San Diego DUI Lawyers Blog

CA Survey: Driving While Intoxicated Not Feared As Much As Phone Use

December 2, 2011 | The Law Offices of Susan L. Hartman

Californians now believe that drivers who text or talk on their cell phone, with or without a hands free headset, are a bigger hazard on the road than drunk driving, speeding, and aggressive driving. This is according to a traffic safety survey completed by the California Office of Traffic Safety, which polled 1,801 drivers over the age of 18 in 15 counties in California.

The percentage of drivers who are worried about others using cell phones while driving rose from 18.3 percent in 2010 to 38.8 in 2011. Second on the list this year was driving while impaired with 12.6 percent of the vote. This was up from 10.1 percent in 2010. Last year, drivers were most concerned about speeding/aggressive driving and bad roads.

When asked about the biggest distraction for drivers, the percentage of those polled who believe cell phone talking and texting is considered the most distracting is up to 83.6 percent. This is up from 75 percent last year.

The OTS also stated in April 2011, that a driver’s reaction is delayed as much when using a cell phone as when their blood alcohol concentration (BAC) is at the legal limit of .08.

Many auto accidents involve a driver that is either texting or talking on the phone but the data linking accidents and cell phone use is inconclusive. Police officers often see a car that is driving on the shoulder, weaving, or driving well below the posted speed limit. The officer pulls the car over thinking they need to conduct a DUI investigation. However, once contact is made with the driver, the officer realizes that the driver is not drunk, they were talking on their phone, writing a text, or reading something online.

California Highway Patrol Officer D.J. Sarabia agreed with the survey, saying that the number one distraction for drivers is cell phone use, according to mercurynews.com.

California has had a hands-free law, (Vehicle Code Section 23123), since 2008. Since that time, CHP has issued about 475,000 tickets for violating the statute. It is estimated that local law enforcement agencies have issued about the same number of citations.

Car accidents kill and injure many people every year. Help make our roadways safer. Use your phone before or after you drive.

San Diego County Law Enforcement Looking For Drunk Drivers This Holiday Season

November 23, 2011 | The Law Offices of Susan L. Hartman

San Diego County law enforcement, including the San Diego Sheriff’s Department and the California Highway Patrol, have announced drunk driving saturation patrols and sobriety checkpoints throughout the Thanksgiving holiday weekend.

The following are specific law enforcement public announcements regarding their efforts to keep drunk drivers off the road:

San Diego Sheriff’s Department: Saturation patrols throughout San Diego on Wednesday, November 23rd, and continuing throughout the holiday weekend.
San Diego Sheriff’s Department, Encinitas Station: Saturation patrols in Encinitas, Solana Beach, and Del Mar on Thursday, November 24th.
San Diego Sheriff’s, Court Services Division: Vista warrant sweep at the Walmart shopping center at the 1800 block of University on Friday, November 25th.
California Highway Patrol (CHP): Announced they received funding for their IDEA, Impaired Driving Enforcement and Apprehension, Program. They will implement their Thanksgiving Maximum Enforcement Period (MEP), specifically looking for drunk drivers and those not wearing their seatbelt, from 6:01 p.m. on Wednesday, November 23rd, through 11:59 p.m. on Sunday, November 27th.

According to CHP’s statistics, they arrested 1,546 drunk drivers during the Thanksgiving weekend in 2010, a 6% increase over the 2009 DUI arrests.

Funding for all these state and local checkpoints and saturation patrols comes from a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration. Statistics on DUI arrests can be found on CaliforniaAvoid.com, as the website is updated throughout the holiday season.

To avoid the possibility of a DUI arrest, holiday partiers should plan a safe way home before the festivities begin. Designate a sober driver, have a taxi company’s number stored in your phone and use it, call a sober friend or family member for a ride, or use public transportation.

