San Diego DUI Lawyers Blog

California Open Container Laws

June 17, 2013 | The Law Offices of Susan L. Hartman

In California, it’s well known that it is unlawful to drive a vehicle while under the influence of an alcoholic beverage, a drug or a combination thereof, under California Vehicle Code (VC) Section 23152. In addition, California has “open container laws” which are codified in VC Sections 23221 – 23229. A driver or a passenger that is over 21 years old can have an unopened, factory-sealed alcohol container inside the passenger compartment of the vehicle; however, the “open container laws” make it illegal to have an open alcohol container in the passenger compartment of a motor vehicle.

Specifically, California VC Section 23221 prohibits drivers and passengers from consuming an alcoholic beverage while the motor vehicle is being driven on a roadway.

If you are a driver or a passenger that is over 21 years old and you have an open container in your possession in the vehicle, you can be charged with Possession of Open Container While Driving or Possession of Open Container in Motor Vehicle under California Vehicle Code Section 23222 or 23223.

It is also unlawful for a registered owner to store an opened alcohol container inside their vehicle under VC 23225. As well, it is illegal for the driver or a passenger to store an opened alcohol container inside the passenger compartment of the vehicle while the vehicle is being driven on a roadway, per California Vehicle Code Section 23226.

California VC Section 23224 addresses drivers and passengers that are under 21 years old. In essence this section states no person under 21 shall knowingly drive any motor vehicle carrying an alcoholic beverage and no passenger under 21 shall knowingly possess or have under their control any alcoholic beverage unless accompanied by a parent or an adult designated by a parent, or driving during the course of their employment, or if unaccompanied the underage driver was following the reasonable instructions of their parent.

There are exceptions to these “open container laws” that are found in VC 23229. Passengers in any bus, taxi, limo for hire licensed to transport passengers, or persons inside the living quarters of a housecar or camper are exempt from the possession of an open container and the drinking inside a vehicle laws. And, the driver of the vehicles listed above are exempt from the storage of an open container law found in VC 23225.

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 defense attorney in your area.

In California, Can You Be Charged With DUI While Boating (BUI)?

June 13, 2013 | The Law Offices of Susan L. Hartman

Drunk boating charges were recently brought against Erin Brockovich, an environmental activist whose life was the basis of the self-titled movie, according to examiner.com. She was boating on Lake Mead in Nevada and she caught law enforcement’s attention when she was struggling to dock her boat. After an investigation, she was arrested for OUI, or Operating Under the Influence, Nevada’s version of California’s DUI laws.

California also has drunk boating statutes which are found in the California Harbors and Navigation Code Section 655. The language used in the boating under the influence, or BUI, statutes is very similar to the drunk driving statutes, California Vehicle Code Section 23152(a) & (b). Section 655(b) is similar to the (a) count for DUI, and it 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.”

California Harbors and Navigations Code Section 655(c) is similar to the (b) count for DUI, and it specifically 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 code sections pertain to recreational vehicles; however, if a person is operating a commercial vehicle, the Harbors and Navigation Code 655(d) states, “No person shall operate any vessel other than a recreational vessel is the person has an alcohol concentration of 0.04 percent or more in his or her blood.”

If any injuries are involved, the boat operator can be charged with Section 655(f) of the Harbors and Navigation Code. This is similar to California Vehicle Code Section 23153 and it expressly 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 under the combined influence of an alcoholic beverage and any drug, and while so operating, do any act forbidden by law, or neglect any duty imposed by law in the use of the vessel, water skis, aquaplane, or similar device, which act or neglect proximately causes bodily injury to any person other than himself or herself.”

Open containers are allowed inside a boat and passengers and drivers can consume alcohol. It is only illegal to operate a boat while under the influence.

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.

Avoid Drunk Driving Charges In CA This Memorial Day By Planning Ahead

May 24, 2013 | The Law Offices of Susan L. Hartman

San Diego Sheriff’s Department announced a Memorial Day weekend DUI crackdown through their Avoid the 15 DUI Task Force. They will be conducing DUI and driver’s license checkpoints and drunk driving saturation patrols throughout the County of San Diego beginning Friday night and continuing throughout the weekend, especially in the evening hours.

