SAMUEL SPITAL AND ASSOCIATES

San Diego DUI Attorney

If you are accused of driving under the influence (DUI or DWI) in San Diego, the consequences may include fines, driver's license suspension or revocation, and jail time. In addition, your insurance company will likely raise your rates to a point where they may not be affordable. The consequences may even be more severe if you have a professional license from the State of California. As your San Diego DUI Attorney, your rights need to be protected. We are SAN DIEGO DUI DWI Defense Lawyers that are experienced and can make the difference. We are available to help with the DMV in the driver's license administrative revocation or suspension hearing. In those instances in which there may be property damages and/or personal injuries as a result of a DUI, we are available to assist you in resolving the matter with the adverse insurance company and your own insurer.

COUNTLESS DEFENSES 

TO A DUI CASE

- INCLUDING -

MISTAKES MADE BY ARRESTING OFFICER

ILLEGAL ARREST BY LAW ENFORCEMENT OFFICER

UNRELIABLE BREATH TEST

 INAPPROPRIATE BREATH TEST

INCONSISTENT BREATH TESTS

INADMISSABLE BREATH TEST

INCONSISTENCIES SHOWN BY VIDEO TAPE &/or INDEPENDENT WITNESSES

INADMISSIBLE BLOOD TEST RESULTS

INAPPROPRIATE BLOOD TEST RESULTS

1. Did you know that the law enforcement officer who stops your vehicle has to observe you for an entire 15 minutesbefore taking the breath sample. As your San Diego DUI Attorney, we will determine whether you were left alone or out of the sight of the officer at anytime prior to taking the test, including being placed in a holding room or cell, using the men’s restroom or making a telephone call. Similarly, we will inquire whether the officer included any of the transportation time as part of the required 15 minute observation period.
2. We will inquire whether you had trouble holding food/liquid down and/or began to vomit or belch during the 15 minute observation period before the test.
3. Additionally, as your San Diego DUI Lawyer, we want to know if you belched or burped during the 15 minute observation period before taking the breath sample.
4. In certain San Diego DUI DWI defense cases, we may determine that the breath test is unreliable and inappropriate , and therefore the results and/or evidence obtained thereafter inadmissible. Some examples include the following:

We want to know if you have a medical condition, such as diabetes or is hypoglycemic because these individuals that consume alcohol can also produce a high acetone level which the body converts into isopropyl alcohol.;

•  
  • We inquire if our client has a dental problem, such as gum disease/gingivitis/pockets around roots, dentures or bridgework. It has been reported that these conditions can trap mouth alcohol and contaminate the results of a breath test.
  • We want to know if prior to our client's arrest, as your DUI Attorney whether you were diagnosed with a hiatal hernia, reflux disease or an intestinal problem;
  • We also want to know as the client of our DUI Lawyer, if you have a respiratory problem, such as asthma, bronchitis, emphysema or chronic obstructive pulmonary disease.
  • Immediately preceding the San Diego DUI DWI arrest, as your DUI Defense Attorney, if you used Breath Drops or mouth spray that contained alcohol.
  • We inquire if you consumed alcohol that is an ingredient of Nyquil, Vicks Formula 44 or other brand cough medicine, or in the event you used a lip balm, or possibly toothache drops if we are your San Diego DUI Attorney.
  • Similarly, there are other substances that may have been ingested shortly before the breath test that may interfere with and/or produce incompetent test results, including products such as Skoal brand snuff.
  • In the case where there are independent witnesses, we will ascertain if your actions, behavior or conduct are inconsistent with and do not match the breath test results.
  • In the case where there is a Video tape, we want to know if it demonstrates your actions, behavior or conduct is inconsistent with and does not match the breath test results.
  • Recently, more and more of the San Diego population are on the Atkins high protein diet. We may be able to present an argument that such an individual can trigger an auto-generated alcohol production when they introduce carbohydrates to their body, thereby converting ketones into isopropyl alcohol.
  • If we are selected as your DUI Attorney, we will determine if there has been any recent exposure to toxic substances, volatile fumes, including lacquer substances, gasoline, paint, dry cleaning fluids or even brand 409 housecleaner, because they can produce a chemical interference with, and therefore, cause an elevated breath test result.
  • If you are our DUI Defense client and was involved in an automobile accident and the air bag inflated, we will determine if there was exposure to the propellant and/or lung and airway irritation causing fluid build-up from the caustic gas propellant.
  • As your San Diego DUI Lawyer, we want to know whether you had an elevated breath temperature at the time the test was performed as a result of high fever, having recently used a sauna or hot tub, or was detained in the back of the patrol car in summer, or was standing in the hot sun, dancing, running, heavy exercising, or for women who are having a menstrual cycle.
  • We also inquire as your DUI Attorney if you had a blowing pattern irregularity at the time of the breath test, because it can produce artificially high water vapor and thereby cause the test to be unreliable, as in the case in which our client was crying.

