San Diego DUI Lawyers Blog

San Diego Prom And Graduation Season & The Dangers Of Drunk Driving

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

Southern California springtime brings with it beautiful weather, blooming flowers, high school proms and graduation celebrations. There is the potential for young adults to drink alcohol in celebration even though it is illegal for anyone under the age of 21 to ingest an alcoholic beverage. These teens are inexperienced drinkers. Often, they do not understand how their bodies react to alcohol consumption, how it slows motor function, and how it makes them easily distracted and more likely to make choices they would not normally make if they were sober.
In addition to being inexperienced drinkers, they are also inexperienced drivers. Adding alcohol to the mix can lead to car accidents, bodily injury, property damage, the loss of their driving privileges, driving under the influence charges with fines, fees and a criminal record, and worse, possibly deadly consequences for the driver, the passengers, pedestrians, and other drivers.

Often teens feel invincible not believing bad things will happen to them. This is dangerous thinking in the realm of drinking and driving. There may be peer pressure to drive after drinking or to ride in a car with someone after they have had alcohol.

USA Today and MADD (Mothers Against Drunk Driving) warn of the dangers. MADD reports the leading cause of death for teens is car accidents. Of those accidents, 1/3 are alleged to involve alcohol. The Centers for Disease Control and Prevention claims teenage DUI’s are down 54% since 1991, but almost one million teenagers reported drinking alcohol and then driving in 2011.

The best thing you can do as a parent is educate your young adult children of the dangers of drinking and driving. Encourage them to call you anytime for a ride without questions. Let them know they can be seriously injured or killed as a passenger in a car that is driven by another young adult who is under the influence.

One bad choice made while under the influence can change not only the teen’s life, but the lives of those around them.

Happy spring, prom and graduation time! Make it a safe one!

But, if you happen to get arrested for drunk driving and you are under 21 years old, you owe it to yourself to hire a criminal defense attorney that exclusively deals with drunk driving matters. Do not just plead guilty! A criminal conviction can affect your life long after the incident occurred. Find out your rights and protect yourself.

SD Police Officers Investigated: Possible DUI Cover Up For One Of Their Own

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

cop arrest.jpg San Diego Police Sergeant John Iammarino, Detective Daniel Caropreso, Sergeant William Brown, and Sergeant Christopher Tivanian are all assigned to desk duty as the San Diego City Attorney’s Office investigates their involvement in a drunk driving incident involving SDPD Detective Jeffrey Blackford, according to San Diego’s 10news.com.

Allegedly, on December 6th, 2012, off-duty officers of SDPD were out drinking. Before 1:00am, on December 7th, Detective Blackford drove off then spun out and hit a utility box. Within a short period of time, off-duty officers, Sergeant Iammarino and Detective Caropreso, came to save the day. Unlucky for the officers, there was video surveillance of their arrival on scene which provided a timeline to what happened, or didn’t happen, next.

It was not until about 2:15am that on-duty officers were called and Sergeant Brown and Sergeant Tivanian responded. The four officers waited until approximately 3:59am to give Blackford a preliminary alcohol screening (PAS) test at the scene. It is surprising that the officers conducted this test at all, since they should be well aware that this test is considered a field sobriety test and it is not required for people over 21 and not on DUI probation. The results of the PAS test were not reported.

What did these officers do from before 1:00am until just about 4:00am? Why the delay? You would expect a quick response after an officer involved car accident, wouldn’t you? There is an obvious answer rooted in California’s driving under the influence laws, and you know the San Diego Police officers are well aware of the three hour presumption in California Vehicle Code (VC) Section 23610.

Under the drunk driving statutes in the California Vehicle Code, in order for the defendant to be found guilty, the prosecutor must prove that the defendant was driving a vehicle and while driving the person was under the influence of an alcoholic beverage, a drug, or a combination of both. In addition, there are rebuttal presumptions regarding being under the influence. VC Section 23610(3) states: “If there was at the time 0.08 percent or more, by weight, of alcohol in the person’s blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of driving.” VC Section 23152(b) states the rebuttable presumption applies if the chemical test was conducted within three hours of driving.

