May 2011 Archives

San Diego Kicks Off Summer With Drunk Driving Enforcement


The Imperial Beach Patch reported that the San Diego Sheriff's Department, California Highway Patrol, and the San Diego Police Department increased their efforts to arrest those suspected of drunk driving this past Memorial Day weekend.
crackdown.jpgOn Friday night there were DUI saturation patrols in Poway, Oceanside, Escondido and San Diego. Checkpoints were also set up in San Marcos and Imperial Beach. Four drivers at each checkpoint were arrested for suspicion of drunken driving.

Saturation patrols continued on Saturday and Sunday night in Santee, Lemon Grove, San Diego and Oceanside. Another DUI checkpoint was conducted in Lemon Grove on Sunday which resulted in just 2 drunk driving arrests, according to kusi.com.

According to signonsandiego.com and CHP statistics only, drunk driving arrests were down for the holiday weekend in California by 13 percent; however San Diego County's numbers increased by 10 percent.

The nctimes.com reported that 14 San Diego County law enforcement agencies arrested 129 people on suspicion of drunken driving Friday and Saturday which was 16 less than during the same period last Memorial Day weekend.

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DUI Charges NOT To Be Filed Against A California Vice Mayor


The District Attorney's Office decided not to file drunk driving charges against the San Carlos Vice Mayor, Andy Klein, according to ktvu.com.

Klein was sitting in his car on the shoulder of the Edgewood Road exit off Interstate 280 talking on his phone when a San Mateo County Sheriff's deputy stopped to see if his car was disabled. The deputy suspected Klein was under the influence. Field sobriety tests (FST's) were performed at the scene and Klein was subsequently arrested. He then provided a blood sample which later came back with a .07 blood alcohol concentration, or BAC, result.

The legal limit in California is a .08 BAC. Vehicle Code (VC) Section 23152(a) does not mention the .08 BAC. It merely states: "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."

The statute also creates a rebuttable presumption that the defendant was not under the influence if his or her blood alcohol level was less than 0.05 percent, (see People v. Gallardo.)

So to be convicted of the (a) section, the prosecution only has to prove that the defendant drove a vehicle and at the time of driving the defendant was under the influence.

The jury instructions, CALCRIM 2110, state that a person is under the influence if his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances. The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence; however, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.

In this case, even though Klein's BAC was a .07, the District Attorney could have decided to prosecute under VC Section 23152(a). Apparently, the DA did not think there was enough evidence to support the theory that Klein was under the influence and the charges were dropped.


[This is a follow-up to the initial story that was posted on May 17th, 2011, entitled "Drunk Driving Charges For Vice Mayor of San Carlos".]

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Biking While Intoxicated, Can I Get Arrested For Drunk Driving?


bike and beer.jpgWhile intoxicated, Richard W. Walker, 20, was riding a dirt bike in the street in Channahon, Illinois. He was arrested and charged with DUI and other crimes, according to heraldnews.suntimes.com.

In California, it is illegal to be under the influence of an alcoholic beverage or drug, or a combination of both, while driving a vehicle. The question is whether a dirt bike is considered a vehicle for purposes of applying the DUI sections of the Vehicle Code.

California Vehicle Code Section 670 states: "A 'vehicle' is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks."

California courts have interpreted this code section in Tomson v. Kischassey, bicycles without motors are not considered vehicles, and in People v. Jordan, bicycles with motors are considered vehicles under the Vehicle Code.

In this case, since the dirt bike had a motor, it would be considered a vehicle and the defendant would be charged with drunk driving. If the bicycle was self propelled, the defendant would not face DUI charges; however, he could be charged with violating California Vehicle Code Section 21200.5, which makes it illegal "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." The penalties for a conviction under this section are less severe than a standard DUI.

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Misdemeanor DUI Arrest For Ditka's Son, Charge Upgraded To Felony


misdemeanor.jpgA misdemeanor drunk driving charge was filed against Michael P. Ditka, 49, the son of former Chicago Bears Head Coach Mike Ditka, after an arrest on April 20th. However, that charge was upgraded to a felony because he has two prior DUI arrests, according to Lake County News-Sun.

Ditka was arrested in Highwood, Illinois, in 2004, and he was placed on probation. He was arrested again in Deerfield, Illinois, in 2008, and he was placed on probation after pleading guilty to reckless driving.

