Defending DUI Cases

Drunk Driving Arrest, But Plead To Wet Reckless: First Conviction Program Requirements

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

A DUI arrest often results in the prosecuting authority filing official charges in the San Diego Superior Court. The most common driving under the influence charges involving an alcoholic beverage or drug, or a combination of an alcoholic beverage and a drug, does not involve an accident, personal injury or property damage, and is filed as a misdemeanor under California Vehicle Code Section 23152 (a) & (b).

Once the case is filed, the DUI defendant is given notice of an arraignment date. At the arraignment or the first hearing, (the Readiness Hearing), the defendant or his or her DUI attorney and the prosecutor will negotiate the case. If the blood or breath test was around a .10% or if the prosecuting attorney believes there are problems with their case, the offer may be for a lesser included charge called a wet reckless.

If the driving under the influence defendant wants to accept the deal and enter a guilty plea to the wet reckless, the judge will either order the 3-month First Conviction Program or the 12-hour, education only program as a condition of DUI probation. If the blood alcohol content was below a .08% or showed a positive for drugs, the 12-hour class will be ordered. If the blood alcohol was at or above a .08%, the 3-month program will be ordered.

In order to comply with the court ordered first conviction program, the defendant must attend a court approved program. These can be found on the San Diego Court’s website. This course costs $190.00 and includes:

• Six education classes, 1 class per week, 2 hours per class.

Defendant’s should be cautious with the interaction between this criminal court process and the DMV administrative process, as the DMV may require the licensee enroll in a different program to be eligible for a restricted license or to have the driver’s license reissued. The most confusing issues for DUI defendants revolve around the interaction between the DMV and the court consequences and the defendant’s driving privileges. For the most up to date information, contact a criminal defense lawyer in your area that exclusively deals with drunk driving matters.

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 attorney in your area.

San Diego County 1st Drunk Driving Offense: Why The 9-Month Program?

February 8, 2013 | The Law Offices of Susan L. Hartman

In the San Diego courts, if you plead guilty or you are convicted of a first drunk driving offense, the court will order you to enroll and complete a first conviction program. There is a 3-month program and a 9-month program.

The 3-month Drunk Driving First Conviction Program is the standard program ordered by the court. However, the court will impose the enhanced 9-month program if the blood-alcohol content (or BAC) was at or above .20%. Defendants must be aware of this if they want to obtain a restricted driver’s license after the Administrative Per Se suspension imposed by the DMV. The DMV will only require enrollment in a 3-month program for the restriction; however, after the court process is complete, the defendant may have to enroll and complete the 9-month program instead.

In order to comply with the court ordered 9-month first conviction program, you must attend a court approved program. These can be found on the San Diego Court’s website. The nine month course costs $1,190.00 and includes:

Six education classes, 1 class per week, 2 hours per class;
Thirty counseling group sessions, 1 session per week, 1.5 hours per session;
Twenty face-to-face interviews, 1 bi-weekly, 20 minutes per interview; and,
Thirty-nine self-help meetings, 1 per week.

You can enroll using the DMV DUI paperwork or the court referral form. However, you want to make sure you enroll in the right program.

Failure to enroll and/or complete the ordered program by the dates set by the court will result in a probation violation. In addition, the DMV will not allow you to apply for a restricted driver’s license until you enroll and you will not be eligible to reinstate your driving privileges in full until you complete the requisite program.

The most confusing issues for DUI defendants revolve around the interaction between the DMV and the court consequences and the defendant’s driving privileges. For the most up to date information, contact a criminal defense lawyer in your area that exclusively deals with drunk driving matters.

Driving Under The Influence Charges, But I Was Not Driving

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

Under the California Vehicle Code, “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.” (See 23152 VC.)

Simply stated, in order for the defendant to be found guilty, the prosecutor must prove to a jury that the defendant was: 1.) Driving a vehicle; and 2.) Under the influence.

Often, people who are just standing by a vehicle, sitting in the driver’s seat, or sleeping in their car are charged with drunk driving. How is this legal if the officer did not actually witness driving?

According to California Penal Code Section 836, “A peace officer may arrest a person…without a warrant…whenever the following circumstances occur: (1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence…”

However, there are several exceptions to the presence requirement providing a very big hole through PC 836, allowing an officer to make an arrest for DUI even if the actual driving was not observed by the arresting officer. The exceptions include:

(a) The person is involved in a traffic accident.

(b) The person is observed in or about a vehicle that is obstructing a roadway.

(c) The person will not be apprehended unless immediately arrested.

(d) The person may cause injury to himself or herself or damage property unless immediately arrested.

(e) The person may destroy or conceal evidence of the crime unless immediately arrested. (See VC Section 40300.5.)

