San Diego DUI Lawyer

Have you been charged with DUI?

DUI charges are very serious. Even if this is your first DUI charge , the penalties could include jail time, suspended license, community service, treatment programs and fines. If you live in or visited San Diego and have been arrested for DUI, you are part of a record statistic; San Diego arrested more people for DUI in 2010 than any other U.S. city according to Insurance.com. If you or a loved one have been charged with DUI, you need to contact a San Diego criminal defense attorney immediately. Each DUI arrest is different , and an immediate review of your case will be vital in regards to your defense. The Law Office of Marc S. Kohnen has a proven record of success defending DUI charges, and can answer any questions you have regarding the DUI process.

DUI Laws in San Diego

If you are reading this page because you have been arrested for DUI, you have only 10 days from the date of your arrest to schedule a DMV hearing or you will lose your license! Call our office at once to for a confidential and free consultation, and let our office schedule your DMV hearing for you.

In California, the most common charge for an alcohol related driving violation will fall under California Vehicle Code Section 23152 which states in relevant part:

(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.

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

If you have been arrested for drinking and driving, you face prosecution under both of these sections of law. Because the crime of DUI is defined differently by subsections (a) and (b), under the "a" count a driver might have a blood alcohol concentration (BAC) below the 0.08% legal limit , but can still be arrested for driving under the influence if their driving and/or field sobriety tests exhibited evidence of impairment due to the influence of alcohol or drugs. The reciprocal is that under the (b) count, even if the person arrested was driving perfectly well, or demonstrated no apparent signs of impairment, they may still be charged with driving while intoxicated u nder this section if their BAC was found to be 0.08 % or greater.

Fighting DUI Accusations

The prosecution will allege a violation of California Vehicle Code 23152(a) when the driver appears to have been driving under the influence of an intoxicating substance. The source of the influence need not be alcohol. The individual may be prosecuted for driving while under the influence of any controlled substance, legally prescribed drug or even alcohol with a BAC amount less than 0.08%, if their driving was impaired by the substance. For the purposes of this section, a driver is "under the influence" when their mental and physical driving abilities are so impaired that they are no longer able to operate the vehicle with the same prudency and caution as a sober person using ordinary care under similar circumstances. Therefore, in order to properly be convicted under this section, the prosecution must show that the officer, or other reliable eyewitness, actually witnessed some kind of impaired driving under the standard of a reasonably prudent driver in the same situation.

Our firm will conduct an exhaustive, independent investigation and submit all relevant and pertinent facts to the court to negate such allegations. For example, if there is an accident, but the officer di d not actually see you driving and only came to the scene after the fact, it will be very difficult to prove that the accident was caused by impaired driving on your part, and you may have a good defense to this charge. If the accident occurred on a very stormy night at a sharp turn on a slick road, it is entirely possible that any driver could have crashed under those circumstances, sober or not.

Just as your defense will rely on the totality of the circumstances to prove that you were not impaired at the time you were driving, the prosecution will bring in whatever circumstantial evidence it can to show that you were impaired. As mentioned above, this will likely depend entirely on the eyewitness testimony of others at the scene and most importantly the sworn observations of the arresting officer. The prosecution will rely heavily on the officer's police report in bringing the charges against you. In the event that the matter goes to trial, the prosecution will put the officer on the stand and attempt to flesh out what is contained in the report including your observed driving, speech pattern after you are pulled over, whether or not your eyes were red or watery, or if any faint scent of alcohol was emanating from the car at first contact.

Field Sobriety Tests

Most importantly, and many times perhaps most damaging to your defense, will be the officer's testimony to your performance on field sobriety tests, or FSTs. Though many more are routinely performed, there are only three FSTs that are recognized by the National Highway Safety Administration (NHTSA): The Horizontal Gaze Nystagmus (HGN), the Walk-and-Turn, and the One-Leg-Stand.

