Susan L. Hartman is licensed to practice law in California and Massachusetts
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The first thing to address is that there are two separate actions pending once you are arrested for drunk driving. One is the administrative portion through the Department of Motor Vehicles, or DMV, and the other is the court process. Although these two processes are separate and distinct, some of the rules and laws interact and influence the other.

For instance, if you requested a DMV administrative per se hearing to challenge the suspension of your license and you lost, or if you failed to request a hearing and your license was automatically suspended 30 days after the arrest, a Helmandollar plea in court can help you get your license back.

So, what is a Helmandollar plea? Under Helmandollar v. Department of Motor Vehicles, the defendant pleads guilty or no contest to a dry or wet reckless charge. Immediately after there is a bench trial, (a trial before a judge without a jury), on California Vehicle Code Section 23152(b). The trial is based on stipulated facts between defense counsel and the prosecutor, thus the prosecutor agrees not to put on any evidence about the blood-alcohol content, or BAC. The court then finds the defendant not guilty or acquitted of the (b) count.

The defense counsel then requests a certified copy of the court minutes showing the acquittal and forwards it onto the DMV’s mandatory actions unit in Sacramento. The court’s findings are binding on the DMV and the licensee is entitled to have the conviction on the DMV record set-aside.

The license suspension and DMV conviction is set-aside pursuant to California Vehicle Code Section 13353.2(e), which states, “If a person is acquitted of criminal charges relating to a determination of facts under [the administrative per se law]…the department shall immediately reinstate the person’s privilege to operate a motor vehicle.” (Note, this does not include a suspension due to a refusal to take a chemical test.)

The court and the prosecuting authority must agree to such a plea which makes it very difficult to get. Often one or both of them do not want to help the defendant get his or her license back and will refuse such a request for this type of plea. However, if you cannot afford to have a DUI on your driving record, this is an option that can be explored by a driving under the influence defense attorney in negotiating with the prosecutor.

The above summary on Helmandollar pleas is by no means all-inclusive and is not legal advice. Laws may have changed since our last update. For information and advice on the specific facts and laws that pertain to your driving under the influence case, contact a DUI attorney in your area.

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suspended dl.jpgIf you are arrested for driving under the influence in San Diego County, your license is usually taken by law enforcement and you are given a temporary driver’s license. The temporary license allows you to continue to drive with the same restrictions, classifications, and endorsements that your original California driver’s license had. Make sure you sign the document and carry it with you when you drive. The temporary license is valid for thirty days after the DUI arrest.

After the thirty days, your license is automatically suspended unless you contact the Department of Motor Vehicles, DMV, Driver Safety Office within 10 days from the date of arrest to schedule an administrative per se hearing. This hearing with be telephonic unless an in-person hearing is requested. By requesting this hearing, the DMV will put a stay on the suspension of your license until a decision has been made on your matter, unless you request otherwise. A stay means you will be able to continue to drive and often a second temporary license with an extended date will be mailed to the driver.

After the administrative per se hearing, the DMV will mail the Notification of Findings and Decision with the decision to either end the stay on the license suspension, thus beginning the suspension period*, or set aside the suspension, thus giving back the driver’s license.

If the DMV’s findings end the stay, the driver has 15 days from the effective date of the notice to request a Departmental Review of the findings. This request must be in writing, addressed to the Driver Safety Office where the hearing was conducted, and received and date stamped by the DMV by the statutory date. In addition, the request must include a fee of $120. No stay on the suspension will be issued pending review; therefore, the license is suspended as of the date noted in the notification.

Often these reviews end with a confirmation of the hearing officer’s decision. However, the matter may be sent back to the hearing officer to clean up any issues, still resulting in a license suspension. In a few instances, the DMV review board will find that the hearing officer acted outside his or her authority and set aside the suspension, returning the license to the driver.

If the DMV confirms the hearing officer’s findings and decision after the Departmental Review, the licensee may appeal that decision by filing a Writ of Mandamus with the courts. Under California Vehicle Code Section 14401, the driver has 90 days from the date the order was noticed to bring an action in the court to review the administrative agency’s decision.

This code section specifically requires all administrative appeals be final before filing a petition in the courts; however, since the license suspension is not stayed pending the Departmental Review, the driver may consider filing a writ without the review or simultaneously with the review.

*The suspension time is determined by factors including how many prior DUI’s the driver has, if a chemical test was refused, and the age of the driver.