Note: The above list of drunk driving roadblocks and saturation patrols is not an all-inclusive list. Many law enforcement agencies in San Diego do not post their DUI enforcement details online. However, we will continue to search for any that are published and we will update this blog accordingly throughout this holiday season.

Update: (November 27th, 2011) The San Diego Sheriff’s Department, Court Services Division, held a warrant sweep in Vista at the Walmart shopping center at the 1800 block of University on Friday, November 25th. 17 people were arrested, including some for DUI.

Update: (November 28th, 2011) 60 driving under the influence arrests were made in San Diego County by CHP between 6:01 p.m. Wednesday and 6:00 a.m. Saturday, according to cbs8.com. Last year’s total DUI arrests for the same period of time was 59. The decrease trend continued in all of California, as the CHP arrested 903 suspected drunk drivers during this year’s Thanksgiving holiday weekend throughout the state, as opposed to 975 last year.

San Diego Police and the San Diego Sheriff’s Department have not released their drunk driving statistics as of the time of this posting’s update.

San Diego Cop Found Guilty Of Soliciting Sexual Favors In Exchange For Letting Suspected DUI Drivers Go

November 17, 2011 | The Law Offices of Susan L. Hartman

Ex-San Diego Police Officer, Anthony Arevalos, was arrested and charged, back in March 2011, with 10 felony counts including sexual battery by restraint, receiving a bribe, assault and battery by an officer, and false imprisonment involving three alleged victims. The investigation continued and more charges were filed.

It was alleged that Arevalos initiated driving under the influence investigations and then asked women suspects what they would be willing to do in order to have the DUI charges go away. One woman gave the officer her underwear and another was taken to a 7-Eleven restroom where she was sexually assaulted.

Arevalos plead not guilty and was out on $200,000 bail. The San Diego Police Department placed him on an unpaid suspension at first, but in April he was fired after 18 years with the department.

The trial lasted three weeks, according to signonsandiego.com. Seven women testified that they were in the Gaslamp when they were pulled over by Arevalos on suspicion of drunk driving. Deliberations lasted 3 1/2 days and the jury came back with a guilty verdict on 12 counts, including 4 misdemeanors, on November 17th, 2011. He was acquitted of many felony counts and lesser charges.After the verdict was read, he was immediately handcuffed and taken into custody. His sentencing is scheduled for December 19th. Arevalos will be held without bail until that date. The maximum he could serve is 10 years and 4 months.

Chief Lansdowne commented after the verdict that other San Diego Police officers had suspicions about this convict’s behaviors; however, the officers allegedly never reported this to the administration of the San Diego Police Department. Due to this failure, the public was put at risk as Arevalos was allowed to continue working on the streets with full arrest powers, carrying a badge of authority and a weapon that kills.

Seems like after all the problems that the San Diego Police Department has had this year with its officers, there is a desperate need to retrain the remaining officers on public safety, their duty to protect and serve, and their duty to report any suspicious or criminal activities of any officer to their supervisors. Failure of an officer to take their job and these duties seriously should result in the immediate loss of their job. No cop should be allowed to work San Diego’s streets unless they have respect for the people they serve.

This blog entry is a follow-up to the following stories previously posted on this site:

San Diego City Attorney Dismisses 15 Driving Under The Influence Charges, previously posted on June 13, 2011.

SD Cop Investigated Drunk Drivers Then Requested Sexual Favors, Open DUI Cases Dismissed?, previously posted on March 31, 2011.

Dry Reckless & Wet Reckless: What Is The Difference?

November 3, 2011 | The Law Offices of Susan L. Hartman

A dry reckless is defined under California Vehicle Code Section 23103. It states, “A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.”

The penalty for a guilty plea or a conviction under this statute is “imprisonment in a county jail for not less than five days nor more than 90 days or by a fine of not less than one hundred forty-five dollars ($145) nor more than one thousand dollars ($1,000), or by both that fine and imprisonment.”