When conducting the HGN test, the officer slowly moves an object, most likely a pen, from the center line of vision to the extent of each peripheral side, and back to center. The officer is looking for whether the driver follows the object smoothly throughout the test or if their eyes jerk or flutter abnormally as the object gets closer to each peripheral. If the individual does not follow the object smoothly, is noticeably jerking abnormally, or if the eyes begins to jerk when it is within 45 degrees of center, rather than closer to the peripheral, the officer will automatically presume that the individual has a BAC of 0.08% or higher.

In the Walk-and-Turn test, the driver is asked to place one foot in front of the other, heal-to-toe, walk 9 steps, arms straight out, turn around at the end of the nine steps and walk back in the same path. The individual will fail the test and be presumed to have a BAC of 0.08% or higher if any two of the following occur:

Cannot keep balance while listening to instructions
Stops while walking to regain balance
Beginning before instruction are finished
Steps off the line
Using arms to balance
Taking an incorrect number of steps
Not walking heel-to-toe throughout
Stopping for any reason

Finally, in the One-Leg-Stand test, the driver is asked to stand with one foot approximately 6 inches off the ground and count aloud in thousands until the officer tells them to put their foot down after 30 seconds. The individual may not sway, use their arms to balance, hop, or put their foot down for any reason during this time. If they do any two of these actions, the officer may once again presume that they have a BAC of 0.08% or greater.

FST's are designed for you to fail. The officers themselves cannot likely pass them when sober. The law does not require you to perform them, though the officer will likely pressure you into feeling as if you must. Your chances of "passing" them are slim to none and they are only used in an attempt to prove guilt under California Vehicle Code 23152(a). Any other test such as being asked to say the alphabet backwards, or standing with both feet together, head back, eyes closed, and touching your nose with each index finger , are impossible for some people to perform.

If you are ever asked to perform a FST, respectfully decline to do so. If you have been arrested and charged under California Vehicle Code 23152(a) and you did perform one of these tests, or one like it, only in the rarest of cases will the officer report an individual performed well. However, the right criminal defense attorney with enough trial experience will provide sufficient expert witness testimony backed by reliable scientific research to show that even the NHTSA's most favored three test are faulty and will produce "false positive" clues of impairment, even for a sober individual. Thus, absent any other evidence to show impairment in driving, you may have a very good defense in either reducing a charge under California Vehicle Code 23152 (a), or possibly having the charge dismissed altogether.

One of the most incriminating, or favorable determinants in attempting to prove to the court whether or not an individual was driving under the influence under California Vehicle Code 23152(a) is whether or not they were driving while intoxicated with a blood alcohol level at or above 0.08%.

Arrested for drunk driving?

As clearly stated under California Vehicle Code 23152(b), the driver of a vehicle may not operate a vehicle with a BAC at or above 0.08%. Not only will a BAC at that level be heavily probative in proving the driver violated California Vehicle Code 23152(a) but it will be considered a DUI "per se" under California Vehicle Code 23152(b). In other words, there will be a reputable presumption that the driver was intoxicated when operating the vehicle.

The U.S. Constitution mandates under due process there never to be a presumption of guilt in a criminal case before the defendant has had a chance to contest the charges. However, when you are arrested for DUI, you will be dealing with the criminal court, and then also the Department of Motor Vehicles which is going to try to suspend your license. DMV hearings are not bound by California rules of evidence or due process provided by the US Constitution. Therefore, the DMV may take and suspend your license based solely on a chemical test revealing the possibility of a 0.08% BAC or higher, even without granting you a right to contest. If you have been arrested and charged under this section, law enforcement has most likely issued you a temporary license. What they did not tell you is that the DMV will immediately seek to suspend your license. If you do not set an Admin Per Se Hearing within 10 days, the DMV will automatically suspend your license. Therefore, time is of the absolute essence. Please contact The Law Office of Marc S. Kohnen as soon as possible and we will help you navigate through this delicate matter. (Please See Section on DMV Hearings).

