San Diego DUI Lawyers Blog

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.

San Diego Pride Week: Use Alternative Transportation To Avoid DUI Charges

July 11, 2013 | The Law Offices of Susan L. Hartman

This is San Diego’s Pride Week and there are many festivities planned for Hillcrest. This year’s theme, Freedom to Love and Marry, is so appropriate after the United States Supreme Court struck down DOMA, the Defense of Marriage Act, and ruled against California’s Proposition 8, effectively allowing the LGBT community to marry in California.

Because of all the tremendous energy around the rulings, San Diego’s Pride celebration is going to be larger than ever. It is already the nation’s 4th largest, with over 200,000 spectators, media participation, a 2-hour parade, a two-day festival, many huge circuit parties and a rally and flag raising to kick it off on Friday.

Needless to say, Pride is a party! Many champagne bottles will be popped and lots of adult beverages consumed. And, with all those people in one place, you can bet there will be lots of police presence. So it’s imperative that before you head out to your celebration, you plan accordingly so you don’t need the help of The Law Offices of Susan L. Hartman for assistance with your driving under the influence charge that you picked up while celebrating!

Here are a few things you can do to make sure you remain safe and arrest-free during this wonderful holiday:

1. Take a cab from your champagne brunch to the parade/festival. Continue cabbing it around San Diego to all the parties throughout the day and night. For convenience, you can use text a cab by Go Fast Cab. They have a convenient app for your smartphone that allows you to just text them your location and they will pick you up.
2. Try the FREE Hillcrest trolley. It is running Friday night and throughout Saturday and Sunday, bringing party-goers from the east side of Hillcrest to Mission Hills and down to the festival in Balboa Park. You can download their app and track the trolleys in real time.

3. Use one of the many pedicabs that will be around Hillcrest and Balboa park.

4. Plan to stay with a friend that lives near the festivities or book a nearby hotel.

If you end up picking up a DUI, call The Law Offices of Susan L. Hartman immediately for your FREE telephone consultation to find out about your rights and options with no obligation.

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.

San Diego Craft Beer Warning, Look Out For The ABV

July 8, 2013 | The Law Offices of Susan L. Hartman

San Diego is quickly becoming the craft brew capital of the world. Sandiego.org has dubbed San Diego the “Napa of beer” because of the number of craft breweries in the county. Many local tasting rooms, brew pubs and restaurants are now listing on their menus the beer style, the size of the glass each beer is served in, and the ABV, (alcohol by volume).

Why is the ABV important? The ABV is the measurement of the amount of alcohol within the total volume of liquid, or the strength or potency of the beer. The amount of alcohol in the beer plus the size of the glass will depend on how quickly you will feel intoxicated and be under the influence for purposes of driving.

The guidelines for drinking and driving use a standard formula for one 12-ounce beer averaging 5% ABV. Most large beer makers, such as Budweiser and Coors, use 12-ounce bottles and their ABV usually ranges from 4 to 6%.

If you drink a 12-ounce beer that is 7.5% ABV, that is 1 1/2 times that of the 5% ABV beer. If you have a pint of beer that is 16-ounces, that is 1/3 more beer than a standard serving. If you drink a beer with a higher ABV or is poured into a larger glass, your blood-alcohol content, (BAC), will increase at a rate higher than the standard guidelines. And, if you are arrested by law enforcement for DUI, you can expect your BAC will be higher than if you had a standard size beer with a standard amount of alcohol.

Keep in mind that the drinking guidelines are just that, guidelines. Many things factor into whether or not you will be under the influence such as your sex, weight, if, when and/or what you ate, some medical conditions, among others.

The best way to avoid a drunk driving arrest is simply not drink alcoholic beverages and drive. There are many alternatives to taking this risk while still enjoying your beer or other cocktail: Use Car2Go to the location and take a cab home; Take a cab in both directions and to make it cheaper, split it with friends; Use public transportation; Designate a sober driver; Or, stay where the party is until you are sober.

If you are out enjoying San Diego’s craft brews and you happen to be pulled over and arrested for drunk driving, you owe it to yourself to hire a criminal defense attorney that handles DUI matters.