California Highway Patrol (CHP) also published a press release stating they will also be out in full force this weekend in an attempt to reduce deaths and injuries caused by drunk driving. The Maximum Enforcement Period (MEP) begins Friday, May 24th, at 6:00 p.m. and continues until Monday, May 27th, at 11:59 p.m. CHP officers will enforce seatbelt use, speed violations, and driving under the influence.

Other California law enforcement is expected to follow suit and either set up sobriety checkpoints or conduct saturation patrols specifically looking for drunk drivers. To get the most up-to-date checkpoint information, use Mr.Checkpoint.

The San Diego Sheriff’s press release included a warning that Memorial weekend is the official start of summer and partying. Along with the festivities, people often overly indulge in alcohol. To keep everyone safe, they recommend planning ahead before you head out to your parties. You can do this by designating a sober driver, arranging a ride home for yourself or your intoxicated friends, calling a cab or using one of the apps for texting a cab, or planning to stay at the place of the party. If you are hosting a party, limit the amount of drinks you serve, provide plenty of food, and have fun alcohol-free drinks for the designated drivers.

Last year’s Memorial weekend resulted in 25 deaths on California roadways and 1,300 DUI arrests. Don’t end up spending your holiday in jail, or worse, in the hospital or morgue. Plan ahead. However, if you do end up arrested for drunk driving, you owe it to yourself to hire a California DUI defense attorney to help get you through the process with the best possible outcome.

Forced Blood Draws: Will San Diego Law Enforcement Get A Warrant?

May 23, 2013 | The Law Offices of Susan L. Hartman

California has an “implied consent” rule regarding chemical testing that is found in Vehicle Code Section 23612. This vehicle code section states, “Any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purposes of determining the alcoholic content of his or her blood if lawfully arrested for an alleged DUI.”

When a person is arrested for drunk driving, they are given a choice between a blood or breath test. If a person refuses to give either sample, The Department of Motor Vehicles (DMV) will suspend or revoke a person’s driving privileges pursuant to California Vehicle Code Section 13352. The period of that suspension or revocation is at least one year.

In addition to the repercussions in the administrative DMV phase of a DUI case for a refusal, there are also increased penalties in the criminal court process.

Law enforcement cannot obtain a person’s blood without consent unless they have a warrant to do so. Failure to have a warrant constitutes a Fourth Amendment violation. Regardless, San Diego and other California law enforcement agencies have been forcibly taking blood from drivers without a warrant, citing the landmark case from 1966, Schmerber v. California. In that case, the court held police can, without a warrant, forcibly obtain a person’s blood for the purpose of chemical testing to determine intoxication after a lawful arrest if the sample is taken in a reasonable, medically approved manner, there is a reasonable belief that the person is intoxicated, and there is a need for prompt testing because the person’s blood alcohol is diminishing.

However, in April 2013, the United States Supreme Court ruled on this issue in Missouri v. McNeely. In this case, the Court ruled that a warrantless search of a person is reasonable only if it falls within an exception. The Court did not find any exceptions for exigency existed just because blood alcohol evidence is inherently evanescent.

Although the Court did not create a per se rule, it did state, “When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

The opinion also commented how much more expeditiously warrant processing is 47 years after Schmerber, and that exigency is determined on a case-by-case basis.

Since no bright line rule was created in this opinion regarding when the police can forcibly take blood from someone who was lawfully arrested, suspected of drunk driving, this issue will remain one that is heavily litigated.

If you have had a forced blood draw without a warrant, contact a criminal defense attorney who specifically handles driving under the influence cases. If there is a valid argument that your constitutional rights have been violated, a motion to suppress this evidence may be filed and ultimately, the prosecutor may not be able to use the results against you in court.

Driving Under The Influence Statutes Should Not Be Lowered To .05

May 15, 2013 | The Law Offices of Susan L. Hartman

California’s two most commonly charged drunk driving statutes are California Vehicle Code Section 23152(a) and 23152(b). Often they are charged together as misdemeanor drunk driving charges; however, they can be charged as felonies if the driver had been convicted of four or more other DUI’s in the previous ten years or the driver was convicted of one other felony DUI.

The (b) count is the “Per Se” DUI charge, which makes it unlawful to drive a vehicle with a blood alcohol concentration (BAC) of .08% or greater. In essence, this drunk driving statute creates a rebuttable presumption that if the driver’s BAC is at or above the legal limit, the driver is under the influence for purposes of driving. A jury may convict a person under this DUI statute without any proof that the driver was in fact under the influence at the time of driving.