We want to know if the officer failed to follow procedures and protocol, taught in the Academy and/or written in the training manual as your DUI Attorney.

• We will look at the officer’s report if we are employed to find indications that support sobriety, are inconsistent with intoxication, or there is evidence that shows the officer did a poor investigation of alternative causes.
• We want to know if the officer was properly trained in accordance with the standards of Title 17 of the California Code of Regulations, including the theory behind the operation of the breathalyzer machine.
• As your DUI DWI Lawyer, we want to  know if there have been adequate and appropriate inspections of the breathalyzer machine by properly trained personnel.
• We will look for improper or inconsistent test results, and then determine if there were follow-up tests in that at least two results are within 0.02% of each other.
• Another defense we can raise is when there is an abnormally high test result, but our client does not urinate for 3, 4 or more hours since this is not physiologically possible.
• If there is a rising blood alcohol level, there may be sufficient evidence to argue the actual BA at the time you were driving would have been lower than the time you in fact were tested.
• If the officer obtains a BA reading below .08 and then waits to perform a second test in which he obtains a .08 and above reading, we will assert a defense to this case as well. Our skilled attorneys look for at least two consecutive similar test results.
• If the officer refused your request for a second, independent test and/or denied your request for a blood test, which is more reliable and deemed most accurate to obtain the BA, this is a defense we will assert as your San Diego DUI Defense Attorney.
• We will inquire whether the officer gave you a chemical test admonition that is too broad, including the case in which he threatens dire consequences and there is no factual basis for such a warning, and/or the officer misstates the consequences regarding the suspension of one’s driving privileges.
• We want to know if the chemical test was obtained over 3 hours after driving ended because there is a rebuttable presumption one’s BA level was at or over the limit at the time of driving only if the test is within 3 hours.
• If the officer makes an illegal, warrantless stop or arrests our client without probable cause, we will argue it can invalidate the DUI charge.
• If the officer moves away from the location of the arrest, is subsequently fired, commits a crime and is indicted, retires or dies before the case goes to trial, we will use that to obtain a dismissal of your case if you request us to be your DUI Attorney.
• And, there are many more defenses, including a determination as to whether the test room was contaminated; interference from a cell phone, an officer's radio, or someone smoking in or near the machine or a recently painted room; a shared power supply with a heater or other appliance because any one of these events can potentially cause an artificially high BA reading;
• We also want to know if the Field Sobriety Tests were performed on a partial hill or slope, &/or a location with heavy traffic.
• We want to know if there was a curved road at the location of the arrest, as that can also affect our client's driving (possible defense to weaving out of lane).
• We want to know as much as possible regarding the test process, including: 
• if the test operator has a current certification.
• when the test machine was last certified.
• when the test machine was calibrated.
• was the mouthpiece changed before the test is given.
• was a written record of the temperature of the calibrating solutions in the machine maintained.
• is there a written log of the tests run for the test machine in question.
• how frequent the calibration solution has been changed in the test machine.

- PROVEN RESULTS -

Attorneys are bound by the California Rules of Professional Conduct and past performance is not an indicator of nor should it be used or relied upon as a basis to predict future results.

C: 3 ^rd DUI. RESULT: Wet Reckless Driving &  NO JAIL TIME.

H: DUI & Failure to Appear.   RESULT: DISMISSED.

M: DUI & >.08 BA. RESULT: DISMISSED.

W: DUI + drug charge. RESULT: Wet Reckless Driving.

H: 25-Years To Life. THIRD STRIKE OFFENDER w/ 4 current Additional FELONY charges. RESULT: 5.5 YEARS (w/ good behavior).

P: Felony Burglary + Grand Theft. RESULT: Reduced To MISDEMEANOR and NO JAIL TIME.

K: Drug Transportation + Unauthorized Use Of dealer Plates. RESULT:  INFRACTION - Disturbing the Peace.