It seems very apparent that the officers were trying to get their fellow officer outside the presumption window before subjecting him to the PAS test and the subsequent arrest in hopes that he would either be below the legal limit of a .08% BAC and they would not to arrest him for DUI, or he would be able to rebut the presumption that he was under the influence at the time that he was actually driving.

The San Diego City Attorney has filed documents to obtain the internal investigation documents from the SDPD. The Law Offices of Susan L. Hartman will continue to follow this story to see exactly what happened on the night in question.

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 DMV Hearing: Driver’s License Suspension For Medical Issues

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

The California Department of Motor Vehicles (DMV) is an administrative body that deals with driver’s license issues. The DMV may initiate a inquiry into a driver’s ability to safely operate a motor vehicle on several different grounds. Here, only medical issues will be discussed.

The DMV may initiate an investigation or evaluation of your ability to drive after receiving information from any source including the driver, family/friends, medical professionals, law enforcement, and others. Often, the DMV Driver’s Safety Office is provided information about a licensee’s medical condition during the Administrative Per Se (APS) Hearing following a drunk driving arrest. Even if the licensee prevails at the APS hearing and their license is reinstated and the suspension order is set aside, they may receive notice from the DMV that due to their medical condition, their driving privileges are again being threatened.

Upon receiving the information, the DMV will do one of several things. They may have the driver and their doctor fill out a Driver Medical Evaluation, or DME. If the driver fails to cooperate, their license will be suspended. If the documents are submitted, and it is determined that the driver is not a risk, no action will be taken. If further information is needed, the DMV may conduct a reexamination of the driver. If it is believed that the licensee is an immediate safety risk, their license may be suspended or revoked immediately.

The reexamination is also called a Physical and Mental Evaluation, P & M Hearing, or a medical suspension hearing. It is held by a hearing officer at the San Diego Driver’s Safety Office, not the local DMV. During the hearing, the officer will review all the supporting documents and the licensee is given an opportunity to present evidence in their defense. The licensee’s evidence should focus on their current ability to safely operate a vehicle.

After the hearing, if the hearing officer determines the driver is not a safety risk, the DMV will not take action against the licensee’s driving privileges. However, if the officer does find a safety risk, the driving privileges may be suspended until the medical condition is corrected or revoked if the condition is deemed incurable.

If additional information is needed, the hearing officer can schedule a follow-up reexamination. They may put the driver on Medical Probation I, which requires the driver to comply with their medical regimen. They may instead place the driver on Medical Probation II, which requires annual reports to the DMV. In addition, the DMV has authority to issue a limited term license, requiring the licensee return at a future date for another reevaluation, a restricted license, or suspend or revoke the driving privileges.

For many, the loss of their privilege to drive means loss of mobility and independence. Do not go into these hearings without proper counsel to give yourself the best opportunity to save your license. Drivers may be represented by counsel at these P & M Hearings and you should immediately contact a San Diego DMV hearing attorney to assist you with your case.

San Diego: Under 21 And Charged With Driving While Under The Influence

February 28, 2013 | The Law Offices of Susan L. Hartman

In California, it is illegal for anyone under the age of 21 to consume alcohol. Further, anyone under the legal limit must be alcohol-free when driving. This is codified in California Vehicle Code Section 23136, the Zero Tolerance Law, which states, “[I]t is unlawful for a person under the age of 21 years who has a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test, to drive a vehicle.”

The Zero Tolerance Law is a civil offense and is handled through the DMV. Any underage driver who is detained or arrested for drunk driving is required to submit to a preliminary alcohol screening test (PAS) or other chemical test. If the driver refuses or fails to complete the test or the blood-alcohol content (BAC) is .01% or more, the DMV will suspend or revoke the youth’s driver’s license.

If the under 21 year old driver took the PAS or other chemical test and the results were .01% or higher, their driver’s license suspension is one year. If the driver refused or failed to complete the test, the license suspension is one year for the first offense, revoked for two years for the second offense within 10 years, and revoked for three years for three or more offenses within 10 years.

The Suspension/Revocation Order and Temporary Driver License will allow the driver to continue to drive with the same privileges and restrictions as they had under their driver’s license for a period of 30 days from the date it was issued. After that 30-day period, the driver’s license is automatically suspended or revoked unless within 10 days after the date of detention or arrest the DMV is contacted to request a hearing to challenge the suspension or revocation. You may hire a San Diego criminal defense attorney to represent you and your interests at the DMV hearing. If you prevail at the hearing, the suspension or revocation will be set aside and your driving privileges are restored in full.

