Susan L. Hartman is licensed to practice law in California and Massachusetts

Today, the San Diego County Bar Association hosted a “State of the Court Address” online via Zoom. Presenters included the San Diego Superior Court Presiding Judge Lorna Alksne, Assistant Presiding Judge Michael Smyth, and Mike Roddy, the CEO of the Superior Court. There were over 2600 attendees in on the meeting to hear the latest updates! Allegedly, this was the largest Zoom meeting of its kind regarding the state of the court in the State of California.

As for what was covered in the criminal arena: gavel-300x230

The court will remain closed except for essential or emergency services until at least May 22nd, 2020. For a full list of what matters are being addressed, look at the court orders on the San Diego Court website.

As you are aware, the nation is struggling with the corona virus pandemic, and our state courts and other institutions are also reeling. The information I’m about to provide is literally changing by the minute, so I will continue to post updates as needed. Doctor looking upward to monitor in hospital operating room

As of today, many counties in California have totally closed the courts with the exception of essential services. The San Diego Court procedures are changing by the minute. Most out of custody criminal matters will either be rescheduled for a date certain or a new procedure will be posted on how to reschedule.

If you are scheduled for a DUI program, MADD class, Public Service Program, or are attending AA’s, or are currently wearing or using an alcohol monitoring device, please call the appropriate places to inquire about the current state of their program. Many are closed or have limited service. If this makes you out of compliance with a court order, I recommend you document your attempts to do what was ordered. As of now, there is no way to address the non-compliance; however, in the future you will have to appear in court to explain this to the judge. Therefore, your documentation will be necessary. Continue reading ›

In a recent California appellate decision, the appellate court considered the denial of a motion to suppress in a case involving felony DUI within 10 years of three prior DUI convictions in exchange for formal probation and dismissal of an enhancement and other charges. The DUI arose when a police officer saw the defendant’s vehicle travel into a field. He came up in his patrol car and directed his spotlight to the front of the defendant’s vehicle.

The defendant left his vehicle and tried to talk on a cell phone. The officer came up and asked what he was doing there. He smelled alcohol within moments of talking to the defendant and saw the defendant became nervous when providing responses to questions.

Later, the defendant identified himself, but the patrol officer suspected this identification was false and put him in handcuffs. The defendant gave his true name, and through a records check, the patrol officer learned his license had been suspended and he was on probation for prior DUIs. The defendant refused a chemical breath test, which was a condition of his probation. He refused a second time, and was then arrested and taken to the hospital for a blood draw, which revealed his blood alcohol concentration (BAC) was .093.

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In a recent California appellate decision, a defendant appealed a judgment entered after a jury trial in which he was convicted of a DUI under Vehicle Code section 23152 and DUI with a blood alcohol content (BAC) of .08 or greater. The lower court found the defendant had been convicted of three prior DUI offenses and determined to be true the allegations for enhancement purposes that the defendant drove under the influence with a BAC of .08 or greater within 10 years of 3 prior DUI convictions under Section 23550. The lower court put in place a three year jail sentence.

The defendant claimed his identity was not established by certified minute orders presented as proof of prior convictions and therefore the lower court’s findings about his prior convictions were not bolstered by substantial proof. The appellate court disagreed.

The case arose when the police pulled over the defendant on I-110 after he was seen weaving and almost hitting another car. The officer saw the glossiness of the defendant’s eyes and observed he was slurring his words. He asked for help from the California Highway Patrol in connection with a DUI. The officer came to the scene and immediately saw the defendant showed signs and symptoms of intoxication such as slurred speech and red and watery eyes. The defendant claimed this was the result of one margarita. However, field sobriety tests showed he was impaired because of alcohol and his BAC was .187-.179.

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Sometimes drunk driving leads to someone’s death. In that case, you may face multiple charges on top of any DUI charges that apply. In a recent California appellate decision, the defendant appealed a conviction for gross vehicular manslaughter while intoxicated and challenged the lower court’s denial of probation, among other things.

The prosecutor filed a three county felony complaint charging the defendant with a gross vehicular manslaughter while intoxicated under section 191.5(a), DUI causing injury under Vehicle Code section 23153(a), and driving with a measurable blood alcohol concentration (BAC) triggering injury under Vehicle Code section 23153(b). With regard to these two other counts, it was alleged the defendant personally caused great bodily injury, that his BAC was at least 0.15% or greater, and proximately caused bodily injury or death to more than one person.

The defendant pled guilty and admitted the truth of the enhancement allegations. The factual grounds for the plea was that he had knowingly and unlawfully killed someone without malice aforethought while drunk driving and the killing was the result of an illegal act that was not a felony, which resulted in death. He also admitted his blood alcohol was .15 or greater.