P: Imitation Firearm In Airport on 9/11. RESULT:  DISMISSED.

V: Vandalism. RESULT:  DISMISSED.

S: Weapons Possession + Failure To Appear. RESULT:  Public Nuisance.

A: FOUR (4) Felony Probation Violations. RESULT: NO JAIL. Probation Terminated.

C: Battery. RESULT:  Disturbing The Peace.

S: Felony Probation Violation. RESULT: NO JAIL TIME. Probation Reinstated

T: Grand Theft. RESULT: Petty Theft w/Reduction to Trespass After 18 Months.

B: DUI w/Probation. RESULT:  DUI EXPUNGED and Probation Terminated 2 Years early.

HEARING AFTER A

MOTION TO SUPPRESS

As your DUI/DWI Attorney, the team of lawyers assigned to your case will strategize and hold conferences to analyze the facts and circumstances, including the applicable laws and defenses. In appropriate cases, we will file a pre-trial Motion To Suppress. This is a legal document filed on your behalf in which we ask the Court to exclude evidence the prosecutor is relying upon to win its case. If the Court holds an evidentiary hearing, the officer will be required to testify. This is significant because each time the officer presents evidence, it affords one more opportunity for cross examination.

As your DUI Attorney, we are looking for inconsistencies between the arrest report, testimony the officer may give at the DMV Administrative License Hearing and at this motion hearing. Credibility is a key test to the competency of a witness. Our client's defense is stronger and a case may also be dismissed if evidence can be excluded.

What is the difference between the DMV hearing

and the criminal court DUI case? 

The DMV hearing is an administrative hearing that deals solely with your driving privilege and the circumstances surrounding the arrest, not whether you are innocent or guilty of criminal wrongdoing. At the DMV administrative hearing, the following are the only issues:

• If you took a blood or breath or (if applicable) a urine test:
         1.   Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140, 23152, or 23153 ?
         2.   Were you placed under lawful arrest?
         3.   Were you driving a motor vehicle when you had 0.08% or more by weight of alcohol in your blood?
• If you refused or failed to complete a blood, breath test, or (if applicable) a urine test:
         1.   Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140, 23152, or, 23153 ?
         2.   Were you placed under lawful arrest?
         3.   Were you told that if you refused to submit to or failed to complete a test of your blood, breath, or (when applicable) urine, your driving privilege would be suspended for one year or revoked for two or three years?
         4.   Did you refuse to submit to or failed to complete a blood or breath test, or (if applicable) a urine test after being requested to do so by a peace officer?
  

Please click this link:

 DUI QUESTIONNAIRE 

and after printing and then completing the questionnaire,

CALL SPITAL & ASSOCIATES

to handle your DUI case TODAY.

The Chemical Test

If you are arrested for a DUI, you have a choice of a breath or blood test.If (1) a breath test indicates .08% blood-alcohol or more, or (2) a blood (or, if neither breath nor blood are available, urine) is taken for later analysis, or (3) you refuse to submit to chemical testing, your driver's license is immediately confiscated by the officer (unless you have an out-of-state license); you will receive a "pink" sheet of paper. This is your formal notice of immediate suspension and serves as a temporary license valid for 30 days.

If this is your first offense during the past 10 years, your license will likely be suspended for up to 4 months. We may be able to reduce this to 1 month suspension followed by 5 months in which you can drive with a work restriction if you file proof of enrollment in a DUI school and proof of insurance. If you refuse to submit to chemical testing, your license can be suspended 1 year, and no work restriction is possible. If this is your second offense within 10 years, there is a 1-year suspension; 2-years if there is a refusal. You have only 10 days to call the Drivers Safety Office of the Department of Motor Vehicles to contest the suspension at a DMV administrative hearing. A late request may be obtained in very limited circumstances.

By driving in California, you are deemed to give implied consent (consent/agreement in advance) to the taking of a chemical test [blood or breath (or on very rare occasions urine)] if you are arrested for a DUI. 

If you refuse to take a chemical test when asked to do so by the arresting officer, DMV will consider your actions as a refusal because you have arguably broken your implied agreement to take a chemical test. 

If you are arrested for a DUI and refuse to take a chemical test, you are deemed to have broken your implied consent/agreement. Accordingly, there are penalties for such a refusal. One of the consequences is that DMV will start an administrative action to suspend or revoke your driver license. Also, you will be sentenced more harshly if you are convicted of a DUI. 

