Articles Posted in News, Prevention, & Studies

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 ›

Recently, California Governor Jerry Brown signed SB 1046 into law after the State Senate and Assembly voted overwhelmingly in favor, (unanimously with the exception of one “no vote recorded” in the Assembly).  This law will require that all persons convicted in California of a DUI, even a first offender, to install an ignition interlock device, or IID, in all the vehicles s/he owns for a specified period of time.

An IID is a machine that is installed in your car’s ignition. In order for your car to start, the driver must first blow into the machine. If no alcohol is detected, the car will start. If alcohol is detected, the car will not start. In addition, as the car is running, it requires additional breath samples with no alcohol detected to keep the car operational.

The penalty will be as follows: Continue reading ›

Uber, a rideshare program that has been in operation for over 6 years, gives riders an option to get around town without using the bus, a taxi, a bike or walking. Over the past couple of years, their program has greatly cut fares and in many cities they now also offer UberPool, where a rider can share a car with others to save even more.

Uber often argues that their app helps combat drunk driving incidents because riders are choosing to use their rideshare program over driving their own cars during times when they expect to consume alcohol. However, a recent study in the American Journal of Epidemiology found no noticeable impact on the number of drunk driving fatalities in cities where Uber operates. “We found that the deployment of Uber services in a given metropolitan county had no association with the number of subsequent traffic fatalities, whether measured in aggregate or specific to drunk-driving fatalities or fatalities during weekends and holidays.”

It is estimated that there are 121 million drunk driving incident s in the United States, resulting in 10,000 fatalities yearly. However, this study is limited to fatalities, not the number of potential DUI drivers who are using Uber as a transportation alternative, thus avoiding a drunk driving citation, or worst, a traffic accident with potential injuries and deaths. Continue reading ›

In San Diego County, or anywhere in California, if you are arrested for drunk driving, two processes automatically begin.  One is the court process which is handled through the criminal court system and involves criminal charges and penalties.  The other is the administrative process that is handled through the Department of Motor Vehicles, DMV, and involves the suspension of your driving privileges.  [Note: Although the DMV has a separate action regarding your driving privilege, the court may also suspend your privilege to drive if you plead guilty or you are found guilty after a trial of driving under the influence or alcohol, drugs, or a combination of alcohol and drugs.]

For many people, the worst and most inconvenient penalty in a DUI case is the inability to drive.  And, if you do not challenge the suspension by requesting a hearing with the DMV within 10 of the arrest date, the DMV will  automatically suspend your driver’s license for four months, or for one month with an additional five months with a restricted driver’s license, allowing you to drive to/from and during the course of your employment and to/from any DUI programs.

The DMV APS Hearings, as they are called, are not held to the court standard of beyond a reasonable doubt.  The standard applied in administrative proceedings is by the preponderance of the evidence.  Because of this low burden on the DMV, and the fact that the hearing officer is in essence the prosecutor and the judge, and they do not even have to be lawyers, it is rare to get the DMV to set aside the suspension.

I was very sad to see recently a San Diego Hearing Officer, Alva Benavidez, plead guilty in federal court to conspiracy to accept brides.  From what was reported, some criminal defense attorneys decided since they have an uphill battle to win these cases, they would resort to bribing the hearing officer.  Continue reading ›

Currently, there are four counties in California that are participating in the ignition interlock device, IID, pilot program:  Los Angeles, Alameda, Tulare, and Sacramento, per California Vehicle Code Section 23700.  The pilot program requires all driving under the influence, DUI, defendants, including first time offenders, to pay for, install, and then maintain the IID for a period of time as determined by the number of drunk driving convictions the individual has.

An IID is a breathalyzer instrument that is professionally installed in the defendant’s vehicle by a court-approved company.  The driver must blow into the device, providing an alcohol-free sample.  If alcohol is detected, the car will not start.  Once started, the driver will be prompted to give another sample within 15-minutes of driving and then again about every 45-minutes.  If alcohol is detected during a random sample, the car will stall and become inoperable.  These are referred to as “sample failures” and are reported to the court.

Recently, the Department of Motor Vehicles released its report to the Legislature of the State of California of its findings regarding the “General Deterrent Evaluation of the Ignition Interlock Pilot Program in California.”  According to this sixty page report, the DMV study found “the IID pilot program was not associated with a reduction in the number of first-time and repeat DUI convictions in the pilot counties.  In other words, no evidence was found that the pilot program has a general deterrence effect.”  (See “Report Documentation Page.”) Continue reading ›

IIDCalifornia State Senator Jerry Hill plans on introducing a bill on Monday, January 5th,  that would require all defendants who are convicted of drunk driving to install ignition interlock devices, (IID’s).  A first DUI conviction would result in a 6-month requirement.  A second driving under the influence conviction would result in a 1-year IID requirement.  (See news article on CBS.)

What is an IID?  It is a breathalyzer instrument that is professionally installed in your vehicle by a court-approved company.  The driver must blow into the device, providing an alcohol-free sample, in order for the car to start.  If alcohol is detected, the car will not start.  Once started, the driver will be prompted to give another sample within 15-minutes of driving and then again about every 45-minutes.  If alcohol is detected during these random samples, the car will stall and become inoperable.  Sample “failures” are reported to the court.

