Articles Posted in Defending DUI Cases

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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 ›

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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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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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In California, if a person is initially arrested for driving under the influence, the case may be negotiated down to other, less severe charges such as a wet reckless, dry reckless, drunk in public, or even an exhibition of speed charge. Successful negotiation will depend upon the facts of the case.

In my experience in San Diego courts, exhibition of speed as a reduction from a drunk driving charge is rarely available as a negotiated plea, unless the case has some serious flaws and the prosecutor believes the DUI case cannot be proven in trial. However, I have been able to obtain such a result in a case that was filed in the Los Angeles Metropolitan Courthouse. My client had a .08 BAC on both the preliminary alcohol screening test and the evidentiary breath sample.

The exhibition of speed charge is found in California Vehicle Code Section 23109(c), and it does not mention alcohol, drinking, drugs, blood alcohol content, or under the influence. Therefore, it is a much better result for the defendant because the penalties are a lot less severe. There is no license suspension, unless Continue reading ›

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justice scales.jpgOnce a driving under the influence defendant pleads guilty or is convicted after a jury trial, their criminal record will reflect this indefinitely. Since criminal records are public records, they can be easily searched and found by law enforcement agencies, employers, and state licensing agencies. Most probationers want to get their criminal record cleaned up as soon as possible so their record does not hinder them.

A standard DUI sentence includes a term of probation. Under California law, Penal Code Section 1203.4, a person is eligible for an expungement “in any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation.” There are a few exceptions to this rule where an expungement is not available. Examples of this are when the person served time in prison for this offense or the offense was a sex crime.

Most drunk driving cases are eligible for expungement.

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, (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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Man with Cop BehindIn San Diego criminal courts, the judge sentences DUI defendants.  For first time misdemeanor drunk driving offenders, that sentence usually does not include any jail time other than what was served at the time of the arrest.  As for subsequent DUI’s, in custody time is very likely to be ordered.

However, San Diego has a program called CPAC, County Parole and Alternative Custody, that is run by the Sheriff’s Department.  This is basically an electronic home confinement program where you wear a bracelet that uses GPS to track your whereabouts. It also has the ability to screen for alcohol use.

You cannot prequalify for this program.  If your sentence included a jail term, the judge may authorize you to be screened for this program.  The judge’s authorization must be on the Court Minute Order for the Sheriff to accept your application to start the screening process to see if you qualify for the program. Continue reading ›

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iStock_000009219151MediumSan Diego residents often call me for their free phone consultation after being charged with their first drunk driving offense. At the end of the call, the person often says, “I have been talking to my friends and I just don’t know if I need an attorney on a simple misdemeanor DUI.” Here’s my answer: You absolutely need an attorney! Any time you are charged with a crime, whether it’s drunk driving, domestic violence, or murder, you must have an advocate on your side.

First off, all criminal matters are very serious. Regardless of whether your case is a misdemeanor or a felony, it can impact your criminal record throughout your lifetime. Your record influences the jobs and promotions you may seek, your housing, loans, and many other aspects of your life that you will not realize until you are getting a background check done. Don’t you want to try to get the charges dismissed or reduced and your penalties lessened?

A criminal defense attorney knows the law and protects your rights. In addition, the lawyer knows the system, how it works and what to expect. With the attorney’s legal insight, discovery is requested and then reviewed to look for issues with the case which can lead to reduced charges and possibly even a dismissal of your case.

If you don’t hire an attorney, would you know what defenses are available to you? Would you be able to review your discovery packet to look for issues the prosecutor will have proving their case? Would you know if you have any motions to file to challenge the State’s evidence, or if your case is worth a trial? Do you know what a fair offer is on your particular case? Do you know what things the prosecutor and judge want to hear about you and the facts of your case that can persuade them to reduce the charges or lighten the sentence? Continue reading ›

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