But, even if the officer made a valid, warrantless arrest, the prosecutor must still prove driving to win their case. According to Mercer v. DMV, the act of driving in the drunk driving statutes requires actual volitional movement of the vehicle. However, the courts have held driving can be proven by circumstantial evidence. This is a fact-based issue and many of these cases end up in trial, leaving the jury to decide what happened.

If you have been charged with DUI in Southern California, and you were not actually driving the car or there were no witnesses to your driving, you should immediately contact a criminal defense lawyer who exclusively handles drunk driving cases to protect you and your rights.

In San Diego It’s NOT Illegal To Drink Alcohol And Drive A Vehicle!!

October 31, 2012 | The Law Offices of Susan L. Hartman

A DUI lawyer in Texas decided to advertise his drunk driving defense firm by putting a message on wristbands that were given out to bar patrons. The message read, “Drinking tonight? Know your rights.” This was followed by the DUI attorney’s telephone number. martini and keys.jpg

Although this upset Mothers Against Drunk Driving, (MADD), the Texas lawyer was correct when he said, “If you are over the age of 21 you can consume alcohol and operate a motor vehicle. You can drive as long as you are not intoxicated.”

This is also the law in California. According to California Vehicle Code Section 23152(a), “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.”

According to the California Jury Instructions, (CALCRIM), 2110, “A person is under the influence if, as a result of drinking or consuming an alcoholic beverage and or 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.”

In addition, “The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of an alcoholic beverage or a drug or under the combined influence of an alcoholic beverage and a drug. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.”

In San Diego and across California, it is not a crime to consume an alcoholic beverage and then drive a car as long as you are not under the influence at the time that you are driving!!

If you are pulled over by law enforcement and then charged with drunk driving, you owe it to yourself to hire an exclusively DUI defense firm to represent your interests with both the Department of Motor Vehicles (DMV) and the court system. Do not delay. You only have ten days from the date of arrest to contact the DMV to request a hearing to challenge the suspension of your driving privileges.

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 attorney in your area.

San Marcos Woman Found Guilty In Drunk Driving Trial

October 23, 2012 | The Law Offices of Susan L. Hartman

A Vista driving under the influence trial concluded with a finding for guilt on three counts of gross vehicle manslaughter this week, according to 10news.com.

San Marcos resident, Debbie Sumi, 36, was in a vehicle that crashed into the back of another car that was parked on the shoulder on westbound 78 near Sycamore Avenue in August 2010. Her blood alcohol concentration, or BAC, was reported as .27 and .28 and she was ejected from the car.

Escondido resident, Susana Orozco, 23, and Erica Oliva, 23, of Fallbrook, were standing on the side of the road by the parked car and were killed. The defendant’s fiancé, Larry Alvarez, 34, was partially ejected and also died at the scene.

Gross vehicular manslaughter while intoxicated is a felony. According to the California Criminal Jury Instructions, CALCRIM 590, in order for the jury to find a defendant guilty of this charge, the prosecutor must proof beyond a reasonable doubt:

The defendant drove while under the influence of an alcoholic beverage and/or drug;
While driving that vehicle while under the influence, the defendant also committed a misdemeanor, infraction, or an otherwise lawful act that might cause death;
The defendant committed that misdemeanor, infraction, or otherwise lawful act with gross negligence; and,
The defendant’s grossly negligent conduct caused the death of another person.

The defense argued that Alvarez was the driver of the vehicle, not Sumi. The jury did not accept this argument and they convicted her on the three counts of gross vehicular manslaughter. She is facing up to 14 years in prison when she is sentenced on January 8th.

Should I Hire A San Diego Drunk Driving Attorney To Handle My DUI?

September 28, 2012 | The Law Offices of Susan L. Hartman

When you are arrested for driving under the influence, there are three options on how you can handle the case and be represented. First, you may choose to represent yourself in court. Second, if you meet the financial qualifications, you may have a public defender appointed to represent you. And third, you may hire a private attorney to handle your DUI case.

Although a defendant has a right to represent himself or herself, it is not advisable to do so. The prosecutor and the judge will not help you through the process and they will not give you legal advice. They are interested in getting people into court to plead guilty, and to get the greatest penalty allowed under the law for the crime they believe was committed. Their caseload is full every day and they work to push the cases through the system as quickly and efficiently as possible. Meaning, they want you to plead guilty at your first appearance in court.

When you plead guilty to a DUI charge this early in the process, the prosecutor often does not turn over all the discovery to you. So, you do not know if the government can even prove their case against you.

No one should represent themselves in court!! You want a defense attorney who looks out for your interests. Someone who makes sure you are pleading guilty when and if the prosecutor’s case is strong, the offer is fair, and there are no defenses in your case that can lead to reduced charges or even a dismissal. A criminal defense lawyer that will file motions, argue on your behalf, negotiate for the best deal, and stand ready to take your drunk driving case to trial if needed.

