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Many California DUI arrests are triggered by Black-and-White Fever

 

California DUI officers create and spread something called “black-and-white fever.”.

That phenomenon is logically the normal reaction of most drivers to being followed by a marked police car (usually painted black and white).

When the citizen driver becomes cognizant that a police car is following him or her, he or she becomes reasonably apprehensive and increasingly focuses his or her attention on the marked police car in the rear view mirror.

As the California DUI officer continues to follow, the driver becomes stressed and his or her concentration on pure driving is interrupted. He or she keeps his eyes more on the mirror and less on the road ahead. When the driver brings back his or her eyes forward to the road, he or she finds that he or she has drifted somewhat. Now he or she must correct the travel of the vehicle back to the center of the lane.

What happens establishes probable cause for the stop: drifting, straddling or weaving, and possibly somewhat erratic movements such as sudden increases or decreases in speed (e.g. tension making one’s shoe let up on the gas). Coincidentally, these are some of the most commonly encountered symptoms of a California DUI / drunk driver on the road.

Thus, the California DUI officer’s very existence or approach creates the probable cause for suspecting a DUI.

Once the California drunk driving officer pulls the driver over, the officer gets out and approaches the car with the very human preconception that the driver is probably intoxicated. Of course, the first thing the California DUI officer senses is an odor of alcohol (although an odor alone is legally & factually insufficient).

Like a bowling ball rolling down a lane, California DUI officers then see what they psychologically look to see: normally veined eyes appear bloodshot or red; normal but nervous speech sounds slurred; normal pink complexion is flushed; and the tense exit from the vehicle to some dark, unknown surface reveals an unsteady gait.

The California Drunk Driving officer’s observations are inevitably followed by subjective and unreliable acrobatics or gymnastics, aka FST’s or California DUI field sobriety tests, which are tough to do even under the best of conditions. The conclusion finishes with an often preconceived goal – the California DUI arrest.

What Constitutes a Criminal DUI?

San Diego California DUI Prosecutor Must Prove Beyond a Reasonable Doubt that the Vehicle Actually Moved & the Person Was Actually Driving
Preliminary California Criminal Court “Driving” Defense Questions include:

1) Did California police officer actually observe the person driving the vehicle?

2) Does the officer have first-hand knowledge of the person driving?

3) Was the vehicle lawfully parked when the officer arrived on the scene?

4) Is there a reliable witness who can actually identify the person as the driver?

5) Could there have been another person driving?

6) Can competent witnesses establish the vehicle moved within 3 hours of the chemical test?

7) Is corpus delicti for a DUI offense (actual driver + driving of vehicle, etc.) established?

8) Was the warrantless DUI arrest lawful?

California Case Law often used by Superior Court Judges varies from case to case

A “slight movement” of the vehicle in the arresting officer’s presence must be shown, to constitute direct evidence that the vehicle was being driven. People v Wilson (1985) 176 CA3d Supp 1, 8, 222 CR 540.

Moving the vehicle even a few inches constitutes “driving” the vehicle. Music v Department of Motor Vehicles (1990) 221 CA3d 841, 850, 270 CR 692.

California Vehicle Code section 23152 (DUI)’s requirement “to drive a vehicle” means there must be evidence of “volitional movement” of a vehicle. A misdemeanor arrest without a warrant is permissible only if a public offense occurs in the arresting officer’s presence. Because the officer who arrested the driver did not see the driver’s vehicle move, the driver was not lawfully arrested for a violation of Vehicle Code section 23152(a).
Mercer v Department of Motor Vehicles (1991) 53 C3d 753, 762, 280 CR 745

If the DUI arresting officer did not see the person drive the vehicle, proof the person was driving may, in limited criminal cases, be established by circumstantial evidence.

• Elimination of other possible drivers. If other possible drivers have been eliminated from consideration, the defendant’s proximity to the vehicle is evidence from which a reasonable inference may be drawn that the defendant was the driver.

In one case, a defendant who was found standing alone next to the vehicle after the accident and whose injuries were consistent with having sat in the driver’s seat was properly found to be the driver. e.g. People v Gapelu (1989) 216 CA3d 1006, 1009, 265 CR 94.

But e.g. People v Moreno (1987) 188 CA3d 1179, 1186, 1190, 233 CR 863 (corpus delicti was not established when there was no evidence that defendant was driver and there were other people at scene who may have driven); People v Nelson (1983) 140 CA3d Supp 1, 3, 189 CR 845 (corpus delicti was not established because it was possible other individuals may have been driving).

Corpus delicti for a DUI offense was established in a case in which the officers found the vehicle parked on the side of the highway with a flat tire, the defendant was sitting in the passenger seat of the vehicle while her companion was changing the tire, they were the only individuals in the vicinity of the vehicle, and both were under the influence of alcohol. The prosecution was not required to establish who was driving as a condition precedent for the admissibility of the defendant’s statement that she was the driver. Once the prosecution established that a reasonable inference to be drawn from the evidence was that a person under the influence of alcohol drove the vehicle on the highway, it was entitled to use the defendant’s statement to establish that she was the driver. It was not required to eliminate all other inferences to establish the elements of the crime of DUI. People v McNorton (2001) 91 CA4th Supp 1, 5–6, 110 CR2d 930. See also People v Martinez (2007) 156 CA4th 851, 855–856, 67 CR3d 670 (corpus delicti established by evidence that an automobile was parked facing the wrong way with its engine running and its headlights on, and evidence that there were only two people in the vicinity, one of whom was in the passenger seat with her seatbelt buckled, and one of whom was intoxicated).