California Vehicle Code Section 23152(a), however, does not have a BAC level associated with it. Instead it simply 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.” (Note: It is irrelevant if the drug is illegal, prescribed, or over-the-counter.)

A person can be charged and ultimately convicted of driving under the influence under this code section if their “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.” (CALCRIM 2110.)

This (a) statute already encompasses all driving while intoxicated scenarios where the person’s BAC is below .08% including the combined intoxication by drugs and alcohol and in situations where a person is impaired under the legal limit. However, now the The National Transportation Safety Board, NTSB, wants to lower the blood alcohol content to .05.

The Law Offices of Susan L. Hartman agrees with Sarah Longwell, the managing director of the American Beverage Institute who allegedly said, “This recommendation is ludicrous. Moving from 0.08 to 0.05 would criminalize perfectly responsible behavior. Further restricting the moderate consumption of alcohol by responsible adults prior to driving does nothing to stop hardcore drunk drivers from getting behind the wheel.” (Quoted by nbcnews.com.)

Law enforcement agencies should continue to enforce the laws that are already on the books as most people are not under the influence for purposes of driving at this low .05 threshold.

San Diego County’s Craft Beer Industry Makes A Huge Economic Impact

April 25, 2013 | The Law Offices of Susan L. Hartman

San Diego craft beer is not only some of the best beer in the country, our craft beer is driving the economy in Southern California. According to a craft brewery study done by National University, the craft beer industry generated “$299.5 million in wages, capital expenses and contracts in 2011”. Comic-Con, San Diego’s largest convention, accounted for $180 million, making the craft beer industry 1 1/2 times larger than Comic-Con!

The study found San Diego had 52 small-brewery licenses in 2011, twice that of Los Angeles. However, that number is believed to be much higher now, as there were 15 more licenses issued in 2011 and 18 in 2012.

San Diego breweries reported $680.8 in sales, plus they generated revenues for local hotels and restaurants as many people traveled to San Diego to sample the local brews. Especially big was the increase in tourism around annual beer festivals which included San Diego Beer Week. SDBW’s hotel revenue alone was estimated at $780,000. In addition, it was estimated that 2,796 jobs have been created or sustained by the brewery industry.

According to the Brewers Association, San Diego has 2 of the United States top 50 craft breweries based on sales. Stone Brewing Company in Escondido ranked 10th, Karl Strauss in San Diego ranked 39th, and Ballast Point of San Diego ranked 46th.

Shawn DeWitt, president of the San Diego Brewers Guild and the director of brewing operations at Coronado Brewing Company stated, “We feel that San Diego is now the craft beer capital of the United States.”

The San Diego Brewers Guild pamphlet for 2013 currently has 61 breweries listed. Many of those are located in Vista, Oceanside, Carlsbad, Poway, Santee, and San Diego. There are many local businesses helping locals and visitors alike enjoy the liquid gold without the fear of picking up an arrest for drunk driving.

There are many shuttles and beer tours that will take you to the breweries in a group or a private party. You can also take one of the free shuttles that run between local brew pubs on certain days/times where you can sample many different breweries at each establishment.

Driving Under The Influence Cases In The News

April 24, 2013 | The Law Offices of Susan L. Hartman

There were three big stories this week about drunk driving. First, Al Michaels, an NBC sports announcer best known for his commentary on Sunday Night Football, was arrested on Friday, April 19th, according to abclocal.com. Second, Reese Witherspoon’s husband, James Toth, was also arrested on suspicion of drunk driving on that same day, according to cbsnews.com. Lastly, San Diego Police Detective Jeffrey Blackford was sentenced Monday, April 22nd, after pleading guilty to misdemeanor DUI and reckless driving last week, according to utsandiego.com.

Allegedly, Al Michaels made an illegal U-turn near a DUI roadblock in Santa Monica, California. Officers conducting the checkpoint arrested him, took him to the police station and booked him on suspicion of drunk driving for allegedly having a blood alcohol content over the legal limit of .08 percent. He was released on his own recognizance (OR release) and is due in court on June 26th.

The California Supreme Court’s landmark case on DUI checkpoints is Ingersoll v. Palmer. In that opinion, the Court explained the specific requirements for a drunk driving roadblock to be constitutional. One requirement is there must be an opportunity for a driver to avoid the checkpoint if they choose and police cannot arrest someone just for using the outlet. Cops can stop the car, however, if the driver commits a moving violation or they display signs of intoxication.