At the Spital and Associates, we look for defenses to a refusal. They involve some type of "confusion" on the part of the client. First, if at the time you are arrested you have a medical condition that renders you incapable of understanding what is going on, such as head trauma from a car accident, then we can assert a defense to the penalties associated with a "refusal." Second, if the officer confused you by the way the implied consent rules were explained to you, we will also assert this as a defense. Third, if the officer mistakes, incorrectly states or omits to state the consequences of refusing the test, we also have a basis to assert a defense to a refusal action.

Ordinarily if you have no prior DUI, your license will be suspended for one year if you refuse to take a chemical test and there are no defenses that can be asserted on your behalf. If you were convicted of DUI or "wet reckless" within the previous ten (10) years, your license will be revoked for two years. Your license will be revoked for three years if you receive two or more priors in ten years.

If you have a commercial drivers license and you it is your second refusal in a lifetime, you are disqualified from ever holding a commercial license again for the rest of your life.

You have ONLY ten (10) calendar days from your arrest to request a DMV hearing, or Spital and Associates will do it for you if we are retained in sufficient time . Otherwise, your license will be suspended.

The DMV Administrative Hearing is conducted by a hearing officer who is a State employee. This person is generally not an attorney, but acts as the "judge" and "prosecutor." He can, for example, rule on his own objections. The hearing is conducted like a miniature trial, without a jury and with relaxed rules of evidence. Testimony can be produced by both sides, although the hearing officer usually only produces documents, such as police reports, laboratory reports and the officer's sworn affidavit.

There are three factors that enhance the seriousness of a San Diego DUI charge:   Driving, intoxication, and a prior record. Concerning the "driving" factor, increased penalties arise from being involved in an accident, if there are injuries (can result in felony filing) and/or if you are speeding (more than 20 mph on a street or more than 30 mph on a freeway over the speed limit, exceeding 100 mph, driving on the wrong side of the road, and/or driving with children in the car). The higher the reading of intoxication, the more serious the offense becomes. If your blood alcohol is "twice the legal limit of .08%" (a reading of .16%) or a reading of .20% or higher, there may be an enhanced sentence; this can include an increased program length from three to six months, public works service, and in rare cases, possibly jail time, etc. A second DUI offense is worse than a first. A third is much worse than a second. A fourth within 10 years is usually a felony. Whether probation on the prior offense is still in effect is a factor. Older prior cases can carry less jail time than recent ones.

The DMV generally seeks to take your driver's license away for four months on a first offense, one year for a second offense, and three years for a third offense. At the time of your arrest, the officer will take your driver's license away, and you will receive a temporary license, valid for only 30 days. If you fail to request a DMV hearing within 10 days of your arrest, there is an automatic four-month suspension.

We are also aware of the consequences of a conviction as it relates to employment, the military and future career options. Because we also practice employment and administrative law, we seek to inform our clients as to the effect of a conviction on their current employment, future applications they submit to employers, background investigations, access by government agencies to arrests, and licensing by state agencies as well.

What we will do for you: In those instances in which our client has been involved in a single car automobile accident as a result of the DUI, or involved in an accident with another vehicle and/or there is injury to a third person who is involved in a collision, we assist you in resolving that aspect of the case as well. This not only involves issues concerning (1) probable cause as it relates to the criminal side of the case as in the situation where the officer did not observe our client "driving;" but may involve (2) an insurance carrier wrongfully denying coverage because the accident is deemed "intentional" and as such is excluded from coverage; as well as those cases in which (3) there is an alledged victim that seeks recovery from our client (in this situation we want to resolve this accident claim as early as possible as it is important in the case of "restitution" that a court demands in the underlying DUI case). Handling personal injury cases on a regular basis gives us the insight to focus on and achieve a global resolution for you.

A timely report must be filed with DMV. Vehicle Code section 16000 (a) states as follows:   "The driver of a motor vehicle who is in any manner involved in an accident originating from the operation of the motor vehicle on a street or highway, or is involved in a reportable off-highway accident , as defined in Section 16000.1, that has resulted in damage to the property of any one person in excess of seven hundred fifty dollars ($750 ), or in bodily injury , or in the death of any person shall report the accident, within 10 days  after the accident, either personally or through an insurance agent, broker, or legal representative, on a [ SR-1] form  approved by the department, to the office of the department at Sacramento, subject to this chapter [emphasis added]. The driver shall identify on the form, by name and current residence address, if available, any person involved in the accident complaining of bodily injury.

