San Diego DUI Lawyers Blog

Seal and Destroy Drunk Driving Arrest Records

July 7, 2014 | The Law Offices of Susan L. Hartman

If you were arrested for DUI in San Diego but criminal charges were never filed, the case was eventually dismissed in court, or you were acquitted after a jury trial, you may be able to have your arrest records sealed and destroyed under California Penal Code Section 851.8.

Why would you want to do this? Criminal records are stored indefinitely unless law enforcement is ordered to destroy them. In addition, they are public records so they can be found in any criminal background check. And, in the age of computers, these records are easy for anyone to find which can cause you difficulty in gaining employment, housing, a state license, etc.

If you are successful, you can answer any question about whether you have been arrested for a crime by saying, “No, I have never been arrested.” So you want to try to get them sealed and destroyed.
The motion must be filed within two years of the date of arrest or the filing of the accusatory pleading, whichever is later. But, if you file beyond the two years, the judge may still grant the motion if you can show good cause.

The process to seal and destroy records can be done in one or two steps. If you were arrested but the prosecutor did not file charges, you must first file the petition with the law enforcement agency that arrested you. If the police agency believes you are factually innocent of the crime, they will seal the arrest record for three years and then destroy them themselves without further action needed by the courts.

If they refuse to grant your petition, or if they do not respond within 60 days of being served with your papers, you can then petition the court for relief. In addition, if charges were filed in court and then dismissed, or you were acquitted by a jury, you can petition the court directly for relief, skipping step one.

Boating Under The Influence, Or BUI, In San Diego

June 30, 2014 | The Law Offices of Susan L. Hartman

The Law Offices of Susan L. Hartman recently wrote a blog article about biking or cycling under the influence, BUI and CUI respectively. Now that it’s summer, not only is it good to brush up on the biking after drinking laws, it is good to also do a quick refresher on another BUI, boating under the influence.

If you head out to the bay this summer, be mindful that law enforcement is also on the water and the beach and they are looking to enforce the laws. This includes drunk boating statutes which are found in the California Harbors and Navigation Code Section 655.

This code section only applies to motorized vessels, meaning that you cannot be charged under these code sections if your vessel is exclusively self or water propelled such as a kayak, rowboat, or a non-motorized sailboat.

The language in Section 655 of the Harbors and Navigation Code is very similar to the California Vehicle Code (VC) sections for drunk driving involving a motor vehicle. Section 655(b) specifically states, “No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.” This is similar to the VC 23152(a).

Arrested For DUI, Can The Cops Search Your Smart Phone?

June 25, 2014 | The Law Offices of Susan L. Hartman

Girl in Cop Car.jpg Today, the Supreme Court of the United States (SCOTUS) announced its decision in both Riley v. California, a San Diego case, and United States v. Wurie, a Massachusetts case, that addressed the issue of whether law enforcement can search a person’s smart phone after a lawful arrest. [The Law Offices of Susan L. Hartman previously wrote a blog article about the Riley case, see background case information in “Can Cops Search Your Cell Phone Without A Warrant?“]
The Fourth Amendment of the United States Constitution specifically states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Unless one of the exceptions to the warrant requirement is met, law enforcement must obtain a search warrant for any search to be legal. One such exception is a search incident to a lawful arrest. But, does this exception extend to cell phones, which are now basically pocket computers that store a lot of information including a person’s contacts, photos, videos, internet searches and history, and other personal information?

The court cited three precedent cases that addressed the warrant requirement for searches incident to a lawful arrest, Chimel v. California, United States v. Robinson, and United States v. Chadwick.

Biking: A Good Alternative To Driving My Car While Under The Influence?

June 19, 2014 | The Law Offices of Susan L. Hartman

Summer 2014 is here! The summer brings BBQ’s, parties, boating, beach time, Sunday Fundays, cold beers and margaritas, and lots of fun times. It is important, however, to plan ahead so your fun does not end with criminal charges.

Often, people use their bikes as transportation when they know they are going to be drinking alcoholic beverages thinking it will prevent them being arrested for drunk driving. But, they are still at risk of being arrested and here is the law.

