San Diego DUI Lawyers Blog

Biking While Intoxicated, Can I Get Arrested For Drunk Driving?

May 25, 2011 | The Law Offices of Susan L. Hartman

bike and beer.jpg While intoxicated, Richard W. Walker, 20, was riding a dirt bike in the street in Channahon, Illinois. He was arrested and charged with DUI and other crimes, according to heraldnews.suntimes.com.

In California, it is illegal to be under the influence of an alcoholic beverage or drug, or a combination of both, while driving a vehicle. The question is whether a dirt bike is considered a vehicle for purposes of applying the DUI sections of the Vehicle Code.

California Vehicle Code Section 670 states: “A ‘vehicle’ is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”

California courts have interpreted this code section in Tomson v. Kischassey, bicycles without motors are not considered vehicles, and in People v. Jordan, bicycles with motors are considered vehicles under the Vehicle Code.

In this case, since the dirt bike had a motor, it would be considered a vehicle and the defendant would be charged with drunk driving. If the bicycle was self propelled, the defendant would not face DUI charges; however, he could be charged with violating California Vehicle Code Section 21200.5, which makes it illegal “to ride a bicycle upon a highway while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug.” The penalties for a conviction under this section are less severe than a standard DUI.

Misdemeanor DUI Arrest For Ditka’s Son, Charge Upgraded To Felony

May 20, 2011 | The Law Offices of Susan L. Hartman

A misdemeanor drunk driving charge was filed against Michael P. Ditka, 49, the son of former Chicago Bears Head Coach Mike Ditka, after an arrest on April 20th. However, that charge was upgraded to a felony because he has two prior DUI arrests, according to Lake County News-Sun.

Ditka was arrested in Highwood, Illinois, in 2004, and he was placed on probation. He was arrested again in Deerfield, Illinois, in 2008, and he was placed on probation after pleading guilty to reckless driving.

If convicted he faces a maximum of seven years in prison. He is currently free on bond.

If this drunk driving arrest was made in California, and the defendant only had two prior DUI convictions in the past ten years, this third DUI would only be charged as a misdemeanor, as long as it did not involve an injury accident and the driver did not commit another illegal act while driving under the influence.

Under California Vehicle Code Section 23550, if a person is convicted of drunk driving and the offense occurred within ten years of three or more separate DUI violations that resulted in convictions, that person shall be punished by imprisonment in the state prison, or in a county jail for not less than 180 days nor more than one year, and by a fine of not less than $390 nor more than $1,000.

Drunk Driving Charges For Vice Mayor of San Carlos

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

San Carlos’ Vice Mayor Andy Klein was arrested and charged with DUI in the early hours of May 13th, 2011, according to mercurynews.com.

Allegedly, Klein was parked on the exit ramp of northbound Interstate 280 at Edgewood Road when a San Mateo County sheriff’s deputy stopped thinking the parked car was disabled. After a brief discussion, the deputy believed Klein was under the influence so he called California Highway Patrol (CHP) to investigate.

Field sobriety tests were conducted and a preliminary alcohol screening (PAS) test was administered. Klein blew a .08 and he was subsequently arrested for DUI. He also provided a blood sample.

According to the San Mateo Daily Journal, Klein denied being under the influence, stating: “At no time did I feel that I was under the influence and would not be driving if I believed that I was unable to operate a vehicle responsibility.”

To be convicted, the prosecutor has to prove each element of the charged crime. In a DUI, (see CALCRIM 2110), they must show you were driving and while you were driving you were under the influence. A defense to drunk driving charges is the defendant was not driving.

In this case, the officer did not see Klein driving. He was pulled over at the time he was first approached by law enforcement. However, he may have admitted to driving and the prosecution will attempt to use that admission to prove that he was in fact driving the car just before he had contact with the officer.

San Diego Officer Arrested for Alleged Drunken Driving Incident In Chula Vista

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

San Diego Police Officer and 12-year veteran of the department, William Johnson, may have been under the influence on May 7th, 2011, at about 11:30 p.m., when his Lexus rear-ended a BMW at Paseo Ladera in Chula Vista, according to 10news.com.
police.accident.jpg After the incident, he was taken to Chula Vista Police Department and booked on suspicion of DUI. He was then released on his own recognizance. Johnson will work a desk job pending the outcome of this case.

This was the 9th San Diego police officer to face criminal charges or an internal investigation in just a few short months. Just after learning of Officer Johnson’s troubles, another 3-year veteran officer, Daniel Edward Dana, was arrested and charged with rape, assault, kidnapping and other felony charges.

With the image of the San Diego Police Department and the recent legal troubles of many of its officers, it will be interesting to see how prosecuting agencies handle pending cases that these officers were involved in. If an officer is called to testify in a matter, their credibility is always an issue. Having pending charges or a criminal record could taint their testimony.

DUI Charges For Passenger In Car?

May 10, 2011 | The Law Offices of Susan L. Hartman

A passenger in a vehicle was arrested for drunk driving where the driver was alleged to be intoxicated in Rutherford County, Tennessee. Glenee Taylor was arrested for allowing the driver, Parrish Harrell, to drive knowing he was intoxicated, according to wsmv.com.

