Boating Under The Influence, Or BUI, In San Diego


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).

California Harbors and Navigation Code Section 655(c), which is similar to VC 23152(b), 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 two code sections refer to recreational vessels only. If a commercial vessel is involved, 655(d) makes it illegal to operate the vessel with a BAC of 0.04 or more. Again, this is similar to the VC section pertaining to commercial driver's licenses and DUI.

Section 655(f), which is similar to California VC Section 23153, addresses incidents were bodily injury is involved, other than to the impaired operator.

Unlike in a vehicle, open alcohol containers are allowed inside a boat and both passengers and operators can consume alcohol. It is only illegal to operate the vessel while under the influence of alcohol, drugs, or a combination of alcohol and drugs.

Also, there is a "zero tolerance" policy for anyone under the age of 21. Any measurable amount of alcohol can lead to BUI charges.

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.

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Arrested For DUI, Can The Cops Search Your Smart Phone?


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.

In Chimel, the court held, "When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape....In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction....There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control' -- construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence."

In Robinson, the officer searched Robinson after a lawful arrest and found a pack of cigarettes. The officer then searched the pack of cigarettes and found capsules of heroin. The court found no issue with the search of Robinson or the pack of cigarettes stating, a "custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification."

In Chadwick, the court narrowed Robinson by stating the warrant exception was limited to "personal property...immediately associated with the person of the arrestee."

In the Riley case, SCOTUS held the search of data held on in a cell phone is not excepted from the warrant requirement because officer safety is not an issue nor is the loss or destruction of evidence. The Law Offices of Susan L. Hartman agree with this SCOTUS decision, thus preserving Americans' privacy interests in the digital data that is stored on cell phones.

Although this sounds like a bright line rule, that if you are lawfully arrested the cops must first obtain a search warrant if they want to search through the data stored in your cell phone, the court did leave room for case-specific instances where exigent circumstances do exit.

The above blog article is by no means all-inclusive and is not legal advice. Laws may change and they may not apply to your case. For the latest information or to get legal advice, speak to a criminal defense attorney in your area.

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Biking: A Good Alternative To Driving My Car While Under The Influence?


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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Google Car May End Drunk Driving Arrests & DUI Enforcement


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.

Marijuana DUI: Law To Impose "Per Se" Criminal Penalties Failed


mj.JPGAssembly Bill 2500 was introduced in February 2014, by Democratic Assembly Member Jim Frazier of Oakland. It was supported by the Association of Highway Patrolmen, the California Council on Alcohol Problems, the California Police Chiefs Association, the California State Sheriffs' Association, among others. The bill was opposed by the ACLU, American for Safe Access, California Attorneys for Criminal Justice, California DUI Lawyers Association, California NORML, Crusaders for Patients Rights, Drug Policy Alliance, among others. The original text of the bill sought to impose a "zero tolerance policy" but the bill was amended to a "per se" standard.

Under the proposed law, drivers who have even a trace amount, ("2 nanograms, or more, per milliliter of whole blood"), of Delta-9-tetrahydrocannabinol, or THC, in their blood regardless of whether the person was impaired, could be charged with drugged driving. (Note, this bill also addressed drugs other than THC, providing a level of detectable metabolite that has to be present for the driver to be impaired; however, we are only going to discuss marijuana in this blog).

There is a huge problem with this standard: There has not been any studies proving a correlation of a certain level of THC in the blood and impaired driving. There simply is no science to back up the 2 nanogram standard and impairment. The result of such a law would criminalize non-impaired drivers! This is unacceptable and the California Assembly Committee on Public Safety correctly rejected the amended legislation.

In California, under the current law, prosecutors attempt to use drug test results and other relevant evidence, such as driving pattern and field sobriety test results, to determine if a person was in fact under the influence while driving their vehicle.

Marijuana or THC DUI cases are extremely problematic for the prosecutor. If you have been arrested for driving under the influence of marijuana, contact the Law Offices of Susan L. Hartman today for your free phone consultation. Know your rights and protect yourself.

