San Diego DUI Lawyers Blog

California Bartenders Liable For DUI Injuries & Deaths?

February 13, 2014 | The Law Offices of Susan L. Hartman

An 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.”

Affluenza Defense In Driving Under The Influence Cases In CA

February 3, 2014 | The Law Offices of Susan L. Hartman

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.

DUI Accident, Driver Killed & Friends Charged

December 13, 2013 | The Law Offices of Susan L. Hartman

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.

San Diego Cop Cited For Drunk Driving But Not Arrested

December 4, 2013 | The Law Offices of Susan L. Hartman

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.

Driving Under The Influence & The Holidays

November 27, 2013 | The Law Offices of Susan L. Hartman

So, here it is again…the wonderful fall and winter holiday season. For many of us, this time of the year means shopping, wrapping, gift giving, baking, traveling, and lots and lots of parties. Although festive, this time of year is also the number time for drunk driving, DUI arrests, and targeted patrols and sobriety checkpoints by law enforcement. So how do you prepare for the season? Plan ahead and know your rights.

Before heading out to take part in some holiday cheer, make sure you think about how you will get home or to the second, (or maybe even third!), event of the evening without picking up a DUI or worse, hurting yourself or someone else. Keep in mind that alcohol affects the part of your brain that deals with impulse control and euphoria. Often, you think you are sober and can drive safely, when in fact, you are more intoxicated that you realize. And, if you are pulled over, you will probably be arrested for DUI.

San Diego offers many options for getting around town. Have you checked out Uber or Lyft yet? These are awesome car services that can pick you up and drop you off by using an app on your smartphone. You can also text a cab or you can take Car2Go to your function and then use an alternative form of transportation on the way back. You can plan out your night using the bus and/or trolley schedule on the MTS website. Or, if you are headed to a house party, ask to spend the night. You can also designate a driver, but make sure that person is not going to use the “I’ll be sober enough to drive later” approach.

Keep in mind that San Diego law enforcement will be doing saturation patrols and drunk driving roadblocks. If you are pulled over after having an alcoholic beverage, exercise your right to remain silent and not incriminate yourself. If the officer asks you if you know why you were pulled over, do not answer. Simply ask the question back. If the cop asks if you had anything to drink, again, do not answer. You can simply tell the officer you are exercising your right to remain silent. You may be asked to complete field sobriety tests (FST’s). Again, state that you do not wish to do them. Lastly, as part of the FST’s, you may be asked to blow into a hand-held breath machine or preliminary alcohol screening (PAS) test. Unless you are under 21 or on DUI probation, do not take this test either.

Everything you do and say will be written in the police report and will be used against you in court and at the DMV Administrative Per Se Hearing. Do not help the officers build their case against you!!! If the officer believes you are driving while under the influence, s/he will arrest you. You only must submit to a blood or breath test after you are arrested or your license will be suspended.

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.

Drunk Driving Convictions & LVN License Consequences

November 15, 2013 | The Law Offices of Susan L. Hartman

Previously, the Law Offices of Susan L. Hartman wrote a blog article on how a DUI conviction can impact a professional license. In addition, we did a specific entry on the affects of a drunk driving conviction on a pilot’s license. Here, we will discuss the consequences of a DUI on a licensed vocational nurse’s (LVN) license.

An LVN is an entry-level health care provider who is responsible for rendering basic nursing care. They work under the direction of a doctor or registered nurse. Before becoming a licensed LVN, a person must complete the requisite education and training and then apply for a license with the State of California Board of Vocational Nursing & Psychiatric Technicians, (BVNPT).

According to the BVNPT website, the initial application process includes a background check and the applicant is also required to report any past convictions. In addition, when LVN’s renew their license every two years, they have a duty to self-report any new convictions since their last application. The initial application and renewal documents are signed under penalty of perjury; therefore, all applicants must make sure all the information in the documents are true and correct.

As a condition of renewal, the licensee must disclose whether, since their last renewal, if they have “had their license disciplined by a government agency or have been convicted or plead guilty to any crime.” This means, if a person had been arrested but no charges were filed, or if arrested and charged, but the charges were dismissed or they are still pending at the time the licensee is applying for renewal, the licensee does not have to report this on their application. However, once the licensee is convicted of, or pleads guilty or no contest to a crime, they must disclose that information to the BVNPT. This includes any conviction for an infraction, misdemeanor, or felony, except for minor traffic offenses where the fine was less than $300 and did not involve alcohol or a controlled substance.

If the conviction had subsequently been set aside (expunged) or dismissed, the licensee is still required to report the conviction but then note that the case was expunged or dismissed.

Failure to report convictions can be grounds of disciplinary action or a denial of your license.

If you are arrested for DUI and you currently hold a LVN license or want to apply for one, you need to speak to a criminal defense attorney who specifically deals with drunk driving and its impact on your professional license.

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.

DUI Confession Leads To Prison Term

November 4, 2013 | The Law Offices of Susan L. Hartman

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.

Negotiation Or Plea Bargaining Your Drunk Driving Case

October 24, 2013 | The Law Offices of Susan L. Hartman

There are three big advantages to hiring a DUI defense attorney to handle your drunk driving matter: 1.) Their knowledge of criminal law, specifically driving under the influence statutes and defenses; 2.) Using this knowledge to negotiate the case with the prosecutor to reduce the charges or the punishment; and, 3.) Give you advise on whether to accept the prosecutor’s offer or proceed with motions and/or a trial.

Your DUI attorney will use their criminal defense knowledge when reviewing the discovery, looking for weaknesses in the prosecutor’s case. Those weaknesses may be shared with the prosecutor when negotiating the case with the hopes of getting an offer of a reduced charge or reduced punishment.