The above summary of the DMV’s Departmental Review and writ procedures are by no means all-inclusive and is not legal advice. Laws may have changed since our last update and this article may not apply to your case. For the latest information on this, or any other DUI matter, contact an exclusively DUI defense attorney to find out more information on your individual case.

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When a DUI defendant pleads guilty or is found guilty after a trial, the judge may put the defendant on probation as part of the sentence. Probation is “the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer,” per California Penal Code Section 1203(a). In other words, the defendant is released into the community with certain terms or conditions that must be fulfilled.

In misdemeanor drunk driving cases, the judge has the authority to grant probation without referring the defendant to a probation officer. This means the probationer reports directly to the court, not to a probation officer. This is often called court probation, summary probation, or informal probation.

A judge has discretion to impose any reasonable terms of probation that are reasonably related to the underlying offense. However, the standard terms and conditions on a first time, misdemeanor drunk driving conviction in San Diego County include, but are not limited to: 1.) Paying the fines and fees to the court; 2.) Enrolling and completing an alcohol program per the recommendation of the SAAU Unit; 3.) Not driving with a measureable amount of alcohol or drugs in the system; 4.) Submitting to a drug or alcohol test at the request of law enforcement; 5.) Not violating the law; 6.) Public work service; and, 7.) Attending a MADD panel class.

In many misdemeanor matters, probation is a three year term. San Diego Courts commonly order five years of probation on drunk driving cases. Within that period of time, if a probationer fails to comply with any of the specific terms of his or her probation, the judge will revoke the probation and the clock will stop running on the probation. The probationer will be notified either by a letter or a warrant may be issued, ordering the probationer to come before the judge.

On the day of court, the probationer may admit the violation or request a hearing contesting the violation. If there is an admission or if the probationer is found in violation of the terms of probation after a hearing, the judge has authority to punish the probationer. The punishment may include modifying the terms of probation by adding additional requirements or ordering him or her to serve time in jail for a period not to exceed the maximum possible jail sentence under the charges plead to or found guilty of.

If you are probation for driving under the influence and you have received notice of a probation violation or warrant is out for your arrest, do not handle this matter on your own. Consult an exclusively, DUI defense firm to properly advise you on your rights, negotiate on your behalf with the judge, and represent your interests in court.

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calculator.jpgSan Diego Sheriff’s Department announced their final driving under the influence numbers for the 2011 holiday season. Fourteen San Diego County law enforcement agencies and the California Highway Patrol, CHP, arrested 770 people on suspicion of drunk driving from 12:01 a.m., Friday, December 16th, 2011, through 12:00 a.m., Sunday, January 1st, 2012. Five deaths in San Diego have been blamed on drunk driving. This is up from 715 DUI arrests in 2010 for the same time period, according to californiaavoid.org.

The Sheriff’s have announced that they will be increasing their saturation patrols and drunk driving checkpoints around San Diego County during the Super Bowl weekend of February 5th, and again around the St. Patrick’s Day events in March.

As always, we recommend you plan ahead before heading out to celebrate to avoid the possibility of being arrested for drunk driving. Pack a bag and plan on staying at the home of the party host. Designate a driver to remain sober and be responsible to drive you home. Save a San Diego taxi company’s telephone number in your phone and use it. Use public transportation or call a sober friend or family member for a ride.

But, if you are arrested for drunk driving, hiring a skilled DUI defense attorney can help you evaluate your case, negotiate with the prosecuting authority, file motions when appropriate, mitigate your consequences, and possibly get your case reduced or dismissed!

Once arrested for drunk driving, there are two legal processes that occur: One is the California Department of Motor Vehicles’ administrative process and the other is the court process. Be advised that you only have ten days from the date of the arrest to contact the DMV to request an administrative hearing challenging the suspension of your license. If you fail to schedule the hearing within those ten (10) days, your license will automatically be suspended thirty (30) days after the arrest.

Besides the administrative process that occurs, there is also a court action. If you are arrested for drunk driving, do not just plead guilty even if your blood alcohol content, or BAC, was a .08% or more. There may be defenses in your case that can lead to reduced charges with less punishment or even a dismissal! Those defenses are usually not apparent until a DUI defense attorney can review all the evidence against you. That information is usually not known until after the arraignment and the discovery process begins.

