San Diego DUI Lawyer Blog

The National Transportation Safety Board (NTSB) Recommends That All States Lower the Per Se DUI Legal Limit From 0.08% BAC to 0.05%

Tue, 14 May 2013 17:11:57 -0800

The motivation for the change is to reduce the number of road deaths caused by drinking and driving. According to NTSB estimates, drunk driving accounts for a third of all road deaths.

NTSB Chairman Debbie Hersman said before a vote by the panel on a staff report, "This is critical because impaired driving remains one of the biggest killers in the United States."

Some of the more recent actions that have reduced drinking related deaths are federal and state policies, tougher law enforcement, and stepped up national advocacy. The NTSB staff report estimates, lowering the per se BAC for drinking and driving to .05% would save 500-800 lives annually. In the last 30 years, 440,000 lives have been lost in the United States due to drinking and driving.

What Makes "Standardized Field Sobriety Tests" Standardized?

Mon, 12 Nov 2012 16:30:58 -0800

Throughout the course of this series we've discussed the differences between the FSTs (field sobriety tests) and SFSTs (standardized field sobriety tests). The three SFSTs are the horizontal gaze nystagmus, the walk and turn, and the one leg stand tests. The SFSTs have a level of validity other FSTs do not. "Standardized test" is defined by Wikipedia as "a test that is administered and scored in a consistent, or 'standard', manner." Clearly the goal is consistent and standard administration and evaluation in order to avoid bias and subjective determinations of impairment. The Standardized Field Sobriety Tests, touted by the National Highway Safety and Transportation Administration (NHTSA) and the International Association of the Chiefs of Police (IACP), are good but have their flaws. In this segment, we will look at the studies that make the SFSTs "standardized."

Bicycling Under the Influence of Alcohol in California

Wed, 17 Oct 2012 16:04:26 -0800

Recently I advertised in Pacific Magazine that "no matter your form of transportation you are not above a DUI" with pictures of people in a car, on a boat and a young woman on a bicycle. People commented on my law office Facebook page that you can't get a DUI on a bicycle. The answer to that comment is yes and no, and I will explain why.

A very popular past time along the boardwalks of San Diego is riding a beach cruiser bicycle from bar to bar. From Pacific Beach to South Mission Beach, there are a number of bars either right along the beach (Lahaina) or just one block inland on Mission Boulevard (Guava Beach). Bicyclists can either end their trek at the Coaster (named for the wooden roller coaster just across the street), or ride further south to the Beachcomber in South Mission. However, it is illegal in California to be under the influence of alcohol and ride a bicycle.

Non-Standardized Field Sobriety Tests - The Alphabet and Reverse Count Tests

Fri, 12 Oct 2012 15:32:50 -0800

This will conclude the blog series on non-standardized field sobriety tests, and we will then discuss the standardized field sobriety tests. These remaining tests are easier to explain and more intuitive.

Alphabet Test
The alphabet test is just as it sounds, with a minor twist. The subject is instructed to recite the alphabet without singing or rhyming it. This is quite simple, but can you think of the last time you recited the alphabet without throwing in a sing-song element to it- "a, b, c, d, E, F, G..."? Or without "LMNOP" all being lumped in together sounding like one word? That is not allowed, and is a clue.

Non-Standardized Field Sobriety Tests- the Romberg Test

Fri, 05 Oct 2012 15:28:49 -0800

Continuing from the prior blog entry, we will discuss another non-standardized field sobriety test- the Romberg. In the next blog entry two more tests will be discussed. They suffer from the same lack of validity as the other non-standardized tests.

Romberg Test
The basis for this test actually comes from testing subjects for being under the influence of drugs. The subject is asked to stand with his feet together and hands at his sides (the Position of Attention, which is the starting position for many field sobriety tests). The subject is then asked to tilt their head back forty-five degrees, close their eyes, then estimate thirty seconds.

Non-Standardized Field Sobriety Test- The Handclap Test

Fri, 21 Sep 2012 15:26:45 -0800

The Handclap Test
This is also a CHP test. In this test, the officer instructs the driver to do the following- hold one hand out, palm up and parallel to the ground. With the other hand, clap down the other palm down saying "one." Next, raise the hand, and bring it back down with the back fo the hand against the palm of the stationary one saying "two." Repeat this counting "one," "two" and increase your speed. A video of this test basically sounds like the person counting "one, two, one, two" increasing in speed with a clapping sound.

This field sobriety test is meant to test the driver's ability to follow instructions. It is also, in a limited manner, is supposed to test divided attention- the clapping and counting. Further, according to the CHP, it is also supposed to test the physical dexterity of the subject- the ability to clap, and clap the back of the hand, alternatively and increasing in speed. As this test has never been studied to determine it's effectiveness, there is no proof beyond the CHP's own continued use of the test that a sober person will pass whereas an impaired person would fail.

Non-Standardized Field Sobriety Tests and the Finger Count Test

Fri, 14 Sep 2012 15:23:55 -0800

As previously discussed, one should never perform these tests. The reasoning behind it is that first, they are voluntary and not performing them can not be used against a driver/citizen in a court of law. Second, there is no positive scoring in these tests- they all count against the driver. For instance, when you take a test, you get points for questions you get right, and marked down for questions you get wrong. In filed sobriety tests, you only get marked down. There is no credit for performing the tests appropriately or correctly, with the wrong clues or reactions counting against the positive.

