San Diego DUI Lawyers Blog

Arraignment: The First Court Date In Criminal Cases

October 22, 2013 | The Law Offices of Susan L. Hartman

The arraignment is often the first court hearing in any criminal case, including drunk driving cases in San Diego. During the arraignment, the court advises you of your constitutional rights. They include the right to have an attorney represent you, the right against self-incrimination, the right to a jury trial, and the right to confront the witnesses against you and produce your own witnesses and evidence in your defense. The judge then reads the complaint which is the official charges pending against you.

You are then given an opportunity to enter a plea of guilty, not guilty, or no content and bail issues may be addressed. In addition, if you do not enter a guilty plea, another future court date is usually set. If your case is charged as a felony, the next court date is the preliminary hearing. If the case is filed as a misdemeanor, the second court date is the pretrial or readiness hearing.

If you are in custody, you must be arraigned within 48 hours of the arrest. This does not include weekends and holidays. Therefore, the worst day to be arrested on is the Friday night of a court holiday weekend. If you are unable to post bail, the prosecutor does not have to file charges and do the arraignment until Wednesday, the second court day after the arrest.

If you are cited and released, released on your own recognizance, or bailed out, the arraignment will be “without unnecessary delay,” which can be weeks after the arrest. When released, the defendant is given a notice to appear on a specific date, time and location. That first appearance is the arraignment.

As of the date of this blog, out of custody drunk driving defendants are being arraigned approximately 30-45 days after their arrest. With budget cuts effecting the court’s ability to push the cases, readiness hearings are being scheduled 30-45 days after the arraignment.

Felony cases require the defendant to be present at the arraignment and at all other proceedings, unless the judge accepts your waiver of appearance. In misdemeanor cases, you will have to appear unless you have retained an attorney to represent you and you waive your presence. Retained lawyers can appear on your behalf unless the case involves domestic violence, violations of a protective order, and certain driving under the influence cases, (usually where bodily injury is involved).

The above blog 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 criminal defense attorney in your area.

San Diego Drunk Driving Arrest: Posting Bail

October 14, 2013 | The Law Offices of Susan L. Hartman

After making an arrest for driving under the influence, the officer often takes the suspect to jail to be booked. In most DUI cases, the defendant is told the amount of bail that can be posted in order to get out of jail. The amount of bail depends on the crime and the county bail schedule.

Bail can be posted by paying the entire amount in cash to the court clerk or to the arresting agency. At the end of the case, if the person made all their court appearances, the money is refunded in full. If the defendant failed to appear, FTA, the money is forfeited and the court keeps the full amount of the cash bail.

Most often, instead of paying cash, defendants use a bail bondsman or bail agent to obtain a bail bond. The bondsman posts the required bail for the defendant after receiving a non-refundable premium, and sometimes additional collateral. Under California law, the maximum the bondsman can charge is 10% of the bail. Typically, the bond contract lasts one year. If the case remains unresolved after a year, the defendant will have to pay to renew the contract.

If the defendant fails to appear in court, the bail is forfeited and a warrant may be issued for the person’s arrest. The bondsman will seek reimbursement from the defendant and their cosigner. In addition, the bondsman is obligated to find and arrest the person and bring them before the court.

Bail in a typical first misdemeanor DUI case, without any additional charges, is $2,500 in San Diego County. On a second misdemeanor drunk driving matter, bail is often set at $10,000. Bail on a third misdemeanor DUI goes up to $15,000. If there were injuries, the bail is $20,000. In felony driving under the influence cases that involves the death of another bail is often set at $100,000.

Ultimately, the judge has discretion in setting the bail amount. The amount can be increased, reduced, or the person may even be released on their own recognizance (promise to appear). When making a ruling on bail, the judge considers the defendant’s criminal history, flight risk, ties to the community, and the facts of the case.

If you or someone you know has been arrested for drunk driving, immediately contact a criminal defense attorney who specifically handles DUI cases. It is always best to get legal advice as early as possible in the case to ensure all your rights are protected.

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 Causing Injury: California Vehicle Code Section 23153

September 24, 2013 | The Law Offices of Susan L. Hartman

Recently, a young San Diego man was arrested after an intoxicated pedestrian stepped into oncoming traffic and was struck by his car, according to 10news.com. The pedestrian suffered a broken leg and arm and the driver was later arrested for felony hit and run because he left the scene. What if the driver had consumed an alcoholic beverage before this incident? He may have also been charged with DUI causing injury in addition to his current charges.