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San Diego Sheriff’s Department held drunk driving checkpoints in many areas in San Diego County this past weekend as part of their efforts to keep drunk drivers off the road this holiday season.

The San Marcos DUI checkpoint was held at 125 South Rancho Santa Fe Road on December 17th, at 7:00 p.m. until December 18th, at 2:00 a.m. The sheriff’s office reported that 2,271 vehicles passed through the checkpoint and 582 drivers were contacted. Five drivers were suspected of driving under the influence and they did the field sobriety tests. Four of those drivers were arrested for DUI. Two others were also arrested for driving while their license was suspended due to a prior DUI.

The Santee driving under the influence roadblock was held on December 17th. However, the exact location was not provided in the San Diego Sheriff’s Department press release. In that checkpoint, 525 drivers were contacted, 28 drivers were sent to secondary, 13 were given field sobriety tests because they were suspected of being under the influence, and 4 were arrested for drunk driving.

Vista’s drunk driving roadblock was held at 1450 East Vista Way on December 16th, from 7:30 p.m. until December 17th, at 2:00 a.m. The sheriff reported that 1,128 vehicles passed through the checkpoint and 677 drivers were contacted. Field sobriety tests were given to 7 suspected of being under the influence, resulting in 4 arrests.

Lemon Grove conducted a DUI checkpoint at the 7900 block of Broadway on December 16th, from 8:00 p.m. until 1:30 a.m. During this operation, 646 drivers were contacted, 43 were sent to secondary, and 2 drivers were arrested for allegedly driving under the influence.

Throughout San Diego County, 212 people have been arrested for DUI from 12:01 a.m. Friday, December 16th, through 11:59 p.m. Sunday, December 18th. This is up from 196 in 2010 during the same time period.

The San Diego Sheriff’s also just announced more saturation patrols and DUI checkpoints through New Year’s. They specifically stated they will be out in force around Qualcomm Stadium on December 21st during the Poinsettia Bowl football game. A checkpoint will be conducted in Poway and Oceanside on December 23rd, (exact location not provided). Further saturation patrols will be ongoing throughout San Diego County from December 23rd through the 24th.

You can expect that San Diego law enforcement will continue to conduct saturation patrols and drunk driving checkpoints throughout San Diego during the New Year’s weekend also. Make sure you are not a statistic! Plan ahead and either plan to stay the night or have alternative transportation lined up before you head out to indulge in holiday cheer.

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San Diego law enforcement will begin its drunk driving crackdown today. The increased patrols and checkpoints will continue through January 2, 2012. Local police departments have received grants from the Office of Traffic Safety, (OTS), through the National Highway Traffic Safety Administration, (NHTSA), to conduct the “Drive Sober or Get Pulled Over” campaign through the holiday season.

Before you go out to celebrate this holiday season, make sure you have a plan in case you over indulge in holiday cheer. Pack a bag and plan on staying at the home of the party host. Designate a driver to remain sober and be responsible to drive you home. Save a San Diego taxi company’s telephone number in your phone and use it. Use public transportation or call a sober friend or family member for a ride. Do not be a statistic!

NHTSA announced this week drunk driving deaths were down in 2010. In fact, the 791 deaths due to an alcohol-related accident was the lowest number ever. In 2009, there were 950 deaths that were contributed to a DUI accident. OTS believes this decrease is due to their drunk driving checkpoint efforts, citing a cost savings of $6 for every $1 spent.

Millions of dollars have been spent on drunk driving enforcement. In 2009, $11.7 million was budgeted for 1,740 sobriety checkpoints statewide. Last year, that amount rose to $16.8 million dollars for 2,553 roadblocks.

DUI checkpoints are the most documented and cost the most money. Often DUI roadblocks result in only a couple of arrests for the massive amount of money and resources spent on setting up and manning these sites. Other studies show that saturation patrols cost less money, uses less resources, and result in more drunk driving arrests.

Many law enforcement departments are doing more saturation patrols. Costa Mesa Police Chief, Tom Gazsi, showed the council members that checkpoints are more of an educational service while saturation patrols take more drunk drivers off the street, according to latimes.com. Further, these patrols require half the staff which means a lot less overtime to be paid. In a time when city and county budgets are an issue, more and more agencies may move towards these campaigns over the roadblocks.

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xmas drinks.jpgPacific Beach, Chula Vista, Imperial Beach, and Encinitas had DUI checkpoints set up over the weekend. Fourteen drivers were arrested for driving under the influence, according to 10news.com.

