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meeting.jpgFirst off, if you are stopped by law enforcement and they have probable cause to believe you are driving while under the influence of alcohol with a .08% blood alcohol concentration (BAC) or higher, they will give you an “Administrative Per Se Suspension/Revocation Order and Temporary Driver License” form. This document allows you to drive with all your normal privileges like your original driver’s license for thirty days after the date of your arrest. After the thirty days, your license will automatically be suspended unless you contact the DMV within ten days after the date of arrest to request a hearing to challenge the automatic suspension.

If you fail to request a hearing or you lose the hearing, the DMV will suspend your driving privileges for four months. However, after thirty days into the suspension, you can apply for a restricted driver’s license. This restricted license will allow you to drive to, from, and during the course of your employment, and to and from any DUI programs, and will last five months.

In order to get this restriction, you will need to register for a First Conviction Program (FCP), pay a $125 reissuance fee, and file proof of financial responsibility (SR-22 form).

If you plead guilty to drunk driving in court or you are convicted after a trial, the court will suspend your driving privileges for six months and order you to complete the FCP.

If your BAC was below .20%, you will be ordered to complete a three month FCP. If your BAC was .20% or greater or you refused to take a chemical test after a lawful arrest, the court will order you to complete the nine month First Conviction Program. (Note: The nine month FCP will be discussed in a later blog.)

In order to comply with the court ordered program, you must attend a court approved First Conviction Program. These can be found on the San Diego Court’s website. The three month course costs $477.00 and includes:

  • Six education classes, 1 class per week, 2 hours per class;
  • Twelve counseling groups, 1 session per week, 1.5 hours per session;
  • Three face-to-face interviews, 1 per month, 20 minutes per interview; and,
  • Three self-help meetings, 1 per month.

You can enroll using the DMV paperwork or the court referral form. However, you want to make sure you enroll in the right program.

The most confusing issues for DUI defendants revolve around the interaction between the DMV and the court consequences and the defendant’s driving privileges. For the most up to date information and to discuss your specific facts and issues, contact a criminal defense attorney in your area that exclusively deals with drunk driving matters.

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question.jpgUnder the California Vehicle Code, “It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.” (See 23152 VC.)

Simply stated, in order for the defendant to be found guilty, the prosecutor must prove to a jury that the defendant was: 1.) Driving a vehicle; and 2.) Under the influence.

Often, people who are just standing by a vehicle, sitting in the driver’s seat, or sleeping in their car are charged with drunk driving. How is this legal if the officer did not actually witness driving?

According to California Penal Code Section 836, “A peace officer may arrest a person…without a warrant…whenever the following circumstances occur: (1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence…”

However, there are several exceptions to the presence requirement providing a very big hole through PC 836, allowing an officer to make an arrest for DUI even if the actual driving was not observed by the arresting officer. The exceptions include:

(a) The person is involved in a traffic accident.

(b) The person is observed in or about a vehicle that is obstructing a roadway.

(c) The person will not be apprehended unless immediately arrested.

(d) The person may cause injury to himself or herself or damage property unless immediately arrested.

(e) The person may destroy or conceal evidence of the crime unless immediately arrested. (See VC Section 40300.5.)

But, even if the officer made a valid, warrantless arrest, the prosecutor must still prove driving to win their case. According to Mercer v. DMV, the act of driving in the drunk driving statutes requires actual volitional movement of the vehicle. However, the courts have held driving can be proven by circumstantial evidence. This is a fact-based issue and many of these cases end up in trial, leaving the jury to decide what happened.

If you have been charged with DUI in Southern California, and you were not actually driving the car or there were no witnesses to your driving, you should immediately contact a criminal defense lawyer who exclusively handles drunk driving cases to protect you and your rights.

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hippy car.jpgIn California, the drunk driving statutes are found in the California Vehicle Code. The code states it is illegal to drive a motor vehicle on a highway while under the influence of alcohol, drugs, or a combination of alcohol and drugs. In addition, it is unlawful to drive with a blood alcohol content, or BAC, of .08 percent or greater. There is a rebuttable presumption that if the BAC result is .08% or greater and the test was done within three hours of driving, it may be concluded that the driver’s blood alcohol was at or above a .08 at the time of driving.