(Note: Some breweries use ABW, (alcohol by weight), instead of ABV. Alcohol measured by weight instead of volume will actually be stronger. To convert the ABW to ABV, multiply the ABW by 1.25.)

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.

California Open Container Laws

June 17, 2013 | The Law Offices of Susan L. Hartman

In California, it’s well known that it is unlawful to drive a vehicle while under the influence of an alcoholic beverage, a drug or a combination thereof, under California Vehicle Code (VC) Section 23152. In addition, California has “open container laws” which are codified in VC Sections 23221 – 23229. A driver or a passenger that is over 21 years old can have an unopened, factory-sealed alcohol container inside the passenger compartment of the vehicle; however, the “open container laws” make it illegal to have an open alcohol container in the passenger compartment of a motor vehicle.

Specifically, California VC Section 23221 prohibits drivers and passengers from consuming an alcoholic beverage while the motor vehicle is being driven on a roadway.

If you are a driver or a passenger that is over 21 years old and you have an open container in your possession in the vehicle, you can be charged with Possession of Open Container While Driving or Possession of Open Container in Motor Vehicle under California Vehicle Code Section 23222 or 23223.

It is also unlawful for a registered owner to store an opened alcohol container inside their vehicle under VC 23225. As well, it is illegal for the driver or a passenger to store an opened alcohol container inside the passenger compartment of the vehicle while the vehicle is being driven on a roadway, per California Vehicle Code Section 23226.

California VC Section 23224 addresses drivers and passengers that are under 21 years old. In essence this section states no person under 21 shall knowingly drive any motor vehicle carrying an alcoholic beverage and no passenger under 21 shall knowingly possess or have under their control any alcoholic beverage unless accompanied by a parent or an adult designated by a parent, or driving during the course of their employment, or if unaccompanied the underage driver was following the reasonable instructions of their parent.

There are exceptions to these “open container laws” that are found in VC 23229. Passengers in any bus, taxi, limo for hire licensed to transport passengers, or persons inside the living quarters of a housecar or camper are exempt from the possession of an open container and the drinking inside a vehicle laws. And, the driver of the vehicles listed above are exempt from the storage of an open container law found in VC 23225.

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 defense attorney in your area.

In California, Can You Be Charged With DUI While Boating (BUI)?

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

Drunk boating charges were recently brought against Erin Brockovich, an environmental activist whose life was the basis of the self-titled movie, according to examiner.com. She was boating on Lake Mead in Nevada and she caught law enforcement’s attention when she was struggling to dock her boat. After an investigation, she was arrested for OUI, or Operating Under the Influence, Nevada’s version of California’s DUI laws.

California also has drunk boating statutes which are found in the California Harbors and Navigation Code Section 655. The language used in the boating under the influence, or BUI, statutes is very similar to the drunk driving statutes, California Vehicle Code Section 23152(a) & (b). Section 655(b) is similar to the (a) count for DUI, and it 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.”

California Harbors and Navigations Code Section 655(c) is similar to the (b) count for DUI, and it specifically states, “No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.”

These code sections pertain to recreational vehicles; however, if a person is operating a commercial vehicle, the Harbors and Navigation Code 655(d) states, “No person shall operate any vessel other than a recreational vessel is the person has an alcohol concentration of 0.04 percent or more in his or her blood.”

If any injuries are involved, the boat operator can be charged with Section 655(f) of the Harbors and Navigation Code. This is similar to California Vehicle Code Section 23153 and it expressly 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 under the combined influence of an alcoholic beverage and any drug, and while so operating, do any act forbidden by law, or neglect any duty imposed by law in the use of the vessel, water skis, aquaplane, or similar device, which act or neglect proximately causes bodily injury to any person other than himself or herself.”

Open containers are allowed inside a boat and passengers and drivers can consume alcohol. It is only illegal to operate a boat while under the influence.

San Diego law enforcement are out in full force over the summer months ensuring our beaches and local waterways are safe. They will arrest those they believe are under the influence and operating a motorized boat. If you are arrested for BUI, you owe it to yourself to hire a criminal defense attorney who specifically handles DUI matters.