In this case, you start with 100 points, and everything is marked down. If John Q. Citizen got 85 correct, the law enforcement would state "JQC got 15 wrong and therefore he fails." If he got 93 correct, the response is, "JQC got 7 questions wrong and therefore he fails." This is true for standardized field sobriety tests, but it is worse for non-standardized field sobriety tests.

The Basics- Breath or Blood Alcohol Chemical Test

Fri, 31 Aug 2012 11:34:32 -0800

If there is anything that should be taken away from this blog it is to not drink and drive. However, because of a concept called "proprioception," which can be read here, most people do not know or recognize when they are impaired. Thus, both through the effects of alcohol, and the body's natural processes, people make the erroneous decision to drive and find themselves in an unfortunate position. Please note, that actual impairment, or being above a .08% BAC is irrelevant, as a driver can find him or herself in trouble with the law with the slightest of objective symptoms of alcohol use- odor of alcohol beverage on their breath, or red, watery eyes. Through the course of the most recent blog posts, we have discussed probable cause for stop, stop and arrest, and now finally the chemical test- breath or blood. The purpose of this series is to address the most common questions I face when I tell people I practice DUI defense.

The Basics- Being Pulled over and Arrest

Fri, 17 Aug 2012 11:24:12 -0800

If you are pulled over after having something to drink, ignore the inconvenience and focus on cooperating to reduce the length of a stop. Make the officer's life easy, and let them resume their responsibilities, but Do Not incriminate yourself. I included "and arrest" because it may be in your best interest to be arrested, and not incriminate yourself, than comply with an officer (even if you don't believe you are under the influence) and incriminate yourself. Remember, even good, innocent citizens exercise their rights.

First, stop the car, turn off the radio. If your registration, insurance and license is accessible, take it out. But by the time the officer is at your car window, have your hands on the steering wheel at 10 O'clock and 2 O'clock, as your hands is the first thing they will look for because of officer safety. Put the police officer at ease and let him/her see your hands.

The Basics- Probable Cause For Being Pulled Over

Fri, 03 Aug 2012 11:12:32 -0800

Drinking and driving- at its basic level, we've all done it. The point it becomes illegal is when a driver's BAC is above .08%, or "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" (CALCRIM 2110, Jury instruction).

On a Friday, Saturday, or holiday night/season, police are looking for excuses to stop people to see if they have been drinking. The best way to avoid being pulled over is to not give an officer justification, or probable cause, to stop you. The state does not need to prove "bad driving" to charge a DUI- only driving, which in California is any volitional movement of a vehicle. This section may also help remind drivers of what officers are looking for in general, and how either more cautious driving, or correcting minor vehicle code violations, will help unwanted law enforcement contact.

The Two Types of Reckless Driving Charges in the California Vehicle Code, and Why it Matters in DUI Cases, Part 5

Tue, 31 Jul 2012 14:27:10 -0800

There may be problems with the chemical test. For instance, if the results of the breath machine, or PAS device, are greater than .02%. Or the blood drawer may not be available. Depending on the circumstance of the chemical test, the logistical difficulties may be too much, and the guarantee of success too small, for the prosecution to risk going to trial. It takes a very skilled, knowledgeable trial attorney, particularly one regularly updated in the science of alcohol and DUI defense, to identify chemical test issues that qualify for a reduction.

The Two Types of Reckless Driving Charges in the California Vehicle Code, and Why it Matters in DUI Cases, Part 4

Fri, 13 Jul 2012 14:23:59 -0800

In the last two parts of this wet/dry reckless driving series we will discuss some of the reasons why a prosecutor would offer a wet reckless- and sometimes even a dry reckless. From a prosecutorial perspective, they are far more likely to go to jury trial than offer a dry reckless- "rather try it than dry it." This, again, is because the dry is not priorable. The loss, in terms of a deterrent from a public policy perspective, is too large compared to even a reduced likelihood of success at trial. Plus, one of their rising star attorneys then gets a chance to try another case- even if it is the equivalent of charging a machine gun nest.

The Two Types of Reckless Driving Charges in the California Vehicle Code, and Why it Matters in DUI Cases, Pt. 3

Fri, 29 Jun 2012 16:25:51 -0800

In the last blog entry we discussed the standard sentencing guidelines for a DUI in San Diego. In this entry I will go over the standard sentencing guidelines for a Wet Reckless, or DUI reduction, and also the dry reckless. I will go over some of the individual sentencing terms and why it is preferable.

The wet reckless has some similar sentencing terms, but most are reduced and some are preferable.

The Two Types of Reckless Driving Charges in the California Vehicle Code, and Why it Matters in DUI Cases, Pt. 2

Wed, 13 Jun 2012 15:53:45 -0800

As previously discussed, the wet reckless charge is a tool prosecutors use to "split the baby" when there is a DUI case with problems for them. The wet has reduced punishments, but it is also priorable if the defendant gets another DUI.

The differences can be significant. For these purposes, I will use the San Diego Superior Court Standard Sentencing Guidelines for Infractions and Misdemeanors.

The Two Types of Reckless Driving Charges in the California Vehicle Code, and Why it Matters in San Diego DUI Cases, Part 1

Wed, 30 May 2012 15:45:29 -0800

Reckless driving is a serious charge. It is operating a car without regard for safety of those around. It is driving in such a manner that driver knows, or should know, that he or she is putting others in danger. There are two types of reckless driving charges in California which are informally known as the "wet reckless" and "dry reckless."