Can Cops Search Your Cell Phone Without A Warrant?


This is the very question that is currently before the Supreme Court of the United States, (see David Riley v. State of California). The ruling can potentially impact anyone who is arrested while having a cell phone in their possession.

In August of 2009, San Diego college student, David Riley, was pulled over by a cop from the San Diego Police Department, for having expired tags on his Lexus. The officer ran Riley's information and found that he was driving on a suspended license. The vehicle was impounded and an inventory search of the vehicle was conducted to document the contents.

Riley was then arrested for carrying concealed and loaded weapons that were found during the search of his car. His cell phone was found and seized. It was a smartphone, with internet access, capable of storing photos, videos, voicemail messages, and emails. The officer conducted a cursory search of the phone at the scene and then a detective went through the phone more thoroughly at the police station. The officer found some text messages that contained the letters CK, which he believed referred to "Crip Killers," a gang reference to the "Bloods." In addition, the photos showed what appeared to be the defendant with a car that was thought to be used in a shooting.

Subsequent to the cell phone search, Riley was arrested in connection with the shooting. It was further alleged that the defendant was a member of a gang and the crimes were committed for the gang's benefit, thus exposing him to enhanced penalties.

Prior to the trial, the defense motioned the court to suppress all of the evidence obtained by the cell phone search, as it was done without a warrant and without exigent circumstances, thus violating the Fourth Amendment of the United States Constitution. The judge denied the motion, finding that the search was legally conducted incident to the arrest.

The first trial hung but the second resulted in a guilty verdict. Riley appealed claiming the warrantless search of his phone was unconstitutional.

The Law Offices of Susan L. Hartman agrees with Riley, the Petitioner in this case. The new smartphones are not just phones. They are basically small computers that store a lot of personal information. If an officer confiscates a smartphone incident to a lawful arrest, law enforcement should be required to get a search warrant in order to search the contents of that phone. Without the warrant, any evidence found during that illegal search should be excluded from trial, as well as any evidence that is found because of the information that is gathered during the illegal search of the phone, (fruit of the poisonous tree doctrine).

Stay tuned as the Supreme Court of the United States is expected to announce its decision on this issue in June.

If you're charged with a crime in San Diego, it is imperative that you know your rights and the law. Officers will use whatever they can to prosecute you. Protect your interests, hire a criminal defense attorney.

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California Drunk Driving Laws Revised


Before January 1st, 2014, California law enforcement agencies were using California Vehicle Code (VC) Sections 23152(a) and (b) to prosecute cases involving alcohol, drugs, or a combination of alcohol and drugs.

VC 23152(a) stated, "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." VC 23152(b) read, "It is unlawful for any person who has a 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle."

As of January 1st, 2014, the State of California added two more driving under the influence code sections, 23152(e) and 23152(f), thus separating out the alcohol and drug cases.

VC 23152(a) has been updated to read, "It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle." Section 23152(b) has been changed to, "It is unlawful for a person who has a 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle."

The new VC 23152(e) provides, "It is unlawful for any person who is under the influence of any drug to drive a vehicle." And, under VC Section 23152(f), "It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle."

After the first quarter of the year, it is unclear how the court will handle the new version of this vehicle code section. Still, the 2014 California Jury Instructions uses only the (a) and (b) sections as they were used before, (see CALCRIM No. 2110 and 2111).

As for the administrative portion of a drunk driving matter, the DMV Driver Safety Office does not address drug impairment at the APS Hearing. The hearing only focuses on alcohol and BAC. However, you can speculate that with the push for more legislation on DUI's, such as the proposed AB 2500, drug DUI enforcement and penalties may become stricter in the future.

If you have been arrested for driving under the influence due to alcohol, drugs, or a combination of alcohol and drugs, you owe it to yourself to seek help from a criminal defense attorney who exclusively deals with DUI matters.

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SR-22: What Is It & Why Do I Need It After My License Was Suspended?


An SR-22 is a certificate of insurance. It is proof that you have met the state's minimum requirements for liability car insurance. This form is obtained from your insurance company and they file it with the California Department of Motor Vehicles, to show proof of financial responsibility.

