San Diego DUI Lawyers Blog

San Diego Officer Suspected Of Drunken Driving And Hit And Run

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

Another San Diego Police Officer, David Hall, is under investigation, according to 10news.com. This time for allegedly being involved in a hit-and-run crash while driving under the influence.

Hall is suspected of driving his GMC Yukon SUV into a Chevrolet Suburban on northbound Interstate 805 just north of Murray Ridge Road on February 22, 2011, at approximately 7:30 p.m. A CHP officer spotted Hall’s vehicle, which matched the description of the initial report, and followed him to his home. He took a breath test with a reported result of three times the legal limit.

The officer has not been arrested for drunken driving or hit and run; however, this matter is being investigated by the San Diego Police Department and the San Diego District Attorney’s Office.

An officer may arrest a person when the officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence, Penal Code Section 836. However, there are many exceptions to this “officer’s presence” requirement. Under California Vehicle Code Section 40300.5, a peace officer may arrest a person when the officer has reasonable cause to believe that person had been driving while under the influence and the person was involved in a traffic accident. It appears in this case that no one can identify Hall as the driver of the vehicle when the accident occurred, so this will be a tough case for the prosecution.

Ban Drinking and Driving Checkpoints?

April 8, 2011 | The Law Offices of Susan L. Hartman

One state is considering banning DUI checkpoints, according to boston.com. Rhode Island Representative Charlene Lima introduced a bill in the General Assembly to prohibit the police from conducting drunk driving checkpoints. Although the representative generally supports drunk driving laws, she believes this type of stop “smacks of a police state.” We agree.

Under the U.S. Supreme Court decision in City of Indianapolis v. Edmond, DUI checkpoints can be conducted for deterring crime, not for enforcing the laws. If the general interest in the checkpoint is crime control, the checkpoint violates the Fourth Amendment. The Fourth Amendment gives people the right to be free from unreasonable searches and seizures unless there is probable cause for the stop.

When the police conduct drunk driving checkpoints, they set up a roadblock and stop cars as they drive through regardless of the fact that there is no probable cause.

One of the first questions an officer asks is, “Have you been drinking?” Most people think they can talk their way out of the situation by saying things like, “Yes, I only had one beer,” or “Yes, I had a couple of drinks a few hours ago.” It is not to your advantage to tell the officer you had anything to drink that day, since that will be considered an admission of drinking and give the cop the probable cause needed to pull you into the secondary area for futher drunk driving investigation. right to remain silent.jpg

You do not have to answer this question. You have a right under the Fifth Amendment not to incriminate yourself. You also have a right to refuse participation in the field sobriety tests (FST’s) including the preliminary alcohol screening (PAS) breath test. Simply tell the officer you know your rights and you choose to remain silent and you will not participate in any of the FST’s. Do not help the officer build a case against you. They are not your friend.

However, as a licensed driver you are required to give either a breath or blood sample if you are arrested for drunk driving. If you refuse such a test, you will be forced to give a blood sample and the penalties you will face for drunk driving will be increased.

Drunk Driving Checkpoint Apps, Not Illegal And Should Not Be Banned

April 4, 2011 | The Law Offices of Susan L. Hartman

google.app.jpg The Attorney General of Maryland and Delaware are asking Google and Apple to discontinue applications for their mobile phones, the Android and iPhone respectfully, that show the location of DUI checkpoints, according to wmal.com.

Blackberry pulled its drunk driving checkpoint location application, PhantomALERT; however, many apps are still available through Google and Apple for a small fee, such as Checkpointer, Buzzed, and Checkpoint Wingman, (which also offers a free version).

There is nothing illegal about publishing this information. In fact, Ingersoll v. Palmer provided the criteria for law enforcement to follow to ensure the constitutionality of a DUI checkpoint. One such requirement was advanced publicity. People v. Banks has since stated that advanced publicity is not a requirement but one factor to be considered along with the other seven criteria. Therefore, these apps can actually assist law enforcement by providing such public notice.

It should also be noted that it is not illegal to avoid a roadblock. Law enforcement cannot lawfully stop a driver for going around a checkpoint as long as the driver is not doing anything unlawful or showing obvious signs of impairment.