If the bike can be propelled, moved, or drawn upon a highway, such as a motor bike, you can be charged with driving under the influence of alcohol, drugs, or a combination of both. All the penalties of a standard drunk driving offense involving an automobile would apply. However, if your bike is self-propelled, you will not be subjected to the DUI statutes. Instead, you can be charged with BUI or CUI, biking or cycling under the influence, under California Vehicle Code Section 21200.5.

This code section specifically states: “…it is unlawful for any person 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. Any person arrested for a violation of this section may request to have a chemical test made of the person’s blood, breath, or urine for the purpose of determining the alcoholic or drug content of that person’s blood…”

The biggest difference between a DUI and a BUI is that there is no specific blood alcohol limit in a BUI case. In a criminal DUI matter, the “Per Se” limit is a .08. Also, the penalty for a conviction for BUI is a fine of not more than $250.00, which is a substantially lesser penalty than in a standard DUI case.

Riding a bicycle while under the influence is a hard case for the prosecutor. These cases can be attacked on several fronts. If you have been arrested and/or charged with riding a bicycle while under the influence, you deserve to hire the Law Offices of Susan L. Hartman, an exclusively DUI defense firm that will aggressively defend your case.

Google Car May End Drunk Driving Arrests & DUI Enforcement

May 29, 2014 | The Law Offices of Susan L. Hartman

San Diego DUI Lawyers Blog posted an article on January 4th, 2013, announcing that Qinetiq, a Massachusetts company, was given a $10 million grant from the federal government and all sixteen major car makers to develop a technology that would prevent a car from operating if a driver has alcohol in their system.

The new technology would be a safety feature in each vehicle much like a seatbelt. And, it would operate much like the ignition interlock devices, or IID’s, that are already being ordered by criminal courts in some drunk driving matters. Current IID’s require a person breathe into the apparatus before the car will start and then continue to provide breath samples while driving to keep the engine running.

These safety devices probably won’t end DUI arrests because they do not detect drugs and the driver can always have a passenger blow into the device. However, have you seen the new car concept by Google? The prototype has no gas pedal, brake, or steering wheel! Instead it uses software and sensors to navigate. All you have to do is enter your destination into a computer and the “vehicle” does the rest. This would eliminate the “driving” element of driving under the influence as the computer sensors and software would be “driving” not a person. This may very well end the need for drunk driving laws and DUI enforcement.

Marijuana DUI: Law To Impose “Per Se” Criminal Penalties Failed

May 5, 2014 | The Law Offices of Susan L. Hartman

Assembly Bill 2500 was introduced in February 2014, by Democratic Assembly Member Jim Frazier of Oakland. It was supported by the Association of Highway Patrolmen, the California Council on Alcohol Problems, the California Police Chiefs Association, the California State Sheriffs’ Association, among others. The bill was opposed by the ACLU, American for Safe Access, California Attorneys for Criminal Justice, California DUI Lawyers Association, California NORML, Crusaders for Patients Rights, Drug Policy Alliance, among others. The original text of the bill sought to impose a “zero tolerance policy” but the bill was amended to a “per se” standard.

Under the proposed law, drivers who have even a trace amount, (“2 nanograms, or more, per milliliter of whole blood”), of Delta-9-tetrahydrocannabinol, or THC, in their blood regardless of whether the person was impaired, could be charged with drugged driving. (Note, this bill also addressed drugs other than THC, providing a level of detectable metabolite that has to be present for the driver to be impaired; however, we are only going to discuss marijuana in this blog).

There is a huge problem with this standard: There has not been any studies proving a correlation of a certain level of THC in the blood and impaired driving. There simply is no science to back up the 2 nanogram standard and impairment. The result of such a law would criminalize non-impaired drivers! This is unacceptable and the California Assembly Committee on Public Safety correctly rejected the amended legislation.

Can Cops Search Your Cell Phone Without A Warrant?

May 1, 2014 | The Law Offices of Susan L. Hartman

This is the very question that is currently before the Supreme Court of the United States, (see David Riley v. State of California). The ruling can potentially impact anyone who is arrested while having a cell phone in their possession.

