Articles Posted in News, Prevention, & Studies

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Before January 1st, 2014, California law enforcement agencies were using California Vehicle Code (VC) Sections 23152(a) and (b) to prosecute cases involving alcohol, drugs, or a combination of alcohol and drugs.

VC 23152(a) stated, “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.” VC 23152(b) read, “It is unlawful for any person who has a 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

As of January 1st, 2014, the State of California added two more driving under the influence code sections, 23152(e) and 23152(f), thus separating out the alcohol and drug cases.

VC 23152(a) has been updated to read, “It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.” Section 23152(b) has been changed to, “It is unlawful for a person who has a 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

The new VC 23152(e) provides, “It is unlawful for any person who is under the influence of any drug to drive a vehicle.” And, under VC Section 23152(f), “It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.”

After the first quarter of the year, it is unclear how the court will handle the new version of this vehicle code section. Still, the 2014 California Jury Instructions uses only the (a) and (b) sections as they were used before, (see CALCRIM No. 2110 and 2111).

As for the administrative portion of a drunk driving matter, the DMV Driver Safety Office does not address drug impairment at the APS Hearing. The hearing only focuses on alcohol and BAC. However, you can speculate that with the push for more legislation on DUI’s, such as the proposed AB 2500, drug DUI enforcement and penalties may become stricter in the future.

If you have been arrested for driving under the influence due to alcohol, drugs, or a combination of alcohol and drugs, you owe it to yourself to seek help from a criminal defense attorney who exclusively deals with DUI matters.

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One California city tested the use of cameras by their officers last year and the results were just as one would expect. The use of force by officers dropped by over two thirds overall, and those not made to wear cameras were twice as likely to use force than those equipped with the recording devices! The conclusion of the study: “The majority of the time police use force is unnecessary. In other words, the majority of the time these officers used force they were simply committing acts of violence which they don’t feel comfortable committing if it’s captured on film.”

The Rialto police chief introduced the wearable cameras to his officers and he was met with opposition. Many officers were not happy with being watched. Despite their negative response, the chief randomly selected officers to wear the cameras, having one-half of the staff using a camera each shift. The study ran from February 2012 until July 2013. The cameras had to be manually turned on by the officers and they were required to do so as they got out of their patrol car to approach a citizen. The camera automatically saved about 30 seconds of prior to the officer’s activation, with the hopes of capturing the initial reason for the contact.

California Highway Patrol (CHP) officers have cameras inside their patrol vehicles. They are called MVARS, the Mobile Video Audio Recording System. They are mounted on the rear view mirror, facing out the front of the windshield. The officers also have microphones attached to their shirts to record the audio of their interactions.

In my experience, the officers often do not want their interactions recorded. When the recordings are subpoenaed, the part of the incident needed is not in the evidence. Law enforcement provides excuses such as the batteries were not charged or for some reason the equipment was not working at the time of the incident. In addition, when an officer has a driver get out of their car, they often bring the suspect to an area where the camera does not pick up what is going on.

It should be mandatory police policy that all law enforcement officers, including CHP, San Diego Sheriffs, and San Diego Police, be required to properly maintain audio and video recording devices, that they must be activated for each and every contact they have with citizens, and, the audio and video evidence must be maintained and provided to the defense when subpoenaed. If they are forced to do this, not only would the rate of complaints about officers using unnecessary force go down, but law abiding citizens would not find themselves arrested for crimes they did not commit. Officers have roughed up citizens, but then arrested them and charged them with resisting arrest. Having cameras would protect the citizens from this tactic. And, if properly used, the recording can also corroborate the police report. Unfortunately, prosecutors and judges always believe the cop even though they have motivation to lie to keep their job.

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iStock_000012855950Large.jpgAn alleged driving while intoxicated accident killed six people after a “girls night out” in eastern Los Angeles County, California, on February 9th, 2014. Horrific events such as this strikes up the debate about whether owners and/or bartenders of bars and restaurants should be held liable when their patrons consume alcoholic beverages, drive, and then injure or kill someone.

Olivia Carolee Culbreath, a 21-year-old Californian, was charged with six counts of murder, (felony drunk driving and felony manslaughter), but has yet to be arraigned. At 4:45 a.m., she was driving a red, Chevrolet Camaro the wrong way on westbound 60, the Pomona Freeway, in Diamond Bar, when she hit a Ford Explorer, killing all four in the Explorer. In addition, two of Culbreath’s passengers, her sister and a friend, both died. The defendant remains hospitalized but held on $6 million bail. As though this case is not sad enough, she is a mother of a new born and is now facing life in prison.

Culbreath had a prior DUI conviction when she was just 17, and her driving privilege restrictions from that incident were lifted just days before this catastrophic incident.