However, when dealing with the criminal court, the prosecution has the burden of proof and must first show that you were driving the vehicle. If the officer or another credible witness did not actually see you driving the vehicle, and you did not make any statements to the contrary, it may be difficult to prove that you were actually driving regardless of how high your BAC is.

Secondly, the prosecutor must simply show that your BAC was in fact above 0.08%. This will usually be done by a chemical test of your breath or blood. A urine test may be requested instead, however it is rarely granted as it is considered to be far less accurate than the other two methods.

Preliminary Alcohol-Screening Device (PAS Device)

Most likely, the officer will attempt to obtain your BAC at the roadside using a Preliminary Alcohol-Screening (PAS) device. A very common misunderstanding under the implied consent laws is that if one refuses a PAS device test that they automatically lose their license for one year and will be subject to other enhanced sentencing. This is not true! Under California Vehicle Code 23612, drivers consent only to give a breath or blood sample when lawfully arrested under California Vehicle Code 23152. You do not have to submit to a PAS Device test at the roadside, because (in most DUI traffic stops) the law does not consider you under arrest until the police put you in the back of the squad car. You are required to submit to a breath or blood sample at the police station after your arrest, so don't refuse to provide a blood or breath sample at the station, but you do not have to blow into a hand-held PAS device.

If you do consent to a breath test, the reading will certainly be considered by the court in determining your culpability under this section. However it will be far from dispositive in determining your exact BAC at the time. There are a number of other factors a skilled and experienced defense attorney may present to the court on your behalf to show that your actual BAC at the time you were operating the vehicle was far lower than the PAS reading.

For example, it is entirely possible that your drinking pattern just prior to entering the vehicle would result in what is referred to as a "rising BAC". The theory behind this defense is that the alcohol you consumed just prior to entering the vehicle had not yet been absorbed into your system during the time you were driving. It was not until after you were pulled over and then given the breath or blood test that your blood escalated to a point above 0.08%. Especially with the breath test, because it is given so quickly after you were driving in most cases, this defense will be most helpful in borderline cases of 0.08%-0.10% at the highest.

A second explanation involves discrediting the accuracy of the PAS device by what is known as differing "partition ratios" in the general public. The PAS device was developed using technology that runs on the presumption that 1200mL of each person's breath contains the same amount of alcohol as 1mL of blood. This was "discovered" 40 years ago by the National Safety Counsel's Committee for Test of Intoxication. However, modern research has revealed that partition ratios can vary from 900:1 to 2000:1 which could result in two individuals, each with an actual BAC of 0.10%, blowing a difference of 0.07% to 0.12%. Therefore, one individual could be let off under a false assumption that they were under the legal limit, while an equally intoxicated individual could be arrested under the false assumption that they were nearly twice the legal limit. The California Supreme Court has followed suit behind this recent discovery and has allowed evidence of partition ratios to be admitted to educate juries of the potential for false readings in the PAS devices. Again, in borderline cases, this evidence alone could be very useful in obtaining from the jury an innocent verdict in your case, or at the very least , in negotiating with the prosecution for a reduced punishment.

There are a number of other factors which might affect the accuracy of a breath test that an experienced defense attorney will know to provide through expert witnesses in your case. For example medicine containing alcohol, belching, mouthwash or breath spray will affect the accuracy of the reading. Heartburn, Gastroesophageal and acid reflux may disease may also certainly taint the reading of a breathalyzer. Finally, each individual device must also constantly be recalibrated by the police department to ensure accurate results. More often than one would imagine, these devices are not properly maintained and calibrated and therefore produce inaccurate readings with material margins of error.