SD Cop Investigated Drunk Drivers Then Requested Sexual Favors, Open DUI Cases Dismissed?

March 31, 2011 | The Law Offices of Susan L. Hartman

SDPD Arevalos.jpg San Diego Police Officer, Anthony Arevalos, was arrested and charged 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 continues and more charges may be filed as more than nine women may have been victimized by this cop, dating back to February 2010.

It is alleged that Arevalos would initiate a DUI investigation and then ask the women what they would be willing to do in order to have the 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 has plead not guilty and is out on $200,000 bail. The San Diego Police Department placed him on an unpaid suspension pending the outcome of this criminal matter. Arevalos faces more than 11 years in prison if convicted of the crimes currently charged.

So what does this mean for all the open drunk driving cases that involve this suspected rogue officer? They should be dismissed! After all, the officer’s credibility is directly at issue. His modus operandi (or M.O.) is to sexual assault during these types of investigations, calling into question the integrity of each and every DUI investigation he has performed. But, if they are not dismissed, it will be interesting to see if the San Diego City Attorney will put this officer on the stand to testify about how he investigates drunk driving cases.

Chula Vista Police Active In Drunk Driving Arrests

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

Chula Vista Police Department has been active in searching for and arresting those suspected of driving under the influence (DUI) in the month of March.

A DUI checkpoint was conducted on March 18th on Main Street and four drivers were arrested on suspicion of drunk driving, according to 760kfmb.com.

A saturation patrol was conducted on Saturday, March 19th. In that effort, fifty vehicles were stopped, twelve were evaluated, and five drivers were arrested on suspicion of drunken driving, as reported by 10news.com.

Chula Vista Police Officer Alicia Chudy earned the “California State MADD Hero Award” by arresting 85 alleged drunk drivers in 2010. She also coordinated over 30 DUI operations, wrote and secured an anti-drunken driving grant to continue Chula Vista’s prevention operations, and she is credited with training other officers to score more DUI arrests. A total of 650 drivers suspected of drunk driving were arrested last year in Chula Vista alone.

La Jolla Accident: Marijuana DUI Blamed

March 24, 2011 | The Law Offices of Susan L. Hartman

A La Jolla Boulevard accident, that occurred in August 2010, is being blamed on marijuana intoxication, according to 10news.com. Ronald Troyer, 66, was allegedly driving under the influence of marijuana when the car he was driving jumped the curb, drove onto the sidewalk hitting three teenagers, then came to rest inside the Cass Street Cafe & Bakery, where two adults were also injured.

Troyer seemed confused at the scene and he later tested positive for THC, the active ingredient in marijuana. He was arrested for driving under the influence of drugs causing great bodily injury, among other charges. He has two prior drunk driving charges on his record from 2005, and he faces approximately 12 years in prison if convicted for this incident.

Under Vehicle Code Section 23152(a), it is unlawful for any person who is under the influence of any drug to drive a vehicle.

The California Criminal Jury Instructions (CALCRIM), lay out what the prosecutor has to prove to the jury to get a conviction under this vehicle code section. The defendant must have driven a vehicle while under the influence of a drug.

Drunk driving cases based solely on drugs, not alcohol or a combination of drugs and alcohol, are often very hard for the prosecutor to prove. In fact, one of the hardest cases to prove impairment is a straight marijuana case because it is difficult to establish a relationship between the driver’s THC blood concentration and the impaired effects.

Testing positive for THC is not enough to show impairment. It only confirms that the driver injested marijuana prior to the test. Blood concentrations will vary depending on the pattern of use and the amount injested.

San Diego Motorcyclist Hits Bicycle, Both Alleged Drunk Driving

March 21, 2011 | The Law Offices of Susan L. Hartman

biking beer.jpg Felony drunk driving charges for a motorcycle rider who allegedly crashed into a bicycle just after midnight on March 20th, according to 10news.com. The accident happened at the 2000 block of 31st Street in San Diego; however, the motorcycle driver was arrested at his home after leaving his passenger at the scene.

The bicycle rider suffered a broken pelvis and was taken to an area hospital. It is alleged that the bicyclist was also drinking prior to the accident and rode his bike into the path of the motorcycle.