California is among the states that have already implemented the use of ignition interlock devices (IID’s) for those convicted of driving under the influence. The device is installed in the defendant’s car. In order to start the car, the driver must first blow into the machine. If alcohol is not detected, the car will start. If it is detected, the car will not start.

A Massachusetts company, Qinetiq, received $10 million in total funding from the federal government and all sixteen major car makers, to develop a technology that would prevent a car from operating if a driver has alcohol in their system, according to cbsnews.com. The intention is to make this a safety feature just like seatbelts, putting it into every new car requiring everyone to use it.

Qinetiq is currently testing a breath-based and a touch-based system. The breath-based system uses a sensor on the steering wheel that tests the driver’s breath. The touch-based system uses a sensor in the start/stop button which sends an infrared light into the driver’s finger when the vehicle is started. If alcohol is detected, the car will start but not be operational.

The American Beverage Institute (ABI) is concerned that the sensors can be inaccurate, it targets all drivers, and it can eliminate a person’s ability to have a drink at dinner, a ballgame, or a wedding, which is not illegal.

With the current political view and pressure about drinking and driving, it seems inevitable that we will have zero tolerance laws in place as soon as this technology is thought to be perfected. A driver will not be able to drive after consuming alcohol until the alcohol has been eliminated from their system, and many people will choose not to drink at all.


If you are arrested for DUI, you owe it to yourself to hire a criminal defense attorney that only practices drunk driving defense. These cases and the science behind the law and evidence is very technical and fact specific.

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In California, a bill was introduced that would require all people with a second or subsequent drunk driving conviction to install an ignition interlock device, or IID, in their car, State Senator Jerry Hill announced on Friday, according to NBCSanDiego.com. According to the bill, a second conviction would require the installation and use of the IID for one year. Upon the third conviction, the IID would be required for two years. On a fourth or subsequent conviction, the defendant would be ordered to comply for three years.

An ignition interlock device 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.

As of July 1, 2010, California began a pilot program for IID use. According to the pilot program, if the DUI violation occurred in Alameda, Los Angeles, Sacramento, or Tulare, California, the convicted is required to install an IID in all vehicles that s/he owns or operates, even on their first drunk driving offense, before applying for a restricted driver’s license. First time offenders must maintain the device for 5 months. Second time offenders must maintain the device for a year. Third time is 2 years and the fourth and subsequent offenders must comply for three years. (Note: This program is expected to expire on January 1st, 2016.)

Under the current law, if you are not in one of the above-referenced counties, such as San Diego, you usually will not be ordered to install an IID on a first driving under the influence conviction. However, courts do have discretion to order this and it “shall give heightened consideration to applying this sanction to a first offense violator with 0.15 percent or more, by weight, of alcohol in his or her blood at arrest, or with two or more prior moving traffic violations, or to persons who refused the chemical tests at arrest.” (See California Vehicle Code Section 23575.) The court has discretion in ordering a term not to exceed three years from the date of conviction.

In a second or subsequent DUI conviction that involved alcohol not drugs, the defendant may shorten the license suspension or revocation by agreeing to install the IID.

Even if the court does not order the IID, the DMV is required to order the installation when a person is convicted of driving with a suspended or revoked license and that suspension or revocation is due to a prior DUI, California Vehicle Code Section 14601.2, 14601.4, or 14601.5.

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.

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The San Diego Sheriff’s website, (see press release dated December 5th), announced the following drunk driving roadblocks and saturation patrols during this holiday season:

  • December 14- Sobriety Checkpoint in Vista and Santee, 8:00 p.m. to 3:00 a.m.
  • December 15 – Warrant Sweep, South Bay
  • December 15- Sobriety Checkpoint in Lemon Grove and Encinitas, 8:00 p.m. to 3:00 a.m.
  • December 20 – DUI Saturation Patrol for the Poinsettia Bowl, 5:00 p.m. to midnight
  • December 21 – Sobriety Checkpoint in San Marcos, 8:00 p.m. to 3:00 a.m.
  • December 22 – Sobriety Checkpoint in Rancho San Diego (AVOID), 8:00 p.m. to 3:00 a.m.
  • December 28 – Sobriety Checkpoint in Poway and Imperial Beach, 8:00 p.m. to 3:00 a.m.
  • December 29 – Sobriety Checkpoint in Chula Vista, 8:00 p.m. to 3:00 a.m.
  • December 30 – DUI Saturation Patrol for Chargers/Raiders game, 5:00 p.m. to midnight
  • December 31 – DUI Saturation Patrol, Sheriff’s Department contract cities: San Marcos, Vista, Poway, Encinitas, Lemon Grove, Imperial Beach, and Santee.