A Pacific Beach DUI checkpoint was conducted by San Diego Police in the 1600 block of Garnet Avenue on Friday night from 10:15pm until approximately 2:00am. Ten people were cited for alleged drunken driving.

Chula Vista’s sobriety checkpoint was held on North Fourth Street from 7pm until midnight on Friday. One person was arrested on suspected drunk driving charges.

The Imperial Beach drunk driving roadblock resulted in one DUI arrest by the San Diego Sheriff’s Department. The IB checkpoint was conducted in the 1000 block of Palm Avenue on Friday night from 8:00pm until 2:30am.

Encinitas also had a DUI roadblock that was conducted by the San Diego Sheriff’s on Saturday night through early Sunday morning. Six hundred cars went through the checkpoint in the 1700 block of South El Camino Real, and only two were arrested for allegedly driving under the influence.

Even with all DUI checkpoints and saturation patrols that law enforcement conducts during the holiday weeks, some people continue to drink and drive throughout San Diego County. Drunk driving is suspected in an incident that occurred in Lemon Grove on Friday at 5:45pm, where two people were killed in a fiery crash on southbound 125 just south of I-8.

Lemon Grove resident, Justin Foulds, 39, was heading home from a work Christmas party driving his Chevrolet Silverado. He side swiped a car and then struck a Nissan Pathfinder from behind which immediately caused a fire and possible explosion. The Pathfinder was being driven by Celia Torres, 73. She was in the vehicle with her grandson, David Gonzalez, 16, on their way to a dentist appointment in Tijuana. Both died at the scene.

DUI and gross vehicular manslaughter are some of the charges that Foulds could face after being arrested by the California Highway Patrol. His bail is currently set at $500,000.

Before heading out to celebrate for the holidays, have a plan on how you will stay safe, avoid the possibility of being arrested for drunk driving, and keep San Diego citizens safe. Pack a bag and plan on staying at the home of the party host. Designate a driver to remain sober and be responsible to drive you home. Save a San Diego taxi company’s telephone number in your phone and use it. Use public transportation or call a sober friend or family member for a ride.

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cellphone2.jpgCalifornians now believe that drivers who text or talk on their cell phone, with or without a hands free headset, are a bigger hazard on the road than drunk driving, speeding, and aggressive driving. This is according to a traffic safety survey completed by the California Office of Traffic Safety, which polled 1,801 drivers over the age of 18 in 15 counties in California.

The percentage of drivers who are worried about others using cell phones while driving rose from 18.3 percent in 2010 to 38.8 in 2011. Second on the list this year was driving while impaired with 12.6 percent of the vote. This was up from 10.1 percent in 2010. Last year, drivers were most concerned about speeding/aggressive driving and bad roads.

When asked about the biggest distraction for drivers, the percentage of those polled who believe cell phone talking and texting is considered the most distracting is up to 83.6 percent. This is up from 75 percent last year.

The OTS also stated in April 2011, that a driver’s reaction is delayed as much when using a cell phone as when their blood alcohol concentration (BAC) is at the legal limit of .08.

Many auto accidents involve a driver that is either texting or talking on the phone but the data linking accidents and cell phone use is inconclusive. Police officers often see a car that is driving on the shoulder, weaving, or driving well below the posted speed limit. The officer pulls the car over thinking they need to conduct a DUI investigation. However, once contact is made with the driver, the officer realizes that the driver is not drunk, they were talking on their phone, writing a text, or reading something online.

California Highway Patrol Officer D.J. Sarabia agreed with the survey, saying that the number one distraction for drivers is cell phone use, according to mercurynews.com.

California has had a hands-free law, (Vehicle Code Section 23123), since 2008. Since that time, CHP has issued about 475,000 tickets for violating the statute. It is estimated that local law enforcement agencies have issued about the same number of citations.

Car accidents kill and injure many people every year. Help make our roadways safer. Use your phone before or after you drive.

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turkey.jpgSan Diego County law enforcement, including the San Diego Sheriff’s Department and the California Highway Patrol, have announced drunk driving saturation patrols and sobriety checkpoints throughout the Thanksgiving holiday weekend.