In August of 2009, San Diego college student, David Riley, was pulled over by a cop from the San Diego Police Department, for having expired tags on his Lexus. The officer ran Riley’s information and found that he was driving on a suspended license. The vehicle was impounded and an inventory search of the vehicle was conducted to document the contents.

Riley was then arrested for carrying concealed and loaded weapons that were found during the search of his car. His cell phone was found and seized. It was a smartphone, with internet access, capable of storing photos, videos, voicemail messages, and emails. The officer conducted a cursory search of the phone at the scene and then a detective went through the phone more thoroughly at the police station. The officer found some text messages that contained the letters CK, which he believed referred to “Crip Killers,” a gang reference to the “Bloods.” In addition, the photos showed what appeared to be the defendant with a car that was thought to be used in a shooting.

Subsequent to the cell phone search, Riley was arrested in connection with the shooting. It was further alleged that the defendant was a member of a gang and the crimes were committed for the gang’s benefit, thus exposing him to enhanced penalties.

Prior to the trial, the defense motioned the court to suppress all of the evidence obtained by the cell phone search, as it was done without a warrant and without exigent circumstances, thus violating the Fourth Amendment of the United States Constitution. The judge denied the motion, finding that the search was legally conducted incident to the arrest.

The first trial hung but the second resulted in a guilty verdict. Riley appealed claiming the warrantless search of his phone was unconstitutional.

The Law Offices of Susan L. Hartman agrees with Riley, the Petitioner in this case. The new smartphones are not just phones. They are basically small computers that store a lot of personal information. If an officer confiscates a smartphone incident to a lawful arrest, law enforcement should be required to get a search warrant in order to search the contents of that phone. Without the warrant, any evidence found during that illegal search should be excluded from trial, as well as any evidence that is found because of the information that is gathered during the illegal search of the phone, (fruit of the poisonous tree doctrine).

Stay tuned as the Supreme Court of the United States is expected to announce its decision on this issue in June.

If you’re charged with a crime in San Diego, it is imperative that you know your rights and the law. Officers will use whatever they can to prosecute you. Protect your interests, hire a criminal defense attorney.

California Drunk Driving Laws Revised

April 14, 2014 | The Law Offices of Susan L. Hartman

Before January 1st, 2014, California law enforcement agencies were using California Vehicle Code (VC) Sections 23152(a) and (b) to prosecute cases involving alcohol, drugs, or a combination of alcohol and drugs.

VC 23152(a) stated, “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.” VC 23152(b) read, “It is unlawful for any person who has a 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

As of January 1st, 2014, the State of California added two more driving under the influence code sections, 23152(e) and 23152(f), thus separating out the alcohol and drug cases.

VC 23152(a) has been updated to read, “It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.” Section 23152(b) has been changed to, “It is unlawful for a person who has a 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

The new VC 23152(e) provides, “It is unlawful for any person who is under the influence of any drug to drive a vehicle.” And, under VC Section 23152(f), “It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.”

After the first quarter of the year, it is unclear how the court will handle the new version of this vehicle code section. Still, the 2014 California Jury Instructions uses only the (a) and (b) sections as they were used before, (see CALCRIM No. 2110 and 2111).

As for the administrative portion of a drunk driving matter, the DMV Driver Safety Office does not address drug impairment at the APS Hearing. The hearing only focuses on alcohol and BAC. However, you can speculate that with the push for more legislation on DUI’s, such as the proposed AB 2500, drug DUI enforcement and penalties may become stricter in the future.

If you have been arrested for driving under the influence due to alcohol, drugs, or a combination of alcohol and drugs, you owe it to yourself to seek help from a criminal defense attorney who exclusively deals with DUI matters.

SR-22: What Is It & Why Do I Need It After My License Was Suspended?

March 31, 2014 | The Law Offices of Susan L. Hartman

An SR-22 is a certificate of insurance. It is proof that you have met the state’s minimum requirements for liability car insurance. This form is obtained from your insurance company and they file it with the California Department of Motor Vehicles, to show proof of financial responsibility.

