The most important part of the discussion of field sobriety tests is that they are voluntary.  While California's implied consent laws punish drivers who refuse a chemical test after being arrested, the field sobriety tests officers use to determine whether they have enough evidence to make an arrest are VOLUNTARY.  If requested to perform any field sobriety test by a law enforcement officer, drivers should politely decline.  Studies have shown a correlation between impairment to drive and the Standardized Field Sobriety Tests (SFSTs) that most law enforcement agencies use to determine impairment.  Still, these tests can produce many false positives, as they are difficult to perform.  Further, officers are trained to use these tests to build evidence of drunk driving, not to actually determine whether a person can safely operate a motor vehicle.  Essentially, it is highly probable that even a sober person could "fail" the tests.  The way to "beat" the field sobriety tests is to decline to perform them in the first place, limiting the amount of evidence the police officer can gather against you. 

The National Highway Traffic Safety Administration (NHTSA) recognizes three field sobriety tests as the Standardized Field Sobriety Tests (SFSTs):  The Horizontal Gaze Nystagmus Test (HGN), One Leg Stand Test, and Walk and Turn test.  Additionally, the California Highway Patrol, responsible for more DUI arrests than any law enforcement agency in California, also makes the Romberg Balance test part of its standard DUI investigation.  Below, you will find a brief overview of each test as well as some of the possible defenses available despite an officer's conclusion that the driver failed the test.  note:  these tests have been approved for use in alcohol-related DUI arrests, but do not have a proven correlation to drug impairment.

HORIZONTAL GAZE NYSTAGMUS TEST
The HGN test is an observation of a subjects eyes and how they move while following an object from side to side.  Nystagmus is a very slight twitching of the eye during pursuit.  In theory, a sober person's eye would track the officer's pen or finger smoothly, rather than in a jerky fashion.  The difference can be likened to a Rolex watch (smooth pursuit of a sober eye) and a Timex (ticking-like movement).  There are many problems with this test, including a failure of the police officer to properly administer the test.  First, officers often perform the test while the subject is seated, in direct ignorance of proper procedure.  Additionally, officers rarely use any scientific tools or methods to determine angles of onset.  If an officer's perception is flawed, they may observe nystagmus where there is none.  Furthermore, there are causes of nystagmus that have nothing to do with alcohol.  Roughly 5% of the population has naturally-occurring nystagmus, while others may have nystagmus caused by the turbulence of an accident (vestibular nystagmus), fatigue or eye strain.  Police are not medical doctors and cannot distinguish nystagmus caused by alcohol impairment.  If you have submitted to an HGN test and were arrested for DUI, you need a knowledgeable, experienced San Diego DUI Lawyer on your side.

ONE LEG STAND TEST
The One Leg Stand test, as the name suggests, asks the subject to stand on one leg, while raising the other off the ground 6 inches.  The officers are testing for balance here, as well as the cognitive ability to follow directions, count and more.  Frequently, the officers will write in their reports that the subject put their arms out to the side for balance and use this as evidence of impairment, i.e. of failing the sobriety test.  The problem is that the officers rarely instruct subjects NOT to do this.  It is a natural instinct that would be exhibited by people stretching in a work out class, and others who may find themselves needing to balance on one leg.  Drunk or sober, this is an unnatural position and not one we practice.  As with the HGN test, being involved in a traffic collision (the root cause of many DUI investigations), can affect results.  Further, medical conditions, injuries, foot pain, back pain, choice of footwear, weather conditions, conditions of the testing surface and more can affect the reliability of these tests.  It takes an experienced DUI lawyer, who understands how the FSTs are properly administered to bring out the officer's failures on cross-examination.  In many cases, your San Diego DUI lawyer can get video footage of your driving pattern and/or field sobriety tests.  While videos will rarely be of sufficient quality to challenge the officer's HGN observations, a close viewing of the video may reveal errors the officer made with the one leg stand, walk and turn, and Romberg tests.

WALK & TURN (HEEL TO TOE)
This is a test that officers will typically demonstrate only partially, and, like the one leg stand test, officers will have a subject perform the test under less than ideal conditions.  Though actual lines are available, the officers usually have the subject walk 9 steps ("there and back") on an imaginary line, then write in the report that the subject stepped off of the imaginary line.  The turn itself, and the first two to three steps following the turn are where most people tend to have trouble.  As with the one-leg stand test, sports injuries, arthritis, back pain, foot problems, bad knees, bad ankles, uneven roads and more can make the test quite difficult.  Additionally, fatigue can be an issue.

