Articles Posted in DUI Enforcement

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Driving under the influence of drugs, or DUID, is essentially the same as a DUI with alcohol. The code section reads: “It is unlawful for a person who is under the influence of any drug to drive a vehicle. “

pillsIn essence, the prosecutor has to prove that the defendant drove a vehicle, and when s/he drove, s/he was under the influence of a drug. The drug can be an illegal substance, a prescribed medication or even an over-the-counter medicine that could affect the nervous system, brain, or muscles of a person.

Under the influence” is the hardest element for the government to prove. According to the California Jury Instructions (2110), “A person is under the influence if, as a result of…taking a drug, 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.”

Unlike drunk driving cases involving alcohol, Continue reading →

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IMG_7722-300x225As the weather warms up in San Diego, people enjoy the outdoors and get more active. Many flock to the bay, ocean, lakes and rivers to enjoy a day on the water, but be aware that law enforcement agencies are out in full force actively looking to cite people for boating under the influence, BUI’s.

In California, if you operate a motorized boat or any watercraft while under the influence, you can be arrested and charged with a crime. (Note: 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. Also, there is a “zero tolerance” policy for anyone under the age of 21, meaning if you are underage, any measurable amount of alcohol can lead to BUI charges.)

The Harbors and Navigation Code provides the statutes for 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).

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As you will recall, Susan Hartman, of the Law Offices of Susan L. Hartman, attended The National Highway Traffic Safety Administration (NHTSA) and The International Association of Chiefs of Police (ICAP) approved DWI Detection and Standardized Field Sobriety Testing Practitioner Course, as presented by Mr. Robert La Pier.

The course went through the three standardized field sobriety tests (SFST’s), as laid out by NHTSA:  1.) The horizontal gaze nystagmus, (HGN); 2.) The walk and turn, (WAT); and 3.) The one leg stand, (OLS).  These are the only tests that have been validated by NHTSA and should be used by law enforcement in evaluating each potential DUI.  It should be noted that these tests were only validated to correlate to a specific blood alcohol content (BAC) and they are not be used to show impairment.

The two previous blog articles discussed the HGN and WAT tests. This article will address the OLS test.

The NHTSA manual states that this “test requires a reasonably dry, hard, level, and non-slippery surface.”  If the person is wearing heels that are more than two inches, they should be given the choice to remove the shoes and perform the test barefooted.

There are many reasons why a person may not be able to adequately perform this test, regardless of their consumption of alcohol.  For instance, as a person ages, balance and coordination is more difficult.  If a subject has any current or prior injuries to their back or legs, they suffer from inner ear problems, or they are overweight by 50 or more pounds, they may have problems performing the test.  However, in my experience, officers often state, “I will take your concerns and medical issues into consideration,” and then they proceed with having the subject perform the test. Continue reading →

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As you will recall, Susan Hartman, of the Law Offices of Susan L. Hartman, attended The National Highway Traffic Safety Administration (NHTSA) and The International Association of Chiefs of Police (ICAP) approved DWI Detection and Standardized Field Sobriety Testing Practitioner Course, as presented by Mr. Robert La Pier.

The course went through the three standardized field sobriety tests (SFST’s), as laid out by NHTSA:  1.) The horizontal gaze nystagmus; 2.) The walk and turn; and 3.) The one leg stand.  These are the only tests that have been validated by NHTSA and should be used by law enforcement in evaluating each potential DUI.  It should be noted that these tests were only validated to correlate to a specific blood alcohol content (BAC) and they are not be used to show impairment.

In the last blog article, the horizontal gaze nystagmus, or HGN, test was discussed. This article will address the walk and turn test, (WAT).

The NHTSA manual states that this “test should be conducted on a reasonably dry, hard, level, non-slippery surface.”  If the person is wearing heels that are more than two inches, they should be given the choice to remove the shoes and perform the test barefooted.

There are many reasons why a person may not be able to adequately perform this test, regardless of their consumption of alcohol.  Continue reading →

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IMG_4136San Diego DUI defense attorney, Susan Hartman, of the Law Offices of Susan L. Hartman, recently attended The National Highway Traffic Safety Administration (NHTSA) and The International Association of Chiefs of Police (ICAP) approved DWI Detection and Standardized Field Sobriety Testing Practitioner Course, as presented by Mr. Robert La Pier. This is the very course law enforcement is trained in for DUI investigations, giving them the tools to determine if a person should be arrested for drunk driving.

During the training, which lasted three full days, Susan was tested through written exams and practical demonstrations. In the end, she passed the course and earned the certificate of completion.

According to NHTSA, there are only three standardized field sobriety tests (SFST’s): 1.) The horizontal gaze nystagmus; 2.) The walk and turn; and 3.) The one leg stand. These are the only tests that have been validated by NHTSA and should be used by law enforcement in evaluating each potential DUI. It should be noted that these tests were only validated to correlate to a specific blood alcohol content (BAC) and they are not be used to show impairment.

In this blog article, the horizontal gaze nystagmus, or HGN, will be discussed. The other two tests will be addressed in upcoming blog articles. Continue reading →

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IMG_7721The Law Offices of Susan L. Hartman recently wrote a blog article about biking or cycling under the influence.  Now that it’s almost summer, not only is it good to brush up on the biking laws, it is also good to do a quick refresher on boating under the influence.

If you head out to San Diego Bay, know that law enforcement will be out on the water and on the beach looking to enforce the laws, including the drunk boating statutes, (see 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 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). Continue reading →

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

If you head out to the bay this summer, be mindful that law enforcement is also on the water and the beach and they are looking to enforce the laws. This includes drunk boating statutes which are found in the California Harbors and Navigation Code Section 655.

This code section only applies to motorized vessels, meaning that you cannot be charged under these code sections if your vessel is exclusively self or water propelled such as a kayak, rowboat, or a non-motorized sailboat.

The language in Section 655 of the Harbors and Navigation Code is very similar to the California Vehicle Code (VC) sections for drunk driving involving a motor vehicle. Section 655(b) specifically states, “No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.” This is similar to the VC 23152(a).

Continue reading →

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San Diego DUI Lawyers Blog posted an article on January 4th, 2013, announcing that Qinetiq, a Massachusetts company, was given a $10 million grant from the federal government and all sixteen major car makers to develop a technology that would prevent a car from operating if a driver has alcohol in their system.

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

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

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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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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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