San Diego Voters Opposed To Drunk Driving Checkpoints


state capital.bmp San Diego's Equality Alliance did a checkpoint study of over 6,000 voters in San Diego County from May 21st through June 15th, 2011, asking, "Do you think law enforcement should be able to set up checkpoints to question drivers without suspicion of wrongdoing." Approximately 64% oppose DUI checkpoints; while only 27% are in support. Opposition is highest among the younger population, 18-24 year olds, 69%, and African-Americans, Latinos, and low income voters, 68%.

Drunk driving checkpoints are supposed to be conducted in a manner that would deter drunk driving using the criteria set out by the California Supreme Court in Ingersoll v. Palmer. (Also see previous blog entries, California's Sobriety Checkpoint/Roadblock Criteria Part I and Part II.) However, according to the Executive Director of Equality Alliance, Andrea Guerrero, many people complain that DUI checkpoints harass, discriminate, inconvenience, and invade privacy.

10news.com reported that law enforcement agencies are currently using the checkpoints to not only deter drunk driving, but also to check on immigration and license status by targeting certain neighborhoods.

Equality Alliance is asking California lawmakers to pass legislation that would regulate DUI checkpoints for sobriety checks only. The bill comes before the Appropriations Committee, which is headed by State Senator Christine Kehoe, on August 15th.

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DUI Charges After Suspect Admits To Huffing Aerosol Cans


inhalants.jpgDrunk driving charges were brought after Christopher Jordan Johnson, 20, crashed his car into a tree in East Naples, Florida. He and his passenger, Brock Lyons, 21, admitted to huffing dust remover in aerosol cans before the crash, according to naplesnews.com. Johnson broke his right leg and hip and Lyons broke his arm and right ankle, and suffered a collapsed lung.

Painkiller DUI's have been increasing but huffing DUI's are still rare, according to an officer that was involved in the case.

In California, it is illegal to drive a vehicle while under the influence of alcohol, drugs, or the combined influence of any alcoholic beverage and a drug, (see Penal Code section 23152(a)). It does not matter if that drug is a prescription, an illegal substance, or a cleaning product that can be used as an inhalant, as long as the prosecutor can prove beyond a reasonable doubt that the driver was under the influence for purposes of driving.

San Diego prosecutors brought charges in its first huffing drunk driving case in May 2010, according to cbs8.com, stemming from an accident that occurred on December 31, 2009.

Defendant Romeo Dumlao, Jr., 34, was accused of huffing or inhaling difluoroethane vapors from a can of computer dust remover to get high, according to 10news.com. While in Point Loma, he drove his car into another car on Sports Arena Boulevard, ultimately killing 9 year old Ashley Heffington. He plead guilty to gross vehicular manslaughter while intoxicated in June 2010, and was sentenced to 16 years in prison in July 2010.

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Pacific Beach DUI Checkpoints Not Conducted On July 4th Weekend


PB.jpgPacific Beach has hosted a drunk driving checkpoint during the July 4th weekend for the past eight years. However, the San Diego Police Department decided not to have one this year. The Pacific Beach residents are outraged by this because not only is San Diego the city with the most DUI-related arrests in the country, but Pacific Beach has the majority of those arrests.

PB Planning Committee members confronted San Diego police Officer Mark McCullough about this. He claimed the chief of police requested that the checkpoints be shared by other communities, according to 10news.com.

Instead of DUI checkpoints, San Diego Police used saturation patrols to address the drunk driving issue and alcohol-related offenses in Pacific Beach and Mission Beach this year.

San Diego DUI checkpoints are funded by grants given to the police department from the California Office of Traffic Safety (OTS). Those funds are provided by the National Highway Traffic Safety Administration (NHTSA).

San Diego law enforcement must use those funds to deter drunk driving throughout the city, not just in Pacific Beach and Mission Beach. Since checkpoints are intrusive and ineffective, saturation patrols, which specifically target those who are involved in alcohol-related incidents, are a much better way to use the funds and the city's resources.

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San Diego Officer Charged With DUI Commits Suicide


Drunk driving charges were brought against San Diego Police Officer, David Hall, after he allegedly crashed his car into another on Interstate 805's onramp from Murray Ridge Road while off duty on February 22nd. A woman in that car was injured and Hall left the scene. Police officers found him at his home and field sobriety tests were conducted. His blood alcohol content (BAC) was .32, four times the legal limit of .08. (The incident was previously posted on this blog on May 3rd and April 13th, 2011.)

