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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 →

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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 →

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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 →

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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 →

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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 →

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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 →

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Out on the town and you had a couple of drinks. Knowing San Diego’s drunk driving laws, you decide it’s best not to drive home and chance getting a DUI.  You ask yourself, “How am I going to get home?”  You can take the trolley or the bus; however, while these options are economical, their schedules are limited and they only travel to certain parts of the county.  And, it can take 1 1/2 hours to get somewhere by bus when it would only take 10-20 minutes by car.

So the next option is a taxi, but they are very expensive, making it unaffordable for many. In addition, money is exchanged between the driver and rider making it a less safe option.  And, if you are not in an area where taxis are driving by, you are forced to call for a cab and often they do not show up.

The best third party transportation option San Diego has is the rideshare companies, including Lyft, Uber, and Sidecar.  They are easy, safe, efficient, and economical for riders and they employ many people in our community.

In order to use one of the services, just download their app onto your smartphone, enter your credit card number for billing purposes, and then in their app hit request a car.  The driver uses their personal car to pick you up and transport you to your destination.  Your credit card is automatically billed and the rates are up to 40% less than a taxi fare. Continue reading →

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California has an implied consent law, which requires a driver that is lawfully arrested, suspected of driving under the influence, to submit to a chemical test. The tests that are typically offered for suspected alcohol intoxication is a breath and blood test.  A blood test is usually offered for suspected drug intoxication.  Occasionally, a urine test may be offered if it believed the driver is under the influence of drugs and is unable to give a blood sample for medical reasons, or the blood and /or breath test is not available.

The officer is only required to give you one chance to complete the test. If you refuse, but then change your mind, or you fail to pick one of the tests offered, that can be considered a refusal.

If you refuse, the police may forcibly draw your blood if they obtain a warrant or they can show exigent circumstances that justify the blood draw without a warrant.   In addition to the administrative penalties through the DMV regarding your privilege to drive, there are also enhanced criminal penalties for refusing to submit to a chemical test.

For a first DUI with a refusal enhancement, an additional 48 hours in jail will be added to the penalty. In addition, instead of the 3-month First Conviction Program, the 9-month program will be ordered.  With a second drunk driving conviction within 10-years, 96 hours in jail is added.  For a third driving under the influence conviction within 10-years, 10 additional days in jail are added to the sentence.  And, lastly, for a fourth or subsequent DUI conviction within 10-years with a refusal, the enhanced penalty is 18 additional days in jail. Continue reading →

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If you are driving a vehicle in California, you have agreed to a chemical test of your breath or blood to determine the alcohol and/or drug content, if you are lawfully arrested and suspected of driving under the influence of alcohol, drugs, or a combination of alcohol and drugs, (implied consent). The required chemical test must be given after a lawful arrest. If you refuse, you may suffer harsher consequences through the DMV and in the court.

The preliminary alcohol screening (PAS) test, the handheld breath test that is given at the scene, is just a field sobriety test. You can and should refuse to take that test, as well as any other field sobriety tests, unless you are under 21 or on DUI probation.

Once arrested, you must provide a sample of your breath or blood. However, in some instances, such as the other tests are not available, drugs are suspected and you cannot provide a blood test, or you have a medical condition that does not allow you to provide a breath or blood sample, a urine test may be offered instead.

If you fail to submit to a chemical test after a lawful arrest, the DMV will take immediate action on your driving privileges. You will be given notice that your driver’s license will be suspended 30 days after the arrest unless you request a hearing within 10 days after the arrest date. If you fail to request the hearing, or if the DMV does not set aside the license suspension after the hearing, your license will suspended for one year on your first offense, revoked for two years on your second offense within 10 years, and revoked for three years on your third offense within 10 years. (Note, this is separate from any action that the court may take against your license in the criminal portion of your case.)

If a DMV hearing is requested, the Administrative Per Se (APS) Hearing will only address four issues:

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Whether you are 21 years old or older, or under 21 years old, if you are arrested for driving under the influence, two separate actions are triggered. The first is the Administrative Per Se, or APS, action from the California Department of Motor Vehicles, which deals with the suspension of your driving privileges. The second is the criminal process through the Superior Court, which deals with criminal penalties such as probation, fines, DUI programs, community service, possible jail time, and a range of other possible penalties. This blog article deals specifically with the Zero Tolerance Law and the DMV APS action.

In California, it is illegal for anyone under the age of 21 to consume alcohol. It is also illegal for anyone under 21 to drive if they have any measurable amount of alcohol in their system. Once the under 21 year old is detained or arrested, they must submit to a preliminary alcohol screening test, PAS, or other chemical test. If their blood alcohol content (BAC) is found to be .01% or greater, they will be given notice that their license will be automatically suspended in 30 days unless they request a hearing challenging the suspension within 10 days of the arrest. The suspension for a first offense is one year.

If the under 21 driver submitted a PAS sample or completed another chemical test, there are only 3 issues that the hearing officer will consider at the hearing. 1.) Did the peace officer have reasonable cause to believe you had been driving a motor vehicle in violation of sections 23136, 23140, 23152, 23153, or 23154 of the Vehicle Code? 2.) Were you lawfully placed under arrest, or if the alleged violation was of section 23136 or 23154 of the Vehicle Code, were you lawfully detained? 3.) Were you driving a motor vehicle…under 21 years of age and had a blood alcohol concentration of .01% or more as measured by a preliminary alcohol screening test, or any other chemical test?

You have a right to retain a DUI defense attorney to represent your interests at the APS hearing.

Continue reading →