In San Diego and throughout California, if a person drives while under the influence of alcohol and/or a drug, and while driving either broke a law (other than DUI) or acted in a negligent manner, and that unlawful act or negligence injures another person, the prosecutor can bring charges under California Vehicle Code Section 23153. This statute is called a “wobbler” because it can be charged as a misdemeanor or a felony.

Under CA Vehicle Code Section 23153, the driver is under the influence, if as a result of drinking an alcoholic beverage, (and/or taking a drug), his or her mental or physical abilities are so impaired that he or she is no longer able to drive with the caution of a sober person, using ordinary care, under similar circumstances, (see California Jury Instructions, CALCRIM 2100).

So, if the prosecutor can prove that the driver would have been able to avoid hitting the drunk man who fell off the curb right into his driving path if he did not consume an alcoholic beverage or drugs, the driver could be charged with DUI causing injury.

The penalty for a misdemeanor DUI causing injury could include: Up to five years of informal, summary probation; Five days to a year in jail; $390-$5,000 in fines; A court-approved DUI program for three, nine, eighteen, or thirty months; One to three years suspension of your California driver’s license; And, restitution to the injured parties.

The penalty for a felony DUI causing injury could include: State prison sentence of two, three, or four years; Additional and consecutive three to six year prison sentence if any victim suffers great bodily injury; Additional and consecutive one year sentence for each additional person that suffers any injury (three year maximum); A “strike” on your record if anyone other than the driver suffers great bodily injury; $1,015-$5,000 in fines; A court-approved DUI program for eighteen or thirty months; Habitual Traffic Offender (HTO) status for three years; And, five year revocation of your California driver’s license.

The consequences for a DUI causing injury is severe. If you, or someone you know, has been arrested for violating California VC Section 23153, contact a drunk driving attorney in your area. Protect yourself and get help immediately!

The above blog 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.

Walk-And-Turn Test, Part Of The Field Sobriety Test (FST) Battery

September 19, 2013 | The Law Offices of Susan L. Hartman

The walk-and-turn test (WAT) is one of the three tests in the battery of field sobriety tests (FST’s) that the National Highway Transportation Safety Administration (NHTSA) recommends law enforcement use to evaluate a suspect to determine if they are under the influence, thus establishing probable cause to arrest for drunk driving.

Both the WAT and the one-leg stand tests are considered “divided attention” tests, where a person’s attention is on both mental and physical tasks. The third test in the battery is called the horizontal gaze nystagmus test (HGN), which tests the subject’s jerking or bouncing of the eye.

The walk-and-turn test if often referred to as the “walk the line” test. The officer first instructs the subject on how to do the test and then the test is performed. The officer is to explain to the suspect that s/he is to walk nine steps, heal to toe, with their arms at their sides, without stopping, while watching their feet the entire time, counting the steps out loud. Then the person is to turn on one foot and face back in the direction where s/he was before, and then walk another nine steps, heal to toe back to the original location.

While this is being done, the officer is looking for eight clues of impairment: 1.) The subject cannot keep balance while listening to the instructions; 2.) Begins the test before the instructions are done being given; 3.) Once the walking begins, the subject stops to regain balance; 4.) Does not touch heal-to-toe; 5.) Steps off the line; 6.) Uses arms to balance; 7.) Makes an improper turn; and, 8.) Takes an incorrect number of steps.

If the person is unable to stay on the line and steps off three or more times, or they are in danger of falling, the test is stopped, and the person fails this test.

Each clue is graded as one point even if the same clue is observed more than once. According to Stuster & Burns, the 1998 NHTSA study, if two clues are found, there is a .79% chance the person’s blood alcohol concentration (BAC) is .08% or higher. This still means that 2 out of every 10 people who were determined to be impaired using this test did not actually have a BAC of .08% or greater.

There are many factors that can make this test unreliable and invalid. It must be done on a level, hard, non-slip surface. The person should not be elderly, obese, frail, or suffering from a physical or mental disability. If the subject’s shoes have a 2″ or greater heal, they should be given the option to remove their shoes. In addition, there should not be any other distractions such as passing cars and the officer conducting the test should be still after giving the instructions.

