San Diego DUI Lawyers

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San Diego University Substance Abuse Center:

The primary mission of the Center on Substance Abuse (CSA) Driving Under the Influence Program (DUIP) is to help reduce the incidence and prevalence of driving under the influence and the negative consequences of this behavior for our community and its residents, and to assist participants in identifying and seeking solutions to their own alcohol and other drug problems.

In order to accomplish this mission, we are committed to providing, under the guidelines established by the State of California and the County of San Diego, the highest quality of educational and counseling services to those who have been convicted of violating the DUI laws.

The San Diego State University CSA DUI Program operates under California license, (#3700501120). The Official licensee is the SDSU Foundation a California non-profit organization under Chapter 501(3)c of the IRS Code. However, the program is administered by the University College of Health & Human Services, School of Social Work through the CSA. Since its designated area of services by the courts is the San Diego court district, it is referred to as the "Central District DUIP". Specific operations are in accordance with the California Health and Safety Code (H&S C) statute, Chapter 9, Section 11836 through Section 11838.5. This statute is implemented via regulations adopted by the California Department of Alcohol and Drug Programs (ADP), specified in the California Code of Regulations (CCR) Title 9, Section 9795 through Section 9886.

San Diego DUI Lawyers

James Hairgrove: Understanding the Charges For many honest law abiding citizens, it is frightening to find yourself handcuffed and placed in the back of a police car and on your way to county jail for the first time in your life. In most cases, the officer stopped you because of a minor traffic violation or you were just unfortunate enough to be on the road during peak D.U.I. arrest hours (9:00pm to 2:00am) and the officer allegedly witnessed your vehicle weave or cross over the lane lines. This happens to sober drivers as well as intoxicated drivers. There are to standard charges in a D.U.I. arrest. Misdemeanors are filed under Vehicle Code §23152 (a) [driving under the influence] and §23152 (b) [blood alcohol level of .08%or greater]. If it is charged as a Felony, the offense usually involved bodily injury to someone other than the driver and are charged under §23153 (a) and (b). Was My Blood Alchohol Level Really That High? The łAverage Person fallacy˛ is one of the greatest sources of error in blood alcohol testing. The consistently recurring fallacy is that the individual tested is perfectly average in certain critical physiological traits. Your blood-alcohol results are dependent on the validity of a number of scientific assumptions. Unfortunately for the person tested, these assumptions are usually incorrect: The person tested is rarely łaverage˛ in even one of these critical characteristics, let alone in all of them. Thus, for example, all breath-testing devices depend on the assumption that the ratio between alcohol in the blood is 1 to 2100. In fact, the machine is designed to produce a reading based on that assumption; the accuracy of the reading is directly tied to the accuracy of this presumption. However, an individual may very from 1:1300 to 1:3000, or even more widely. Thus a person with a true blood-alcohol level of .08 but a breath-to-blood ratio of 1:1700 would have a .10 reading on an łaccurate˛ breath-testing instrument. Put simply, these machines do not test individuals. Rather, they test the average person over and over again, but using the subjectšs breath.
Harrison, Patterson & O'Connor: If you or someone you know has been arrested on for drunk driving and needs a San Diego drunk driving attorney, donšt compound the problem by delaying or choosing not to contact an experienced drunk driving defense attorney. A common misconception is that a drunk driving/DUI charge requires one to be under the influence of an alcoholic beverage. However, a DUI charge, by itself, does not require a positive breath reading. Instead, the charge addresses the suspicion of driving while under the influence based upon manner of driving, physical and mental symptoms of impairment, or verbal admissions. These cases often present special problems to the prosecution. Unfortunately, there are DUI attorneys who donšt have experience dealing with these specialized DUI cases. In a majority of drunk driving cases, the issue will center around whether the accused had a blood alcohol content (BAC) of .08% or greater "at the time of driving". Drunk driving attorneys understand that the chemical the time they were actually behind the wheel. Unfortunately, many DUI defendants blindly plead guilty if their breath or blood test is above a .08% (or .15% in aggravated DUI cases) without evaluating whether a possible defense exists.
Edward Haase: Whether the charges are felony or misdemeanor, you only have 10 days following your arrest to request a DMV hearing. Never think that a BAC above the legal limit automatically results in a guilty conviction.
Ramona Hallam: In all criminal cases, the defendant is presumed to be innocent. A criminal case begins when a prosecutor files formal charges, a person is arrested, or a grand jury issues an indictment. If you would like to receive a consultation with an attorney click here. If a defendant, the person accused of a crime, is in custody, he or she has the right to an arraignment within 48 hours of being arrested. At this hearing the judge will officially tell defendants about their constitutional rights and explain the charges against them. Also, bail (property temporarily given to ensure that a person released from custody will return at an appointed time) may be raised or lowered. In order to be released without paying bail, defendants may request to be released on their promise to appear. This is called "on their own recognizance" At the arraignment defendants will be asked to plead to the charges against them: guilty, not guilty, or, in some cases, nolo contendere Misdemeanors Defendants who plead guilty to a misdemeanor may be sentenced during the arraignment, unless the judge wishes to postpone sentencing in order to study a probation report. During the arraignment, if a defendant pleads not guilty to a misdemeanor, the judge will set the date for a trial. The trial will be held within 30 days if the defendant is in custody or within 45 days if the defendant is not in custody-unless the defendant waives the right to a speedy trial. If a defendant pleads guilty to a felony at the arraignment, he or she must be represented by an attorney (unless the defendant, in a noncapital case, waives the right to one). After a guilty plea, the judge has the option to keep the case in that court for sentencing or probation or to transfer the case to a superior court.
Kenneth Hamilton: Did you know?

