the case, and then make an informed decision on what steps to take.

The above blog entry is by no means all-inclusive and is not intended as legal advice. Laws may change and may not apply to your case. For the latest information or to get specific legal advice in your matter, speak to a DUI attorney in your area.

San Diego Drunk Driving News For This Week

February 16, 2012 | The Law Offices of Susan L. Hartman

news.2.jpg San Diego County has had many DUI stories in the news this past week. First, ex-San Diego Police Officer Anthony Arevalos, was sentenced for his criminal acts preying on young women in the Gaslamp Quarter of downtown San Diego. (See past blog posts regarding Arevalos’ case.) While on duty, Arevalos pulled over women drivers he suspected of driving under the influence and then offered to let them go in exchange for sexual favors.

He was arrested in March 2011 and then charged in April of 2011. Subsequently, he was terminated from his employment as an officer with the San Diego Police Department. In November 2011, a jury convicted him of eight felonies and four misdemeanors. He faced a maximum sentence of nine years and eight months in prison, but the judge gave him eight years and eight months. In addition, he will have to register as a sex offender for life, according to washingtonpost.com.

In a Vista courtroom, Brandon Morris, 23, plead not guilty to drunk driving charges after driving his pickup truck into a home in Escondido on February 9th. He is facing four years in prison if convicted, according to the nctimes.com. He is currently being held on $403,000 bail. If he does post bail, he must abstain from alcohol as a condition of his release. This incident happened while Morris was on probation for another driving under the influence matter he plead guilty to last year.

After a Mission Valley crash that killed one and left three others injured on Sunday night, the driver, Ashley Maya, 21, plead not guilty to gross vehicular manslaughter while intoxicated, DUI causing injury, and drunk driving with a blood-alcohol level, or BAC, of .08% or greater. A Deputy District Attorney commented that Maya’s BAC is alleged to be a .12, according to 10news.com. If convicted, she faces 10 years in prison.

In Kearney Mesa, a suspected drunk driver hit a parked big rig on February 15th, according to utsandiego.com. The driver was hospitalized with serious injuries.

San Diego Police conducted a drunk driving checkpoint and saturation patrol in the 4100 block of El Cajon on February 4th, according to scoopsandiego.com. Out of 971 drivers that went through the roadblock, 809 were contacted, 10 were detained for further investigation, and 1 DUI arrest was made. The saturation patrol netted 4 driving under the influence arrests.

California DUI Arrest With Out-Of-State Driver’s License, What Happens?

February 10, 2012 | The Law Offices of Susan L. Hartman

MA License.jpg If you were arrested in California for drunk driving, and you have an out-of-state driver’s license, you are subject to the same two processes that a California resident with a California driver’s license faces: The administrative process through the Department of Motor Vehicles (DMV) and the criminal process through the courts. In addition, you may face additional penalties in your home state.

The officer in California cannot take your out-of-state license. However, they typically give you notice that your privilege to drive in California will be suspended 30 days after the arrest date.

The DMV is immediately notified of your arrest and you only have ten days from the date of arrest to request an administrative per se, or APS, hearing challenging the suspension. If you do not schedule the APS hearing within those 10 days, your driving privileges will be suspended 30 days after the arrest. If you request a hearing, the suspension is stayed or postponed pending the outcome of the hearing.

If you fail to request a hearing or you do not prevail at the hearing, your privilege to drive in California will be suspended. The suspension period will depend on how many other prior drunk driving convictions you have on your DMV record.

So your privilege to drive in California is suspended, how does that affect your right to drive elsewhere? Well, the Interstate Drivers License Compact, or DLC, requires all states that are a part of it to share driving history with other states. The idea is for each driver to have one license and one record. California is a part of the DLC, so they report DUI’s to the state where the driver is licensed, except for the four states that are not part of the compact, (Michigan, Wisconsin, Georgia, and Massachusetts).

Once your home state receives notice of the drunk driving arrest, they may take action against your license. What penalty you will have depends on your specific state. Some states take action when California suspends your license. Others wait to see if you are convicted in court. Some states only penalize the driver if the California statute is the same or similar to the driving under the influence statute in the home state.

Separate from the administrative process with the DMV, the court process also involves the possible consequence of a license suspension. If you are able to get your matter dismissed or your charges reduced, you may not have your license suspended by the court and your home state may not take action against you.

If you have been arrested for DUI in California and you have an out-of-state license, it is imperative that you seek an exclusively, DUI defense firm that can assist you in trying to limit the negative consequences in California and your home state.

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.