So if you financially qualify for a lawyer who works for the San Diego Public Defender’s Office, should you still hire your own private lawyer? First off, you have to decide if you have the means to pay for legal counsel. If you do not, the Public Defender is a great option for you. They take on all criminal cases, including drunken driving cases, and it will cost you very little, if anything, for their help.

Because these criminal defense attorneys take every case the court appoints to them, they are extremely busy. They also have incentive to push the calendar and settle cases as quickly and as early as possible. In addition, they usually have little time to focus on any one case and their day is filled with several clients needing several matters handled, leaving little time to fully discuss your case and explain the court process to you, request and review all discovery, and fully assess the case.

By hiring The Law Offices of Susan L. Hartman, an accessible, aggressive, exclusively DUI defense firm, you get an experienced drunk driving lawyer. Driving under the influence cases are fact specific and each one is complex and different. This firm limits the amount of cases it takes on so that every client’s case is handled with the time and attention it needs and you deserve.

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.

SD Courts Suffer Cut In Funding, How Will This Affect Your DUI Case?

September 19, 2012 | The Law Offices of Susan L. Hartman

budget cuts.png The San Diego County courts are suffering from the biggest financial cuts in history. State funding dropped from $190 million to $157 million and a larger shortfall is expected next year. To bridge the gap in the funding, many changes are happening within the courthouse.

Many courtrooms are being closed including six criminal courtrooms and one civil courtroom in the Downtown San Diego Superior Court. In addition, the San Diego’s North County Probate Division no longer exists and all of those matters are being transferred to the Central Division Probate Court in Downtown San Diego. Also, juvenile dependency lost a courtroom in Vista and all Ramona cases will now be heard in the East County Courthouse in El Cajon.

Thirty court reporters have been laid off and another eleven accepted early retirement.
Civil matters will no longer be heard with a court reporter present in the courtroom taking a verbatim record of the court proceedings unless the litigants want to pay for their own reporter. Court clerks now have the added responsibility of making notes on the judge’s rulings.

In order to give the busy clerks time to catch up on the backlogged work, all of the San Diego Superior Court Business Offices now close on Fridays at noon.
With fewer courtrooms and court staff, criminal defendants, including those charged with driving under the influence, can expect a longer wait time to get into a courtroom for hearings and trials. If you already have a court date with an assigned department, when you get to court, you may find that your courtroom is closed and your matter has been transferred elsewhere.

One huge benefit of hiring a DUI lawyer to assist you with your misdemeanor drunk driving case is most defendant’s do not have to appear in court. Your attorney can appear on your behalf. With these new budget cuts, that can save you many long hours waiting in the courthouse for your matter to be addressed. In addition, an experiened attorney, who works in the San Diego County Courthouses, is familiar with these procedures and navigating this new system and can assist you with handling your case with ease.

For the most up-to-date information about the court cutbacks, refer to the San Diego Court’s website.

Articles Cited:

“San Diego courts change hours due to budget cuts”
“San Diego courts to cut more than 40 jobs”
“County court budget cuts kick in; the impact“

DUI Arrest & Case Not Filed Or Case Dismissed, What Can I Do About My Arrest Record?

August 3, 2012 | The Law Offices of Susan L. Hartman

After a person is arrested for drunk driving, the police write up a police report which is forwarded onto the prosecuting agency. It is this agency, either the City Attorney or District Attorney’s Office, that will decide if charges will officially be filed against you in court. The prosecutor will review the police report and determine if, on an initial review of the facts, they believe they can prove the case against you. confidential envelope.jpg
If they do not believe they can prove their case, they may choose not to file charges. Even if the case is never filed, records that you were arrested are still active within local, state, and federal databases. To prevent these records from being used against you in the future, you should do what you can to try to clean up your record.

To have your criminal records sealed and destroyed when charges have not been filed against you, you must first petition the agency that arrested you requesting they destroy your arrest records. That petition must also be served on the prosecuting agency with jurisdiction over your matter.

The police agency may or may not respond to your petition. If they deny your request or fail to respond by the dates set by California Penal Code Section 851.8, you may petition the court to order the arresting agency to seal your arrest records and then destroy them three years from the date of your arrest. The petition to the court must be served on the law enforcement agency that arrested you and the prosecuting agency with jurisdiction. The court then calendars a hearing to decide your petition.

If driving under the influence charges were filed against you but were subsequently dismissed or you were acquitted of the charges, you can directly file your Petition for Sealing and Destruction of Arrest Records with the court without first petitioning the law enforcement agency that arrested you.