ROMBERG BALANCE TEST
The traditional Romberg test asks the subject to stand, feet together, eyes closed and count.  Here, the officer would be looking for swaying, even toppling.  Minor swaying is normal, and not indicative of impairment.  The way that CHP and other law enforcement agencies employ this test is often called a "modified Romberg test" because subjects are not only asked to close their eyes, but also to tilt their head back.  Like the one leg stand and walk and turn tests, this places subjects in an unfamiliar, unnatural and uncomfortable position.  Fatigue, injuries, medical conditions, footwear and more can affect performance on this test as well.

PRELIMINARY ALCOHOL SCREENING - BREATH TEST
The first "breathalyzer" machine that you encounter/encountered during a DUI investigation is called a Preliminary Alcohol Screening test ("PAS").  The PAS utilizes a fuel cell technology that is not as accurate as the testing devices used at the station.  Accordingly, its results are generally not sufficient to prove BAC, but are relevant to the officer's decision to make a DUI arrest.  As such, the PAS is not a chemical test, but rather a sobriety test used in the field to help an officer determine impairment.  The legal significance of this designation is that the test, like all FSTs, is VOLUNTARY.  That's right, you can (and probably should) decline to take this test and will not have any adverse consequences.  In fact, without a PAS result, it is more likely that your attorney will be able to challenge the arrest in court or at your DMV hearing.  If you did happen to submit to a PAS test, your lawyer may be able to use the result to your advantage, particularly if that result is lower than any later-performed test.  This can help with the Rising BAC defense, perhaps the most important defense in most alcohol-related DUI cases.

OTHER COMMON DUI DEFENSES INCLUDE:  Rising BAC, Mouth Alcohol, Medical Conditions, Chemical Test Accuracy, Driving Pattern, Did Police Follow Proper Procedure?, and Challenging a Bad Traffic Stop.

TYPES OF DUI CASES WE HANDLE:
FIRST DUI | DUI WITH A PRIOR | DRUG DUI | DMV HEARING | DUI W/ INJURY | FELONY DUI

If you have been arrested for DUI, one of the possible defenses will be to counter the officer's conclusions regarding your performance on field sobriety tests.  This can help to establish that you were not impaired and/or that the arrest was unlawful, potentially saving you from a criminal conviction and driver's license suspension.  Whether you are facing a first time DUI, DUI with a prior, DUI causing injury or felony DUI, the consequences can be severe and you should do your best to avoid a conviction and save your license.  Call Now for a Free Consultation with a San Diego DUI Lawyer.  619-550-4422

San Diego may not be as world-renowned for its criminal street gangs as nearby Los Angeles, but America's Finest City is home to some of the most dangerous and notorious gangs in the world.  Gangs is a broad term that can include street gangs, prison gangs, "Outlaw" or 1%er motorcycle clubs (MCs), drug cartels and other crime organizations.  San Diego's gangs control much of the drug trade, weapons trafficking, prostitution and counterfeit goods in the city.

A 2013 study by SANDAG found that San Diego is home to 158 gangs and 7,500 documented gang members.  Some notorious gangs with roots and ties to San Diego include: Logan Heights, Shelltown, Lincoln Park Bloods, 30s Crips, 40s Crips, Westside Locos, Paradise Hills, as well as various other branches of the crips, bloods, Mexican Mafia, MS 13 and other national and regional gangs.  San Diego also has ties and chapters connected with Mexican drug cartels, outlaw motorcycle clubs and prison gangs.

With gangs responsible for much of the crime in San Diego and other cities in California, the states have made laws targeting gang members, with enhancements to crimes if committed by gang members and for the benefit of the gang.  While the First Amendment protects our freedoms of association, lawmakers have made clear that they prefer to punish gang members, even if it means lessened freedoms for everyone.  Unfortunately, the courts do enforce these laws and the San Diego County District Attorney's office aggressively prosecutes gang members, adding gang enhancements whenever they can.  In addition to gang enhancements, gang membership can be used as an aggravating factor in setting bail, plea negotiations and bail.  Further, membership in a street gang can have the effect of swaying a jury and prejudicing their deliberations.