An experienced DUI attorney can prove that the officerís observations, and the chemical (breath & blood) tests are inaccurate.

WHY should you hire an attorney?

Save driving privileges

Reduce fines

Reduce charges

Avoid Jail or Prison

Avoid public work services

How can the DUI attorney help?

An experienced attorney can do many things to challenge and disprove the evidence against the accused.

1. Review the calibration and maintenance records of the machine. It is falsely believed that these machines are infallible. People forget that these machines are made of up of metal, plastic, and silicon. To believe that they always work, everytime, is like believing your car will never break down. Machines donít always work properly.

2. Retest the blood by a private lab.

3. Hire an analyst to determine if the driverís blood alcohol concentration (BAC) was rising. This defense may prove that the driverís blood was actually less than Californiaís .08% limit, at the time of driving.

4. Photograph the scene of the arrest. This may be helpful in showing that the ground was not level when the driver was performing the field coordination tests.

5. Effectively cross-examine the officer to expose mistakes and inaccuracies in the gathering of evidence.

What can the attorney do?

The attorney can represent the driver in COURT. The goal should always be to get either a reduced charge in a plea bargain, or take the case to trial. Of course, the client always makes the final decision whether to accept the plea bargain or not.

The attorney can also represent the driver at the DMV. In California, a driver will suffer a period of suspension for at least 30 days, and possibly more. Only an understanding of the law, and administrative procedure, will adequately defend the driver with the DMV.

DMV Consequences

Loss of driving privilege at least 30 days. There is no ědrive to workî license for the period of suspension. A DMV suspension allows no driving for any purpose. A qualified attorney can represent you before the Department of Motor Vehicles to fight the suspension.

Other Consequences

Loss of job, if driving is necessary for employment.

Increased insurance premiumsócan increase 2 to 3 times.

Driving Under the Influence (DUI) as defined by California state law:

California Vehicle Code §23152 (a)óIt 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.

California Vehicle Code §23152 (b)óIt is unlawful for any person who has a 0.08 percent or more by weight, of alcohol in his or her blood to drive a vehicle.

Drunk Driving Q & A
Question:
If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?

Answer:
You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication ó and it may explain the odor of alcohol on the breath.

Question:
Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test?

Answer:
The law on this varies from state to state. As a general rule, however, there is no right to an attorney until you have submitted to (or refused) blood, breath or urine testing. In some states, there is a right to consult with counsel upon being arrested or before deciding whether to submit to chemical testing. Of course, this does not mean that you cannot ask for one.

Question:
What should I do if I'm asked to take field sobriety tests?

Answer:
There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests.

Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitably "fails". Thus, in most cases a polite refusal may be appropriate.

Recently, many states have begun following the federally-approved (National Highway Traffic Safety Administration) "standardized" field sobriety tests. These consist of a battery of three tests:
1. Heel-to-Toe (also referred to as "walk-and-turn")
2. One-Leg Stand
3. Horizontal Gaze Nystagmus
All other field sobriety tests are disapproved. And unlike non-standardized tests, in which the officer subjectively decides whether the suspect passes or fails, the SFSTs are scored objectively ó that is, a numerical score is assigned according to specific errors, or "clues".