Defendants/Petitioners must be aware that there is a 2 year statute of limitations on filing the petition. This means the petition must be filed with the court no later than 2 years from the date of the arrest or the filing of the complaint, whichever is later, unless there is good cause and without prejudice to any other party.

If you suffered a DUI arrest and the prosecutor never filed against you or your case was ultimately dismissed, clean up your record! You never know when your arrest may be used against you if a record of it remains on the books. For assistance with the sealing and destruction of your drunk driving arrest records, contact The Law Offices of Susan L. Hartman.

San Diego Criminal Drunk Driving Convictions And Victim Restitution

July 31, 2012 | The Law Offices of Susan L. Hartman

money bag.jpg Once a DUI defendant pleads guilty or is convicted of drunk driving after a jury trial, the judge will pronounce sentence. If there was a victim who suffered any loss or damages as a result of defendant’s driving under the influence, the sentence will include court ordered restitution. The victim’s right to collect restitution is found in the Declaration of Rights of the California Constitution, Article I, Section 28.

Section (b) specifically states: “In order to preserve and protect a victim’s rights to justice and due process, a victim shall be entitled to the following rights…(13) To restitution.” Because it is the victim that holds this right, neither the court nor the prosecuting authority can use their discretion in negotiating the restitution amount during the plea bargaining stage. However, the court “shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” (See California Penal Code Section 1202.4(g).)

The California Constitution, Article I, Section 28(e), defines a victim to be “a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act. The term “victim” also includes the person’s spouse, parents, children, siblings, or guardian, and includes a lawful representative of a crime victim who is deceased, a minor, or physically or psychologically incapacitated.” This section also states that a victim is not “a person in custody for an offense, the accused, or a person whom the court finds would not act in the best interests of a minor victim.”
The amount of restitution that is ordered is governed by California Penal Code Section 1202.4, which states … “the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.”

Often, at sentencing, the amount of losses/damages to the victim or victims are not known. So, the judge will set a Restitution Hearing. At that hearing the victim presents their damages/losses to the court, usually in the form of documentary evidence or testimony. Under California Penal Code Section 1203.1d(d), the court shall not exclude “documentary evidence such as bills, receipts, repair estimates, insurance payment statements, payroll stubs, business records, and similar documents relevant to the value of the …damaged property, medical expenses, and wages and profits lost” as hearsay.

The defendant has a right to dispute the amount of the restitution under Penal Code Section 1202.4(f)(1).

Payment of the restitution is often a term of probation; however, if the defendant’s drunk driving probation is terminated and the restitution has not been paid in full, the judge will turn that Restitution Order into a Civil Judgment. This allows the victim or victims to use any legal means available under California law to collect on the judgment.

San Diego DUI Criminal Case Dismissed Or Not Filed, What Happens With The DMV Action?

July 24, 2012 | The Law Offices of Susan L. Hartman

A driver is arrested in San Diego County and is charged with drunk driving. Two processes begin: 1.) The criminal process involving the courts; and, 2.) The administrative action involving the California Department of Motor Vehicles, (DMV).

The San Diego criminal action is either not filed or the matter is filed but later it is dismissed by the prosecutor. How does this affect the administrative process and the driver’s license suspension?

Once arrested for driving under the influence, the driver has 10 days from the date of receiving the Administrative Per Se Suspension/Revocation Order and Temporary Driver License to request a DMV APS Hearing to challenge the automatic suspension of the driver’s license. If the DMV finds for the driver and reinstates their full driving privileges, there is nothing that the driver needs to do after finding out charges will not be filed or if the criminal case is dismissed.

However, if the DMV finds against the driver and subsequently suspends the licensee’s privilege to drive, but later the prosecutor decides not to file charges or dismisses the pending DUI charges due to lack of or insufficiency of the evidence, the DMV may grant a renewed right to request an administrative hearing under California Vehicle Code Section 13353.2(e).

In order to request this rehearing, the driver, (or his/her DUI defense attorney), must request from the DMV form DS 702, the Administrative Per Se Notice of Failure to File or Dismissal of Criminal Charges. The prosecutor must agree to fill out the form, indicating why the matter was dismissed or not filed. That form is then sent to the Sacramento DMV Office. This must be done within one year of the date of arrest.

The DMV has discretion in deciding to reopen the matter. If approved, the file is sent back to the local Drivers Safety Office for a rehearing. This is basically a new hearing, where all documents and testimony must be re-entered into evidence and any new evidence must be presented to the hearing officer.

Most often, the hearing office does not render a decision at the hearing. Instead, the Notice of Findings and Decision are sent in the mail.

If you have been arrested for drunk driving in San Diego County, you owe it to yourself to hire an exclusively, DUI defense firm that can advise you on your specific case. The above blog entry is not legal advice and may not pertain to your driving under the influence matter.