If convicted he faces a maximum of seven years in prison. He is currently free on bond.

If this drunk driving arrest was made in California, and the defendant only had two prior DUI convictions in the past ten years, this third DUI would only be charged as a misdemeanor, as long as it did not involve an injury accident and the driver did not commit another illegal act while driving under the influence.

Under California Vehicle Code Section 23550, if a person is convicted of drunk driving and the offense occurred within ten years of three or more separate DUI violations that resulted in convictions, that person shall be punished by imprisonment in the state prison, or in a county jail for not less than 180 days nor more than one year, and by a fine of not less than $390 nor more than $1,000.

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Drunk Driving Charges For Vice Mayor of San Carlos


San Carlos' Vice Mayor Andy Klein was arrested and charged with DUI in the early hours of May 13th, 2011, according to mercurynews.com.

Allegedly, Klein was parked on the exit ramp of northbound Interstate 280 at Edgewood Road when a San Mateo County sheriff's deputy stopped thinking the parked car was disabled. After a brief discussion, the deputy believed Klein was under the influence so he called California Highway Patrol (CHP) to investigate.

Field sobriety tests were conducted and a preliminary alcohol screening (PAS) test was administered. Klein blew a .08 and he was subsequently arrested for DUI. He also provided a blood sample.

According to the San Mateo Daily Journal, Klein denied being under the influence, stating: "At no time did I feel that I was under the influence and would not be driving if I believed that I was unable to operate a vehicle responsibility."

To be convicted, the prosecutor has to prove each element of the charged crime. In a DUI, (see CALCRIM 2110), they must show you were driving and while you were driving you were under the influence. A defense to drunk driving charges is the defendant was not driving.

In this case, the officer did not see Klein driving. He was pulled over at the time he was first approached by law enforcement. However, he may have admitted to driving and the prosecution will attempt to use that admission to prove that he was in fact driving the car just before he had contact with the officer.

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San Diego Officer Arrested for Alleged Drunken Driving Incident In Chula Vista


San Diego Police Officer and 12-year veteran of the department, William Johnson, may have been under the influence on May 7th, 2011, at about 11:30 p.m., when his Lexus rear-ended a BMW at Paseo Ladera in Chula Vista, according to 10news.com.
police.accident.jpgAfter the incident, he was taken to Chula Vista Police Department and booked on suspicion of DUI. He was then released on his own recognizance. Johnson will work a desk job pending the outcome of this case.

This was the 9th San Diego police officer to face criminal charges or an internal investigation in just a few short months. Just after learning of Officer Johnson's troubles, another 3-year veteran officer, Daniel Edward Dana, was arrested and charged with rape, assault, kidnapping and other felony charges.

With the image of the San Diego Police Department and the recent legal troubles of many of its officers, it will be interesting to see how prosecuting agencies handle pending cases that these officers were involved in. If an officer is called to testify in a matter, their credibility is always an issue. Having pending charges or a criminal record could taint their testimony.

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DUI Charges For Passenger In Car?


A passenger in a vehicle was arrested for drunk driving where the driver was alleged to be intoxicated in Rutherford County, Tennessee. Glenee Taylor was arrested for allowing the driver, Parrish Harrell, to drive knowing he was intoxicated, according to wsmv.com.

Harrell was pulled over after he did not timely proceed through an intersection with a green light and then he crossed the center line a few times. A DUI investigation ensued and Harrell allegedly failed the field sobriety tests. He was subsequently charged with driving under the influence as was his passenger, Taylor.

In California, a passenger in a vehicle is not liable under the Vehicle or Penal Code for the actions of a drunk driver. In order for the person to be convicted under Vehicle Code Section 23152, the defendant had to drive a vehicle and when s/he drove, the defendant was under the influence of an alcoholic beverage and/or drug, or a combined influence of an alcoholic beverage and a drug, (see CALCRIM 2110).

Being a passenger alone would not warrant DUI charges for the passenger.

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Escondido Drunk Driving Checkpoint Challenged


Escondido Police conducted a sobriety checkpoint in February 2011. According to 10news.com, one of the drivers passing through, Angel Navarrete, and his passenger, Daniel Alfaro, challeged the officers' reason for the detention and videotaped the outcome. After not complying with the officers' request to roll down his window and show his driver's license, the officer proceeded to smash his window and arrest both men for resisting a police officer. Both plead not guilty and are due back in court in July 2011.