On the first offense, if the suspension or revocation is not challenged or if you do not prevail after the DMV hearing, but the driver completed a chemical test, the driver may apply for a critical need restriction after the 30-day suspension, under CVC 12513, 13353.8. This will only be granted if the driver can show a critical need to drive and that other transportation options are inadequate.

California Vehicle Code (CVC) Section 23136 does not preclude further criminal prosecution under the other driving under the influence statutes including CVC Section 23152 and 23153, which are wobblers, meaning they can be charged as a misdemeanor or felony. In addition, there is another CVC section that specifically deals with under 21 drivers, CVC Section 23140. Under this section, is it an infraction for anyone under 21 years old to drive with a blood-alcohol content of .05 — .07%.

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.

Drunk Driving Arrest, But Plead To Wet Reckless: First Conviction Program Requirements

February 25, 2013 | The Law Offices of Susan L. Hartman

A DUI arrest often results in the prosecuting authority filing official charges in the San Diego Superior Court. The most common driving under the influence charges involving an alcoholic beverage or drug, or a combination of an alcoholic beverage and a drug, does not involve an accident, personal injury or property damage, and is filed as a misdemeanor under California Vehicle Code Section 23152 (a) & (b).

Once the case is filed, the DUI defendant is given notice of an arraignment date. At the arraignment or the first hearing, (the Readiness Hearing), the defendant or his or her DUI attorney and the prosecutor will negotiate the case. If the blood or breath test was around a .10% or if the prosecuting attorney believes there are problems with their case, the offer may be for a lesser included charge called a wet reckless.

If the driving under the influence defendant wants to accept the deal and enter a guilty plea to the wet reckless, the judge will either order the 3-month First Conviction Program or the 12-hour, education only program as a condition of DUI probation. If the blood alcohol content was below a .08% or showed a positive for drugs, the 12-hour class will be ordered. If the blood alcohol was at or above a .08%, the 3-month program will be ordered.

In order to comply with the court ordered first conviction program, the defendant must attend a court approved program. These can be found on the San Diego Court’s website. This course costs $190.00 and includes:

• Six education classes, 1 class per week, 2 hours per class.

Defendant’s should be cautious with the interaction between this criminal court process and the DMV administrative process, as the DMV may require the licensee enroll in a different program to be eligible for a restricted license or to have the driver’s license reissued. The most confusing issues for DUI defendants revolve around the interaction between the DMV and the court consequences and the defendant’s driving privileges. For the most up to date information, contact a criminal defense lawyer in your area that exclusively deals with drunk driving matters.

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.

San Diego County 1st Drunk Driving Offense: Why The 9-Month Program?

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

In the San Diego courts, if you plead guilty or you are convicted of a first drunk driving offense, the court will order you to enroll and complete a first conviction program. There is a 3-month program and a 9-month program.

The 3-month Drunk Driving First Conviction Program is the standard program ordered by the court. However, the court will impose the enhanced 9-month program if the blood-alcohol content (or BAC) was at or above .20%. Defendants must be aware of this if they want to obtain a restricted driver’s license after the Administrative Per Se suspension imposed by the DMV. The DMV will only require enrollment in a 3-month program for the restriction; however, after the court process is complete, the defendant may have to enroll and complete the 9-month program instead.

In order to comply with the court ordered 9-month first conviction program, you must attend a court approved program. These can be found on the San Diego Court’s website. The nine month course costs $1,190.00 and includes:

Six education classes, 1 class per week, 2 hours per class;
Thirty counseling group sessions, 1 session per week, 1.5 hours per session;
Twenty face-to-face interviews, 1 bi-weekly, 20 minutes per interview; and,
Thirty-nine self-help meetings, 1 per week.

You can enroll using the DMV DUI paperwork or the court referral form. However, you want to make sure you enroll in the right program.

Failure to enroll and/or complete the ordered program by the dates set by the court will result in a probation violation. In addition, the DMV will not allow you to apply for a restricted driver’s license until you enroll and you will not be eligible to reinstate your driving privileges in full until you complete the requisite program.