So can the owners and/or bartenders of the bars or restaurants where Culbreath was served be financially or criminally liable for this accident? The answer is found in the “dram shop laws,” which in California are found in the Civil Code Section 1714.

This law actually protects bar owners and bartenders from civil liability if their patron drives while intoxicated and injures or kills someone. The code specifically states, “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person…the furnishing of alcoholic beverages is not the proximate cause of injures resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.” Section (c) extends this provision to a social host.

The exception is found in Section (d), which states an adult who furnishes alcohol to a person that s/he knows or should have known is under 21, may be found to be the proximate cause of any resulting injuries or death.

However, the bartender can be charged with a misdemeanor under California Business and Professions Code Section 25602(a), which states, “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”

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We all remember the numerous news reports in December 2013, that a Texas judge sentenced 16-year-old Ethan Couch to ten years probation and a residential treatment program in California, after killing four people and severely injuring two others in a drunk driving accident. He was driving 70mph in a 40mph zone when the accident occurred. His blood-alcohol content was measured at .24 and he tested positive for valium. He faced a maximum of 20 years in jail with parole possible in just two years.

The judge sentenced Couch after hearing testimony from the defense psychologist Gary Miller, who argued that Couch suffered from “affluenza,” meaning the youth was not taught about consequences for bad behavior because his parents were so wealthy and did not set limits on him. Defense attorneys argued that the parents should share in the blame and stated the boy would greatly benefit from being away from his parents in an out-of-state treatment program.

In response to this case, State Assemblyman Mike Gatto, from Los Angeles, introduced a bill in January 2014, to try to prevent the afflueza defense in drunk driving cases in California. The bill, AB1508, states, “…when determining the punishment to be imposed in all misdemeanor and infraction cases, or when determining the term to be imposed when a statute specifies 3 possible terms of imprisonment, the fact that a defendant did not understand the consequences of his or her actions because he or she was raised in an affluent or overly permissive household shall not be considered a circumstance in mitigation of the crime.”

Although the word affluenza may not have been used in California DUI cases before, I think everyone can agree that judges hand down sentences on all types of criminal cases, including drunk driving matters, based on a lot of factors. Factors such as prior DUI’s, the severity of the crime, the blood-alcohol content at the time of the incident, the injuries/deaths involved, along with the defendant’s background, the possibility of reoffending, punishment, and protecting the community. Without using the word affluenza, which I believe is what is really upsetting people in this case, the plea negotiations and the sentencing should include all of these relevant factors.

In the Couch case, the minor is going to be under the jurisdiction of the court for at least 10 years. Within that time, I hope he learns that there are consequences to his actions regardless of this parents’ wealth and their apparent inability to teach him how to manage himself in a manner that is lawful and safe.

Having said that, it is my opinion that Assemblyman Gatto’s legislation should be struck down.

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Misdemeanor charges were brought against two minors in Connecticut after their friend, Jane Modlesky, drove while under the influence and hit a tree. She ended up dying in the crash that happened in July 2013.

Earlier that day, Modlesky and her friends were drinking at an underage party. She then got into the 2008 Honda Pilot with four minor males. A 16 year old male drove one of the boys to his home and dropped him off. He then proceeded to his own home, where he got out of the car. Then another 17 year old male drove to his home where he and the fourth boy exited. They then allowed Modlesky to get into the driver’s seat and drive the vehicle, allegedly knowing she was intoxicated. She only got 1/2 mile before crashing into a tree in Glastonbury, Connecticut. Her blood-alcohol content was measured at .26%, way above the zero tolerance laws for minors.

In the beginning of December 2013, the last two boys out of the car were charged with second degree reckless endangerment, as many in the community thought they should have prevented her from driving, according to wfsb.com.

This is a very rare case. I have never seen such a case prosecuted in my time as a criminal defense lawyer. What often happens in a case such as this, is that prosecutors feel pressure from the victims and the community to bring charges against someone in order to hold someone accountable for what had happened. But, bringing charges does not mean that the defendants will be found guilty in a criminal court.

In fact, according to California DUI lawyer Lawrence Taylor, “This is a highly unusual situation. It’s basically saying that they had a positive duty to stop her. But you cannot be prosecuted because you did not stop someone from engaging in criminal conduct…So I think the police are kind of overreaching here.”

Based on what is being reported by the media, the boys did nothing. They did not convince her to drive. They did not force her to drive. She made that choice on her own. Therefore, the charges should be dropped, but if not, I expect that the boys will be found not guilty as charged.

This blog is by no means legal advice. If you have questions about a drunk driving matter, contact a criminal defense lawyer in your area.