Resisting arrest is addressed under Penal Code Section 148, which states: "Every person who willfully resists, delays, or obstructs any public officer...in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment."

The California Criminal Jury Instructions (CALCRIM) provide what the prosecutor must prove beyond a reasonable doubt for a conviction for resisting, delaying, or obstructing an officer, (see CALCRIM 2656): 1.) The person was a peace
officer lawfully performing or attempting to perform his duties as a peace officer; 2.) The defendant willfully resisted, obstructed, and/or delayed the person in the
performance or attempted performance of those duties; and, 3.) When the defendant acted, he knew, or reasonably should have known, that the person was a peace officer performing or attempting to perform his duties.

So was the officer acting lawfully? If not, the defendant must be found not guilty. CALCRIM 2670 provides: A peace officer is not lawfully performing his or her duties if he is unlawfully arresting or detaining someone or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention.

Unlawful Detention: A peace officer may legally detain someone if the person consents to the detention or if specific facts known or apparent to the officer lead him to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime; and, a reasonable officer who knew the same facts would have the same suspicion. Any other detention is unlawful.

Unlawful Arrest: A peace officer may legally arrest someone if he has probable cause to make the arrest. Any other arrest is unlawful. Probable cause exists when the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime.

DUI checkpoints must be conducted under the guidelines of Ingersoll v. Palmer in order for it to be constitutional. One of the criteria is the length and nature of the detention. "Each motorist stopped should be detained only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, and glassy or bloodshot eyes. If the driver does not display signs of impairment, he or she should be permitted to drive on without further delay. If the officer does observe symptoms of impairment, the driver may be directed to a separate area for a roadside sobriety test. At that point, further investigation would of course be based on probable cause, and general principles of detention and arrest would apply."

It should be further noted that a driver can avoid the checkpoint and the officers cannot detain him or her unless "in avoiding the checkpoint the driver did anything unlawful, or exhibited obvious signs of impairment."

In this case, the driver was not intoxicated and he had a valid driver's license. He chose to drive through the checkpoint. He spoke to the officers through his window. The officers said he was detained, but they would not state a reason why. They threatened to arrest him for obstructing or delaying an officer because he refused to produce his license. Since he did not have signs of impairment, the officers should have let him proceed after a brief encounter.

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San Diego Officer Charged And Plead Not Guilty To Drunk Driving


San Diego Police Officer David Hall was off duty at 7:30 p.m. on February 22nd, 2011, when he allegedly drove his vehicle into another on northbound 805, just north of Murray Ridge Road. He was confronted by law enforcement at his home in Linda Vista where he agreed to a preliminary alcohol screening (PAS) test. The result was three times the legal limit of .08 blood alcohol concentration (BAC).

Although he was not arrested that night, he was notified of the charges by mail and ordered to show up at the downtown jail on Sunday to be arrested and released, according to 10new.com. At his arraignment on May 2nd, he plead not guilty to two counts of DUI causing injury, one count of felony hit-and-run, and an allegation that his BAC was above .15. He is facing a maximum of three years and eight months in prison if convicted. He is due back in court on June 9th for a readiness conference and the preliminary hearing is scheduled for June 30, 2011.

Usually, a warrant is issued for the arrest of the person accused of committing a crime; however, the prosecutor may request a summons instead, (see "summons" under Penal Code Section 813).

A summons issued must be in substantially the same form as an arrest warrant. It shall contain: 1.) The name of the defendant; 2.) The date and time the summons was issued; 3.) The city or county where the summons was issued; 4.) The signature of the magistrate, judge, justice, or other issuing authority who is issuing the summons with the title of his or her office and the name of the court or other issuing agency; 5.) The offense or offenses with which the defendant is charged; 6.) The time and place at which the defendant is to appear; 7.) Notification that the defendant is to complete the booking process on or before his or her first court appearance, as well as instructions for the defendant on completing the booking process; 8.) A provision for certification by the booking agency that the defendant has completed the booking process which shall be presented to the court by the defendant as proof of booking.

If a defendant has been properly served with a summons and fails to appear at the designated time and place, a bench warrant for arrest shall issue.

In this case, Officer Hall complied with the notice and turned himself into the San Diego Central Jail for arrest and booking. Since he also appeared at the arraignment, a warrant will not be issued for his arrest.

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