On May 2nd, Hall plead not guilty to two counts of DUI causing injury and one count of felony hit and run with an allegation that his BAC was above .15. He was put on paid administrative leave from the department. If convicted, Hall faced a maximum sentence of three years and eight months in prison.

A pretrial hearing was scheduled for Thursday. Apparently, the stress was too much for Hall to bear. On August 1st, he took his own life with one gunshot wound to his head. He was found by his wife in the backyard of their Clairmont Mesa home around 10 a.m., according to latimes.com.

SDPD Chief, William Lansdowne admitted the department was aware of the stress Hall was under after the drunk driving arrest, according to signonsandiego.com. He was utilizing the department's Wellness Unit; his last appointment was the day before he took his life.

Criminal allegations, facing jail or prison time, and the possibility of losing your job can cause great stress for criminal defendants. If you have been charged with a crime and the stress has become unbearable, consider seeking help from mental health professionals.

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Chula Vista Drunk Driving Accident Results In Prison Time


Chula Vista resident, Angel Rodrigo Gutierrez, 23, was sentenced July 28th, for the fatal hit and run incident that occurred on Christmas Day, killing Robin Fortson, a 54 year old homeless woman. The defendant plead guilty last month to vehicular manslaughter while intoxicated and leaving the scene of an accident. He was sentenced to six years and four months in state prison, according to 10news.com.

Gutierrez was drinking beer and celebrating Christmas when he decided to drive to get a burrito. Around 8:30 p.m., at the 1200 block of Third Avenue in Chula Vista, he struck and killed Fortson as she crossed the street. He then made a u-turn, driving by the victim, leaving the scene. His car was left in the 200 block of Moss Street and he was found around 2:40 a.m. at his home in the 300 block of Date Street.

His blood alcohol content (BAC) was measured at .29 percent, seven hours after the crash. He was subsequently arrested for drunk driving.

In California, it is illegal to operate a vehicle with a BAC of .08 percent or more under the California Vehicle Code section 23152(b). Built into that code section is a rebuttable presumption that if a chemical test was performed within three hours after driving and the result showed the person's BAC is .08 or more, the prosecution can assume that the driver's BAC was .08 or greater at the time of driving. This assumption can be challenged by the defense at trial.

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Boating Under The Influence, Can I Get Arrested For DUI?


In California, if you operate a motorized boat or any watercraft while under the influence in a lake, river, or the ocean, you can be arrested and charged with a crime.

The Harbors and Navigation Code provides the statutes for boating under the influence, or BUI. The language of the code is very close in the language in the California Vehicle Code for drunk driving, (see California Vehicle Code section 23152).
drinking and boating.bmpUnder the Harbors and Navigation Code section 655:

(b) 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.

(c) 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.

(d) No person shall operate any vessel other than a recreational vessel if the person has an alcohol concentration of 0.04 percent or more in his or her blood.

The code does not bar the operator of the boat or the passengers from drinking or having open containers inside the vessel. However, it is illegal to operate a motorized vessel or serve as a crew member while under the influence or alcohol, a drug, or the combination of both, (see Harbors and Navigation Code section 655.4(a)).

A BUI is priorable, which means if you are charged with another DUI or BUI within ten years of the first one, you will be subject to the consequences of a second offense, which are more severe than the punishment for the first.

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Del Mar Races Targeted for DUI Crackdown and Arrests


del mar.jpgDel Mar horseracing season kicked off on July 20th, and thousands of San Diegans came out to the track to bet on the thoroughbreds and have a few cocktails.

San Diego and Oceanside Police Departments, along with the San Diego County Sheriff's Department, stopped 349 motorists near the track between 3 p.m. Wednesday and midnight on opening day, according to 10news.com. Fifteen people were arrested for drunk driving, four were arrested for driving without a license, fourteen vehicles were impounded, and thirty-five citations were issued for other traffic violations.

Included in the DUI arrests was jockey Mike Smith, a 2003 inductee in the horse-racing Hall of Fame. He has won 10 American Classic and Breeder's Cup races, including the big three, the Kentucky Derby, Belmont Stakes, and the Preakness.

Earlier in the day, Smith rode Mr. Commons to win the Oceanside Stakes. However, around 11:30 p.m., we was allegedly seen driving very slowly and weaving by Carmel Valley Road and Via Albertura, approximately five miles from the track. He was pulled over by San Diego Police and arrested for drunk driving.

The jockey was booked into jail and later released after posting bail. Smith, who weighs only 115 pounds, apologized for his actions after he admitted to drinking about 3 glasses of wine. He is due in court on September 1st.

