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IMG_7722-300x225As the weather warms up in San Diego, people enjoy the outdoors and get more active. Many flock to the bay, ocean, lakes and rivers to enjoy a day on the water, but be aware that law enforcement agencies are out in full force actively looking to cite people for boating under the influence, BUI’s.

In California, if you operate a motorized boat or any watercraft while under the influence, you can be arrested and charged with a crime. (Note: This code section only applies to motorized vessels, meaning that you cannot be charged under these code sections if your vessel is exclusively self or water propelled such as a kayak, rowboat, or a non-motorized sailboat. Also, there is a “zero tolerance” policy for anyone under the age of 21, meaning if you are underage, any measurable amount of alcohol can lead to BUI charges.)

The Harbors and Navigation Code provides the statutes for BUI. The language of the code is very close in the language in the California Vehicle Code for drunk driving, (see California Vehicle Code section 23152).

Continue reading ›

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Recently, California Governor Jerry Brown signed SB 1046 into law after the State Senate and Assembly voted overwhelmingly in favor, (unanimously with the exception of one “no vote recorded” in the Assembly).  This law will require that all persons convicted in California of a DUI, even a first offender, to install an ignition interlock device, or IID, in all the vehicles s/he owns for a specified period of time.

An IID is a machine that is installed in your car’s ignition. In order for your car to start, the driver must first blow into the machine. If no alcohol is detected, the car will start. If alcohol is detected, the car will not start. In addition, as the car is running, it requires additional breath samples with no alcohol detected to keep the car operational.

The penalty will be as follows: Continue reading ›

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Uber, a rideshare program that has been in operation for over 6 years, gives riders an option to get around town without using the bus, a taxi, a bike or walking. Over the past couple of years, their program has greatly cut fares and in many cities they now also offer UberPool, where a rider can share a car with others to save even more.

Uber often argues that their app helps combat drunk driving incidents because riders are choosing to use their rideshare program over driving their own cars during times when they expect to consume alcohol. However, a recent study in the American Journal of Epidemiology found no noticeable impact on the number of drunk driving fatalities in cities where Uber operates. “We found that the deployment of Uber services in a given metropolitan county had no association with the number of subsequent traffic fatalities, whether measured in aggregate or specific to drunk-driving fatalities or fatalities during weekends and holidays.”

It is estimated that there are 121 million drunk driving incident s in the United States, resulting in 10,000 fatalities yearly. However, this study is limited to fatalities, not the number of potential DUI drivers who are using Uber as a transportation alternative, thus avoiding a drunk driving citation, or worst, a traffic accident with potential injuries and deaths. Continue reading ›

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justice scales.jpgOnce a driving under the influence defendant pleads guilty or is convicted after a jury trial, their criminal record will reflect this indefinitely. Since criminal records are public records, they can be easily searched and found by law enforcement agencies, employers, and state licensing agencies. Most probationers want to get their criminal record cleaned up as soon as possible so their record does not hinder them.

A standard DUI sentence includes a term of probation. Under California law, Penal Code Section 1203.4, a person is eligible for an expungement “in any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation.” There are a few exceptions to this rule where an expungement is not available. Examples of this are when the person served time in prison for this offense or the offense was a sex crime.

Most drunk driving cases are eligible for expungement.

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If you are arrested for drunk driving in San Diego, you may be ordered to SCRAM, (which stands for “Secure Continuous Remote Alcohol Monitor”). The judge may include this in your sentence after you enter a guilty plea, after a conviction after a trial, or, any time before the conclusion of the case if the judge is concerned about public safety, recidivism, or your continued alcohol use. Typically, repeat offenders and cases involving high blood-alcohol content and severe accidents are ordered to abstain from all alcohol use and are often monitored by this program.

SCRAM is a bracelet that is worn on the ankle, 24/7, for the period of time ordered by the judge. You are also given a base station to plug into your landline telephone or internet router at home or work, which stores and transmits the data collected by the bracelet.

The offender is required to pay $100 to install the device, plus a daily fee of $15, paid two weeks in advance. This can be scaled from $7 t0 $15, depending on the offender’s ability to pay. They accept cash, checks, money orders, and all major credit cards.

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As you will recall, Susan Hartman, of the Law Offices of Susan L. Hartman, attended The National Highway Traffic Safety Administration (NHTSA) and The International Association of Chiefs of Police (ICAP) approved DWI Detection and Standardized Field Sobriety Testing Practitioner Course, as presented by Mr. Robert La Pier.

The course went through the three standardized field sobriety tests (SFST’s), as laid out by NHTSA:  1.) The horizontal gaze nystagmus, (HGN); 2.) The walk and turn, (WAT); and 3.) The one leg stand, (OLS).  These are the only tests that have been validated by NHTSA and should be used by law enforcement in evaluating each potential DUI.  It should be noted that these tests were only validated to correlate to a specific blood alcohol content (BAC) and they are not be used to show impairment.

The two previous blog articles discussed the HGN and WAT tests. This article will address the OLS test.

The NHTSA manual states that this “test requires a reasonably dry, hard, level, and non-slippery surface.”  If the person is wearing heels that are more than two inches, they should be given the choice to remove the shoes and perform the test barefooted.