Keep in mind, this is not an exhaustive list. Other local law enforcement, including the California Highway Patrol (CHP), San Diego Police, and others, may conduct their own driving under the influence patrols over the coming weeks.

“Like” The Law Offices of Susan L. Hartman on Facebook for more drunk driving information and notifications of other DUI patrols by law enforcement in San Diego County. And, get real time DUI checkpoint alerts text to your cell phone through Mr. Checkpoint.

These tools are not meant to help you drink and drive. Use them for informational purposes only. The best holidays start with safe, undistracted driving. If you think you will be drinking, plan ahead to avoid being a DUI statistic.

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San Diego County Division of the California Highway Patrol (CHP) reported driving under the influence arrests were down from 33 to 23 during the Thanksgiving holiday, according to swrnn.com. The reporting period was from the evening of Wednesday, November 21st, through 6:00 a.m. on Friday, November 23rd. In addition, one person was killed during this period, as opposed to zero in 2011.

Another drunk driving roadblock was held in downtown San Diego on November 24th, in the 1500 block of First Avenue from approximately 11:00 p.m. until 3:00 a.m. As reported by scoopsandiego.com, 1397 cars passed through the checkpoint, 836 drivers were contacted by law enforcement, and 28 drivers were evaluated in the secondary area. 19 arrests were made on suspicion of driving under the influence.

San Diego County Sheriff’s Department was awarded another grant to continue its DUI enforcement efforts in 2013 through Avoid the 15 DUI Task Force. Thecoastnews.com reported the California Office of Traffic Safety (OTS) gave $300,000 to the sheriffs to conduct more DUI and license suspension checkpoints, drunk driving saturation patrols, warrant sweeps, and court sting operations that specifically target drunk driving and DUI probation violations.

San Diego Probation Department was given a $500,000 grant by the National Highway Traffic Safety Administration (NHTSA) to help in its supervision of high risk DUI offenders through its DUI Enforcement Team, according to utsandiego.com. High risk offenders include those convicted of multiple drunk driving cases or felony DUI’s where someone was severely injured.

SD Probation reported 124 arrests in 2012, including those who failed to stop drinking alcohol or continued to drive without a valid license.

Chula Vista resident, Arlene Hernandez, 22, was ordered to stand trial after a preliminary hearing on November 27th. Cbs8.com reported that Hernandez was charged with manslaughter, DUI causing injury, and felony child abuse stemming from an accident where her car ended up in the Otay Reservoir on August 5th. Both Hernandez’s 5 year old daughter and her friend were killed in the accident.

A Point Loma accident involving a San Diego Police car ended with a short chase and the eventual arrest of Kaveri Fields, 24, on suspicion of drunk driving and hit-and-run on November 30th, according to nctimes.com. No further details were available.

Drivers should heed the warning….law enforcement is out in full force over the holiday season looking for drunk drivers. Don’t end your holiday celebrations in tragedy. Make sure you have a plan before heading out to your holiday party. Plan to stay at the host’s home, use public transportation or a cab, call a sober friend, designate a person in your group to abstain from drinking, or simply enjoy the party without consuming alcohol.

But, if you should find yourself in the driver’s seat with blue lights flashing behind you, keep these tips in mind:

  1. You do not have to say anything to the officer. Keep in mind, the officer is looking to build a drunk driving case against you. What you say will end up in the police report and it will be used against you.
  2. You can refuse to do the field sobriety tests, (i.e. the walk and turn, counting, alphabet, etc.).
  3. You do not have to breathe into the PAS (preliminary alcohol screening) test UNLESS you are on DUI probation or under 21 years old. However, if arrested, you must submit to a breath or blood test.