Most often in San Diego County, the prosecutor offers three years of informal probation and a fine of approximately $855 on a dry reckless case. In addition, this is a non-alcohol, non-drug, and a non-injury charge; therefore, it is not a priorable offense. This means that if you are charged with drunk driving in the future, this conviction cannot be used to enhance the punishment of that case.

A wet reckless is a reduced drunk driving charge, California Vehicle Code Section 23103(a) per 23103.5.

The statutory penalty for a guilty plea or a conviction under this statute is the same as a dry reckless, with the addition of an alcohol and drug educational program. However, in San Diego County, the standard offer is three years of informal probation, a fine of approximately $1,036, a first conviction alcohol and drug education program, (either three months or twelve hours depending on the BAC), a one hour MADD (Mother’s Against Drunk Driving) panel class, and a referral to SAAU, (Substance Abuse Assessment Unit).

Unlike the dry reckless, the wet reckless conviction is priorable. So if you plead or are convicted of a wet reckless and you are facing another DUI within ten years, the wet reckless will be looked at as a DUI, thus enhancing the punishment in the new case.

Both a dry and wet reckless are lesser charges in drunk driving cases. Often the prosecutor will offer the reduced charge if the blood-alcohol content, or BAC, is close to the legal limit of a .08 percent or if there are problems with proving the DUI case. An experienced drunk driving attorney may be able to negotiate one of these lesser charges after evaluating the weaknesses in the prosecutor’s case.

The above blog article summarizing dry reckless and wet reckless is by no means all-inclusive and is not legal advice. Each case involves distinct facts which may change the offer given by the prosecution or the sentence imposed by the judge. In addition, laws may have changed since the last update. For the latest information on drunk driving cases, the penalties, and your specific facts and possible defenses, contact a DUI defense attorney in your area.

Is Drunk Driving A Misdemeanor Or Felony In California?

October 28, 2011 | The Law Offices of Susan L. Hartman

The majority of all DUI cases in California are filed as misdemeanors. Some are filed as felonies.

What is the difference between a misdemeanor and a felony? The California Penal Code Section 17 states, “A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.”

There is more of a stigma and the punishment is greater for those accused and convicted of a felony rather than a misdemeanor. Usually felony punishments require a sentence of a year or more in a state prison. Misdemeanor convictions carry the possibility of a year or less in the county jail.

As for drunk driving cases, most often first, second, and third DUI’s are charged as misdemeanors. However, if there are aggravating factors, the charges may be raised to a felony. For instance, if the DUI caused injury or death of another, the defendant has three or more prior DUI’s or wet reckless convictions within ten years, or the defendant has a prior felony DUI conviction, the new case will often be charged as a felony.

If the DUI caused injury or death to another, the driver may be charged with either: 1.) Driving under the influence causing injury under California Vehicle Code Section 23153; 2.) Vehicular manslaughter under California Penal Code Sections 191.5 and 192; or, 3.) Murder under Penal Code Section 187. The charges usually depend on the seriousness of the injury.

If the defendant has been convicted of three or more DUI’s and/or wet reckless offenses, the new case may be charged as a felony. This would include any out-of-state convictions that are equivalent to a California DUI.

If the defendant has a prior felony drunk driving conviction and then picks up another DUI, regardless that it would normally be charged as a misdemeanor, the new case can be charged as a felony.

Cases which may be charged as a misdemeanor or felony are called “wobblers.” The prosecutor has discretion to decide how to charge a particular matter; however, an experienced drunk driving defense attorney may be able to negotiate a plea agreement where the defendant pleads to a reduced misdemeanor charge. If the prosecutor refuses such an offer, a skilled DUI defense attorney may motion the trial court to reduce the felony to a misdemeanor.

Driving Under The Influence: What The Prosecutor Must Prove

October 19, 2011 | The Law Offices of Susan L. Hartman

You have been charged with drunk driving under California Vehicle Code Section 23152(a) or 23152(b) . In order for the jury to find you guilty, the prosecution has the burden to prove their case beyond a reasonable doubt.

