San Diego DUI Lawyers Blog

Drunk driving investigations often include the officer asking the suspect if they will submit a breath test in the field. This test is called a PAS, or preliminary alcohol screening, test which measures your blood-alcohol content. It is another field sobriety test, or FST, that the officer uses as a tool to help determine if the driver is under the influence of alcohol.

If you are not on probation for a prior DUI matter, this test is optional. If you are on DUI probation, a standard term of probation is for the probationer to submit to any test at the request of a peace officer for detection of alcohol and/or drugs. If you refuse such a test, you will be in violation of your probation terms.

It is not advisable for anyone who is not on DUI probation to submit to the PAS test or any other FST's. The officer is simply building a case against you.

Once an officer has probable cause to arrest you for drunk driving, you will be asked to submit to a breath, blood, or urine test. Under California law, (Vehicle Code Section 23612), licensed drivers have given "implied consent" to provide a chemical test if lawfully arrested. Therefore, you must submit to one of the tests, otherwise it will be considered a refusal and the officer will forcibly take a blood sample from you. There are additional penalties with the California Department of Motor Vehicles and in the California courts for refusing such a test.

In San Diego County, if you choose to do the breath test, it is often done on an Intoxilyzer machine.

After the test is completed, the officer must give you an admonishment called a Trombetta Admonishment. This advises the suspect that their breath sample is not retained and therefore cannot be retested. The defendant is then offered an additional blood test which is stored at the crime lab. The defense can later retest that sample at an independent lab to test its accuracy. Taking that second test could backfire because there are now two separate tests that may confirm the same result. It is best to just choose one test. Then the defense can attack the testing process, procedures, and results of the one chosen.

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.

Continue reading "Breath Test Then Admonishment, Should I Take The Blood Test Too?" »

During a driving under the influence sentencing hearing, the court may offer to put the defendant on probation. (The defendant does not have to agree to probation; however, it lessens the amount of time spent in jail if any time has to be served at all.)

The judge may impose a sentence but then suspend the execution of that sentence. For instance, the defendant may be sentenced to six months in jail, but the execution of that sentence is suspended until ordered. In those cases, if the defendant violates probation and it is revoked, the judge has authority to deny reinstating probation and execute the six month sentence. Thus the defendant will be required to serve out the six months in jail. However, if the probationer successfully completes probation, the judge will not order the sentence to be executed and he or she will not have to serve any of that time in jail.

In misdemeanor DUI cases, most commonly the judge suspends the imposition of sentence, putting the defendant on probation without giving an indicated sentence. By doing this, if the probationer violates the terms of probation, the judge can ultimately sentence him or her to the maximum jail sentence allowed for that particular crime. In misdemeanor drunk driving cases, the maximum jail sentence imposed for a first DUI is 6 months. For subsequent misdemeanor DUI cases, the maximum jail sentence is one year. (Note, a fourth drunk driving conviction is considered a felony and felony DUI sentencing rules apply.)

Most San Diego judges sentence defendants to probation with standard terms and conditions. These terms and conditions include: 1.) Violate no laws; 2.) Do not drive with a measurable amount of alcohol/drugs in the blood; 3.) Submit to any test at the request of a peace officer for detection of alcohol/drugs in blood; 4.) Violate no laws regarding driving a motor vehicle while under the influence or in the possession of alcohol, drugs, or both; and, 5.) Do not drive without a valid driver's license and liability insurance.

In addition, the defendant often has to complete an alcohol program, attend a MADD panel class, and pay fines/fees. Failure to do any of the above can result in a probation violation. The court, on its own motion, may revoke probation. If the probationer is out of custody, the court usually sends a notice with a time and date to appear. At that hearing, the probationer may not contest the probation violation and the judge will immediately address the violation. If the violation is contested, a date for a probation revocation hearing is set.

If the probationer does not show up for the initial prerevocation hearing, the court will issue a bench warrant for the probationer's arrest. The warrant will remain until addressed. If the court preliminarily revoked probation, the probation term is tolled, meaning it's not running; therefore, the probationer should go to court as soon as possible.

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.