If you are cited for driving under the influence, you owe it to yourself to hire an exclusively DUI defense firm.

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.

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San Diego Police officer, Anthony Arevalos, was arrested in March 2011, and eventually charged with 18 felony counts including sexual battery by restraint, receiving a bribe, assault and battery by an officer, and false imprisonment, after citizens reported they were driving in the Gaslamp and were pulled over by this San Diego Police officer. According to the victims, he initiated a drunk driving investigation and then asked the women what they would be willing to do in order to have the charges go away. One woman reported she gave Arevalos her underwear and another was taken to a 7-Eleven restroom where she was sexually assaulted.

In light of these allegations, the San Diego City Attorney dismissed 15 driving under the influence cases that were investigated by Arevalos.

After a jury trial, Arevalos was found guilty of 8 felonies and 4 misdemeanors. He was taken into custody and sentenced in February 2012. He faced nine years and eight months in prison, and the judge sentenced him to eight years and eight months. In addition, he has to register as a sex offender for the rest of his life.

Just last week, the City of San Diego approved a $1.2 million settlement with some of Arevalos’ victims, according to fox5sandiego.com. Of that settlement, $675,00 will be paid to victim Melisa W, (full name withheld because she is a victim of a sex crime), as her case was the most severe.

If you witness or a victim of police misconduct involving a San Diego officer, report the officer to the Citizens’ Review Board on Police Practices. The complaint will be reviewed and forwarded onto the Commanding Officer and the Department of Internal Affairs and an investigation is conducted.

Do not let rogue cops who misuse their power, like Arevalos, patrol our San Diego streets. Our community needs to ensure if an officer is not professionally performing his or her duties they are reported, investigated, reprimanded, and if needed, terminated. Even if you think your complaint is minimal or not a big deal, it may be important to another citizen. When charges are pending against a defendant, other citizens’ complaints involving that same officer may be discoverable, thereby helping another person defend their case.

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San Diego, California, it’s almost that time of year…to end all the political advertisements on the television and radio, in the newspapers and magazines, and, of course, in all those mailings. Yes, on Tuesday, November 6th, it will be your time to vote!

Although I usually don’t use this blog to talk about politics, and your personal politics are not an issue for this posting, I do want to take a few minutes to discuss a ballot measure that I think is very important to us as citizens and for myself as a criminal defense attorney. If you don’t think voting for our President of the United States or the Mayor of San Diego is enough reason to get to the polls next week, consider the implications of Proposition 34, the death penalty initiative.

California has had the death penalty reinstated on the books since 1978. There hasn’t been an execution in California in over six years; however, we continue to house more than 700 people on death row as they wait for their supposed execution by the California Department of Corrections. The reality is the day will never come, or if it does, it will take 20-25 years and lots of money to get there. The reason for this is the many legal processes that are in place in an attempt to ensure that the convicted are afforded all protections so as to not execute an innocent person because there is no turning back once that switch is flipped.

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A DUI lawyer in Texas decided to advertise his drunk driving defense firm by putting a message on wristbands that were given out to bar patrons. The message read, “Drinking tonight? Know your rights.” This was followed by the DUI attorney’s telephone number.martini and keys.jpg

Although this upset Mothers Against Drunk Driving, (MADD), the Texas lawyer was correct when he said, “If you are over the age of 21 you can consume alcohol and operate a motor vehicle. You can drive as long as you are not intoxicated.”

This is also the law in California. According to California Vehicle Code Section 23152(a), “It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.”

According to the California Jury Instructions, (CALCRIM), 2110, “A person is under the influence if, as a result of drinking or consuming an alcoholic beverage and or taking a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.”

In addition, “The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of an alcoholic beverage or a drug or under the combined influence of an alcoholic beverage and a drug. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.”

In San Diego and across California, it is not a crime to consume an alcoholic beverage and then drive a car as long as you are not under the influence at the time that you are driving!!

If you are pulled over by law enforcement and then charged with drunk driving, you owe it to yourself to hire an exclusively DUI defense firm to represent your interests with both the Department of Motor Vehicles (DMV) and the court system. Do not delay. You only have ten days from the date of arrest to contact the DMV to request a hearing to challenge the suspension of your driving privileges.

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.

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