The negotiation between the criminal defense attorney and the prosecutor is commonly known as plea bargaining. The prosecutor gives an offer on the case, which is their recommended sentence if the defendant agrees to plead guilty, thus avoiding the time and expense of a trial. Defendants should be aware that the judge has the final say in accepting the plea bargain.

The advantage of the plea agreement is the defendant knows before entering a change of plea what the sentence will be. This is unlike if the case went to trial and the defendant was subsequently convicted. Then the judge sentences the defendant, and that sentence can be more or less punishment than what was originally offered, depending on the evidence at trial.

Typically, in a misdemeanor DUI case, the defendant may be given the option to plead to a lesser crime of a wet reckless or a dry reckless. These are found under California Penal Code Section 23103.

A wet reckless is recklessly driving a motor vehicle after consuming an alcoholic beverage or drug. It is a misdemeanor. This is the first level of reduced charges because it still involves alcohol and/or drugs. The probation term and fines and fees are typically less than a DUI. The standard alcohol program is not mandatory. There is no license suspension in addition to any suspension given by the DMV. However, a wet reckless will be considered a prior DUI if you are charged with drunk driving within 10 years of pleading to the wet reckless.

A dry reckless is a misdemeanor reckless driving charge without the element of alcohol or drugs. Therefore, it does not count as a DUI on your driving record or criminal record. The probation and fines/fees are the same as the wet reckless but there is no DUI program requirement, (other than what may be imposed by the DMV). There is no license suspension in addition to any suspension given by the DMV. But, it does count as two points against your license.

If the criminal lawyer is unable to get the prosecutor to agree to the wet or dry reckless, then reduced punishment is negotiated. The DUI lawyer will convey the offer to the client, explaining their rights and best options on how to proceed. The defendant may decide to accept the prosecutor’s offer and enter a guilty plea or they may decide to proceed with motions and /or a trial.

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.

Arraignment: The First Court Date In Criminal Cases

October 22, 2013 | The Law Offices of Susan L. Hartman

The arraignment is often the first court hearing in any criminal case, including drunk driving cases in San Diego. During the arraignment, the court advises you of your constitutional rights. They include the right to have an attorney represent you, the right against self-incrimination, the right to a jury trial, and the right to confront the witnesses against you and produce your own witnesses and evidence in your defense. The judge then reads the complaint which is the official charges pending against you.

You are then given an opportunity to enter a plea of guilty, not guilty, or no content and bail issues may be addressed. In addition, if you do not enter a guilty plea, another future court date is usually set. If your case is charged as a felony, the next court date is the preliminary hearing. If the case is filed as a misdemeanor, the second court date is the pretrial or readiness hearing.

If you are in custody, you must be arraigned within 48 hours of the arrest. This does not include weekends and holidays. Therefore, the worst day to be arrested on is the Friday night of a court holiday weekend. If you are unable to post bail, the prosecutor does not have to file charges and do the arraignment until Wednesday, the second court day after the arrest.

If you are cited and released, released on your own recognizance, or bailed out, the arraignment will be “without unnecessary delay,” which can be weeks after the arrest. When released, the defendant is given a notice to appear on a specific date, time and location. That first appearance is the arraignment.

As of the date of this blog, out of custody drunk driving defendants are being arraigned approximately 30-45 days after their arrest. With budget cuts effecting the court’s ability to push the cases, readiness hearings are being scheduled 30-45 days after the arraignment.

Felony cases require the defendant to be present at the arraignment and at all other proceedings, unless the judge accepts your waiver of appearance. In misdemeanor cases, you will have to appear unless you have retained an attorney to represent you and you waive your presence. Retained lawyers can appear on your behalf unless the case involves domestic violence, violations of a protective order, and certain driving under the influence cases, (usually where bodily injury is involved).

The above blog 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 criminal defense attorney in your area.

San Diego Drunk Driving Arrest: Posting Bail

October 14, 2013 | The Law Offices of Susan L. Hartman

After making an arrest for driving under the influence, the officer often takes the suspect to jail to be booked. In most DUI cases, the defendant is told the amount of bail that can be posted in order to get out of jail. The amount of bail depends on the crime and the county bail schedule.

Bail can be posted by paying the entire amount in cash to the court clerk or to the arresting agency. At the end of the case, if the person made all their court appearances, the money is refunded in full. If the defendant failed to appear, FTA, the money is forfeited and the court keeps the full amount of the cash bail.

Most often, instead of paying cash, defendants use a bail bondsman or bail agent to obtain a bail bond. The bondsman posts the required bail for the defendant after receiving a non-refundable premium, and sometimes additional collateral. Under California law, the maximum the bondsman can charge is 10% of the bail. Typically, the bond contract lasts one year. If the case remains unresolved after a year, the defendant will have to pay to renew the contract.

If the defendant fails to appear in court, the bail is forfeited and a warrant may be issued for the person’s arrest. The bondsman will seek reimbursement from the defendant and their cosigner. In addition, the bondsman is obligated to find and arrest the person and bring them before the court.

Bail in a typical first misdemeanor DUI case, without any additional charges, is $2,500 in San Diego County. On a second misdemeanor drunk driving matter, bail is often set at $10,000. Bail on a third misdemeanor DUI goes up to $15,000. If there were injuries, the bail is $20,000. In felony driving under the influence cases that involves the death of another bail is often set at $100,000.

Ultimately, the judge has discretion in setting the bail amount. The amount can be increased, reduced, or the person may even be released on their own recognizance (promise to appear). When making a ruling on bail, the judge considers the defendant’s criminal history, flight risk, ties to the community, and the facts of the case.

If you or someone you know has been arrested for drunk driving, immediately contact a criminal defense attorney who specifically handles DUI cases. It is always best to get legal advice as early as possible in the case to ensure all your rights are protected.

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.