There are many reasons why a person may not be able to adequately perform this test, regardless of their consumption of alcohol.  For instance, as a person ages, balance and coordination is more difficult.  If a subject has any current or prior injuries to their back or legs, they suffer from inner ear problems, or they are overweight by 50 or more pounds, they may have problems performing the test.  However, in my experience, officers often state, “I will take your concerns and medical issues into consideration,” and then they proceed with having the subject perform the test. Continue reading ›

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As you will recall, Susan Hartman, of the Law Offices of Susan L. Hartman, attended The National Highway Traffic Safety Administration (NHTSA) and The International Association of Chiefs of Police (ICAP) approved DWI Detection and Standardized Field Sobriety Testing Practitioner Course, as presented by Mr. Robert La Pier.

The course went through the three standardized field sobriety tests (SFST’s), as laid out by NHTSA:  1.) The horizontal gaze nystagmus; 2.) The walk and turn; and 3.) The one leg stand.  These are the only tests that have been validated by NHTSA and should be used by law enforcement in evaluating each potential DUI.  It should be noted that these tests were only validated to correlate to a specific blood alcohol content (BAC) and they are not be used to show impairment.

In the last blog article, the horizontal gaze nystagmus, or HGN, test was discussed. This article will address the walk and turn test, (WAT).

The NHTSA manual states that this “test should be conducted on a reasonably dry, hard, level, non-slippery surface.”  If the person is wearing heels that are more than two inches, they should be given the choice to remove the shoes and perform the test barefooted.

There are many reasons why a person may not be able to adequately perform this test, regardless of their consumption of alcohol.  Continue reading ›

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IMG_4136San Diego DUI defense attorney, Susan Hartman, of the Law Offices of Susan L. Hartman, recently attended The National Highway Traffic Safety Administration (NHTSA) and The International Association of Chiefs of Police (ICAP) approved DWI Detection and Standardized Field Sobriety Testing Practitioner Course, as presented by Mr. Robert La Pier. This is the very course law enforcement is trained in for DUI investigations, giving them the tools to determine if a person should be arrested for drunk driving.

During the training, which lasted three full days, Susan was tested through written exams and practical demonstrations. In the end, she passed the course and earned the certificate of completion.

According to NHTSA, there are only three standardized field sobriety tests (SFST’s): 1.) The horizontal gaze nystagmus; 2.) The walk and turn; and 3.) The one leg stand. These are the only tests that have been validated by NHTSA and should be used by law enforcement in evaluating each potential DUI. It should be noted that these tests were only validated to correlate to a specific blood alcohol content (BAC) and they are not be used to show impairment.

In this blog article, the horizontal gaze nystagmus, or HGN, will be discussed. The other two tests will be addressed in upcoming blog articles. Continue reading ›

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IMG_7721The Law Offices of Susan L. Hartman recently wrote a blog article about biking or cycling under the influence.  Now that it’s almost summer, not only is it good to brush up on the biking laws, it is also good to do a quick refresher on boating under the influence.

If you head out to San Diego Bay, know that law enforcement will be out on the water and on the beach looking to enforce the laws, including the drunk boating statutes, (see California Harbors and Navigation Code Section 655).

This code section only applies to motorized vessels, meaning that you cannot be charged under these code sections if your vessel is exclusively self or water propelled such as a kayak, rowboat, or a non-motorized sailboat.

The language in Section 655 is very similar to the California Vehicle Code (VC) sections for drunk driving involving a motor vehicle. Section 655(b) specifically states, “No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.” This is similar to the VC 23152(a). Continue reading ›

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In San Diego County, or anywhere in California, if you are arrested for drunk driving, two processes automatically begin.  One is the court process which is handled through the criminal court system and involves criminal charges and penalties.  The other is the administrative process that is handled through the Department of Motor Vehicles, DMV, and involves the suspension of your driving privileges.  [Note: Although the DMV has a separate action regarding your driving privilege, the court may also suspend your privilege to drive if you plead guilty or you are found guilty after a trial of driving under the influence or alcohol, drugs, or a combination of alcohol and drugs.]

For many people, the worst and most inconvenient penalty in a DUI case is the inability to drive.  And, if you do not challenge the suspension by requesting a hearing with the DMV within 10 of the arrest date, the DMV will  automatically suspend your driver’s license for four months, or for one month with an additional five months with a restricted driver’s license, allowing you to drive to/from and during the course of your employment and to/from any DUI programs.

The DMV APS Hearings, as they are called, are not held to the court standard of beyond a reasonable doubt.  The standard applied in administrative proceedings is by the preponderance of the evidence.  Because of this low burden on the DMV, and the fact that the hearing officer is in essence the prosecutor and the judge, and they do not even have to be lawyers, it is rare to get the DMV to set aside the suspension.

I was very sad to see recently a San Diego Hearing Officer, Alva Benavidez, plead guilty in federal court to conspiracy to accept brides.  From what was reported, some criminal defense attorneys decided since they have an uphill battle to win these cases, they would resort to bribing the hearing officer.  Continue reading ›

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