The most confusing issues for DUI defendants revolve around the interaction between the DMV and the court consequences and the defendant’s driving privileges. For the most up to date information, contact a criminal defense lawyer in your area that exclusively deals with drunk driving matters.

San Diego DUI 3-Month First Conviction Program: What Is It & How Do I Enroll?

January 31, 2013 | The Law Offices of Susan L. Hartman

First off, if you are stopped by law enforcement and they have probable cause to believe you are driving while under the influence of alcohol with a .08% blood alcohol concentration (BAC) or higher, they will give you an “Administrative Per Se Suspension/Revocation Order and Temporary Driver License” form. This document allows you to drive with all your normal privileges like your original driver’s license for thirty days after the date of your arrest. After the thirty days, your license will automatically be suspended unless you contact the DMV within ten days after the date of arrest to request a hearing to challenge the automatic suspension.

If you fail to request a hearing or you lose the hearing, the DMV will suspend your driving privileges for four months. However, after thirty days into the suspension, you can apply for a restricted driver’s license. This restricted license will allow you to drive to, from, and during the course of your employment, and to and from any DUI programs, and will last five months.

In order to get this restriction, you will need to register for a First Conviction Program (FCP), pay a $125 reissuance fee, and file proof of financial responsibility (SR-22 form).

If you plead guilty to drunk driving in court or you are convicted after a trial, the court will suspend your driving privileges for six months and order you to complete the FCP.

If your BAC was below .20%, you will be ordered to complete a three month FCP. If your BAC was .20% or greater or you refused to take a chemical test after a lawful arrest, the court will order you to complete the nine month First Conviction Program. (Note: The nine month FCP will be discussed in a later blog.)

In order to comply with the court ordered program, you must attend a court approved First Conviction Program. These can be found on the San Diego Court’s website. The three month course costs $477.00 and includes:

Six education classes, 1 class per week, 2 hours per class;
Twelve counseling groups, 1 session per week, 1.5 hours per session;
Three face-to-face interviews, 1 per month, 20 minutes per interview; and,
Three self-help meetings, 1 per month.

You can enroll using the DMV paperwork or the court referral form. However, you want to make sure you enroll in the right program.

The most confusing issues for DUI defendants revolve around the interaction between the DMV and the court consequences and the defendant’s driving privileges. For the most up to date information and to discuss your specific facts and issues, contact a criminal defense attorney in your area that exclusively deals with drunk driving matters.

Driving Under The Influence Charges, But I Was Not Driving

January 25, 2013 | The Law Offices of Susan L. Hartman

Under the California Vehicle Code, “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.” (See 23152 VC.)

Simply stated, in order for the defendant to be found guilty, the prosecutor must prove to a jury that the defendant was: 1.) Driving a vehicle; and 2.) Under the influence.

Often, people who are just standing by a vehicle, sitting in the driver’s seat, or sleeping in their car are charged with drunk driving. How is this legal if the officer did not actually witness driving?

According to California Penal Code Section 836, “A peace officer may arrest a person…without a warrant…whenever the following circumstances occur: (1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence…”

However, there are several exceptions to the presence requirement providing a very big hole through PC 836, allowing an officer to make an arrest for DUI even if the actual driving was not observed by the arresting officer. The exceptions include:

(a) The person is involved in a traffic accident.

(b) The person is observed in or about a vehicle that is obstructing a roadway.

(c) The person will not be apprehended unless immediately arrested.

(d) The person may cause injury to himself or herself or damage property unless immediately arrested.

(e) The person may destroy or conceal evidence of the crime unless immediately arrested. (See VC Section 40300.5.)

But, even if the officer made a valid, warrantless arrest, the prosecutor must still prove driving to win their case. According to Mercer v. DMV, the act of driving in the drunk driving statutes requires actual volitional movement of the vehicle. However, the courts have held driving can be proven by circumstantial evidence. This is a fact-based issue and many of these cases end up in trial, leaving the jury to decide what happened.

If you have been charged with DUI in Southern California, and you were not actually driving the car or there were no witnesses to your driving, you should immediately contact a criminal defense lawyer who exclusively handles drunk driving cases to protect you and your rights.

Drunk Driving No Longer An Issue With New Technology?