Blood Tests

A blood test is a far more accurate method of determining your BAC. However, a skilled defense attorney will have the knowledge, resources, and respected expert witnesses to help prove that even a blood test contains some margin of error. There are statutory requirements governing the exact method in which the blood must be taken, the manner in which the blood is stored, who draws the blood, tests the blood and general chain of custody requirements as to who handles the blood and documentation certifying all of the above. If any of these requirements are not adhered to or documented thoroughly, your attorney may have reasonable grounds to have the blood thrown out and deemed inadmissible at trial. This is yet another reason why it is not advised to submit a breath test. If the blood is then held inadmissible, without a breath test the prosecution will not have a leg to stand on under California Vehicle Code 23152 (b).

It is always a good idea to have the blood retested by an independent source as well. In borderline cases of 0.10% or .11%, the results of a retest may reveal a BAC lower than the original testing by enough to bring the percentage below a 0.08%. Even in cases where the original results come back a 0.15% or 0.16%, a retest may bring the BAC back down below twice the legal limit which will greatly reduce the penalties and will serve as a strong bargaining chip in negotiating an attractive plea bargain.

Roadside Stops and Checkpoints

In addition to challenging the accuracies of the FSTs, chemical tests, and witness testimony alleging impairment in your driving due to intoxication, there are a number of strategies that may be implemented in challenging the reasonableness of the stop in the first place. In order for an officer to pull you over they must have probable cause to do so in the first place, meaning you must have been disobeying some rule of the road. Unfortunately, at times officers have been known to fabricate reasons to pull an individual over, such as not signaling within a proper distance of a lane change, having illegally tinted windows, or making a turn too close to a curb. Generally, seemingly trivial reasons such as these are used as a means to arrest individuals potentially committing a more serious offence such as driving under the influence. If your attorney can prove the reasons for the stop were not sufficient and in violation of your constitutionally protected rights, any and all evidence discovered as a result of the stop may be suppressed and your DUI may potentially be thrown out.

Similarly, if you are arrested for DUI at a checkpoint, officers must follow certain criteria in that circumstance as well. In California, checkpoints must be administered with several criteria in mind. In Ingersoll v. Palmer, the California Supreme Court set forth a total of eight factors that must be balanced in determining the reasonableness of the search conducted at the checkpoint including:

Visible Indication of Checkpoint: The roadblock itself should be established with high visibility, including warning and flashing light with adequate lighting so that people are put on reasonable notice that they are entering a checkpoint.
Limits on Officer Discretion: A neutral mathematical formula should be used so as to limit the discretion of officers in determining who is checked and who is not, such as every car, every third car or every tenth car and among other factors.
Role of Supervisory Personal: Only supervisory law enforcement personnel and not officers in the field may make the decision to establish the checkpoint.
Policy Goals: The location of the roadblocks should be determined by policy making officials rather than officers in the field so that only roads with a high incident of alcohol related accidents and arrests are monitored by the checkpoint, rather than strategically placing a surprise checkpoint in an otherwise relatively untraveled street.
Time and Duration of Checkpoint: The time of the day and duration of time in which the checkpoint is operational should be reasonable. It should not be in the middle of the day and/or last for 6 hours, for example.
Safety: The safety of motorists and officers should be considered. Therefore it should be done with proper lighting, warning signs and signals, and conducted at a time when the traffic volume allows operation to be conducted safely.
Length and Duration of Stop: Each motorist should only be detained long enough for the officer to question the driver briefly and to look for signs of intoxication.

Again the reasonableness of the checkpoint will be determined by balancing the eight factors. Therefore, technically, not all eight factors need to be met. However, this lengthy list of criteria does leave a substantial amount of room for your attorney to raise multiple valid arguments contesting the constitutionality of the checkpoint in most situations. A resourceful defense attorney will subpoena all necessary records to ensure this test is met. If it is not, you stand an excellent chance of negating the reasonableness of the checkpoint stop and having the charges against you dismissed.

