Published on:

As you will recall, Susan Hartman, of the Law Offices of Susan L. Hartman, attended The National Highway Traffic Safety Administration (NHTSA) and The International Association of Chiefs of Police (ICAP) approved DWI Detection and Standardized Field Sobriety Testing Practitioner Course, as presented by Mr. Robert La Pier.

The course went through the three standardized field sobriety tests (SFST’s), as laid out by NHTSA:  1.) The horizontal gaze nystagmus, (HGN); 2.) The walk and turn, (WAT); and 3.) The one leg stand, (OLS).  These are the only tests that have been validated by NHTSA and should be used by law enforcement in evaluating each potential DUI.  It should be noted that these tests were only validated to correlate to a specific blood alcohol content (BAC) and they are not be used to show impairment.

The two previous blog articles discussed the HGN and WAT tests. This article will address the OLS test.

The NHTSA manual states that this “test requires a reasonably dry, hard, level, and non-slippery surface.”  If the person is wearing heels that are more than two inches, they should be given the choice to remove the shoes and perform the test barefooted.

There are many reasons why a person may not be able to adequately perform this test, regardless of their consumption of alcohol.  For instance, as a person ages, balance and coordination is more difficult.  If a subject has any current or prior injuries to their back or legs, they suffer from inner ear problems, or they are overweight by 50 or more pounds, they may have problems performing the test.  However, in my experience, officers often state, “I will take your concerns and medical issues into consideration,” and then they proceed with having the subject perform the test. Continue reading →

Published on:

As you will recall, Susan Hartman, of the Law Offices of Susan L. Hartman, attended The National Highway Traffic Safety Administration (NHTSA) and The International Association of Chiefs of Police (ICAP) approved DWI Detection and Standardized Field Sobriety Testing Practitioner Course, as presented by Mr. Robert La Pier.

The course went through the three standardized field sobriety tests (SFST’s), as laid out by NHTSA:  1.) The horizontal gaze nystagmus; 2.) The walk and turn; and 3.) The one leg stand.  These are the only tests that have been validated by NHTSA and should be used by law enforcement in evaluating each potential DUI.  It should be noted that these tests were only validated to correlate to a specific blood alcohol content (BAC) and they are not be used to show impairment.

In the last blog article, the horizontal gaze nystagmus, or HGN, test was discussed. This article will address the walk and turn test, (WAT).

The NHTSA manual states that this “test should be conducted on a reasonably dry, hard, level, non-slippery surface.”  If the person is wearing heels that are more than two inches, they should be given the choice to remove the shoes and perform the test barefooted.

There are many reasons why a person may not be able to adequately perform this test, regardless of their consumption of alcohol.  Continue reading →

Published on:

IMG_4136San Diego DUI defense attorney, Susan Hartman, of the Law Offices of Susan L. Hartman, recently attended The National Highway Traffic Safety Administration (NHTSA) and The International Association of Chiefs of Police (ICAP) approved DWI Detection and Standardized Field Sobriety Testing Practitioner Course, as presented by Mr. Robert La Pier. This is the very course law enforcement is trained in for DUI investigations, giving them the tools to determine if a person should be arrested for drunk driving.

During the training, which lasted three full days, Susan was tested through written exams and practical demonstrations. In the end, she passed the course and earned the certificate of completion.

According to NHTSA, there are only three standardized field sobriety tests (SFST’s): 1.) The horizontal gaze nystagmus; 2.) The walk and turn; and 3.) The one leg stand. These are the only tests that have been validated by NHTSA and should be used by law enforcement in evaluating each potential DUI. It should be noted that these tests were only validated to correlate to a specific blood alcohol content (BAC) and they are not be used to show impairment.

In this blog article, the horizontal gaze nystagmus, or HGN, will be discussed. The other two tests will be addressed in upcoming blog articles. Continue reading →

Published on:

IMG_7721The Law Offices of Susan L. Hartman recently wrote a blog article about biking or cycling under the influence.  Now that it’s almost summer, not only is it good to brush up on the biking laws, it is also good to do a quick refresher on boating under the influence.

If you head out to San Diego Bay, know that law enforcement will be out on the water and on the beach looking to enforce the laws, including the drunk boating statutes, (see 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 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). Continue reading →

Published on:

In San Diego County, or anywhere in California, if you are arrested for drunk driving, two processes automatically begin.  One is the court process which is handled through the criminal court system and involves criminal charges and penalties.  The other is the administrative process that is handled through the Department of Motor Vehicles, DMV, and involves the suspension of your driving privileges.  [Note: Although the DMV has a separate action regarding your driving privilege, the court may also suspend your privilege to drive if you plead guilty or you are found guilty after a trial of driving under the influence or alcohol, drugs, or a combination of alcohol and drugs.]

For many people, the worst and most inconvenient penalty in a DUI case is the inability to drive.  And, if you do not challenge the suspension by requesting a hearing with the DMV within 10 of the arrest date, the DMV will  automatically suspend your driver’s license for four months, or for one month with an additional five months with a restricted driver’s license, allowing you to drive to/from and during the course of your employment and to/from any DUI programs.

The DMV APS Hearings, as they are called, are not held to the court standard of beyond a reasonable doubt.  The standard applied in administrative proceedings is by the preponderance of the evidence.  Because of this low burden on the DMV, and the fact that the hearing officer is in essence the prosecutor and the judge, and they do not even have to be lawyers, it is rare to get the DMV to set aside the suspension.