Harrell was pulled over after he did not timely proceed through an intersection with a green light and then he crossed the center line a few times. A DUI investigation ensued and Harrell allegedly failed the field sobriety tests. He was subsequently charged with driving under the influence as was his passenger, Taylor.

In California, a passenger in a vehicle is not liable under the Vehicle or Penal Code for the actions of a drunk driver. In order for the person to be convicted under Vehicle Code Section 23152, the defendant had to drive a vehicle and when s/he drove, the defendant was under the influence of an alcoholic beverage and/or drug, or a combined influence of an alcoholic beverage and a drug, (see CALCRIM 2110).

Being a passenger alone would not warrant DUI charges for the passenger.

Escondido Drunk Driving Checkpoint Challenged

May 6, 2011 | The Law Offices of Susan L. Hartman

Escondido Police conducted a sobriety checkpoint in February 2011. According to 10news.com, one of the drivers passing through, Angel Navarrete, and his passenger, Daniel Alfaro, challeged the officers’ reason for the detention and videotaped the outcome. After not complying with the officers’ request to roll down his window and show his driver’s license, the officer proceeded to smash his window and arrest both men for resisting a police officer. Both plead not guilty and are due back in court in July 2011.

Resisting arrest is addressed under Penal Code Section 148, which states: “Every person who willfully resists, delays, or obstructs any public officer…in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”

The California Criminal Jury Instructions (CALCRIM) provide what the prosecutor must prove beyond a reasonable doubt for a conviction for resisting, delaying, or obstructing an officer, (see CALCRIM 2656): 1.) The person was a peace
officer lawfully performing or attempting to perform his duties as a peace officer; 2.) The defendant willfully resisted, obstructed, and/or delayed the person in the
performance or attempted performance of those duties; and, 3.) When the defendant acted, he knew, or reasonably should have known, that the person was a peace officer performing or attempting to perform his duties.

So was the officer acting lawfully? If not, the defendant must be found not guilty. CALCRIM 2670 provides: A peace officer is not lawfully performing his or her duties if he is unlawfully arresting or detaining someone or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention.

Unlawful Detention: A peace officer may legally detain someone if the person consents to the detention or if specific facts known or apparent to the officer lead him to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime; and, a reasonable officer who knew the same facts would have the same suspicion. Any other detention is unlawful.

Unlawful Arrest: A peace officer may legally arrest someone if he has probable cause to make the arrest. Any other arrest is unlawful. Probable cause exists when the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime.

DUI checkpoints must be conducted under the guidelines of Ingersoll v. Palmer in order for it to be constitutional. One of the criteria is the length and nature of the detention. “Each motorist stopped should be detained only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, and glassy or bloodshot eyes. If the driver does not display signs of impairment, he or she should be permitted to drive on without further delay. If the officer does observe symptoms of impairment, the driver may be directed to a separate area for a roadside sobriety test. At that point, further investigation would of course be based on probable cause, and general principles of detention and arrest would apply.”

It should be further noted that a driver can avoid the checkpoint and the officers cannot detain him or her unless “in avoiding the checkpoint the driver did anything unlawful, or exhibited obvious signs of impairment.”

In this case, the driver was not intoxicated and he had a valid driver’s license. He chose to drive through the checkpoint. He spoke to the officers through his window. The officers said he was detained, but they would not state a reason why. They threatened to arrest him for obstructing or delaying an officer because he refused to produce his license. Since he did not have signs of impairment, the officers should have let him proceed after a brief encounter.

San Diego Officer Charged And Plead Not Guilty To Drunk Driving

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

San Diego Police Officer David Hall was off duty at 7:30 p.m. on February 22nd, 2011, when he allegedly drove his vehicle into another on northbound 805, just north of Murray Ridge Road. He was confronted by law enforcement at his home in Linda Vista where he agreed to a preliminary alcohol screening (PAS) test. The result was three times the legal limit of .08 blood alcohol concentration (BAC).

Although he was not arrested that night, he was notified of the charges by mail and ordered to show up at the downtown jail on Sunday to be arrested and released, according to 10new.com. At his arraignment on May 2nd, he plead not guilty to two counts of DUI causing injury, one count of felony hit-and-run, and an allegation that his BAC was above .15. He is facing a maximum of three years and eight months in prison if convicted. He is due back in court on June 9th for a readiness conference and the preliminary hearing is scheduled for June 30, 2011.

Usually, a warrant is issued for the arrest of the person accused of committing a crime; however, the prosecutor may request a summons instead, (see “summons” under Penal Code Section 813).

A summons issued must be in substantially the same form as an arrest warrant. It shall contain: 1.) The name of the defendant; 2.) The date and time the summons was issued; 3.) The city or county where the summons was issued; 4.) The signature of the magistrate, judge, justice, or other issuing authority who is issuing the summons with the title of his or her office and the name of the court or other issuing agency; 5.) The offense or offenses with which the defendant is charged; 6.) The time and place at which the defendant is to appear; 7.) Notification that the defendant is to complete the booking process on or before his or her first court appearance, as well as instructions for the defendant on completing the booking process; 8.) A provision for certification by the booking agency that the defendant has completed the booking process which shall be presented to the court by the defendant as proof of booking.