The following are specific law enforcement public announcements regarding their efforts to keep drunk drivers off the road:

  • San Diego Sheriff’s Department: Saturation patrols throughout San Diego on Wednesday, November 23rd, and continuing throughout the holiday weekend.
  • San Diego Sheriff’s Department, Encinitas Station: Saturation patrols in Encinitas, Solana Beach, and Del Mar on Thursday, November 24th.
  • San Diego Sheriff’s, Court Services Division: Vista warrant sweep at the Walmart shopping center at the 1800 block of University on Friday, November 25th.
  • California Highway Patrol (CHP): Announced they received funding for their IDEA, Impaired Driving Enforcement and Apprehension, Program. They will implement their Thanksgiving Maximum Enforcement Period (MEP), specifically looking for drunk drivers and those not wearing their seatbelt, from 6:01 p.m. on Wednesday, November 23rd, through 11:59 p.m. on Sunday, November 27th.

According to CHP’s statistics, they arrested 1,546 drunk drivers during the Thanksgiving weekend in 2010, a 6% increase over the 2009 DUI arrests.

Funding for all these state and local checkpoints and saturation patrols comes from a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration. Statistics on DUI arrests can be found on CaliforniaAvoid.com, as the website is updated throughout the holiday season.

To avoid the possibility of a DUI arrest, holiday partiers should plan a safe way home before the festivities begin. Designate a sober driver, have a taxi company’s number stored in your phone and use it, call a sober friend or family member for a ride, or use public transportation.

Note: The above list of drunk driving roadblocks and saturation patrols is not an all-inclusive list. Many law enforcement agencies in San Diego do not post their DUI enforcement details online. However, we will continue to search for any that are published and we will update this blog accordingly throughout this holiday season.

Update: (November 27th, 2011) The San Diego Sheriff’s Department, Court Services Division, held a warrant sweep in Vista at the Walmart shopping center at the 1800 block of University on Friday, November 25th. 17 people were arrested, including some for DUI.

Update: (November 28th, 2011) 60 driving under the influence arrests were made in San Diego County by CHP between 6:01 p.m. Wednesday and 6:00 a.m. Saturday, according to cbs8.com. Last year’s total DUI arrests for the same period of time was 59. The decrease trend continued in all of California, as the CHP arrested 903 suspected drunk drivers during this year’s Thanksgiving holiday weekend throughout the state, as opposed to 975 last year.

San Diego Police and the San Diego Sheriff’s Department have not released their drunk driving statistics as of the time of this posting’s update.

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Ex-San Diego Police Officer, Anthony Arevalos, was arrested and charged, back in March 2011, 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 continued and more charges were filed.

It was alleged that Arevalos initiated driving under the influence investigations and then asked women suspects what they would be willing to do in order to have the DUI 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 plead not guilty and was out on $200,000 bail. The San Diego Police Department placed him on an unpaid suspension at first, but in April he was fired after 18 years with the department.

The trial lasted three weeks, according to signonsandiego.com. Seven women testified that they were in the Gaslamp when they were pulled over by Arevalos on suspicion of drunk driving. Deliberations lasted 3 1/2 days and the jury came back with a guilty verdict on 12 counts, including 4 misdemeanors, on November 17th, 2011. He was acquitted of many felony counts and lesser charges.jail.jpgAfter the verdict was read, he was immediately handcuffed and taken into custody. His sentencing is scheduled for December 19th. Arevalos will be held without bail until that date. The maximum he could serve is 10 years and 4 months.

Chief Lansdowne commented after the verdict that other San Diego Police officers had suspicions about this convict’s behaviors; however, the officers allegedly never reported this to the administration of the San Diego Police Department. Due to this failure, the public was put at risk as Arevalos was allowed to continue working on the streets with full arrest powers, carrying a badge of authority and a weapon that kills.

Seems like after all the problems that the San Diego Police Department has had this year with its officers, there is a desperate need to retrain the remaining officers on public safety, their duty to protect and serve, and their duty to report any suspicious or criminal activities of any officer to their supervisors. Failure of an officer to take their job and these duties seriously should result in the immediate loss of their job. No cop should be allowed to work San Diego’s streets unless they have respect for the people they serve.

This blog entry is a follow-up to the following stories previously posted on this site:

San Diego City Attorney Dismisses 15 Driving Under The Influence Charges, previously posted on June 13, 2011.

SD Cop Investigated Drunk Drivers Then Requested Sexual Favors, Open DUI Cases Dismissed?, previously posted on March 31, 2011.

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