Under 23152(a), driving under the influence of an alcoholic beverage, a drug, or under the combined influence of an alcoholic beverage and a drug, the state must prove that you drove a vehicle and when you drove, you were under the influence.

Under 23152(b), driving with a blood alcohol level of 0.08 percent or more, the state must prove that you drove a vehicle and when you drove, your blood alcohol level was 0.08 percent or more by weight.

In Louisiana, a man was arrested for drunk driving after he drove a lawn mower on northbound LA Highway 1, just south of Lockport, according to wdsu.com. He was driving with a long line of cars behind him as he swerved into the southbound lanes. An officer pulled him over and smelled alcohol on his breath. His speech was slurred and he allegedly could not complete the field sobriety tests. His blood-alcohol concentration, BAC, was estimated at .312 percent. He was arrested for DWI, driving while intoxicated, which is Louisiana’s version of California’s DUI laws.

So, is this a lawful arrest for drunk driving if this happened in San Diego County or anywhere in California? Assuming the facts in the article to be true and not having any discovery in the matter to review, the general answer is yes.

The courts have found that the defendant must have been driving which requires any volitional movement of the vehicle, (See Mercer v. DMV). The vehicle code describes a vehicle as a “device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device move exclusively by human power or used exclusively upon stationary rails or tracks.” Note that even though the vehicle code usually applies to “highways” under VC 23100, drunk driving laws may even apply to private property.

So, for the Louisiana case, the defendant was driving a lawn mower, powered by a gas motor, on a public roadway. Allegedly, he had a BAC over a .08, therefore, his arrest for drunk driving was lawful.

CA Law Limits Cops From Impounding Cars At DUI Checkpoints

October 13, 2011 | The Law Offices of Susan L. Hartman

San Diego County police departments and other California law enforcement agencies will have new limitations on towing unlicensed drivers’ vehicles when they conduct drunk driving checkpoints starting on January 1st, 2012. AB-353, which was sponsored by Assemblymen Gibert Cedillo, D-Los Angeles, and Michael Allen, D-Santa Rosa, was signed into law by Governor Jerry Brown on October 9th, according to californiawatch.org.

Officers working a sobriety roadblock often evaluate possible DUI drivers and ensure drivers have valid driver’s licenses. Many, mostly illegal immigrants, are cited for not having a license. Under current California law, their cars are then impounded for 30 days. This practice has generated tens of millions of dollars a year for towing companies and local governments, as the government receives a portion of the fines and fees collected from the contracts they have with the tow yards. (See previous blog entry, “CA Lawmakers Take Steps To Limit Money Made Off Impounded Vehicles At Drunk Driving Checkpoints.”)

Under AB-353, the police are no longer able to immediately impound the cars of sober, unlicensed drivers at these checkpoints. Instead, the cars will be released to a qualified driver representing the registered owner. In application, the vehicles will remain at the DUI checkpoint during the operation, giving the owner an opportunity to claim the vehicle. If the car is not claimed before the operation concludes, it is towed; however, it will be released as soon as a representative of the owner claims it at the tow yard and pays the city release fee and the tow and storage fee. This eliminates the mandatory 30 day impound and all the additional daily storage fees. The difference can be between a few hundred dollars and a few thousand dollars, the owner’s ability to pay, and the possibility of the owner losing the car.

This new law does not affect the officers’ ability to cite a driver and impound the vehicle for 30 days if that driver is driving on a suspended or revoked license.

The bill that would have restricted how DUI checkpoints are run, AB-1389, was vetoed by the governor.

BAC: What Is It And How Does It Affect My DUI Case?

October 7, 2011 | The Law Offices of Susan L. Hartman

.08.jpg BAC is an acronym that stands for blood alcohol content or blood alcohol concentration. It is the percentage of alcohol that is in your blood at the time of the test. According to the National Highway Traffic Safety Administration, the higher your BAC, the more impaired you are.