If a defendant has been properly served with a summons and fails to appear at the designated time and place, a bench warrant for arrest shall issue.

In this case, Officer Hall complied with the notice and turned himself into the San Diego Central Jail for arrest and booking. Since he also appeared at the arraignment, a warrant will not be issued for his arrest.

Defective Breathalyzers, DUI Cases Could Be Dismissed Or Overturned

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

The Alco-Sensor V Breathalyzer, used by law enforcement as a preliminary alcohol screening test (PAS), was recently purchased and put into use in every law enforcement agency in Ventura County to replace the older Alco-Sensor IV model. However, the blood alcohol results from the newer model have been found to be erratic in tests taken from January 20th through March 31, 2011, and some devices have other defects as well.

All of these devices have been sent back to the manufacturer for further testing. Meanwhile, all Ventura County law enforcement agencies have resumed its use of the Alco-Sensor IV device.

So far, 294 alleged drunk driving cases have been identified where the Alco-Sensor V was used. There have been 157 guilty or no contest pleas, leaving 137 cases still pending.

Prosecutors claim they will not oppose a motion to withdraw a guilty or no contest plea if the Alco-Sensor V was “substantially relied upon” to prove the charges. Cases that are still pending will be dropped if this machine was the only method used to determine the blood alcohol content (BAC).

Often the PAS test is only one piece of evidence that is used to determine if you are under the influence for purposes of driving. Often, prosecutors will not just throw out cases they believe they can still prove with the mandatory breath or blood test that is taken after the arrest. You should fight any DUI charges that involve a PAS test using the defective Alco-Sensor V machine. Motions can be filed that may result in your case being reduced or even dismissed!

Forced Blood Draws In DUI Cases, Courts Deciding On The Legality

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

forced blood draw.jpg The Florida Fifth District Court of Appeal heard arguments this week on whether law enforcement can forcibly draw blood from certain DUI suspects. Currently, Florida law allows forced blood draws without a search warrant in suspected drunk driving cases involving death or serious injury.

In this case, no injury or death was involved when the defendant was charged with driving under the influence. The defendant failed to keep his car in a single lane so he was stopped by Melbourne police. Law enforcement did obtain a search warrant for the blood sample.

Circuit Judge Maxwell did not allow the blood evidence into court; thereby prompting this appeal by the state. This issue has not come before any appeal court in Florida before and the ruling will impact 13 counties and become a benchmark for other judicial circuit courts in Florida.

In California, there is an implied consent law for chemical testing, Vehicle Code Section 23612. Under this statute, “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.”

Once arrested for drunk driving, the person has a choice between a blood or breath test. If a person refuses to give either sample, and they are eventually convicted of drunk driving, their penalty will be increased according to Vehicle Code Section 23577.

Can an officer force you to take a blood test if you refused to give a sample? Yes, if the following conditions are met (People v. Sugarman): 1.) The circumstances require prompt testing; 2.) The arresting officer has reasonable cause to believe the arrestee is intoxicated; and, 3.) The test is conducted in a medically approved manner incident to a lawful arrest.

So how do you defend a drunk driving case that involves a refusal? You can challenge the lawfulness of the arrest itself. The officer must have had probable cause to stop and arrest you. Also, the prosecution must prove you were the driver of the car and you were in fact under the influence. Further, the officer may not have told you that you are obligated to submit to a chemical test or the admonition was confusing.

Your drunk driving charges may be dismissed if any of the defenses above fit your case. (Note, this is not an exhaustive list of defenses.) Contact an exclusively DUI defense firm if you want more information on how to defend you matter.

Pacific Beach DUI Checkpoint Ends With Many Drunk Driving Arrests

April 18, 2011 | The Law Offices of Susan L. Hartman

San Diego Police Department conducted a drunk driving checkpoint on Grand Avenue at Mission Bay High School in Pacific Beach on Saturday night. Of the 725 cars that were initially screened, 48 drivers were sent for secondary evaluation, and 25 people were arrested for alleged drunk driving.

This drunk driving checkpoint was funded by a grant that was given to the San Diego Police Department by the California Office of Traffic Safety through the National Highway Traffic Safety Administration.

Pacific Beach has one of the highest DUI arrest rates in San Diego County. The summer-like weather brings many people out to the beach areas and many indulge in refreshing cocktails. The police know this so they step up their efforts to enforce drunk driving laws during warm weather periods. So look out for more drunk driving enforcement through saturation patrols and DUI checkpoints as the summer approaches.

We will continue to monitor various media sources for drunk driving enforcement and checkpoint information. Check back to this blog often for announcements regarding the dates, times, and locations of such efforts by law enforcement. If you are aware of a checkpoint that is not posted on this site, please use the “Contact Us” form on this page to notify us and we will publish the information for other followers of this blog.