If you have been arrested and charged with misdemeanor driving under the influence, you owe it to yourself to hire an exclusively DUI defense firm to vigorously defend your case. Each case is fact specific, and there may 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. For information about a specific case, speak to a drunk driving attorney in your area.

One-Leg Stand Test, A Standardized Field Sobriety Test (FST)

September 13, 2013 | The Law Offices of Susan L. Hartman

The National Highway Transportation Safety Administration, (NHTSA), has come up with three standardized tests that law enforcement uses in their drunk driving investigations to help determine if a suspect is under the influence. The three field sobriety tests, (FST’s), are the horizontal gaze nystagmus, (HGN), the walk-and-turn, and the one-leg stand. These together are called the FST battery. Officers use these and other non-standardized tests when conducting DUI investigations.

The one-leg stand test is considered a divided attention test because the subject has to focus on mental and physical tasks at the same time. It should be done on a hard, dry, non-slippery surface that is level. In addition, there should be adequate lighting.

At first the officer is supposed to give the subject instructions and demonstrate how to do the test. Then they ask the person if they understood the instructions and the subject performs the test. The subject is to stand with their heals together with their arms down by their side. Then the officer instructs the person to raise their leg six inches from the ground and while watching their raised foot, they are to count from 1001 to 1030. (See video demonstration.)

The test is performed while the officer looks for four clues. The clues are: 1.) The subject sways while balancing; 2.) Uses their arms for balance; 3.) They hop; and, 4.) They put their foot down. The officer gives one point for each clue seen during the test. Two or more points indicate the subject has a blood-alcohol level above .08. If the person puts their foot down three or more times within the 30-second test, it is considered a failure of this FST.

This test, when conducted using the NHTSA’s guidelines, has been determined in a 1981 study to be only 65% accurate in determining if a person’s BAC is above .10%. The studies were done again in 1998, using the .08 standard, and NHTSA claimed that the test is now 83% accurate in determining if a person’s BAC is at or above .08%. Still, this means about 2 out of every 10 people who were determined to have two or more clues were actually under the .08% standard.

A skilled San Diego drunk driving attorney can pick apart how the officer conducted the one-leg stand test, exposing flaws in the instructions, the demonstration, and how it was graded. If you have been arrested for DUI, do not just plead guilty! There may be defenses in your case that lead to reduced charges 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.

Horizontal Gaze Nystagmus Test (HGN), Why HGN Cannot Be Deemed Reliable

August 29, 2013 | The Law Offices of Susan L. Hartman

The National Highway Transportation Safety Administration, NHTSA, has come up with three “standardized field sobriety tests” for law enforcement to use to aid in drunk driving investigations. One of the three tests is the horizontal gaze nystagmus, or HGN, test. (The HGN test was previously discussed in “Horizontal Gaze Nystagmus Test (HGN), How It Is Used In DUI Investigations.”)

Law enforcement is supposed to administer the HGN test using the guidelines that NHTSA has laid out to ensure the results are valid and reliable. Cops look for six clues, three in each eye. If four clues are found, the officer can determine that the subject’s blood-alcohol content is at or above a .10%.

There are many problems with the HGN test and how it is used by law enforcement to determine if someone is under the influence when conducting a DUI investigation. First off, many people have a natural nystagmus. Prior to the encounter in question between the cop and the suspect, the degree of the natural jerk or bounce in the eye is not known. Therefore, the officer cannot accurately correlate this to impairment.

Another issue is that many drunk driving investigations are done at night, on the side of the road with minimal lighting, with cars passing, and with the cop’s flashing lights on. This is an issue because lighting can affect the results of the test.

However, the biggest and most concerning issue with the HGN test comes from the 1983 NHTSA study that was conducted to prove that HGN and blood-alcohol content are related. NHTSA actually funded this study with the hopes of proving their hypothesis that the HGN test was valid and reliable. This presents a conflict of interest and is a biased study. According to ordinary scientific principles, an independent study by an unbiased group should have funded and conducted the research.

Additionally as alarming, the study found that the HGN test was 77% accurate in detecting whether a person’s blood-alcohol content, or BAC, was .10 or higher. This means that the findings actually proved that almost 1 in 4 people who law enforcement deemed to have a BAC of .10% or higher was in fact under the .10 standard!