In California, it is illegal to drive a vehicle while under the influence of any alcoholic beverage or drug, or a combination of both. Further, it is unlawful to drive a vehicle with a blood alcohol concentration at or above a .08 percent. (See California Vehicle Code Sections 23152(a) & (b).)

Blood alcohol concentration is at issue in almost every drunk driving case involving alcohol. 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. Because this is a rebuttable presumption, the defense can attack this at trial during cross examination of the prosecution’s experts or with a defense expert.

Even if the driver did not exhibit any signs of impairment, having a BAC of a .08 or more at the time of driving is enough for the state to file charges against you.

If your BAC is under a .08, you can still be charged with driving under the influence if you exhibited signs of impairment while driving or if the officer determined that you failed the field sobriety tests (SFST’s).

Blood alcohol content is usually tested by breath, blood, or urine samples. The officer must have probable cause to arrest you before administering such tests. (Note: The breath test mentioned here is not the PAS, or preliminary alcohol screening test, used in the field.) As a licensed driver, you have given implied consent to such tests; this means, if you are arrested for DUI, you must give one of the samples.

A breath test is most favored by law enforcement because it gives the result quickly and no sample is saved for retesting. The breath test machine is very sensitive and many things may skew the results. For instance, the machine may not have been working properly when the test was completed or mouth alcohol may have been present in the sample. Both of these can artificially elevate the results.

The blood test is done by a qualified medical professional and the results are not immediately available. This is often considered the most accurate test. However, a byproduct of blood breaking down is alcohol. Therefore, if the preservative is not thoroughly mixed through the vial of blood, the test results will be inaccurate with the result showing an inflated number.

If you are arrested for drunk driving, you owe it to yourself to hire an exclusively DUI defense firm that is familiar with all the possible defenses in your case. The BAC result is only an estimate, and it alone does not accurately determine if you are under the influence for purposes of driving. It is a tool used by the prosecutor to determine how to charge and pursue your case. A good defense looks at all the facts, not just the test result provided by the state.

Do not just plead guilty because your BAC was a .08 percent or higher. There may still be defenses in your case that can lead to reduced charges with less punishment, or even a dismissal!

The above blog entry is by no means all-inclusive and is not intended to be legal advice. To get legal advice on your particular matter, speak to a DUI attorney.

Drunk Driving Defendant Has A Right To Confront Analyst That Tested Blood

September 29, 2011 | The Law Offices of Susan L. Hartman

Alleged drunk driver, Donald Bullcoming, was involved in a vehicle accident in New Mexico in August 2005. The other party believed he observed signs that Bullcoming was intoxicated so he called the police. Bullcoming left the scene but was later apprehended by police. He failed the field sobriety tests and was subsequently arrested for driving under the influence. He refused to provide a breath sample, so a warrant was served to take a blood sample.

The blood sample was sent to the New Mexico Department of Health, Scientific Laboratory Division (SLD) to determine Bullcoming’s blood alcohol concentration (BAC). A gas chromatograph machine was used to test the blood sample and the test was performed by Curtis Caylor, a SLD Forensic Analyst. He then certified the test results in a “Report of Blood Alcohol Analysis” form, which showed the result to be a .21.

At trial, the prosecutor did not call Caylor to testify. Instead the government attempted to introduce Caylor’s findings as a “business record” during the testimony of Gerasimos Razatos, another SLD scientist. Razatos did not observe or review Caylor’s analysis.

Defense counsel objected to the introduction of the analyst’s findings without his testimony at trial, stating the introduction of the report would violate the defendant’s Sixth Amendment right “to be confronted with the witnesses against him,” (Confrontation Clause).

The trial court overruled the objection and admitted the report as a business record. Bullcoming was convicted and appealed. The Court of Appeals upheld the conviction stating the report was “non-testimonial and prepared routinely with guarantees of trustworthiness.”