January 4, 2013 | The Law Offices of Susan L. Hartman

hippy car.jpg In California, the drunk driving statutes are found in the California Vehicle Code. The code states it is illegal to drive a motor vehicle on a highway while under the influence of alcohol, drugs, or a combination of alcohol and drugs. In addition, it is unlawful to drive with a blood alcohol content, or BAC, of .08 percent or greater. There is a rebuttable presumption that if the BAC result is .08% or greater and the test was done within three hours of driving, it may be concluded that the driver’s blood alcohol was at or above a .08 at the time of driving.

California is among the states that have already implemented the use of ignition interlock devices (IID’s) for those convicted of driving under the influence. The device is installed in the defendant’s car. In order to start the car, the driver must first blow into the machine. If alcohol is not detected, the car will start. If it is detected, the car will not start.

A Massachusetts company, Qinetiq, received $10 million in total funding 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, according to cbsnews.com. The intention is to make this a safety feature just like seatbelts, putting it into every new car requiring everyone to use it.

Qinetiq is currently testing a breath-based and a touch-based system. The breath-based system uses a sensor on the steering wheel that tests the driver’s breath. The touch-based system uses a sensor in the start/stop button which sends an infrared light into the driver’s finger when the vehicle is started. If alcohol is detected, the car will start but not be operational.

The American Beverage Institute (ABI) is concerned that the sensors can be inaccurate, it targets all drivers, and it can eliminate a person’s ability to have a drink at dinner, a ballgame, or a wedding, which is not illegal.

With the current political view and pressure about drinking and driving, it seems inevitable that we will have zero tolerance laws in place as soon as this technology is thought to be perfected. A driver will not be able to drive after consuming alcohol until the alcohol has been eliminated from their system, and many people will choose not to drink at all.

If you are arrested for DUI, you owe it to yourself to hire a criminal defense attorney that only practices drunk driving defense. These cases and the science behind the law and evidence is very technical and fact specific.

Bill Introduced To Require Ignition Interlock Devices (IID’s) For 2nd Or Subsequent DUI Convictions

December 31, 2012 | The Law Offices of Susan L. Hartman

In California, a bill was introduced that would require all people with a second or subsequent drunk driving conviction to install an ignition interlock device, or IID, in their car, State Senator Jerry Hill announced on Friday, according to NBCSanDiego.com. According to the bill, a second conviction would require the installation and use of the IID for one year. Upon the third conviction, the IID would be required for two years. On a fourth or subsequent conviction, the defendant would be ordered to comply for three years.

An ignition interlock device is a machine that is installed in your car’s ignition. In order for your car to start, the driver must first blow into the machine. If no alcohol is detected, the car will start. If alcohol is detected, the car will not start. In addition, as the car is running, it requires additional breath samples with no alcohol detected to keep the car operational.

As of July 1, 2010, California began a pilot program for IID use. According to the pilot program, if the DUI violation occurred in Alameda, Los Angeles, Sacramento, or Tulare, California, the convicted is required to install an IID in all vehicles that s/he owns or operates, even on their first drunk driving offense, before applying for a restricted driver’s license. First time offenders must maintain the device for 5 months. Second time offenders must maintain the device for a year. Third time is 2 years and the fourth and subsequent offenders must comply for three years. (Note: This program is expected to expire on January 1st, 2016.)

Under the current law, if you are not in one of the above-referenced counties, such as San Diego, you usually will not be ordered to install an IID on a first driving under the influence conviction. However, courts do have discretion to order this and it “shall give heightened consideration to applying this sanction to a first offense violator with 0.15 percent or more, by weight, of alcohol in his or her blood at arrest, or with two or more prior moving traffic violations, or to persons who refused the chemical tests at arrest.” (See California Vehicle Code Section 23575.) The court has discretion in ordering a term not to exceed three years from the date of conviction.

In a second or subsequent DUI conviction that involved alcohol not drugs, the defendant may shorten the license suspension or revocation by agreeing to install the IID.

Even if the court does not order the IID, the DMV is required to order the installation when a person is convicted of driving with a suspended or revoked license and that suspension or revocation is due to a prior DUI, California Vehicle Code Section 14601.2, 14601.4, or 14601.5.

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.