Therefore, it is important you have immediately contacted your insurance carrier to file the report (this is a SR-1 form) within the 10 day period with DMV or provided the form in order that you can file it directly with DMV during the 10 day period of time.

If injuries are involved,  always request CHP or the police to prepare an accident report. Vehicle Code section 20008 (a) states: "The driver of a vehicle, other than a common carrier vehicle, involved in any accident resulting in injuries to or death of any person shall within 24 hours  after the accident make or cause to be made a written report of the accident to the Department of the California Highway Patrol or, if the accident occurred within a city, to either the Department of the California Highway Patrol or the police department of the city in which the accident occurred  [emphasis added]. If the agency which receives the report is not responsible for investigating the accident, it shall immediately forward the report to the law enforcement agency which is responsible for investigating the accident.

Consequences of failing to filing a report with DMV: Vehicle Code section 16070 (a) states as follows:   "Whenever a driver involved in an accident described in Section 16000 fails to provide evidence of financial responsibility, as required by Section 16020, at the time of the accident, the department shall, pursuant to subdivision (b), suspend the privilege of the driver or owner to drive a motor vehicle, including the driving privilege of a nonresident in this state.

Vehicle Code section 16070 (b) states: Whenever the department receives an accident report pursuant to this article that alleges that any of the drivers involved in the accident was not in compliance with Section 16020 at the time of the accident, the department shall immediately mail to that driver a notice of intent to suspend the driving privilege of that driver. The department shall suspend the driving privilege 30 days after mailing the notice, unless the driver has, prior to that date, established evidence of financial responsibility at the time of the accident, as specified in Section 16021, with the department. The suspension notice shall notify the driver of the action taken and the right to a hearing under Section 16075.

The DMV can restrict your license to drive for one year if you fail to file the required SR-1 form. Hence, it is important you follow up with your insurance agent &/or go to DMV yourself to be certain the SR-1 form is filed. If you did not have insurance at the time of the accident, DMV can suspend your license up to four years [after the first year, however, you can re-instate your driving privilege if you show proof of insurance].

(1) Beer - made from cereal grains (corn, rice) & malt. Malt is sprouted Barley. The enzymes in the malt converts the grain to sugar, then yeast changes the sugar to alcohol. Hops (the blossoms of the hop plant) are added to the mixture for taste.In the U.S. the alcohol content of beer is limited by law to 5%. If the alcohol content is above 5% it cannot be called beer. Mostly this next level of alcohol content is malt liquor.
(2) Malt liquor - has an alcohol content of 5% to 7%.
(3) Wine - is made from fruit & has an alcohol content from 8% to 14%.
(4) Fortified wine - is wine + brandy for more alcohol content.
(5) Wine coolers - made for teenagers (this is white wine + soda pop), because the transition from sweet-tasting pop to sweet tasting wine is easy.

LIQUORS

(1) Vodka - as it is manufactured in the U.S. has no smell, no taste, and it is not aged. Those familiar with the subject contend there is no difference between expensive vodka and cheap vodka.
(2) Gin - is vodka with Juniper berries added for taste. Both vodka and gin are pure alcohol with water added.
(3) Rum - comes from sugar cane.
(4) Bourbon - made from corn alcohol aged in charred oak barrels. Jack Daniels is not a bourbon because it is "charcoal filtered".
(5) Scotch - made from malt and other grains and aged in barrels which were previously used to age sherry. The malt has been dried over burning peat.
(6) Brandy - distilled wine
(7) liqueur - brandies with flavor added. About 20% alcohol, higher than wine but less than whiskey.

Some alcohol is absorbed from the stomach but most is absorbed through the small intestine.

Factors influencing the absorption rate of alcohol:     

ADMINISTRATIVE PER SE IMMEDIATE DRIVER LICENSE SUSPENSION

The Administrative License Suspension Program, known as "Admin Per Se" (APS) became law in an attempt to be an immediate deterrent to anyone driving under the influence.

WHO IS AFFECTED?

DUI/DWI FAQs

How serious is DUI/DWI?

Is it "safer" to drink beer or wine?

Do I have to take a breathalyzer test?

Can I be charged with DUI/DWI for driving after taking drugs?

Should I retain an attorney if I have been charged with DUI/DWI?