According to the "Blood Alcohol Concentration Chart" on the California Department of Motor Vehicles' website, a 115 pound person having consumed 3 drinks, would likely be under the influence for purposes of driving within the four hours of the first drink. (Note, this is just an estimate as many factors will effect the actual blood alcohol content, or BAC.)

The Del Mar Races will continue through September 7th. You can expect the police will be out in full force in the Del Mar area looking for drunk drivers. So if you plan on attending the races and indulging in a few adult beverages, make sure you utilize public transportation or designate a sober driver. However, if you are driving, stopped, and ultimately arrested for drunk driving, contact

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Vista Judge Rules Escondido DUI Checkpoint Case To Go To Trial


A Vista judge denied the motion to exclude evidence against two men who were passing through a drunk driving checkpoint and refused to unroll their window, which prompted an Escondido officer to break his window and make an arrest for resisting an officer.

The North County Times reported that Angel Navarrete and his passenger, Daniel Alfaro, drove through a sobriety checkpoint on February 11th, 2011, around 7:30 p.m., on East Valley Parkway and Juniper Street. Navarrete refused to roll his window all the way down as he video recorded the police response. His intention was to challenge the Escondido checkpoint and was totally sober while confronting the officers.

The motion was heard on July 8th, in front of Judge Robert Kearney. The attorneys for the men argued that the arrest was illegal because drivers are not required by law to roll down their window at a checkpoint and Navarrete's window was unrolled enough for the officer to conduct an investigation. They also pointed out that the proper procedures for a checkpoint were not followed in this case. The judge disagreed and denied the motion. The trial is set for August 30th.

A defendant may motion the court to suppress evidence under Penal Code section 1538.5, if the search or seizure without a warrant was unreasonable. Under People v. Williams, a warrantless search or arrest is presumptively illegal. When the question of the legality of an arrest or a search or seizure is raised, the defendant makes a prima facie case of illegality where the arrest, search, or seizure was accomplished without a warrant, then the burden rests upon the prosecution to show proper justification for the arrest, search, or seizure.

If the court finds the prosecution failed to meet their burden, the defense motion will be granted. The prosecution will then decide if it has enough evidence that is admissible to proceed with the matter. Often cases are dismissed or lesser charges with lesser penalties are offered.


Note: This is a follow-up story to one previously published in this blog on May 6th, 2011, (see "Escondido Sobriety Checkpoint Challenged").

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Drunk Driving Crackdown During San Diego Pride Weekend


pride drink.jpgAs San Diego Pride Weekend is about to kick off, San Diego Police have warned that they will be out in force looking for drunk drivers.

A DUI checkpoint will be conducted on Saturday, July 16th, between 9:00 p.m. and 4:00 a.m. The location of the roadblock was not published.

In the press release, the police department warned that those who are arrested for drunk driving can expect to go to jail, have their license suspended, and have to pay for vehicle storage fees, insurance increases, various fines and fees of the court and DMV, and attend DUI classes. A cost of over $10,000.

Before heading out to participate in the San Diego Pride activities, make sure you plan ahead. Use public transportation, designate a sober driver, or plan to stay at a local hotel or a friend's home.

If you choose to ride a bicycle to the parade or festival, keep in mind that it is a misdemeanor to ride a bike while intoxicated, (see California Vehicle Code section 21200.5).

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CA Lawmakers Take Steps To Limit Money Made Off Impounded Vehicles At Drunk Driving Checkpoints


state capital.bmpSan Diego and other California counties have been making millions of dollars off vehicle impounds at drunk driving checkpoints, according to 10news.com. In a recent audit, a discrepancy was found between the number of cars that are impounded and the number of drivers arrested for being under the influence. Most of the impounds are happening to drivers that are sober.

The DUI checkpoints are funded by grants given to local law enforcement agencies by the California Office of Traffic Safety. Those funds are provided by the National Highway Traffic Safety Administration (NHTSA) and they are to be used to address alcohol and drug issues on the roadways, not impounding vehicles.

As a result of the audit, state lawmakers are pushing AB-1389 and AB-353 to curb the millions of dollars made by cities and law enforcement agencies off the cars that are impounded at sobriety checkpoints.

As the law currently stands, law enforcement can conduct a combined vehicle inspection and sobriety checkpoint to check for violations of motor vehicle exhaust standards in addition to DUI offenses. During a drunk driving roadblock, if an officer determines that a person is driving without ever being issued a driver's license, they may be immediately arrested and their car impounded for 30 days. If the driver had a valid license at some point, but is driving through the sobriety checkpoint without a valid license, their vehicle may be impounded for a shorter period of time upon issuance of a notice to appear in court and the registered owner presents a valid license and proof of current registration.