The DMV may require an SR-22 when you reinstate your driving privileges after a suspension or revocation. This happens after a DUI arrest if you lose the Administrative Per Se (APS) Hearing challenging the license suspension, you do not request a hearing and your driving privileges were automatically suspended, or you were convicted or plead guilty to a drunk driving charge and the sentencing included a suspension or revocation.

After a specific amount of time, (depending on certain factors), you may be eligible for a restricted driver's license. The restricted license allows you to drive to, from, and during the course of your employment and to and from the DUI program. The DMV will not issue the restricted license unless you register in and attend the requisite drunk driving program, pay the reissuance and restriction fee, and file an SR-22 with the department. The SR-22 must be maintained for a period of three years after a DUI suspension.

Most people request the SR-22 from the insurance company that is currently insuring them. However, that is not recommended. Insurance companies have millions of customers and it is not cost effective for them to run a record check on each and every customer. Instead, they rely on self reporting. Once you tell your insurance carrier that you need an SR-22, they will check your DMV record, looking for things like a DUI.

In many cases, the insurance company will not insure a driver with a DUI on their record, so they get dropped and the policy is cancelled. Other companies will issue the SR-22 but then raise the premium, as you may be deemed to be a "high risk driver."

If you are dropped or you fail to maintain the SR-22 for the entire three years, the insurance company is required to notify the DMV. Your driving privilege will again be suspended unless you immediately obtain another policy.

The Law Offices of Susan L. Hartman recommends you do not self report. Instead, we provide our clients with the names of insurance brokers that specifically deal with drivers with driving under the influence matters. Through these brokers, the licensee can obtain a supplemental insurance policy and an SR-22; thus, maintaining their current car insurance. And, in the event that the original insurance carrier finds out about the DUI and raises the premium or cancels the policy, the brokers will help the client find another insurance company that will insure them regardless of their DUI arrest.

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.

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Cops Use Audio & Video Recording Devices And Use Of Force Declines


One California city tested the use of cameras by their officers last year and the results were just as one would expect. The use of force by officers dropped by over two thirds overall, and those not made to wear cameras were twice as likely to use force than those equipped with the recording devices! The conclusion of the study: "The majority of the time police use force is unnecessary. In other words, the majority of the time these officers used force they were simply committing acts of violence which they don't feel comfortable committing if it's captured on film."

The Rialto police chief introduced the wearable cameras to his officers and he was met with opposition. Many officers were not happy with being watched. Despite their negative response, the chief randomly selected officers to wear the cameras, having one-half of the staff using a camera each shift. The study ran from February 2012 until July 2013. The cameras had to be manually turned on by the officers and they were required to do so as they got out of their patrol car to approach a citizen. The camera automatically saved about 30 seconds of prior to the officer's activation, with the hopes of capturing the initial reason for the contact.

California Highway Patrol (CHP) officers have cameras inside their patrol vehicles. They are called MVARS, the Mobile Video Audio Recording System. They are mounted on the rear view mirror, facing out the front of the windshield. The officers also have microphones attached to their shirts to record the audio of their interactions.

In my experience, the officers often do not want their interactions recorded. When the recordings are subpoenaed, the part of the incident needed is not in the evidence. Law enforcement provides excuses such as the batteries were not charged or for some reason the equipment was not working at the time of the incident. In addition, when an officer has a driver get out of their car, they often bring the suspect to an area where the camera does not pick up what is going on.

It should be mandatory police policy that all law enforcement officers, including CHP, San Diego Sheriffs, and San Diego Police, be required to properly maintain audio and video recording devices, that they must be activated for each and every contact they have with citizens, and, the audio and video evidence must be maintained and provided to the defense when subpoenaed. If they are forced to do this, not only would the rate of complaints about officers using unnecessary force go down, but law abiding citizens would not find themselves arrested for crimes they did not commit. Officers have roughed up citizens, but then arrested them and charged them with resisting arrest. Having cameras would protect the citizens from this tactic. And, if properly used, the recording can also corroborate the police report. Unfortunately, prosecutors and judges always believe the cop even though they have motivation to lie to keep their job.

