San Diego DUI Lawyers Blog

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?]

Oceanside Announces DUI Checkpoint

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

oceanside pd.jpg Oceanside Police Department scheduled a drunk driving checkpoint that will be conducted on Friday, June 10th, from 8:00 p.m. until 3:00 a.m. in the City of Oceanside. The exact location has not been announced.

This DUI checkpoint will be conducted just two weeks after the Memorial Day weekend where law enforcement conducted sobriety checkpoints and saturation patrols throughout San Diego County.

San Diego Police reported that on Friday, May 27th, they conducted a saturation patrol in the Pacific Beach area. Eighteen drivers were arrested for DUI. On Sunday May 29th, another saturation patrol of Pacific Beach ended with fifteen drivers being arrested for drunk driving.

California Highway Patrol (CHP) reported eighty three drivers were arrested suspected of drunk driving in San Diego County during the Memorial holiday weekend, according to lemongrove.patch.com.

With graduation ceremonies, holidays, and the summer months upon us, you can bet the San Diego County law enforcement agencies will spend some of its grant money from the California Office of Traffic Safety to continue its efforts to arrest suspected drunk drivers.

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.

San Diego Kicks Off Summer With Drunk Driving Enforcement

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

The Imperial Beach Patch reported that the San Diego Sheriff’s Department, California Highway Patrol, and the San Diego Police Department increased their efforts to arrest those suspected of drunk driving this past Memorial Day weekend.
On Friday night there were DUI saturation patrols in Poway, Oceanside, Escondido and San Diego. Checkpoints were also set up in San Marcos and Imperial Beach. Four drivers at each checkpoint were arrested for suspicion of drunken driving.

Saturation patrols continued on Saturday and Sunday night in Santee, Lemon Grove, San Diego and Oceanside. Another DUI checkpoint was conducted in Lemon Grove on Sunday which resulted in just 2 drunk driving arrests, according to kusi.com.

According to signonsandiego.com and CHP statistics only, drunk driving arrests were down for the holiday weekend in California by 13 percent; however San Diego County’s numbers increased by 10 percent.

The nctimes.com reported that 14 San Diego County law enforcement agencies arrested 129 people on suspicion of drunken driving Friday and Saturday which was 16 less than during the same period last Memorial Day weekend.

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“.]

Biking While Intoxicated, Can I Get Arrested For Drunk Driving?

May 25, 2011 | The Law Offices of Susan L. Hartman

bike and beer.jpg While intoxicated, Richard W. Walker, 20, was riding a dirt bike in the street in Channahon, Illinois. He was arrested and charged with DUI and other crimes, according to heraldnews.suntimes.com.

In California, it is illegal to be under the influence of an alcoholic beverage or drug, or a combination of both, while driving a vehicle. The question is whether a dirt bike is considered a vehicle for purposes of applying the DUI sections of the Vehicle Code.

California Vehicle Code Section 670 states: “A ‘vehicle’ is 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 courts have interpreted this code section in Tomson v. Kischassey, bicycles without motors are not considered vehicles, and in People v. Jordan, bicycles with motors are considered vehicles under the Vehicle Code.

In this case, since the dirt bike had a motor, it would be considered a vehicle and the defendant would be charged with drunk driving. If the bicycle was self propelled, the defendant would not face DUI charges; however, he could be charged with violating California Vehicle Code Section 21200.5, which makes it illegal “to ride a bicycle upon a highway while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug.” The penalties for a conviction under this section are less severe than a standard DUI.

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.