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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.

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HOJ2.jpgIf you were arrested for DUI in San Diego but criminal charges were never filed, the case was eventually dismissed in court, or you were acquitted after a jury trial, you may be able to have your arrest records sealed and destroyed under California Penal Code Section 851.8.

Why would you want to do this? Criminal records are stored indefinitely unless law enforcement is ordered to destroy them. In addition, they are public records so they can be found in any criminal background check. And, in the age of computers, these records are easy for anyone to find which can cause you difficulty in gaining employment, housing, a state license, etc.

If you are successful, you can answer any question about whether you have been arrested for a crime by saying, “No, I have never been arrested.” So you want to try to get them sealed and destroyed.
The motion must be filed within two years of the date of arrest or the filing of the accusatory pleading, whichever is later. But, if you file beyond the two years, the judge may still grant the motion if you can show good cause.

The process to seal and destroy records can be done in one or two steps. If you were arrested but the prosecutor did not file charges, you must first file the petition with the law enforcement agency that arrested you. If the police agency believes you are factually innocent of the crime, they will seal the arrest record for three years and then destroy them themselves without further action needed by the courts.

If they refuse to grant your petition, or if they do not respond within 60 days of being served with your papers, you can then petition the court for relief. In addition, if charges were filed in court and then dismissed, or you were acquitted by a jury, you can petition the court directly for relief, skipping step one.

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phone dump june 2014 121.jpgThe Law Offices of Susan L. Hartman recently wrote a blog article about biking or cycling under the influence, BUI and CUI respectively. Now that it’s summer, not only is it good to brush up on the biking after drinking laws, it is good to also do a quick refresher on another BUI, boating under the influence.

If you head out to the bay this summer, be mindful that law enforcement is also on the water and the beach and they are looking to enforce the laws. This includes drunk boating statutes which are found in the 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 of the Harbors and Navigation Code 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).

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Girl in Cop Car.jpgToday, the Supreme Court of the United States (SCOTUS) announced its decision in both Riley v. California, a San Diego case, and United States v. Wurie, a Massachusetts case, that addressed the issue of whether law enforcement can search a person’s smart phone after a lawful arrest. [The Law Offices of Susan L. Hartman previously wrote a blog article about the Riley case, see background case information in “Can Cops Search Your Cell Phone Without A Warrant?“]
The Fourth Amendment of the United States Constitution specifically states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Unless one of the exceptions to the warrant requirement is met, law enforcement must obtain a search warrant for any search to be legal. One such exception is a search incident to a lawful arrest. But, does this exception extend to cell phones, which are now basically pocket computers that store a lot of information including a person’s contacts, photos, videos, internet searches and history, and other personal information?

The court cited three precedent cases that addressed the warrant requirement for searches incident to a lawful arrest, Chimel v. California, United States v. Robinson, and United States v. Chadwick.

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Summer 2014 is here! The summer brings BBQ’s, parties, boating, beach time, Sunday Fundays, cold beers and margaritas, and lots of fun times. It is important, however, to plan ahead so your fun does not end with criminal charges.

Often, people use their bikes as transportation when they know they are going to be drinking alcoholic beverages thinking it will prevent them being arrested for drunk driving. But, they are still at risk of being arrested and here is the law.

If the bike can be propelled, moved, or drawn upon a highway, such as a motor bike, you can be charged with driving under the influence of alcohol, drugs, or a combination of both. All the penalties of a standard drunk driving offense involving an automobile would apply. However, if your bike is self-propelled, you will not be subjected to the DUI statutes. Instead, you can be charged with BUI or CUI, biking or cycling under the influence, under California Vehicle Code Section 21200.5.

This code section specifically states: “…it is unlawful for any person to ride a bicycle upon a highway while under the influence of an alcoholic beverage or any drug or under the combined influence of an alcoholic beverage and any drug. Any person arrested for a violation of this section may request to have a chemical test made of the person’s blood, breath, or urine for the purpose of determining the alcoholic or drug content of that person’s blood…”

The biggest difference between a DUI and a BUI is that there is no specific blood alcohol limit in a BUI case. In a criminal DUI matter, the “Per Se” limit is a .08. Also, the penalty for a conviction for BUI is a fine of not more than $250.00, which is a substantially lesser penalty than in a standard DUI case.

Riding a bicycle while under the influence is a hard case for the prosecutor. These cases can be attacked on several fronts. If you have been arrested and/or charged with riding a bicycle while under the influence, you deserve to hire the Law Offices of Susan L. Hartman, an exclusively DUI defense firm that will aggressively defend your case.

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San Diego DUI Lawyers Blog posted an article on January 4th, 2013, announcing that Qinetiq, a Massachusetts company, was given a $10 million grant 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.

The new technology would be a safety feature in each vehicle much like a seatbelt. And, it would operate much like the ignition interlock devices, or IID’s, that are already being ordered by criminal courts in some drunk driving matters. Current IID’s require a person breathe into the apparatus before the car will start and then continue to provide breath samples while driving to keep the engine running.

These safety devices probably won’t end DUI arrests because they do not detect drugs and the driver can always have a passenger blow into the device. However, have you seen the new car concept by Google? The prototype has no gas pedal, brake, or steering wheel! Instead it uses software and sensors to navigate. All you have to do is enter your destination into a computer and the “vehicle” does the rest. This would eliminate the “driving” element of driving under the influence as the computer sensors and software would be “driving” not a person. This may very well end the need for drunk driving laws and DUI enforcement.

Good news? Not so fast. The concept of a driverless car should make you a little unnerved with all the car computer problems that have been documented within the last few years. There have been many reports of cars that just start, shut off and accelerate without a person doing anything to it. And, we all have had occasions where our computers did not work right. They can get viruses, worms, and other problems that cause errors and I would not want to be in the Google car or driving on the roadway when one of their cars has such a problem. If fact, I would rather have a driver with a .08 BAC on the road with me rather than a robot.

Hopefully, Google will work out all these kinks before it launches its pilot program in California.