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The California Criminal Jury Instruction N. 875 provides that to prove a defendant is guilty of assault with a deadly weapon other than a firearm, the prosecutor needs to prove; (1) the defendant acted with a deadly weapon besides a firearm that due to its nature would directly, probably apply force to someone, (2) the defendant’s actions were willful, (3) when the defendant acted, she was aware of facts that would cause a reasonable person to realize the nature of her act was such it would directly, probably cause force to be applied to someone, and (4) when the defendant acted, she had the ability to apply force with a deadly weapon other than a firearm to someone. A defendant’s awareness of facts that would trigger her realization that her act would probably and directly result in application of force can be affected by prior California DUI convictions, warnings from the court, and a prior court order that she install an ignition interlock device on her car.

In a California appellate decision, a jury convicted the defendant of two counts of assault with a deadly weapon. The defendant was drunk on Memorial Day weekend when she drove a car through the fence and into her neighbor’s backyard during a get-together. The car jumped onto the porch, which was around 15-17 feet from the fence, before it temporarily stopped with wheels spinning in the gravel and then crashed into the master bedroom wall. The neighbor’s friend was almost hit and so was the neighbor’s eight-year-old son.

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In a recent California appellate decision, the defendant pled guilty in two cases to driving under the influence (DUI) with a blood alcohol content that was greater than .08. In both of those California DUI cases, he admitted he had three prior convictions for driving under the influence and the court granted him probation.

The first case arose when the defendant was pulled over for driving under the influence. He didn’t have proof of insurance, or a driver’s license, and his BAC was .19 or .20. He was charged with five crimes, including driving with a BAC higher than .08 with three prior convictions. He didn’t come to his arraignment and a warrant was issued for his arrest. He pled guilty to the DUI with a BAC of .19 or .20, and admitted his three priors. In exchange for his plea, the other counts were dismissed. He was put on probation for five years, and one condition was that he install an ignition interlock device on his car for five years.

The second case arose when he was again stopped for a DUI. He gave the police a driver’s license with someone else’s name on it, and would later claim he used the name Gabriel Sanchez. His BAC was .12 or .10. Three days after the defendant’s plea was taken, the prosecutor filed a new complaint and it charged the defendant with three new crimes that came out of the traffic stop, and among these was DUI with three prior convictions for DUI.

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Under section 23575 of the Vehicle Code, a judge can require somebody convicted of a first California DUI to install a working, certified ignition interlock device on any vehicle that person operates, and stop that person from driving except where a functioning certified ignition interlock device has been installed.

A recent California appellate decision arose when the defendant ran a stop sign while extremely intoxicated and traveling at high speeds, and crashed into another vehicle causing the other car to roll over several times. The collision caused the other driver injuries. Two hours after this collision, her BAC was .259.

She pled no contest to several DUI crimes, including a DUI causing injury and driving with a BAC .08 or higher causing injury. She also admitted two prior convictions for DUIs within 10 years, and admitted allegations related to enhancement. The lower court declined to impose the probation department’s recommendation she get probation. She was sentenced to three years in state prison on the first count, and the court stayed a two year sentence on count 2 under Penal Code section 654. Penal Code section 654 prohibits two or more punishments for the same crime.

California Vehicle Code Section (VC) 14601.3 states: “It is unlawful for a person whose driving privilege has been suspended or revoked to accumulate a driving record history which results from driving during the period of suspension or revocation. A person who violates this subdivision is designated a habitual offender.”

Once the person has been deemed a habitual offender, any subsequent driving offenses are subject to more severe penalties, including jail time. Upon a first conviction under this statute, the person shall be sentenced to 30 days in jail and a $1000 fine. A second or subsequent conviction within seven years of a prior conviction will result in 180 days in jail and a $2000 fine.  Under 14601.3(e)(3), any habitual offender who is convicted of driving on a suspended license and the suspension is due to a DUI, the penalty is 180 days in jail, to be served consecutive to any other jail time imposed for violating any other law, plus a $2000 fine.

To convict someone under this statute, the prosecutor must prove: Continue reading ›

Typically, when you are sentenced, and your sentence includes probation, one of the things you are ordered to do is not violate the law. If you are arrested, the arrest itself is not a probation violation. However, what ends up happening, is you will have a new open case and the probation violation trailing behind it, waiting to see what happens on your new case.handcuffs

If you plead guilty to the new charge or are found guilty after a trial, the judge will then address the probation violation in a probation violation hearing. Typically that is done in front of the sentencing judge who put you on probation on the first case. However, the judge on your new case, if s/he has jurisdiction over the first matter, may address probation with the new case, in what is often called packaging or bundling both together.

The probation violation hearing has a lower standard of proof, meaning a judge only has to find that you violated the terms of probation “by a preponderance of the evidence” not “beyond a reasonable doubt” as required in criminal cases.

At the hearing, both the prosecutor and the probationer will be able to present evidence. If the judge finds that it is more likely than not that the probation terms were violated, Continue reading ›

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