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Penalty Enhancements: What Are They & How Do They Affect My DUI Case?


In San Diego County and throughout California, driving under the influence penalties are getting harsher. In most cases, alleged DUI incidents are charged with two penal code violations:

  1. Driving a vehicle while under the influence of alcohol, drugs, or a combination of both; and,
  2. Driving with a blood-alcohol content (BAC) at or above .08 percent.

Along with these (or other possible) charges, the prosecuting agency may also add penalty enhancements to the complaint. Just as it sounds, if alleged, these can increase the penalty imposed if a person pleads guilty or is found guilty of the enhancement.

Typical enhancements include prior convictions within the past 10 years, high BAC, refusals, speeding, child endangerment, and accidents/injuries.

If a person was convicted or pleaded guilty to a DUI or a wet reckless within 10 years of the current offense, the sentence for the new drunk driving matter will be increased in the criminal court proceeding. Also, the DMV will suspend the driving privileges for a longer period and the driver will have to attend a longer DUI program. Each prior offense will increase the penalties. If the person has 3 prior DUI offenses on their record, the 4th could be charged as a felony, thus exposing him or her to a prison sentence. This is true even if none of the drunk driving offenses involved an accident or any injuries.

If a person's blood-alcohol content is proven to be .15% or more or .20 or more, additional penalties may be imposed. On a first DUI with a .20 BAC, the 9-month alcohol program will be ordered instead of the 3-month program. In addition, the judge may also impose additional terms such as mandatory AA meetings, public work service, or an ignition interlock device.

If the driver refused to do a chemical test after a lawful arrest, additional administrative penalties are imposed through the DMV. For instance, on a first DUI with a refusal, the DMV will suspend the driving privileges for one year, instead of the usual 4 months. Plus the court will use this to enhance the sentence, including 2 days of mandatory jail time.

If a person was driving 20+ mph over the speed limit on surface streets or 30+ mph over the speed limit on the highway, the enhancement is called reckless driving. Under California Vehicle Code Section 23582, the judge will order a mandatory 60 days in custody in addition to all the other penalties imposed for the DUI.

If the DUI driver had a minor under the age of 14 in the car when the offense occurred, they will likely be charged with the child endangerment enhancement. The court may enhance the drunk driving sentence by adding an additional 10 days of jail time.

If an accident was involved and there was property damage, the court will order restitution. If a person was injured in the accident, the charges will often be felony DUI or a misdemeanor DUI with injuries, both will include enhanced penalties.

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.

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Driving Pattern Evidence: How Is It Used In A San Diego Criminal Court?


bigstock-Man.Don-t-Drinking-and-Driving-42276163.jpgIn most drunk driving cases, something initially happens that draws the police officer's attention to the car. There are rare instances when the officer does not witness driving; for instance, when the officer responds to an accident. In those cases, driving is determined by inferences, circumstantial evidence, and statements made by witnesses and the defendant.

If the officer observes a moving violation, the driver will be pulled over. If the contact ends up with an arrest for DUI, the initial observations, including the driving pattern, is documented by the officer in the police report. That report is forwarded to the prosecutor, either the San Diego City Attorney's Office or the District Attorney's Office, depending on where the case is filed, to be reviewed to determine if official charges will be filed in the San Diego Superior Court.

If the case is litigated through motions or a trial, or a plea deal is being negotiated, the officer's initial observations of the defendant's driving pattern become very important. A moving violation gives law enforcement probable cause to pull the driver over and cite them. It can also provide reasonable suspicion that a crime is or is about to be committed, making the initial contact to investigate constitutionally legal.

In driving under the influence cases, officers and prosecutors look to the driving pattern as one of the factors in evaluating the case. Speeding, being unable to maintain a steady speed, weaving, crossing over the painted lines, not using headlights when appropriate, stopping beyond a limit line, failing to stop at a stop sign or stop light, driving on the curb or off the road, and failing to respond to the police car's emergency lights and sirens, among others, will be viewed as evidence of the defendant's inability to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances, (see California Jury Instructions, CALCRIM 2100).

