Defending DUI Cases

Exhibition Of Speed Negotiated Plea In A DUI Case

April 4, 2017 | The Law Offices of Susan L. Hartman

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 ›

San Diego DUI: Early Termination Of Probation/Expungement

May 24, 2016 | The Law Offices of Susan L. Hartman

Once 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.

One Leg Stand (OLS): A NHTSA Standardized Field Sobriety Test (SFST)

October 6, 2015 | The Law Offices of Susan L. Hartman

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 ›

Walk And Turn (WAT): One Of The Standardized Field Sobriety Tests (SFST’s)

September 30, 2015 | The Law Offices of Susan L. Hartman

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 ›

The Standardized Field Sobriety Tests (SFST’s): Horizontal Gaze Nystagmus (HGN)

August 18, 2015 | The Law Offices of Susan L. Hartman

San 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 ›

San Diego DUI Sentencing Alternative: CPAC

December 3, 2014 | The Law Offices of Susan L. Hartman

In 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 ›

First Time DUI: Do I Really Need A Drunk Driving Lawyer?

October 31, 2014 | The Law Offices of Susan L. Hartman

San 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 ›

Drunk Driving & Refusing To Submit A Chemical Test, Criminal Ramifications

September 23, 2014 | The Law Offices of Susan L. Hartman

California has an implied consent law, which requires a driver that is lawfully arrested, suspected of driving under the influence, to submit to a chemical test. The tests that are typically offered for suspected alcohol intoxication is a breath and blood test. A blood test is usually offered for suspected drug intoxication. Occasionally, a urine test may be offered if it believed the driver is under the influence of drugs and is unable to give a blood sample for medical reasons, or the blood and /or breath test is not available.

The officer is only required to give you one chance to complete the test. If you refuse, but then change your mind, or you fail to pick one of the tests offered, that can be considered a refusal.

If you refuse, the police may forcibly draw your blood if they obtain a warrant or they can show exigent circumstances that justify the blood draw without a warrant. In addition to the administrative penalties through the DMV regarding your privilege to drive, there are also enhanced criminal penalties for refusing to submit to a chemical test.

For a first DUI with a refusal enhancement, an additional 48 hours in jail will be added to the penalty. In addition, instead of the 3-month First Conviction Program, the 9-month program will be ordered. With a second drunk driving conviction within 10-years, 96 hours in jail is added. For a third driving under the influence conviction within 10-years, 10 additional days in jail are added to the sentence. And, lastly, for a fourth or subsequent DUI conviction within 10-years with a refusal, the enhanced penalty is 18 additional days in jail. Continue reading ›

California DMV & Chemical Test Refusals In DUI Cases

July 31, 2014 | The Law Offices of Susan L. Hartman

If you are driving a vehicle in California, you have agreed to a chemical test of your breath or blood to determine the alcohol and/or drug content, if you are lawfully arrested and suspected of driving under the influence of alcohol, drugs, or a combination of alcohol and drugs, (implied consent). The required chemical test must be given after a lawful arrest. If you refuse, you may suffer harsher consequences through the DMV and in the court.

The preliminary alcohol screening (PAS) test, the handheld breath test that is given at the scene, is just a field sobriety test. You can and should refuse to take that test, as well as any other field sobriety tests, unless you are under 21 or on DUI probation.

Once arrested, you must provide a sample of your breath or blood. However, in some instances, such as the other tests are not available, drugs are suspected and you cannot provide a blood test, or you have a medical condition that does not allow you to provide a breath or blood sample, a urine test may be offered instead.

If you fail to submit to a chemical test after a lawful arrest, the DMV will take immediate action on your driving privileges. You will be given notice that your driver’s license will be suspended 30 days after the arrest unless you request a hearing within 10 days after the arrest date. If you fail to request the hearing, or if the DMV does not set aside the license suspension after the hearing, your license will suspended for one year on your first offense, revoked for two years on your second offense within 10 years, and revoked for three years on your third offense within 10 years. (Note, this is separate from any action that the court may take against your license in the criminal portion of your case.)

If a DMV hearing is requested, the Administrative Per Se (APS) Hearing will only address four issues:

Under 21 Driving Under The Influence & The DMV APS Hearing

July 15, 2014 | The Law Offices of Susan L. Hartman

Whether you are 21 years old or older, or under 21 years old, if you are arrested for driving under the influence, two separate actions are triggered. The first is the Administrative Per Se, or APS, action from the California Department of Motor Vehicles, which deals with the suspension of your driving privileges. The second is the criminal process through the Superior Court, which deals with criminal penalties such as probation, fines, DUI programs, community service, possible jail time, and a range of other possible penalties. This blog article deals specifically with the Zero Tolerance Law and the DMV APS action.

In California, it is illegal for anyone under the age of 21 to consume alcohol. It is also illegal for anyone under 21 to drive if they have any measurable amount of alcohol in their system. Once the under 21 year old is detained or arrested, they must submit to a preliminary alcohol screening test, PAS, or other chemical test. If their blood alcohol content (BAC) is found to be .01% or greater, they will be given notice that their license will be automatically suspended in 30 days unless they request a hearing challenging the suspension within 10 days of the arrest. The suspension for a first offense is one year.

If the under 21 driver submitted a PAS sample or completed another chemical test, there are only 3 issues that the hearing officer will consider at the hearing. 1.) Did the peace officer have reasonable cause to believe you had been driving a motor vehicle in violation of sections 23136, 23140, 23152, 23153, or 23154 of the Vehicle Code? 2.) Were you lawfully placed under arrest, or if the alleged violation was of section 23136 or 23154 of the Vehicle Code, were you lawfully detained? 3.) Were you driving a motor vehicle…under 21 years of age and had a blood alcohol concentration of .01% or more as measured by a preliminary alcohol screening test, or any other chemical test?

You have a right to retain a DUI defense attorney to represent your interests at the APS hearing.