Avoid Drunk Driving Charges In CA This Memorial Day By Planning Ahead

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

San Diego Sheriff’s Department announced a Memorial Day weekend DUI crackdown through their Avoid the 15 DUI Task Force. They will be conducing DUI and driver’s license checkpoints and drunk driving saturation patrols throughout the County of San Diego beginning Friday night and continuing throughout the weekend, especially in the evening hours.

California Highway Patrol (CHP) also published a press release stating they will also be out in full force this weekend in an attempt to reduce deaths and injuries caused by drunk driving. The Maximum Enforcement Period (MEP) begins Friday, May 24th, at 6:00 p.m. and continues until Monday, May 27th, at 11:59 p.m. CHP officers will enforce seatbelt use, speed violations, and driving under the influence.

Other California law enforcement is expected to follow suit and either set up sobriety checkpoints or conduct saturation patrols specifically looking for drunk drivers. To get the most up-to-date checkpoint information, use Mr.Checkpoint.

The San Diego Sheriff’s press release included a warning that Memorial weekend is the official start of summer and partying. Along with the festivities, people often overly indulge in alcohol. To keep everyone safe, they recommend planning ahead before you head out to your parties. You can do this by designating a sober driver, arranging a ride home for yourself or your intoxicated friends, calling a cab or using one of the apps for texting a cab, or planning to stay at the place of the party. If you are hosting a party, limit the amount of drinks you serve, provide plenty of food, and have fun alcohol-free drinks for the designated drivers.

Last year’s Memorial weekend resulted in 25 deaths on California roadways and 1,300 DUI arrests. Don’t end up spending your holiday in jail, or worse, in the hospital or morgue. Plan ahead. However, if you do end up arrested for drunk driving, you owe it to yourself to hire a California DUI defense attorney to help get you through the process with the best possible outcome.

Forced Blood Draws: Will San Diego Law Enforcement Get A Warrant?

May 23, 2013 | The Law Offices of Susan L. Hartman

California has an “implied consent” rule regarding chemical testing that is found in Vehicle Code Section 23612. This vehicle code section states, “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.”

When a person is arrested for drunk driving, they are given a choice between a blood or breath test. If a person refuses to give either sample, The Department of Motor Vehicles (DMV) will suspend or revoke a person’s driving privileges pursuant to California Vehicle Code Section 13352. The period of that suspension or revocation is at least one year.

In addition to the repercussions in the administrative DMV phase of a DUI case for a refusal, there are also increased penalties in the criminal court process.

Law enforcement cannot obtain a person’s blood without consent unless they have a warrant to do so. Failure to have a warrant constitutes a Fourth Amendment violation. Regardless, San Diego and other California law enforcement agencies have been forcibly taking blood from drivers without a warrant, citing the landmark case from 1966, Schmerber v. California. In that case, the court held police can, without a warrant, forcibly obtain a person’s blood for the purpose of chemical testing to determine intoxication after a lawful arrest if the sample is taken in a reasonable, medically approved manner, there is a reasonable belief that the person is intoxicated, and there is a need for prompt testing because the person’s blood alcohol is diminishing.

However, in April 2013, the United States Supreme Court ruled on this issue in Missouri v. McNeely. In this case, the Court ruled that a warrantless search of a person is reasonable only if it falls within an exception. The Court did not find any exceptions for exigency existed just because blood alcohol evidence is inherently evanescent.

Although the Court did not create a per se rule, it did state, “When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

The opinion also commented how much more expeditiously warrant processing is 47 years after Schmerber, and that exigency is determined on a case-by-case basis.

Since no bright line rule was created in this opinion regarding when the police can forcibly take blood from someone who was lawfully arrested, suspected of drunk driving, this issue will remain one that is heavily litigated.

If you have had a forced blood draw without a warrant, contact a criminal defense attorney who specifically handles driving under the influence cases. If there is a valid argument that your constitutional rights have been violated, a motion to suppress this evidence may be filed and ultimately, the prosecutor may not be able to use the results against you in court.