It is the defense attorney's job to explain to the prosecutor, the judge, and the jury that the driving pattern is not indicative of intoxication, but as ordinary and reasonable driving mistakes.

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California Bartenders Liable For DUI Injuries & Deaths?


iStock_000012855950Large.jpgAn alleged driving while intoxicated accident killed six people after a "girls night out" in eastern Los Angeles County, California, on February 9th, 2014. Horrific events such as this strikes up the debate about whether owners and/or bartenders of bars and restaurants should be held liable when their patrons consume alcoholic beverages, drive, and then injure or kill someone.

Olivia Carolee Culbreath, a 21-year-old Californian, was charged with six counts of murder, (felony drunk driving and felony manslaughter), but has yet to be arraigned. At 4:45 a.m., she was driving a red, Chevrolet Camaro the wrong way on westbound 60, the Pomona Freeway, in Diamond Bar, when she hit a Ford Explorer, killing all four in the Explorer. In addition, two of Culbreath's passengers, her sister and a friend, both died. The defendant remains hospitalized but held on $6 million bail. As though this case is not sad enough, she is a mother of a new born and is now facing life in prison.

Culbreath had a prior DUI conviction when she was just 17, and her driving privilege restrictions from that incident were lifted just days before this catastrophic incident.

So can the owners and/or bartenders of the bars or restaurants where Culbreath was served be financially or criminally liable for this accident? The answer is found in the "dram shop laws," which in California are found in the Civil Code Section 1714.

This law actually protects bar owners and bartenders from civil liability if their patron drives while intoxicated and injures or kills someone. The code specifically states, "Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person...the furnishing of alcoholic beverages is not the proximate cause of injures resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person." Section (c) extends this provision to a social host.

The exception is found in Section (d), which states an adult who furnishes alcohol to a person that s/he knows or should have known is under 21, may be found to be the proximate cause of any resulting injuries or death.

However, the bartender can be charged with a misdemeanor under California Business and Professions Code Section 25602(a), which states, "Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor."

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Affluenza Defense In Driving Under The Influence Cases In CA


We all remember the numerous news reports in December 2013, that a Texas judge sentenced 16-year-old Ethan Couch to ten years probation and a residential treatment program in California, after killing four people and severely injuring two others in a drunk driving accident. He was driving 70mph in a 40mph zone when the accident occurred. His blood-alcohol content was measured at .24 and he tested positive for valium. He faced a maximum of 20 years in jail with parole possible in just two years.

The judge sentenced Couch after hearing testimony from the defense psychologist Gary Miller, who argued that Couch suffered from "affluenza," meaning the youth was not taught about consequences for bad behavior because his parents were so wealthy and did not set limits on him. Defense attorneys argued that the parents should share in the blame and stated the boy would greatly benefit from being away from his parents in an out-of-state treatment program.

In response to this case, State Assemblyman Mike Gatto, from Los Angeles, introduced a bill in January 2014, to try to prevent the afflueza defense in drunk driving cases in California. The bill, AB1508, states, "...when determining the punishment to be imposed in all misdemeanor and infraction cases, or when determining the term to be imposed when a statute specifies 3 possible terms of imprisonment, the fact that a defendant did not understand the consequences of his or her actions because he or she was raised in an affluent or overly permissive household shall not be considered a circumstance in mitigation of the crime."

Although the word affluenza may not have been used in California DUI cases before, I think everyone can agree that judges hand down sentences on all types of criminal cases, including drunk driving matters, based on a lot of factors. Factors such as prior DUI's, the severity of the crime, the blood-alcohol content at the time of the incident, the injuries/deaths involved, along with the defendant's background, the possibility of reoffending, punishment, and protecting the community. Without using the word affluenza, which I believe is what is really upsetting people in this case, the plea negotiations and the sentencing should include all of these relevant factors.