The DMV may require an SR-22 when you reinstate your driving privileges after a suspension or revocation. This happens after a DUI arrest if you lose the Administrative Per Se (APS) Hearing challenging the license suspension, you do not request a hearing and your driving privileges were automatically suspended, or you were convicted or plead guilty to a drunk driving charge and the sentencing included a suspension or revocation.

After a specific amount of time, (depending on certain factors), you may be eligible for a restricted driver’s license. The restricted license allows you to drive to, from, and during the course of your employment and to and from the DUI program. The DMV will not issue the restricted license unless you register in and attend the requisite drunk driving program, pay the reissuance and restriction fee, and file an SR-22 with the department. The SR-22 must be maintained for a period of three years after a DUI suspension.

Most people request the SR-22 from the insurance company that is currently insuring them. However, that is not recommended. Insurance companies have millions of customers and it is not cost effective for them to run a record check on each and every customer. Instead, they rely on self reporting. Once you tell your insurance carrier that you need an SR-22, they will check your DMV record, looking for things like a DUI.

In many cases, the insurance company will not insure a driver with a DUI on their record, so they get dropped and the policy is cancelled. Other companies will issue the SR-22 but then raise the premium, as you may be deemed to be a “high risk driver.”

If you are dropped or you fail to maintain the SR-22 for the entire three years, the insurance company is required to notify the DMV. Your driving privilege will again be suspended unless you immediately obtain another policy.

The Law Offices of Susan L. Hartman recommends you do not self report. Instead, we provide our clients with the names of insurance brokers that specifically deal with drivers with driving under the influence matters. Through these brokers, the licensee can obtain a supplemental insurance policy and an SR-22; thus, maintaining their current car insurance. And, in the event that the original insurance carrier finds out about the DUI and raises the premium or cancels the policy, the brokers will help the client find another insurance company that will insure them regardless of their DUI arrest.

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.

Cops Use Audio & Video Recording Devices And Use Of Force Declines

March 17, 2014 | The Law Offices of Susan L. Hartman

One California city tested the use of cameras by their officers last year and the results were just as one would expect. The use of force by officers dropped by over two thirds overall, and those not made to wear cameras were twice as likely to use force than those equipped with the recording devices! The conclusion of the study: “The majority of the time police use force is unnecessary. In other words, the majority of the time these officers used force they were simply committing acts of violence which they don’t feel comfortable committing if it’s captured on film.”

The Rialto police chief introduced the wearable cameras to his officers and he was met with opposition. Many officers were not happy with being watched. Despite their negative response, the chief randomly selected officers to wear the cameras, having one-half of the staff using a camera each shift. The study ran from February 2012 until July 2013. The cameras had to be manually turned on by the officers and they were required to do so as they got out of their patrol car to approach a citizen. The camera automatically saved about 30 seconds of prior to the officer’s activation, with the hopes of capturing the initial reason for the contact.

California Highway Patrol (CHP) officers have cameras inside their patrol vehicles. They are called MVARS, the Mobile Video Audio Recording System. They are mounted on the rear view mirror, facing out the front of the windshield. The officers also have microphones attached to their shirts to record the audio of their interactions.

In my experience, the officers often do not want their interactions recorded. When the recordings are subpoenaed, the part of the incident needed is not in the evidence. Law enforcement provides excuses such as the batteries were not charged or for some reason the equipment was not working at the time of the incident. In addition, when an officer has a driver get out of their car, they often bring the suspect to an area where the camera does not pick up what is going on.

It should be mandatory police policy that all law enforcement officers, including CHP, San Diego Sheriffs, and San Diego Police, be required to properly maintain audio and video recording devices, that they must be activated for each and every contact they have with citizens, and, the audio and video evidence must be maintained and provided to the defense when subpoenaed. If they are forced to do this, not only would the rate of complaints about officers using unnecessary force go down, but law abiding citizens would not find themselves arrested for crimes they did not commit. Officers have roughed up citizens, but then arrested them and charged them with resisting arrest. Having cameras would protect the citizens from this tactic. And, if properly used, the recording can also corroborate the police report. Unfortunately, prosecutors and judges always believe the cop even though they have motivation to lie to keep their job.