Question:
Why did the officer make me follow a penlight with my eyes to the left and right?

Answer:
This is the "horizontal gaze nystagmus" test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement.

Question:
Should I agree to take a chemical test? What happens if I don't?

Answer:
The consequences of refusing to submit to a blood, breath or urine test varies according to the state. Generally, there are three adverse results:
1. Your driver's license will be suspended for a period of time, commonly three, six or twelve months. This may be true even if you are found not guilty of the DUI charge; in California, the suspension for a refusal on a first offense is one year.
2. In some states, refusal is a separate crime; in others, it adds jail time to the sentence for the DUI offense (in California, 48 hours).
3. The fact of refusal may be introduced into evidence as "consciousness of guilt". Of course, the defense is free to offer other reasons for the refusal.
Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.

Question:
Do I have a choice of chemical tests? Which should I choose?

Answer:
In most states, you have a choice ó of breath, blood or urine (most states, however, do not offer urinalysis). If you choose breath, many jurisdictions permit you to have a second test of blood or urine; this is because a breath sample is not saved and so cannot later be re-analyzed by the defense. In California, only blood or breath are offered, unless neither is available in which case urinalysis is possible; a blood sample will be taken if requested after a breath test is given.

Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate by far, however, is urinalysis. Thus, if you are confident that you are sober, a blood sample is the wise choice; urine, being least accurate and most easily impeached, is the best option if you believe your blood-alcohol concentration is above the legal limit.

Question:
The officer never gave me a "Miranda" warning: Can I get my case dismissed?

Answer:
No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.

Of more consequence in most cases is the failure to advise you of the state's "implied consent" law - that is, your legal obligation to take a chemical test and the results if you refuse. This can affect the suspension of your license.

Question:
Why am I being charged with TWO crimes?

Answer:
The traditional offense is "driving under the influence of alcohol" (DUI), or in some states, "operating while intoxicated" (OWI), or "driving while intoxicated" (DWI). In recent years, however, 49 states have also enacted a second, so-called "per se" offense: driving with an excessive blood-alcohol concentration (either .08% ó as in California ó or .10%). In those states, BOTH offenses are charged. The defendant can even be convicted of both, but can be punished for only one.

If the case involves a refusal to submit to chemical testing, of course, only the traditional offense will be charged.

Question:
The officer took my license and served me with a notice of suspension after the breath test: How can he do that if I'm presumed innocent?

Answer:
Agreed, it is blatantly unfair. But the law in most states (including California) having a "per se" statute (see question #10) provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood or urine test, if the officer reasonably believes the result will be above the limit).
Warning: Be aware of a 10-day deadline for calling the California DMV to request a hearing on the suspension and to get an extension of the temporary license.

Question:
Can I represent myself? What can a lawyer do for me?

Answer:
You can represent yourself ó although it is not a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.

What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field ó Attorney Kenneth N. Hamilton is experienced in handling Drunk Driving, DUI, DWI and OUI charges. He regularly is able to find defects in the case, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

Question:
What is the punishment for drunk driving?

Answer:
Again, this varies according to the laws of the state and the customs of the local jurisdiction. Generally speaking, a conviction for a first offense may involve a fine, a license suspension or restriction, attendance at a DUI education course for a period of time and probation for perhaps three years. A short jail sentence may or may not be required; for a second offense, it almost certainly will. Additional punishment may involve community service, ignition interlock devices, AA meetings and/or impounding of the vehicle.

Question:
What is a sentence "enhancement"?

Answer:
Most states increase the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or a similar offense ó usually within five or seven years of the current offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:
1. A child was in the car at the time.
2. The defendant was traveling 20 or 30 miles over the speed limit at the time.
3. The blood-alcohol concentration was over .20%.
4. The defendant refused to submit to a chemical test.
5. There was property damage or injury.
6. The defendant was under 21 ("zero tolerance" laws commonly require a much lower blood - alcohol level and impose longer license suspensions).
In most states, the existence of significant personal injury caused by drunk driving elevates the offense to a felony. A death can trigger manslaughter or even, in a few states (including California), murder charges.

Question:
What is a "rising BAC defense"?

Answer:
It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING ó not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested.
Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit ó but his actual BAC AT THE TIME OF DRIVING was below.

Question:
What is "mouth alcohol"?

Answer:
"Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings.

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