Currently, there are four counties in California that are participating in an IID pilot program:  Los Angeles, Alameda, Tulare, and Sacramento, (see CA Vehicle Code Section 23700).  According to this statute, first time DUI defendants must install an IID for a period of 5-months in any car that they operate or drive.  On a second conviction, the term is extended to 1-year.  On a third conviction, the device is required for 2-years.  On the third or subsequent DUI conviction, the IID is ordered for 3-years.  Continue reading ›

Out on the town and you had a couple of drinks. Knowing San Diego’s drunk driving laws, you decide it’s best not to drive home and chance getting a DUI.  You ask yourself, “How am I going to get home?”  You can take the trolley or the bus; however, while these options are economical, their schedules are limited and they only travel to certain parts of the county.  And, it can take 1 1/2 hours to get somewhere by bus when it would only take 10-20 minutes by car.

So the next option is a taxi, but they are very expensive, making it unaffordable for many. In addition, money is exchanged between the driver and rider making it a less safe option.  And, if you are not in an area where taxis are driving by, you are forced to call for a cab and often they do not show up.

The best third party transportation option San Diego has is the rideshare companies, including Lyft, Uber, and Sidecar.  They are easy, safe, efficient, and economical for riders and they employ many people in our community.

In order to use one of the services, just download their app onto your smartphone, enter your credit card number for billing purposes, and then in their app hit request a car.  The driver uses their personal car to pick you up and transport you to your destination.  Your credit card is automatically billed and the rates are up to 40% less than a taxi fare. Continue reading ›

Girl in Cop Car.jpgToday, the Supreme Court of the United States (SCOTUS) announced its decision in both Riley v. California, a San Diego case, and United States v. Wurie, a Massachusetts case, that addressed the issue of whether law enforcement can search a person’s smart phone after a lawful arrest. [The Law Offices of Susan L. Hartman previously wrote a blog article about the Riley case, see background case information in “Can Cops Search Your Cell Phone Without A Warrant?“]
The Fourth Amendment of the United States Constitution specifically states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Unless one of the exceptions to the warrant requirement is met, law enforcement must obtain a search warrant for any search to be legal. One such exception is a search incident to a lawful arrest. But, does this exception extend to cell phones, which are now basically pocket computers that store a lot of information including a person’s contacts, photos, videos, internet searches and history, and other personal information?

The court cited three precedent cases that addressed the warrant requirement for searches incident to a lawful arrest, Chimel v. California, United States v. Robinson, and United States v. Chadwick.

Continue reading ›

San Diego DUI Lawyers Blog posted an article on January 4th, 2013, announcing that Qinetiq, a Massachusetts company, was given a $10 million grant from the federal government and all sixteen major car makers to develop a technology that would prevent a car from operating if a driver has alcohol in their system.

The new technology would be a safety feature in each vehicle much like a seatbelt. And, it would operate much like the ignition interlock devices, or IID’s, that are already being ordered by criminal courts in some drunk driving matters. Current IID’s require a person breathe into the apparatus before the car will start and then continue to provide breath samples while driving to keep the engine running.

These safety devices probably won’t end DUI arrests because they do not detect drugs and the driver can always have a passenger blow into the device. However, have you seen the new car concept by Google? The prototype has no gas pedal, brake, or steering wheel! Instead it uses software and sensors to navigate. All you have to do is enter your destination into a computer and the “vehicle” does the rest. This would eliminate the “driving” element of driving under the influence as the computer sensors and software would be “driving” not a person. This may very well end the need for drunk driving laws and DUI enforcement.

mj.jpgAssembly Bill 2500 was introduced in February 2014, by Democratic Assembly Member Jim Frazier of Oakland. It was supported by the Association of Highway Patrolmen, the California Council on Alcohol Problems, the California Police Chiefs Association, the California State Sheriffs’ Association, among others. The bill was opposed by the ACLU, American for Safe Access, California Attorneys for Criminal Justice, California DUI Lawyers Association, California NORML, Crusaders for Patients Rights, Drug Policy Alliance, among others. The original text of the bill sought to impose a “zero tolerance policy” but the bill was amended to a “per se” standard.

Under the proposed law, drivers who have even a trace amount, (“2 nanograms, or more, per milliliter of whole blood”), of Delta-9-tetrahydrocannabinol, or THC, in their blood regardless of whether the person was impaired, could be charged with drugged driving. (Note, this bill also addressed drugs other than THC, providing a level of detectable metabolite that has to be present for the driver to be impaired; however, we are only going to discuss marijuana in this blog).

There is a huge problem with this standard: There has not been any studies proving a correlation of a certain level of THC in the blood and impaired driving. There simply is no science to back up the 2 nanogram standard and impairment. The result of such a law would criminalize non-impaired drivers! This is unacceptable and the California Assembly Committee on Public Safety correctly rejected the amended legislation.

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