Continue reading "DUI Probation Violated, Warrant Issued, What Happens Now?" »

DUI discovery is the same as in all other criminal cases. There are reciprocal discovery rules, meaning that both the prosecutor and the defense are entitled to discovery.

The defense discovery is mandated by California Penal Code Section 1054.3. Under this code, the defense must disclose, "The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments or comparisons which the defendant intends to offer in evidence at the trial."

Although both the prosecutor and defense must abide by these rules, the defense is often in a different position than the prosecutor. The prosecutor has the burden to prove its case beyond a reasonable doubt and the defense is not required to prove anything. The defendant's drunk driving attorney may not have an affirmative defense, but instead, the defense may call witnesses to impeach the evidence of the prosecutor; thus, the defense counsel may not know it will call a particular witness until after the testimony of the witnesses in the prosecution's case-in-chief. Once counsel forms the intent to call a witness, Penal Code Section 1054.3 applies.

In addition, the defense must also disclose, "Any real evidence which the defendant intends to offer in evidence at the trial."

Discovery is vital in the preparation of a drunk driving case. The defendant has a right to know the evidence the prosecuting authority has against them. This information allows the defendant to make an educated decision on how to proceed with their case. They may want to accept the prosecutor or judge's offer and plead guilty. They may decide to file motions to try to get the case dismissed or limit the evidence that may be used against them in trial. Or, after review of all the evidence, it may become clear that the defendant should take their drunk driving matter to trial.

In the same respect, the prosecutor may review the discovery and decide to dismiss the case, file additional charges, give an offer with more or less penalties, or decide to proceed with trial.

A skilled, DUI defense attorney will request and review all the discovery in your matter, negotiate with the prosecutor on your behalf, and advise you on how best to proceed with your case. If a trial is your best option, the attorney will provide discovery as required under the penal code section discussed above.

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.

Continue reading "Drunk Driving Cases: What Must The Defense Turn Over To The Prosecutor?" »

You have been arrested for drunk driving. The big question when facing your arraignment hearing is whether you should just plead guilty. The answer for most DUI defendants is no.

At arraignment, the prosecutor usually does not have all the discovery to turn over to the defendant or the defendant's attorney. The discovery is the evidence including the police report, statements made by the defendant and witnesses, photographs, real physical evidence, test results, among other things. Without being able to review all the evidence, you are not able to form an educated decision about accepting the prosecutor's offer, pleading guilty, filing motions, or taking your case to trial. Most likely, your best option at this stage is to enter a plea of not guilty and let your attorney start the discovery process.

Discovery is governed by the federal and state constitutions and state statutes. In California, those statutes are found in Penal Code Section 1054. California has reciprocal discovery rules, meaning both the prosecutor and the defense are entitled to discovery. This is true in both misdemeanor and felony matters. However, this article only deals with the discovery that the prosecutor must turn over to the defense.

Between the arraignment and the readiness hearing, the defendant's lawyer requests discovery. Often this is done informally by orally requesting such in court at the arraignment or by a written informal discovery request that is sent directly to the prosecuting agency. The prosecutor is required to turn over:

1. The names and addresses of people the prosecutor intends to call as witnesses at trial;
2. Statement made by the defendant;
3. All real evidence;
4. Felony convictions of witnesses whose credibility is at issue;
5. Relevant written and recorded statements and any reports of such statements of witnesses the prosecutor intends to call at trial;
6. Evidence favorable to the defendant; and,
7. Evidence that a third party was implicated.

In addition to informal discovery, there are several motions that a drunk driving defense lawyer may file to obtain additional discovery. These include: 1.) A Pitchess Motion to discover the personnel files of the police officers that were involved in your case; 2.) Brady Motions to discover favorable evidence to the accused; and, 3.) Trombetta-Youngblood Motions for sanctions for the destruction of favorable evidence, (see California v. Trombetta and Arizona v. Youngblood).

If you or someone you know is arrested for driving under the influence, you owe it to yourself to hire an exclusively DUI defense firm that will effectively request and review all discovery and then advise you on how to proceed in your case. Remember, it's the prosecutor who has to prove you are guilty of DUI, you do not have to prove you are innocent!

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.

Continue reading "Driving Under The Influence Discovery For The Defense" »