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SD police officer, Amanda Estrada, was cited in November 2013, for operating a vehicle while intoxicated. She was driving on Rancho Bernardo Road, east of I-15, when California Highway Patrol (CHP) pulled her over on suspicion of drunk driving. She was taken to the CHP San Diego office where she took the required test to measure her blood-alcohol content (BAC).

The delayed test allegedly showed that Estrada was under the .08 blood-alcohol content standard. She was just cited and released from the CHP office to a designated driver, with a date to appear in court on December 2nd. That date has been continued and Estrada remains on administrative duties while her case is pending.

This is the second San Diego officer to be charged with driving while intoxicated after a delayed test within the past year. Detective Jeffery Blackford was involved in an accident after drinking, so he reached out to other San Diego officers to assist him. His BAC test was also delayed and he eventually plead guilty to drunk driving and was sentenced to probation and community service.

Do the citizens of San Diego have different standards than San Diego cops when it comes to DUI laws? Based on these two cases, I would say YES! If you are pulled over on suspicion of drunk driving and the officer smells alcohol on your breath, you more than likely will be arrested and charged with drunk driving, and you will be taken to jail, as the CHP states in its ad campaigns. You will not be allowed to call a designated driver to take you home, with a simple citation and promise to appear in court.

Further, the officers will take whatever steps they can to ensure they test your breath or blood post arrest as close to the time of driving as possible, in an attempt to get the BAC reading within the 3-hour presumption. [Note: Within the vehicle code there is a rebuttable presumption. If the driver took a chemical test within three hours of driving, and the result of that test is a .08 percent or more, it is presumed the person had a BAC at or above a .08 at the time of driving.]
The community should be outraged by the double standards and complaints should be filed with the San Diego Police Department and CHP.

The above blog article is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.

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A confession to drunk driving that was posted online and subsequently went viral ended with a guilty plea and a prison sentence on October 23, 2013.

Matthew Cordle, a 22-year old Ohio man, plead guilty to aggravated vehicular homicide and drunken driving after driving the wrong way on a highway on June 22nd, and killing Vincent Canzani, 61. Cordle blamed drinking on anxiety and depression and said he often drove while under the influence. On this occasion, his blood was tested with a result of a .19% blood-alcohol content.

After the accident, he consulted with DUI lawyers. According to Cordle, the criminal defense lawyers told him they were able to get other defendants with similar circumstances off or they were able to negotiate lesser sentences or charges by lying. Cordle said he did not want to lie. Instead, he believed he made a big mistake and decided to take full responsibility for the crash by confessing to the world online. The video was posted on YouTube on September 3rd, and as the date of this blog, has been viewed 2 1/2 million times!

At the drunk driving sentencing, criminal defense attorneys argued for a lighter sentence due to Cordle’s willingness to take responsibility for his actions. Regardless of the remorse, admission, and the public service announcement not to drink and drive, the judge still sentenced this DUI defendant to 6 1/2 years in prison. (The maximum sentence allowed would have been 8 1/2 years.)

The Law Offices of Susan L. Hartman does not encourage or suggest that a defendant should lie about the facts of their case at the time of the incident or after. In fact, if you do lie to police, you can be charged with additional crimes such as obstruction of justice or providing a false statement. However, every person is guaranteed a constitutional right against self-incrimination and EVERY person suspected of a crime should invoke that right!!! Whether you are under investigation or have been arrested and charged, statements that you make will be used against you. So say nothing and demand to speak to a lawyer!

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.

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6photo.jpgThis is San Diego’s Pride Week and there are many festivities planned for Hillcrest. This year’s theme, Freedom to Love and Marry, is so appropriate after the United States Supreme Court struck down DOMA, the Defense of Marriage Act, and ruled against California’s Proposition 8, effectively allowing the LGBT community to marry in California.

Because of all the tremendous energy around the rulings, San Diego’s Pride celebration is going to be larger than ever. It is already the nation’s 4th largest, with over 200,000 spectators, media participation, a 2-hour parade, a two-day festival, many huge circuit parties and a rally and flag raising to kick it off on Friday.

Needless to say, Pride is a party! Many champagne bottles will be popped and lots of adult beverages consumed. And, with all those people in one place, you can bet there will be lots of police presence. So it’s imperative that before you head out to your celebration, you plan accordingly so you don’t need the help of The Law Offices of Susan L. Hartman for assistance with your driving under the influence charge that you picked up while celebrating!