So, assuming the officer conducts the test correctly using the NHTSA’s guidelines, the subject does not have a natural nystagmus, and the test is performed with proper lighting, according to the study, almost 1 out of every 4 people tested would be found to be under a .10% BAC. (Note: There has not been a study done using the current legal limit of .08%.) With such issues, this evidence should never come into a criminal courtroom to prove a person was under the influence for purposes of driving a motor vehicle…but it does.

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.

Horizontal Gaze Nystagmus Test (HGN), How It Is Used In DUI Investigations

August 20, 2013 | The Law Offices of Susan L. Hartman

The National Highway Transportation Safety Administration, NHTSA, has come up with three “standardized field sobriety tests” for law enforcement to use to determine if someone is under the influence. One of the three tests is the horizontal gaze nystagmus, or HGN, test. (The two others are the walk-and-turn test and the one-leg-stand test.)

Nystagmus is the involuntary jerking or bouncing of the eyeball. HGN is the horizontal bouncing when the eye gazes to the side. As a person drinks alcoholic beverages or consumes central nervous system depressants, the brain loses its ability to control the eye muscles, causing the jerking or bouncing. The greater the impairment, the greater this involuntary movement.

Before the test begins, the officer should have the subject remove their glasses and inquire if the person is wearing contacts. They should be faced away from any blinking lights including the officers flashing lights and passing cars.

The subject is then asked to follow an object that is 12-15 inches from their eyes and slightly higher than eye level, without moving their head. The officer should then check for equal tracking and equal pupil size. This is done by having the subject quickly follow an object through their field of vision. Lack of equal tracking or pupil size can indicate an injury or a medical issue and the test should be discontinued.

The test is then administered and three clues for each eye is checked, for a total of six possible clues. If four or more clues are found, the officer can determine that the subject’s BAC is at or above a .10.

The first is lack of smooth pursuit. The officer starts at the middle of the subject’s face and moves the object towards their left ear. The test is then done on the right eye. The eye being tested should follow the object smoothly. If nystagmus is observed in either eye, the officer notes that as a clue.

Then the officer checks for distinct nystagmus at maximum deviation. Again, the officer starts at the center of the subject’s face, moving the object toward the left ear. However, this time, the object is brought as far as the eye can go, holding it there for at least 4 seconds. Then the test is repeated on the right side. If nystagmus is observed in either eye, the officer notes that as a clue.

The last is angle of onset of nystagmus prior to 45 degrees. For this test, the officer again starts at the center of the subject’s face, moving the object towards the left shoulder at a speed that would take approximately four seconds. It is estimated that the edge of the shoulder is 45 degrees from the center of the subject’s face. The officer notes a clue if nystagmus is seen prior to reaching 45 degrees. This is repeated on the right eye.

There are many problems with the HGN test and how it is used by law enforcement as part of their investigation to determine if someone is under the influence when conducting a DUI investigation. Those issues will be addressed in another future driving under the influence blog article.

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.

Field Sobriety Tests (FST’s), What Are They?

August 13, 2013 | The Law Offices of Susan L. Hartman

Field sobriety tests, or FST’s, are exercises, that are used by law enforcement to help determine if a person is under the influence of alcohol and/or drugs. If a person performs poorly on the tests, they may be arrested and charged with drunk driving. Prosecutors then use the results of the FST’s to decide what charges to file and they will present FST evidence in court to prove their case.

There are only three tests that have been deemed reliable in determining if someone is under the influence. These tests are called the “standardized field sobriety tests.” They are the horizontal gaze nystagmus test (HGN), the walk and turn test, and the one-leg stand test. However, cops often use other non-standardized tests when conducting DUI investigations, including the finger-to-nose test, the Rhomberg balance test, and the finger count test.

According to the National Highway Transportation Safety Administration (NHTSA), there is a correlation between poor performance on the standardized FST’s and impairment for purposes of driving. They have published proper test protocols for law enforcement to determine if someone is under the influence. However, these tests are unreliable.

Often they are conducted using improper procedures and the clues are not assessed correctly, as they are often subjective. The instructions may be given erroneously or the person may not have understood them.