AB-1389 states a combined vehicle inspection and sobriety checkpoint will no longer be allowed. Instead, local law enforcement would be allowed to establish a sobriety checkpoint program to identify drivers who are in violation of specified DUI offenses. Each motorist stopped would be detained so law enforcement may briefly question the driver and look for specified signs of intoxication. All provisions of DUI roadblocks under Ingersoll v. Palmer (1987) would be followed, including providing advanced notice of the general location within 48 hours of conducting the operation.

Further, AB-1389 does not allow for impounding vehicles at the checkpoints unless one of the specified conditions applies.

The existing law also authorizes law enforcement to immediately arrest a person and cause the removal and seizure of the vehicle they were operating if the officer determines the person was driving the vehicle while their driving privilege was suspended or revoked or without having been issued a license. A vehicle is subject to forfeiture as a nuisance if it is driven on a highway by a driver with a suspended or revoked license, or by an unlicensed driver. The vehicle is to be impounded for at least 30 days if its driver is unable to produce a valid driver's license.

Under AB-353, the registered owner of the vehicle would be able to retrieve a vehicle that was impounded pursuant to a sobriety checkpoint program, the following day, upon a showing proof of a currently valid driver's license and vehicle registration.

Recently, there have been allegations that drunken driving checkpoints and vehicle impound policies have been used to harass illegal immigrants, see caivn.org and 10news.com. Now, this audit shows local government and law enforcement agencies are actually profiting financially. Because of this, they should not be able to qualify for the grants which have an intended purpose of deterring drunk driving offenses.

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Drunk Driving Checkpoints Net More Impounded Cars Then DUI's


impound.jpgSan Diego law enforcement agencies have been racking up statistics at DUI checkpoints, and it is not on arresting drunk drivers, rather impounding cars, according to 10news.com. And even more surprising, most of those impounds are happening to sober drivers.

The roadblocks have been a revenue source of millions of dollars for cities and law enforcement agencies conducting the stops as impound fees are collected. This leads to the appearance that DUI checkpoints are being conducted specifically to raise money, not as a deterrent to drunk driving.

In a recent audit, a discrepancy was found between the number of cars that are impounded and the number of drivers arrested for being under the influence at these checkpoints throughout San Diego County.

  • Chula Vista Police arrested 105 people for DUI during roadblocks in 2010, but impounded 723 cars.
  • El Cajon Police arrested 5 drunk drivers at checkpoints but impounded 94 cars.
  • Escondido Police arrested 56 but impounded 654 cars in their sobriety checkpoints last year, making Escondido one of the highest impound to DUI arrest ratios in San Diego County.

These checkpoints are funded by grants given to local law enforcement agencies by the California Office of Traffic Safety. Those funds are provided by the National Highway Safety Act. The grant funds used for DUI checkpoints are supposed to address issues with alcohol and drugs, not impounding vehicles.

As a result of this audit, state lawmakers are pushing AB-1389 and AB-353 to curb the millions of dollars made by cities and law enforcement agencies off the cars that are impounded at sobriety checkpoints.

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San Diego DUI Arrests Up As Cops Crack Down During The Holiday


4th of July Drink.jpgChula Vista, National City, Coronado, and San Diego Police Departments held three separate operations targeting repeat drunk driving offenders from Saturday through Monday, according to 10news.com. Ten people were arrested for allegedly driving under the influence, 37 vehicles were confiscated and impounded from drivers who did not have valid licenses, and 23 others were cited for other violations.

DUI arrests totaled 95 in San Diego County by the California Highway Patrol (CHP) from 6:00 p.m. Friday through 6:00 a.m. Monday, according to signonsandiego.com. This was up from 86 drunk driving arrests in San Diego in 2010 during the 4th of July holiday.

Throughout California, DUI arrests increased to 1,358 this year with 22 fatalities. In 2010, 1,329 arrests were recorded by CHP with 18 fatalities.

The summer is here! All of San Diego law enforcement is out in full force seeking to arrest those who are suspected of drunk driving. If you drink, call a cab or a friend, designate a sober driver, use public transportation, or spend the night where you are. If you happen to get arrested for DUI,

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Drunk Driver Avoids Mandatory Prison Term As Prosecutor Fails To Prove Prior DUI's


burden.bmpAn alleged five-time drunk driver avoided the mandatory two year prison sentence, according to thesunchronical.com. Brian Hand, 55, of New Hampshire, was found guilty of DUI in a Attleboro District Court in Massachusetts last week. However, the jury did not hear evidence regarding the defendant's alleged priors.

