San Diego DUI Lawyers Blog

Escondido Drunk Driving Checkpoint Challenged

May 6, 2011 | The Law Offices of Susan L. Hartman

Escondido Police conducted a sobriety checkpoint in February 2011. According to 10news.com, one of the drivers passing through, Angel Navarrete, and his passenger, Daniel Alfaro, challeged the officers’ reason for the detention and videotaped the outcome. After not complying with the officers’ request to roll down his window and show his driver’s license, the officer proceeded to smash his window and arrest both men for resisting a police officer. Both plead not guilty and are due back in court in July 2011.

Resisting arrest is addressed under Penal Code Section 148, which states: “Every person who willfully resists, delays, or obstructs any public officer…in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”

The California Criminal Jury Instructions (CALCRIM) provide what the prosecutor must prove beyond a reasonable doubt for a conviction for resisting, delaying, or obstructing an officer, (see CALCRIM 2656): 1.) The person was a peace
officer lawfully performing or attempting to perform his duties as a peace officer; 2.) The defendant willfully resisted, obstructed, and/or delayed the person in the
performance or attempted performance of those duties; and, 3.) When the defendant acted, he knew, or reasonably should have known, that the person was a peace officer performing or attempting to perform his duties.

So was the officer acting lawfully? If not, the defendant must be found not guilty. CALCRIM 2670 provides: A peace officer is not lawfully performing his or her duties if he is unlawfully arresting or detaining someone or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention.

Unlawful Detention: A peace officer may legally detain someone if the person consents to the detention or if specific facts known or apparent to the officer lead him to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime; and, a reasonable officer who knew the same facts would have the same suspicion. Any other detention is unlawful.

Unlawful Arrest: A peace officer may legally arrest someone if he has probable cause to make the arrest. Any other arrest is unlawful. Probable cause exists when the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime.

DUI checkpoints must be conducted under the guidelines of Ingersoll v. Palmer in order for it to be constitutional. One of the criteria is the length and nature of the detention. “Each motorist stopped should be detained only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, and glassy or bloodshot eyes. If the driver does not display signs of impairment, he or she should be permitted to drive on without further delay. If the officer does observe symptoms of impairment, the driver may be directed to a separate area for a roadside sobriety test. At that point, further investigation would of course be based on probable cause, and general principles of detention and arrest would apply.”

It should be further noted that a driver can avoid the checkpoint and the officers cannot detain him or her unless “in avoiding the checkpoint the driver did anything unlawful, or exhibited obvious signs of impairment.”

In this case, the driver was not intoxicated and he had a valid driver’s license. He chose to drive through the checkpoint. He spoke to the officers through his window. The officers said he was detained, but they would not state a reason why. They threatened to arrest him for obstructing or delaying an officer because he refused to produce his license. Since he did not have signs of impairment, the officers should have let him proceed after a brief encounter.

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!

Forced Blood Draws In DUI Cases, Courts Deciding On The Legality

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

forced blood draw.jpg The Florida Fifth District Court of Appeal heard arguments this week on whether law enforcement can forcibly draw blood from certain DUI suspects. Currently, Florida law allows forced blood draws without a search warrant in suspected drunk driving cases involving death or serious injury.

In this case, no injury or death was involved when the defendant was charged with driving under the influence. The defendant failed to keep his car in a single lane so he was stopped by Melbourne police. Law enforcement did obtain a search warrant for the blood sample.

Circuit Judge Maxwell did not allow the blood evidence into court; thereby prompting this appeal by the state. This issue has not come before any appeal court in Florida before and the ruling will impact 13 counties and become a benchmark for other judicial circuit courts in Florida.

In California, there is an implied consent law for chemical testing, Vehicle Code Section 23612. Under this statute, “any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purposes of determining the alcoholic content of his or her blood if lawfully arrested for an alleged DUI.”

Once arrested for drunk driving, the person has a choice between a blood or breath test. If a person refuses to give either sample, and they are eventually convicted of drunk driving, their penalty will be increased according to Vehicle Code Section 23577.

Can an officer force you to take a blood test if you refused to give a sample? Yes, if the following conditions are met (People v. Sugarman): 1.) The circumstances require prompt testing; 2.) The arresting officer has reasonable cause to believe the arrestee is intoxicated; and, 3.) The test is conducted in a medically approved manner incident to a lawful arrest.

So how do you defend a drunk driving case that involves a refusal? You can challenge the lawfulness of the arrest itself. The officer must have had probable cause to stop and arrest you. Also, the prosecution must prove you were the driver of the car and you were in fact under the influence. Further, the officer may not have told you that you are obligated to submit to a chemical test or the admonition was confusing.

Your drunk driving charges may be dismissed if any of the defenses above fit your case. (Note, this is not an exhaustive list of defenses.) Contact an exclusively DUI defense firm if you want more information on how to defend you matter.

Pacific Beach DUI Checkpoint Ends With Many Drunk Driving Arrests

April 18, 2011 | The Law Offices of Susan L. Hartman

San Diego Police Department conducted a drunk driving checkpoint on Grand Avenue at Mission Bay High School in Pacific Beach on Saturday night. Of the 725 cars that were initially screened, 48 drivers were sent for secondary evaluation, and 25 people were arrested for alleged drunk driving.

This drunk driving checkpoint was funded by a grant that was given to the San Diego Police Department by the California Office of Traffic Safety through the National Highway Traffic Safety Administration.

Pacific Beach has one of the highest DUI arrest rates in San Diego County. The summer-like weather brings many people out to the beach areas and many indulge in refreshing cocktails. The police know this so they step up their efforts to enforce drunk driving laws during warm weather periods. So look out for more drunk driving enforcement through saturation patrols and DUI checkpoints as the summer approaches.

We will continue to monitor various media sources for drunk driving enforcement and checkpoint information. Check back to this blog often for announcements regarding the dates, times, and locations of such efforts by law enforcement. If you are aware of a checkpoint that is not posted on this site, please use the “Contact Us” form on this page to notify us and we will publish the information for other followers of this blog.

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.

Chula Vista Police Active In Drunk Driving Arrests

March 28, 2011 | The Law Offices of Susan L. Hartman

Chula Vista Police Department has been active in searching for and arresting those suspected of driving under the influence (DUI) in the month of March.

A DUI checkpoint was conducted on March 18th on Main Street and four drivers were arrested on suspicion of drunk driving, according to 760kfmb.com.

A saturation patrol was conducted on Saturday, March 19th. In that effort, fifty vehicles were stopped, twelve were evaluated, and five drivers were arrested on suspicion of drunken driving, as reported by 10news.com.

Chula Vista Police Officer Alicia Chudy earned the “California State MADD Hero Award” by arresting 85 alleged drunk drivers in 2010. She also coordinated over 30 DUI operations, wrote and secured an anti-drunken driving grant to continue Chula Vista’s prevention operations, and she is credited with training other officers to score more DUI arrests. A total of 650 drivers suspected of drunk driving were arrested last year in Chula Vista alone.