Even when the FST’s are administered properly, their reliability is questionable. There are many other factors that can make the test results inaccurate. For instance, a person may have a physical or mental impairment that makes his/her ability to perform a test difficult. There may be environmental issues that invalidate the test, such as inappropriate lighting, an uneven surface, or other distractions. In addition, the suspect’s “normal performance” or baseline for any of these tests is not known so there is no way to gauge performance on this occasion to determine if the person is under the influence.

If you have been arrested for drunk driving, and you have questions about the field sobriety tests that you performed and how they may impact your matter, contact The Law Offices of Susan L. Hartman today.

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.

CA Misdemeanor DUI Conviction & Travel To Canada: Part II

July 19, 2013 | The Law Offices of Susan L. Hartman

If you have a drunk driving conviction in San Diego County, or anywhere in California, and you want to enter into Canada you may be inadmissible and denied entry whether the conviction was for a misdemeanor or a felony.

Although you may be criminally inadmissible, you may be able to overcome the inadmissibility through Criminal Rehabilitation or by obtaining a Temporary Resident Permit, TRP, through Citizenship and Immigration of Canada. (Criminal Rehabilitation was discussed in an earlier blog entry titled, “CA Misdemeanor DUI Conviction & Travel To Canada“.)

A TRP may be granted to individuals, who are otherwise inadmissible, for a specific purpose and for a specific period of time. A TRP is a temporary solution to inadmissibility and it is required until the criminal inadmissibility status has been overcome.

You can apply for a TRP at any Canadian visa office or port of entry. The application process can take several weeks to months, so if you are planning a trip, it is imperative that you file the necessary paperwork as early as possible. You should not wait and apply at the port of entry, as your application may be denied and you may not be allowed entry.

If you are granted a TRP, you will have to present it upon entry into Canada. You will be allowed to travel as long as it is valid. Once you are eligible to apply for and are granted rehabilitation, you will no longer need the TRP, as rehabilitation permanently removes the inadmissibility from your file.

If your drunk driving sentence included probation, you should petition the court, in the jurisdiction where you were convicted or plead guilty, for an early termination of probation and expungement. If granted, that would officially conclude the case and that date would be used to start the clock ticking on your ability to file your application for Criminal Rehabilitation.

The above blog article is by no means all-inclusive and is not legal advice. Laws can change. For information about a specific DUI case, speak to a drunk driving attorney in your area. For the most up-to-date information on Canadian immigration, contact a Canadian immigration lawyer.

CA Misdemeanor DUI Conviction & Travel To Canada

July 16, 2013 | The Law Offices of Susan L. Hartman

If you have a driving under the influence conviction in San Diego County, or anywhere in California, and you want to enter into Canada you may be denied entry whether the conviction was for a misdemeanor or a felony.

Canada may refuse entry to any person who has a criminal record. The United States is now sharing driver’s license and court record databases with Canadian immigration officials. Therefore, it is likely that if you chose to attempt to enter into Canada, the Canadian government will find out about it. It is a crime to enter Canada without a valid permit if you are inadmissible. If you violate the law, you can be arrested, imprisoned, and/or deported.

Criminal inadmissibility makes it illegal to enter Canada for any reason without prior authorization from Citizenship and Immigration of Canada. You can overcome the criminal inadmissibility by obtaining a Temporary Resident Permit or Criminal Rehabilitation.

Criminal Rehabilitation is a permanent solution, allowing the applicant a clean slate. To be eligible, the crime must have been committed outside of Canada, there must have been a conviction or an admission to the crime, and 5 years must have passed since all sentence requirements have been completed.

Once outside the ten year period from the date of completion of your entire sentence, including probation, and assuming you only have the one conviction, you may be Deemed Rehabilitated without filing any documents with the government. If 5 years have passed since the completion of your entire sentence, you can apply for a finding of Criminal Rehabilitation. If 10 years have passed, and you have more than one conviction, you can also apply for Criminal Rehabilitation, as such a person cannot be Deemed Rehabilitated.

If you are not eligible for Criminal Rehabilitation, you may be eligible for a Temporary Resident Permit (TRP), which will be discussed in the next blog entry.

The above blog article is by no means all-inclusive and is not legal advice. Laws can change. For information about a specific DUI case, speak to a drunk driving attorney in your area. For the most up-to-date information on Canadian immigration, contact a Canadian immigration lawyer.