In a hearing on Monday, the judge ruled the prosecutors failed to prove the defendant was the person in some of the Registry of Motor Vehicle documents that were presented to the court and they lacked proper certification. Hand allegedly had two prior DUI convictions in New Hampshire and two others in Massachusetts before this current conviction. The court found that only two prior driving under the influence convictions were proved.

The prosecutor asked for the maximum 2 1/2 year jail term but instead Hand was ordered to serve only six months in jail, with the remaining 2 years suspended for 3 years of probation.

In every criminal case the burden of proof is on the prosecutor to prove each element of each charged crime and any special allegations or enhancements beyond a reasonable doubt, (see California Criminal Jury Instructions, CALCRIM, 103). If they fail to do so, the jury/court must find the defendant not guilty.

Because the burden of proof rests on the prosecution, the defendant is not required to prove their innocence. This right is guaranteed by the Fifth Amendment of the U.S. Constitution. Therefore, the defense does not have to cross examine witnesses, call any of their own witnesses, or present any evidence. All the defendant has to do is argue that the prosecution failed to prove its case beyond a reasonable doubt. If the trier of fact finds that the burden has not been met, the defendant is entitled to an acquittal under California Penal Code Section 1096.

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SD University Study Finds BAC Below .08% Can Still Impair Drivers


UC San Diego sociologist David Phillips and coauthor Kimberly M. Brewer completed a study comparing blood alcohol content (BAC) and injury and death-related vehicle accidents, according to nbcbayarea.com. The results were published in the journal "Addiction."

The study examined official data from the Fatality Analysis Reporting System (FARS). The dataset allegedly included information on all 1,495,667 persons who were involved in fatal car accidents in the United States from 1994 until 2008.

According to the article, the study found that blood-alcohol levels below the legal limit of 0.08 percent are still associated with injury and death-related vehicle accidents. They believe that even one drink can impair a driver enough to cause a fatal or severe accident. Phillips believed three mechanisms help explain the findings: "Compared with sober drivers, buzzed drivers are more likely to speed, more likely to be improperly seat-belted and more likely to drive the striking vehicle, all of which are associated with greater severity."

San Diego's MADD, Mother's Against Drunk Driving, executive director Eloisa Orozco commented on the results stating, "If you're going to drink at all, don't drive."

The sociologist commented that he hopes "our study might influence not only U.S. legislators, but also foreign legislators, in providing empirical evidence for lowering the legal BAC even more." This is not necessary in California because there are two code sections that can be charged, California Vehicle Code Section 23152(a) and (b).

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

This is sometimes referred to as California's DUI "per se" rule. The law presumes that if your BAC is 0.08% or greater at the time of your blood or breath test, you are guilty of DUI, regardless of whether you were actually under the influence of alcohol and/or drugs at the time of driving.

Can you still fight your DUI case if your BAC was .08 or higher? Absolutely! There are many defenses, even to the (b) count. Speak to a DUI defense attorney to find out about all your rights and defenses to your case.

If your BAC was below a .08, but law enforcement believed you were impaired while driving, you can be charged with VC Section 23152(a) , which 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."

Whether a person is under the influence for purposes of driving is a matter of fact. Current California law already accounts for the fact that most people are under the influence if there BAC is .08 or greater at the time of driving. Others are not. Some are under the influence at a lower blood alcohol content. That is why there is an (a) count under the code.

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DUI For Being Under The Influence In A Horse-Drawn Buggy?


horse and buggy.jpgCan being under the influence while in control of the reins of a horse-drawn buggy subject you to the drunk driving laws in California? Yes, it may!

In Pennsylanvia, two people were allegedly in control of the reins of a horse-drawn buggy that ended up in the path of a car causing an accident, according to cumberlink.com. The people involved were not hurt; however, the horse suffered nonlife-threatening injuries. Both "drivers" were arrested for driving under the influence.

If this accident occured in California, the "driver" of the buggy could be charged with drunk driving. Under California Vehicle Code Section 21050, " Every person riding or driving an animal upon a highway has all of the rights and is subject to all of the duties applicable to the driver of a vehicle by this division..."

Under the California Vehicle Code Section 670, a vehicle is defined as 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 law enforcement and prosecutors are always trying to expand the meaning of vehicle and highway, making more acts illegal under the DUI laws. However, any drunk driving case involving a horse or other animal should be challenged. Common sense says an animal is not a vehicle!

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