Penalties and Defenses for DUI

As far as the potential penalties for a first time DUI violations, there are many factors involved in determining the punishment a court will render. The maximum punishment under California Vehicle Code 23152 will include a license suspension of 6 months, a jail sentence of 48 hours to 6 months, fines, court fees of up to $2,200.00, and a probation period of up to 5 years. There may be enhanced punishments that the court will apply if your BAC is above 0.15% or 0.20%, if excessive speeding is involved, or if the DUI was committed with a child under the age of 14 in the vehicle at the time. Even more severe punishments will be given with prior DUI violations or if the DUI resulted in an accident that caused injuries. (Please See DUI Resulting in Injury or Death).

As mentioned above, all of the factors related to the stop, evidence of impaired driving, disputable issues pertaining to the accuracy of your BAC and to what extent it may have exceeded the legal limit, will contribute to the lev el of punishment or the likelihood of having the case dismissed. All of these points can play a very significant role in obtaining a verdict of not guilty in the event that your case goes to trial.

Going to trial and fighting to establish your innocence should always be your attorney's initial instinct. However, as the evidence begins to present itself, many times in a DUI case it is wiser not to take the case to trial, and negotiate a plea bargain instead. Any of the factors listed above that you may present at trial may be used to negotiate a better deal with the prosecution. Simply the threat of taking the case to trial will help leverage a deal. If your attorney can build a case that you have a good chance of winning, the prosecution will be more inclined towards leniency in your sentencing. For example, a lower BAC will provide your attorney with more power to possibly negotiate the charges down to a wet reckless which will carry no jail time and only a $1000 fine. In the event of a plea bargain, ultimately your punishment will depend largely on the skill of your defense attorney. Therefore, it is crucial that you retain an attorney that is familiar with the courts, has proven experience negotiating with the prosecution, and has the necessary skills to present a strong case in getting an attractive offer on your behalf.

A DUI, even with no priors and a relatively low BAC of even 0.08% can be a very traumatic experience. Most individuals who are arrested under this section have never been in trouble with the law. Therefore the punishments afforded to the state under this section can be devastating. Attorneys at the Law Office of Marc S. Kohnen understand the lack of familiarity you may be feeling in this troubling time. However, it is crucial that you be proactive because, once again, you have only 10 days to schedule your DMV hearing to prevent an automatic license suspension. They have a handled hundreds of DUIs with extremely successful results, both in the criminal court and in the DMV hearings. If you or loved one has been arrested and charged with a violation under California Vehicle Code 23152, please contact the firm for a confidential and complimentary consultation concerning your available options in this pressing matter.

San Diego DUI Attorney

Law enforcement in San Diego is always on the alert and looking for suspicious driving. If they consider that you have been driving recklessly or erratically, you will be pulled over. Several "field sobriety tests" may be administered as well as a blood alcohol concentration test (BAC). If you register at .08% BAC or above, you will immediately be arrested and charged with a DUI. This is the inception of a real legal problem for you. Did you realize that in many cases DUI charges have been dismissed or reduced? It is crucial that you contact a skilled defense attorney to assist you. Your case may have details that could bring about a better outcome, and this information must be evaluated quickly. You have only 10 days after your DUI arrest to schedule a DMV Administrative hearing or your license will automatically be suspended. There are two parts to your DUI arrest. One is the administrative side which is handled in a DMV hearing. It is strongly urged that you have this hearing handled by an experienced DUI attorney, as the ability to drive at all in the future is at stake. There are factors that can be brought forward in the hearing to make arrangements for you to be able to continue to drive. Get the legal assistance that you need immediately from the firm. Drunk d riving charges are very serious and if convicted, you face some real life difficulties including jail time, inability to drive, and expensive fines. You need a skilled DUI defense lawyer. If you have had a previous DUI conviction your case has even more serious consequences. Do not waste any time if you have been arrested and charged with a DUI in San Diego. Call the office for a free evaluation of your case. An attorney will speak with you directly and can advise you of what the possibilities are in your drunk driving arrest case.

Contact a San Diego DUI lawyer for trusted legal advice and aggressive representation if you have been charged with DUI.