Here are a few things you can do to make sure you remain safe and arrest-free during this wonderful holiday:

1. Take a cab from your champagne brunch to the parade/festival. Continue cabbing it around San Diego to all the parties throughout the day and night. For convenience, you can use text a cab by Go Fast Cab. They have a convenient app for your smartphone that allows you to just text them your location and they will pick you up.
2. Try the FREE Hillcrest trolley. It is running Friday night and throughout Saturday and Sunday, bringing party-goers from the east side of Hillcrest to Mission Hills and down to the festival in Balboa Park. You can download their app and track the trolleys in real time.

3. Use one of the many pedicabs that will be around Hillcrest and Balboa park.

4. Plan to stay with a friend that lives near the festivities or book a nearby hotel.

If you end up picking up a DUI, call The Law Offices of Susan L. Hartman immediately for your FREE telephone consultation to find out about your rights and options with no obligation.

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.

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California has an “implied consent” rule regarding chemical testing that is found in Vehicle Code Section 23612. This vehicle code section states, “Any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purposes of determining the alcoholic content of his or her blood if lawfully arrested for an alleged DUI.”

When a person is arrested for drunk driving, they are given a choice between a blood or breath test. If a person refuses to give either sample, The Department of Motor Vehicles (DMV) will suspend or revoke a person’s driving privileges pursuant to California Vehicle Code Section 13352. The period of that suspension or revocation is at least one year.

In addition to the repercussions in the administrative DMV phase of a DUI case for a refusal, there are also increased penalties in the criminal court process.

Law enforcement cannot obtain a person’s blood without consent unless they have a warrant to do so. Failure to have a warrant constitutes a Fourth Amendment violation. Regardless, San Diego and other California law enforcement agencies have been forcibly taking blood from drivers without a warrant, citing the landmark case from 1966, Schmerber v. California. In that case, the court held police can, without a warrant, forcibly obtain a person’s blood for the purpose of chemical testing to determine intoxication after a lawful arrest if the sample is taken in a reasonable, medically approved manner, there is a reasonable belief that the person is intoxicated, and there is a need for prompt testing because the person’s blood alcohol is diminishing.

However, in April 2013, the United States Supreme Court ruled on this issue in Missouri v. McNeely. In this case, the Court ruled that a warrantless search of a person is reasonable only if it falls within an exception. The Court did not find any exceptions for exigency existed just because blood alcohol evidence is inherently evanescent.

Although the Court did not create a per se rule, it did state, “When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

The opinion also commented how much more expeditiously warrant processing is 47 years after Schmerber, and that exigency is determined on a case-by-case basis.

Since no bright line rule was created in this opinion regarding when the police can forcibly take blood from someone who was lawfully arrested, suspected of drunk driving, this issue will remain one that is heavily litigated.

If you have had a forced blood draw without a warrant, contact a criminal defense attorney who specifically handles driving under the influence cases. If there is a valid argument that your constitutional rights have been violated, a motion to suppress this evidence may be filed and ultimately, the prosecutor may not be able to use the results against you in court.

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California’s two most commonly charged drunk driving statutes are California Vehicle Code Section 23152(a) and 23152(b). Often they are charged together as misdemeanor drunk driving charges; however, they can be charged as felonies if the driver had been convicted of four or more other DUI’s in the previous ten years or the driver was convicted of one other felony DUI.

The (b) count is the “Per Se” DUI charge, which makes it unlawful to drive a vehicle with a blood alcohol concentration (BAC) of .08% or greater. In essence, this drunk driving statute creates a rebuttable presumption that if the driver’s BAC is at or above the legal limit, the driver is under the influence for purposes of driving. A jury may convict a person under this DUI statute without any proof that the driver was in fact under the influence at the time of driving.

California Vehicle Code Section 23152(a), however, does not have a BAC level associated with it. Instead it simply states, “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.” (Note: It is irrelevant if the drug is illegal, prescribed, or over-the-counter.)

A person can be charged and ultimately convicted of driving under the influence under this code section if their “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.” (CALCRIM 2110.)

This (a) statute already encompasses all driving while intoxicated scenarios where the person’s BAC is below .08% including the combined intoxication by drugs and alcohol and in situations where a person is impaired under the legal limit. However, now the The National Transportation Safety Board, NTSB, wants to lower the blood alcohol content to .05.

The Law Offices of Susan L. Hartman agrees with Sarah Longwell, the managing director of the American Beverage Institute who allegedly said, “This recommendation is ludicrous. Moving from 0.08 to 0.05 would criminalize perfectly responsible behavior. Further restricting the moderate consumption of alcohol by responsible adults prior to driving does nothing to stop hardcore drunk drivers from getting behind the wheel.” (Quoted by nbcnews.com.)

Law enforcement agencies should continue to enforce the laws that are already on the books as most people are not under the influence for purposes of driving at this low .05 threshold.

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