According to the reports about Al Michaels arrest, he was seen making an illegal U-turn. This would give the officers probable cause to detain him. Once they smelled an odor of an alcoholic beverage, they would be able to legally initiate a drunk driving investigation.

James Toth was weaving while driving in Atlanta, Georgia, which prompted law enforcement to pull him over. Police allegedly saw evidence that Toth was under the influence including “droopy eyelids, watery, bloodshot eyes, and his breath smelled strongly of alcohol.”

Officers use these cues to legally begin a drunken driving investigation. Regardless of the reason why a person was pulled over, if the officer see signs of intoxication, they can prolong the detention and further investigate for DUI. Often, defendants argue that the officer never cited them for the underlying violation, and therefore, the case should be thrown out. The Court will not agree with this argument. The officer may pull over a vehicle on suspicion of any violation, regardless of the ultimate charges brought against the driver.

Lastly, this blog has previously commented on the Blackford matter, (see “SD Police Officers Investigated: Possible DUI Cover Up For One Of Their Own“). Although the San Diego District Attorney’s Office is still reviewing this matter for a possible officer cover up, Blackford was sentenced for the DUI in the San Diego Superior Court.

The San Diego Deputy City Attorney requested 60 days in custody to be served in jail or by another in-custody alternative. However, Judge Frederick Maguire ordered 25 days of public work service, 5 years of informal probation, the standard fines and fees, the MADD victim impact panel class, and a first conviction program.

Whether you are a famous sports announcer, an agent, or a cop, if you drink and drive and you are pulled over you will likely be charged with drunk driving. You owe it to yourself to hire a criminal defense attorney who handles drunk driving matters. Do not just plead guilty!

San Diego DUI Lawyer: Why Hire One If Charged With Drunk Driving?

April 18, 2013 | The Law Offices of Susan L. Hartman

If you are arrested for driving under the influence in San Diego County, you may wonder about your options to represent yourself, ask for a public defender, or hire your own counsel. (In a past blog, “Should I hire A San Diego Drunk Driving Attorney To Handle My DUI?” these options are discuss more thoroughly.) It is highly recommended that you have a criminal defense lawyer represent your interests for any criminal matter because of the distinct advantages that are discussed below.

Many DUI defendants have never been in trouble with the law or arrested before. Often, they are confused about the process and do not understand the interaction between the DMV portion of the case and the criminal court process. A DUI defense attorney can help you navigate the system, explain the steps and procedures and help you make informed decisions about your case. This assistance makes the entire process less stressful.

Most misdemeanor drunk driving cases can be handled by a criminal defense attorney without the client being present at the DMV APS Hearing and for all court dates including the arraignment, readiness and motion hearings. (Note, it is not advisable to conduct a jury trial without the defendant’s presence.) This means the client does not miss valuable time at work. Often hearings that should take less than an hour actually require a lot more time due to the busyness of the DMV and Superior Court’s calendar.

Another advantage of hiring a criminal defense attorney that specifically handles driving under the influence cases, is the attorney will request and review the discovery. The discovery is the government’s proof that you committed a crime. Upon the review, the attorney will be able to evaluate the strengths and weaknesses of the State’s case. The attorney can also consult with investigators and experts to see if your case can be strengthened. Once all the facts of your case are known, the DUI attorney can advise you on whether you should accept the prosecutor’s offer, file motions to dispute an issue with the evidence, or take the case to trial.

The criminal defense lawyer is trained on researching, preparing and conducting hearings, motions and trials. In addition, the lawyer can negotiate with the prosecutor to make sure you are getting the best deal possible considering the specific facts of your DUI case. A skilled DUI attorney who handles matters in San Diego is also familiar with the standard offers given in San Diego County courthouses and what judges and the prosecutors are likely to accept in exchange for a guilty plea.

Lastly, the drunk driving lawyer will educate you on process, go through all your options, and weigh the potential costs and benefits of each option; ultimately, helping you make clear decisions on how to proceed with your case.

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving lawyer in your area.