In the Couch case, the minor is going to be under the jurisdiction of the court for at least 10 years. Within that time, I hope he learns that there are consequences to his actions regardless of this parents' wealth and their apparent inability to teach him how to manage himself in a manner that is lawful and safe.

Having said that, it is my opinion that Assemblyman Gatto's legislation should be struck down.

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DUI Accident, Driver Killed & Friends Charged


Misdemeanor charges were brought against two minors in Connecticut after their friend, Jane Modlesky, drove while under the influence and hit a tree. She ended up dying in the crash that happened in July 2013.

Earlier that day, Modlesky and her friends were drinking at an underage party. She then got into the 2008 Honda Pilot with four minor males. A 16 year old male drove one of the boys to his home and dropped him off. He then proceeded to his own home, where he got out of the car. Then another 17 year old male drove to his home where he and the fourth boy exited. They then allowed Modlesky to get into the driver's seat and drive the vehicle, allegedly knowing she was intoxicated. She only got 1/2 mile before crashing into a tree in Glastonbury, Connecticut. Her blood-alcohol content was measured at .26%, way above the zero tolerance laws for minors.

In the beginning of December 2013, the last two boys out of the car were charged with second degree reckless endangerment, as many in the community thought they should have prevented her from driving, according to wfsb.com.

This is a very rare case. I have never seen such a case prosecuted in my time as a criminal defense lawyer. What often happens in a case such as this, is that prosecutors feel pressure from the victims and the community to bring charges against someone in order to hold someone accountable for what had happened. But, bringing charges does not mean that the defendants will be found guilty in a criminal court.

In fact, according to California DUI lawyer Lawrence Taylor, "This is a highly unusual situation. It's basically saying that they had a positive duty to stop her. But you cannot be prosecuted because you did not stop someone from engaging in criminal conduct...So I think the police are kind of overreaching here."

Based on what is being reported by the media, the boys did nothing. They did not convince her to drive. They did not force her to drive. She made that choice on her own. Therefore, the charges should be dropped, but if not, I expect that the boys will be found not guilty as charged.

This blog is by no means legal advice. If you have questions about a drunk driving matter, contact a criminal defense lawyer in your area.

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San Diego Cop Cited For Drunk Driving But Not Arrested


SD police officer, Amanda Estrada, was cited in November 2013, for operating a vehicle while intoxicated. She was driving on Rancho Bernardo Road, east of I-15, when California Highway Patrol (CHP) pulled her over on suspicion of drunk driving. She was taken to the CHP San Diego office where she took the required test to measure her blood-alcohol content (BAC).

The delayed test allegedly showed that Estrada was under the .08 blood-alcohol content standard. She was just cited and released from the CHP office to a designated driver, with a date to appear in court on December 2nd. That date has been continued and Estrada remains on administrative duties while her case is pending.

This is the second San Diego officer to be charged with driving while intoxicated after a delayed test within the past year. Detective Jeffery Blackford was involved in an accident after drinking, so he reached out to other San Diego officers to assist him. His BAC test was also delayed and he eventually plead guilty to drunk driving and was sentenced to probation and community service.

Do the citizens of San Diego have different standards than San Diego cops when it comes to DUI laws? Based on these two cases, I would say YES! If you are pulled over on suspicion of drunk driving and the officer smells alcohol on your breath, you more than likely will be arrested and charged with drunk driving, and you will be taken to jail, as the CHP states in its ad campaigns. You will not be allowed to call a designated driver to take you home, with a simple citation and promise to appear in court.

Further, the officers will take whatever steps they can to ensure they test your breath or blood post arrest as close to the time of driving as possible, in an attempt to get the BAC reading within the 3-hour presumption. [Note: Within the vehicle code there is a rebuttable presumption. If the driver took a chemical test within three hours of driving, and the result of that test is a .08 percent or more, it is presumed the person had a BAC at or above a .08 at the time of driving.]

The community should be outraged by the double standards and complaints should be filed with the San Diego Police Department and CHP.

The above blog article is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.

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