The case was taken to the US Supreme Court which ruled in Bullcoming v. New Mexico that the Confrontation Clause requires the scientist that performed the test testify at trial unless the scientist is unavailable at trial and the defendant had an opportunity to cross-examine that scientist before trial.

While this case was being appealed, the US Supreme Court ruled on this issue in Melendez-Diaz v. Massachusetts. In that case, the court admitted affidavits that reflected the results of forensic analysis that showed the material seized from the defendant was cocaine. The court found in that case that the affidavits were “testimonial, rendering the affiants ‘witnesses’ subject to the defendant’s right of confrontation under the Sixth Amendment.”

These cases are expanding the Crawford v. Washington case, where the court held, “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”

San Diego DUI Charges Against SD Cop Blamed For Suicide

September 22, 2011 | The Law Offices of Susan L. Hartman

San Diego Police Officer David Hall committed suicide on August 1st, 2011. He did not leave a note; however, the medical examiner’s office released a report about their investigation into the suicide, according to msnbc.com.

Hall was arrested for an alleged drunk driving incident on February 22nd. He plead not guilty to two counts of DUI causing injury and one count of felony hit and run with an allegation that his blood alcohol content (BAC) was above .15 percent. He was facing a maximum sentence of three years and eight months in prison if convicted. The week of his suicide, he was due back in court for a pre-trial hearing.

Hall was battling an alcohol addition and was depressed. He was sober for five months after the incident, but he relapsed just before taking his life. He believed the driving under the influence charges could result in the loss of his career as a San Diego police officer. Hall was on administrative leave and was attending counseling sessions with the department’s Wellness Unit. He was specifically worried about the hearing that was scheduled the week of his suicide.

Hall’s wife, Michelle, believes that the DUI case played a major role in the suicide.

Psychiatrist Dr. Clark Smith commented, “More people commit suicide after a DUI arrest than any other kind of arrest including rape-murder. Often people who are very depressed drink a lot more and both factors increase suicide risk.”

Although Dr. Smith’s conclusion sounds very plausible, no specific studies were found that backed this conclusion. However, many news stories have reported on others who contemplated, attempted, or completed suicide after being arrested for DUI.

These stories include former republican congressman from New York, John Sweeney. He was interviewed by The Saratogian in March 2011. In that interview he recalled April 5th, 2009, when he laid in bed after his second drunk driving arrest in two years. He admitted, “I was contemplating hanging myself. I found myself in a place of despair that I couldn’t get out of. I had reached an end.”

Another man in Chicago, Jeffrey Weiten, committed suicide in June 2010, after he was charged with drunk driving after an accident that killed a woman, according to chicagobreakingnews.com.

The Hartford Courant reported Matthew Tuttle, a senior police commander in New Britain, Connecticut, was found dead with a self-inflicted gunshot wound hours after he was arrested on DUI charges after a car accident in May 2011.

A prosecutor in Connecticut’s Middlesex Judicial District, John Cashmon, was found dead of an apparent suicide days after he was arrested for alleged drunken driving in August 2011. The New Haven Register reported that he was pulled over for driving erratically and was subsequently arrested. Cashmon was released a few hours later after posting bond and was not heard from again. He was found near a police station.

Criminal allegations, facing jail or prison time, and the possibility of losing your job can cause great stress for criminal defendants. If you have been charged with a crime and the stress has become unbearable, consider seeking help from mental health professionals.

Also, it is very beneficial to seek out legal counsel to help you through the process. If you are facing drunken driving charges, contact an exclusively DUI defense firm that can help you through the legal process by explaining legal procedure, defenses in your case, and your options.

Other Related Blog Entries:

San Diego Officer Charged With DUI Commits Suicide

San Diego Officer Charged And Plead Not Guilty To Drunk Driving

San Diego Officer Suspected Of Drunken Driving And Hit And Run