San Diego Prom And Graduation Season & The Dangers Of Drunk Driving

April 11, 2013 | The Law Offices of Susan L. Hartman

Southern California springtime brings with it beautiful weather, blooming flowers, high school proms and graduation celebrations. There is the potential for young adults to drink alcohol in celebration even though it is illegal for anyone under the age of 21 to ingest an alcoholic beverage. These teens are inexperienced drinkers. Often, they do not understand how their bodies react to alcohol consumption, how it slows motor function, and how it makes them easily distracted and more likely to make choices they would not normally make if they were sober.
In addition to being inexperienced drinkers, they are also inexperienced drivers. Adding alcohol to the mix can lead to car accidents, bodily injury, property damage, the loss of their driving privileges, driving under the influence charges with fines, fees and a criminal record, and worse, possibly deadly consequences for the driver, the passengers, pedestrians, and other drivers.

Often teens feel invincible not believing bad things will happen to them. This is dangerous thinking in the realm of drinking and driving. There may be peer pressure to drive after drinking or to ride in a car with someone after they have had alcohol.

USA Today and MADD (Mothers Against Drunk Driving) warn of the dangers. MADD reports the leading cause of death for teens is car accidents. Of those accidents, 1/3 are alleged to involve alcohol. The Centers for Disease Control and Prevention claims teenage DUI’s are down 54% since 1991, but almost one million teenagers reported drinking alcohol and then driving in 2011.

The best thing you can do as a parent is educate your young adult children of the dangers of drinking and driving. Encourage them to call you anytime for a ride without questions. Let them know they can be seriously injured or killed as a passenger in a car that is driven by another young adult who is under the influence.

One bad choice made while under the influence can change not only the teen’s life, but the lives of those around them.

Happy spring, prom and graduation time! Make it a safe one!

But, if you happen to get arrested for drunk driving and you are under 21 years old, you owe it to yourself to hire a criminal defense attorney that exclusively deals with drunk driving matters. Do not just plead guilty! A criminal conviction can affect your life long after the incident occurred. Find out your rights and protect yourself.

SD Police Officers Investigated: Possible DUI Cover Up For One Of Their Own

March 22, 2013 | The Law Offices of Susan L. Hartman

cop arrest.jpg San Diego Police Sergeant John Iammarino, Detective Daniel Caropreso, Sergeant William Brown, and Sergeant Christopher Tivanian are all assigned to desk duty as the San Diego City Attorney’s Office investigates their involvement in a drunk driving incident involving SDPD Detective Jeffrey Blackford, according to San Diego’s 10news.com.

Allegedly, on December 6th, 2012, off-duty officers of SDPD were out drinking. Before 1:00am, on December 7th, Detective Blackford drove off then spun out and hit a utility box. Within a short period of time, off-duty officers, Sergeant Iammarino and Detective Caropreso, came to save the day. Unlucky for the officers, there was video surveillance of their arrival on scene which provided a timeline to what happened, or didn’t happen, next.

It was not until about 2:15am that on-duty officers were called and Sergeant Brown and Sergeant Tivanian responded. The four officers waited until approximately 3:59am to give Blackford a preliminary alcohol screening (PAS) test at the scene. It is surprising that the officers conducted this test at all, since they should be well aware that this test is considered a field sobriety test and it is not required for people over 21 and not on DUI probation. The results of the PAS test were not reported.

What did these officers do from before 1:00am until just about 4:00am? Why the delay? You would expect a quick response after an officer involved car accident, wouldn’t you? There is an obvious answer rooted in California’s driving under the influence laws, and you know the San Diego Police officers are well aware of the three hour presumption in California Vehicle Code (VC) Section 23610.

Under the drunk driving statutes in the California Vehicle Code, in order for the defendant to be found guilty, the prosecutor must prove that the defendant was driving a vehicle and while driving the person was under the influence of an alcoholic beverage, a drug, or a combination of both. In addition, there are rebuttal presumptions regarding being under the influence. VC Section 23610(3) states: “If there was at the time 0.08 percent or more, by weight, of alcohol in the person’s blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of driving.” VC Section 23152(b) states the rebuttable presumption applies if the chemical test was conducted within three hours of driving.

It seems very apparent that the officers were trying to get their fellow officer outside the presumption window before subjecting him to the PAS test and the subsequent arrest in hopes that he would either be below the legal limit of a .08% BAC and they would not to arrest him for DUI, or he would be able to rebut the presumption that he was under the influence at the time that he was actually driving.

The San Diego City Attorney has filed documents to obtain the internal investigation documents from the SDPD. The Law Offices of Susan L. Hartman will continue to follow this story to see exactly what happened on the night in question.

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.