• Parked vehicle. The corpus delicti for a DUI offense was established when the officers found the vehicle parked with its front tire missing and raised on a handjack, and the defendant had the keys to the vehicle and lug nuts in his pocket. See People v Scott (1999) 76 CA4th 411, 417–418, 90 CR2d 435. See also People v Komatsu (1989) 212 CA3d Supp 1, 5, 261 CR 681 (corpus delicti was established when officers discovered that vehicle was blocking roadway, parking lights of vehicle were on, defendant was only person in vicinity of vehicle and was intoxicated, and defendant was sleeping in front passenger’s seat holding car keys).

But again see Music v Department of Motor Vehiclesz’ (1990) 221 CA3d 841, 850, 270 CR 692 (warrantless arrest of defendant was illegal because defendant did not move vehicle in officer’s presence; arrest occurred when officer observed defendant sitting in driver’s seat of his vehicle, which was parked in parking stall with engine running).

[Please note: California DMV administrative per se laws vary, may be beyond the scope of the above cases, and are subject to different procedures, rules and legal standards. The holdings in criminal cases involving review of these criminal requirements should not apply to a DMV proceeding unless it is based on a DMV decision. While DMV is bound to follow the above DMV decisions, DMV cannot rely on these criminal cases to support an administrative finding of “driving.”]

What is a DUI Expungement

What is a DUI Expungement?

A DUI expungement is a legal process that petitions the Court to review a DUI-related conviction to determine:

If the term of probation was successfully completed & concluded;
That all fines, restitution and reimbursement ordered by the court have been paid and everything ordered by the court was completed in a timely manner;
That the petitioner is not now on probation for another offense;
That the petitioner has no new pending cases;
The Court then may allow the petitioner to withdraw his or plea or finding of guilt or no contest, and thereafter orders the case dismissed.

How does this help me?

Expungement law (Penal Code Section 1203.4) provides in part:

“[Petitioner shall]…be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided…”

What about applying for jobs?

If Private Employers ask if you have every been convicted of a crime, you generally can respond with “NO”.
(Each question is different so please first contact an attorney before answering any specific question, in every case and for every form.)
On questions by Government Employers or Government Licensing Applications if you are asked if you have ever been convicted of a crime, you must disclose the expunged case.
What doesn’t a DUI Expungement do?

Your dismissed DUI conviction can still be used to increase your punishment in future DUI cases. The offense is “priorable”.

It can still be used to enhance penalties & increase punishment should you get another DUI.
It can be used to try to put you in jail or increase the length of a DMV suspension.
Does this erase all records and destroy the Court file?

No. An expungement

the disposition of the case to reflect a dismissal under 1203.4 of the Penal Code. This means the Court file, the California Department of Justice, and the FBI update their files to show the case has been ordered dismissed by the Court.
Will I need to go to Court?

No. I handle all Court work for you.

How Long Does A DUI Expungement Take?

Misdemeanors: Most expungements for misdemeanors take between 4 to 6 weeks to complete from the time the application is filed. This does not include the time needed to research all records and process the application. The more prepared you are as to the information needed (Case number, date of birth, conviction date, probation length, Vehicle Code charge number, and San Diego county court location) the quicker the application can be processed. If it is necessary to search the court records for information, it may take additional time.

Why Expunge my record? Why spend the money?

There are a number of reasons to do so such as employment or licensing. However, at least half our clients want to expunge their record as final “closure” on an old mistake- just for peace of mind.

DISCLAIMER: Please be aware this page is NOT a comprehensive analysis of all expungement law, types of answers to types of questions asked, or of all types of remedies that may be available to you. This is NOT intended to be legal advice, and a consultation with an Attorney is always first recommended and before answering any question.

DUI in a Boat and How to Handle it

Cited for boating under the influence or operating a vessel or watercraft on a San Diego County lake, the ocean, a river or other waterway with a .08 BAC or higher?

DUI or Drunk boating carries significant penalties similar to those for drunk driving or DUI, including possible jail time, DUI fines, DUI programs and driver’s license record problems.

Drunk boating is priorable as a drunk driving prior. If you have a prior drunk driving conviction, it can be used to enhance punishment.

Jet skiers, power boaters, sailors, fishermen and pleasure seekers on a craft should know it is just as illegal to operate a boat or watercraft under the influence as it is to drive under the influence. However, it is okay for adult boaters to legally drink or simply have open containers in their vessels.

Turning your craft too fast or aggressively, inoperable navigation lights, acting out of control, equipment violations, speeding (e.g. in a 5 mph zone) around a marina or at a bridge undercrossing, lack of current registration or safety equipment are some reasons a patrol boat may stop or contact you to try and determine if you are impaired or DUI.

DUI boating defenses and drunk boating strategies include attacking the chemical test, poor DUI investigation, failure to properly administer a number of field sobriety tests, lack of proficiency in DUI enforcement or testifying, failure to prove actual operation while impaired, etc.

Drunk boating offenses can be reduced to “serving as a crew member while under the influence of intoxicating liquor, any drug, or combined influence.” The prosecutor often has difficulty proving the defendant was the operator of a vessel with more than one person aboard since it is possible to move away from the controls of a vessel for any period of time.

Harbor and Navigations Code charges may also be dismissed if you are eligible for the misdemeanor diversion program.

Alternative disposition may or may not include taking a boating safety course.