I was very sad to see recently a San Diego Hearing Officer, Alva Benavidez, plead guilty in federal court to conspiracy to accept brides.  From what was reported, some criminal defense attorneys decided since they have an uphill battle to win these cases, they would resort to bribing the hearing officer.  Continue reading →

Published on:

photo.200San Diego neighborhoods, including Hillcrest, North Park, South Park, Golden Hills, Mission Hills, Little Italy, and Downtown, have new DecoBike stations.  In fact, at least 80 rental stations have been installed, with a total of 180 planned.  Future expansion is supposed to include our beach communities.

As a DUI defense attorney, I see a possible issue with these bike rentals.  Although Mothers Against Drunk Driving, aka MADD, propaganda has brainwashed us all since grade school to believe if you drink an alcoholic beverage and drive a vehicle, you should be prosecuted for drunk driving, many people do not know it is also a crime in California to bike or cycle while under the influence, (BUI or CUI respectively).

If the bicycle is self-propelled, you cannot be charged under the standard driving under the influence statues.  However, you can be cited under California Vehicle Code Section 21200.5, which states, Continue reading →

Published on:

Currently, there are four counties in California that are participating in the ignition interlock device, IID, pilot program:  Los Angeles, Alameda, Tulare, and Sacramento, per California Vehicle Code Section 23700.  The pilot program requires all driving under the influence, DUI, defendants, including first time offenders, to pay for, install, and then maintain the IID for a period of time as determined by the number of drunk driving convictions the individual has.

An IID is a breathalyzer instrument that is professionally installed in the defendant’s vehicle by a court-approved company.  The driver must blow into the device, providing an alcohol-free sample.  If alcohol is detected, the car will not start.  Once started, the driver will be prompted to give another sample within 15-minutes of driving and then again about every 45-minutes.  If alcohol is detected during a random sample, the car will stall and become inoperable.  These are referred to as “sample failures” and are reported to the court.

Recently, the Department of Motor Vehicles released its report to the Legislature of the State of California of its findings regarding the “General Deterrent Evaluation of the Ignition Interlock Pilot Program in California.”  According to this sixty page report, the DMV study found “the IID pilot program was not associated with a reduction in the number of first-time and repeat DUI convictions in the pilot counties.  In other words, no evidence was found that the pilot program has a general deterrence effect.”  (See “Report Documentation Page.”) Continue reading →

Published on:

IIDCalifornia State Senator Jerry Hill plans on introducing a bill on Monday, January 5th,  that would require all defendants who are convicted of drunk driving to install ignition interlock devices, (IID’s).  A first DUI conviction would result in a 6-month requirement.  A second driving under the influence conviction would result in a 1-year IID requirement.  (See news article on CBS.)

What is an IID?  It is a breathalyzer instrument that is professionally installed in your vehicle by a court-approved company.  The driver must blow into the device, providing an alcohol-free sample, in order for the car to start.  If alcohol is detected, the car will not start.  Once started, the driver will be prompted to give another sample within 15-minutes of driving and then again about every 45-minutes.  If alcohol is detected during these random samples, the car will stall and become inoperable.  Sample “failures” are reported to the court.

Currently, there are four counties in California that are participating in an IID pilot program:  Los Angeles, Alameda, Tulare, and Sacramento, (see CA Vehicle Code Section 23700).  According to this statute, first time DUI defendants must install an IID for a period of 5-months in any car that they operate or drive.  On a second conviction, the term is extended to 1-year.  On a third conviction, the device is required for 2-years.  On the third or subsequent DUI conviction, the IID is ordered for 3-years.  Continue reading →

Published on:

Man with Cop BehindIn San Diego criminal courts, the judge sentences DUI defendants.  For first time misdemeanor drunk driving offenders, that sentence usually does not include any jail time other than what was served at the time of the arrest.  As for subsequent DUI’s, in custody time is very likely to be ordered.

However, San Diego has a program called CPAC, County Parole and Alternative Custody, that is run by the Sheriff’s Department.  This is basically an electronic home confinement program where you wear a bracelet that uses GPS to track your whereabouts. It also has the ability to screen for alcohol use.

You cannot prequalify for this program.  If your sentence included a jail term, the judge may authorize you to be screened for this program.  The judge’s authorization must be on the Court Minute Order for the Sheriff to accept your application to start the screening process to see if you qualify for the program. Continue reading →

Published on:

iStock_000009219151MediumSan Diego residents often call me for their free phone consultation after being charged with their first drunk driving offense. At the end of the call, the person often says, “I have been talking to my friends and I just don’t know if I need an attorney on a simple misdemeanor DUI.” Here’s my answer: You absolutely need an attorney! Any time you are charged with a crime, whether it’s drunk driving, domestic violence, or murder, you must have an advocate on your side.

First off, all criminal matters are very serious. Regardless of whether your case is a misdemeanor or a felony, it can impact your criminal record throughout your lifetime. Your record influences the jobs and promotions you may seek, your housing, loans, and many other aspects of your life that you will not realize until you are getting a background check done. Don’t you want to try to get the charges dismissed or reduced and your penalties lessened?

A criminal defense attorney knows the law and protects your rights. In addition, the lawyer knows the system, how it works and what to expect. With the attorney’s legal insight, discovery is requested and then reviewed to look for issues with the case which can lead to reduced charges and possibly even a dismissal of your case.

If you don’t hire an attorney, would you know what defenses are available to you? Would you be able to review your discovery packet to look for issues the prosecutor will have proving their case? Would you know if you have any motions to file to challenge the State’s evidence, or if your case is worth a trial? Do you know what a fair offer is on your particular case? Do you know what things the prosecutor and judge want to hear about you and the facts of your case that can persuade them to reduce the charges or lighten the sentence? Continue reading →