In California, it is a misdemeanor to bicycle or cycle under the influence, CUI. Vehicle Code Section 21200.5 states, “It is unlawful for any person 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. Any person arrested for a violation of this section may request to have a chemical test made of the person’s blood, breath, or urine for the purpose of determining the alcoholic or drug content of that person’s blood pursuant to Section 23612, and, if so requested, the arresting officer shall have the test performed.”

In order for this code section to apply, the bike must be non-motorized. If it is powered by a motor it will be deemed a vehicle, and the standard DUI vehicle code sections would apply.

The .08% blood alcohol content (BAC) presumption of a standard DUI is not required with CUI. This means that someone can be charged with this offense with a minimal amount of alcohol in their system. Typically, DUI defense lawyers fight low BAC charges because the prosecutor often has a hard time proving the case, thus resulting in a dismissal.

The maximum penalty for a drunk biking charge is a $250 fine. This is much less severe than a standard DUI.

San Diego DUI Arrest Statistics For St. Patrick’s Day Weekend

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

irish handcuffs.jpg San Diego law enforcement was out looking for drunk drivers during the St. Paddy’s holiday and for all the personnel and money expended for the roadblocks, the DUI arrests were very low.

In Poway, a DUI checkpoint was set up at the 14400 block of Pomerado Road on March 18th, from 7 p.m. until 2:30 a.m. 669 drivers passed through and only 3 driving under the influence arrests were made.

Chula Vista also conducted a DUI checkpoint on the 2300 block of Main Street, from 7 p.m. until 12:30 a.m., on the same day. 1,047 vehicles passed through this one, and only 4 were arrested on suspicion of drunk driving.

San Diego, Oceanside, and San Marcos announced they would have a DUI roadblock; however, they have yet to release their statistics.

Online Sources:

DUI Checkpoints Net 7 Drunken Driving Arrests: 10news.com
News Releases: San Diego Sheriff’s Department

San Diego Police Announce DUI Checkpoints For St. Paddy’s

March 16, 2011 | The Law Offices of Susan L. Hartman

A DUI checkpoint will be conducted in San Diego at an undisclosed location within the city limits on Thursday, March 17th, between 9:00 p.m. and 3:00 a.m, according to the San Diego Police Department.

San Marcos will also conduct a drunk driving checkpoint at an undisclosed location on St. Paddy’s Day, from 7:00 p.m. until 2:00 a.m., according to the San Diego Sheriff’s Department. green beer.jpg

Poway Sheriff’s Station will setup a drunk driving checkpoint on Friday, March 18th, between 7:00 p.m. and 2:30 a.m. In addition, Oceanside police will conduct a DUI Checkpoint on that same day but from 8:00 p.m. until 3:00 a.m. The exact address of these drunk driving checkpoints has not been released.

Everyone wants to indulge in green beer or a few shots of Irish whiskey on St. Patrick’s Day. However, to avoid being arrested for driving under the influence at the end of your party, plan ahead: Designate a sober driver; use public transportation or a taxi; or plan to spend the night at the party location.

San Diego Drunk Driving Crash Results in 6 Year Prison Term

March 14, 2011 | The Law Offices of Susan L. Hartman

DUI and gross vehicular manslaughter while intoxicated convictions resulted in a six year prison sentence for San Diego resident, Anthony Guarino, on March 11th, according to 10news.com. He was convicted of these drunk driving charges in January 2011, after his lawyers unsuccessfully argued that the accident that killed Marc Durham was actually caused by a “microsleep” episode due to his severe sleep apnea, not drunk driving.

Gross vehicular manslaughter while intoxicated is punishable by imprisonment in state prison for four, six, or ten years, under California Penal Code (PC) 191.5(a). If the defendant has a prior PC 191.5 conviction, or two or more prior DUI convictions, the sentencing range is fifteen years-to-life in prison. The sentence imposed depends on the specific facts of the case.

The maximum sentence for all the charges in this drunk driving case was 13 years in state prison. However, the judge considered the fact that Guarino had no prior criminal record, served 20 years in the Marine Corps, was a good family man, and had good standing in the community in giving the defendant the middle term of six years instead of the maximum penalty allowed under the law.