Gang membership is "proven" through the use of a "gang expert" usually a gang-division detective.  The detective will testify that tattoos, clothing, affiliations, and statements made by a defendant can go to show gang membership.  I once saw an "expert" testify so broadly that virtually any Latino male with a shaved head would qualify as a gang member.  For many gang members, it is a point of pride to admit being a member of a gang (called "claiming"), but the aggressive enforcement of gang enhancements has led many gang members to reconsider this practice, making it more difficult to prove.

PARTICIPATION IN A CRIMINAL STREET GANG
Penal Code Section 186.22(a) makes it a crime to participate in a criminal street gang and to assist in any gang member's felony conduct.  So in addition to being charged with the principal offense or being an accessory, a suspected gang member will get a PC 186.22(a) enhancement charged added as well.  The government has the burden of proof and must be able to support the contention that a defendant is in fact a member of a criminal street gang, and not just a friend of a gang member or merely present in a gang neighborhood.

CRIMINAL STREET GANG SENTENCING ENHANCEMENT
Pursuant to Penal Code Section 186.22(b), committing a felony for the benefit of a criminal street gang subjects a defendant to a separate and consecutive mandatory prison term.  Prosecutors allege a gang enhancement whenever they believe that the defendant is the member of a criminal street gang and acted for the benefit of the gang.  This enhancement is from two to five years for nonviolent felonies and an additional ten years for violent felonies.  Carjacking, drive-by shootings and home invasion robberies are subject to a 15 year criminal street gang enhancement.  For example, if someone is arrested for selling marijuana, they would likely avoid state prison.  With the gang enhancement, however, the alleged gang member would have to serve at least two years consecutive to a prison sentence on the same crime.  The "for the benefit of a gang" requirement has been read broadly enough to account for virtually all felonies.  Violent felonies, even if motivated by personal issues, are often deemed to further a gang's goal of fear and intimidation.  Additionally, crimes like vandalism will typically be assumed to represent some form of gang communication or representation of testimony.  The prosecution will aslo argue that crimes that bring the defendant money will be money for the gang as a whole.  I have seen the gang enhancement applied to drug sales, pimping and theft crimes. 

CRIMINAL STREET GANG MISDEMEANOR ENHANCEMENT
Moreover, prosecutors may turn any misdemeanor into a felony if the misdemeanor is committed for the benefit of the gang pursuant to PC 186.22(d).  This turns probation cases into state prison cases.  (note: "probation" can include county jail time of up to one year, but not state prison time).  Prosecutors are so aggressive in their pursuit of convictions for gang members, that offenses that might otherwise have been ignored are treated very seriously.

If you or a loved one has been arrested and charged with a serious crime, and/or a gang enhancement, contact the Law Offices of Nicholas Loncar for a Free Consultation with a San Diego Criminal Defense Attorney.  619-550-4422

California's "Attempted Murder" Law is a very serious charge with severe consequences (including the possibility of life in prison).  Pursuant to Penal Code Sections 187 (murder) and PC 664 (criminal attempt), the government must prove that there was an intent to kill a specific person and that there was at least one "direct step" toward killing that person.  Some related charges include: Murder (PC 187), Mayhem (PC 203), Torture (PC 206), Assault (PC 240), Assault with a Deadly Weapon (PC 245), shooting at an inhabited dwelling or occupied vehicle (PC 246) and Drive-by shootings (PC 26100).

Proving attempted murder is complex and a tough task for prosecutors, especially when the defendant has skilled, knowledgeable representation.  Proving intent to kill can be difficult because of the abstract nature of human thought.  While our actions can demonstrate intent to act, it is certainly conceivable that an attack can take place without intent to kill.  An intent to severely injure or maim another person is not enough.  Therefore the facts, and the persuasive presentation of those facts is very important to making this determination.

As for the "direct step" it is important to note that a direct step must me more than merely planning, preparing or contemplating a murder.  Buying a weapon, going to a location where the intended victim may be and other similar behavior does not qualify as an "attempt" under California criminal law.  The direct step can involve using a weapon (e.g. firing a gun), poisoning someone's food or drink, etc.

Defenses to Attempted Murder go beyond stopping the government from proving its elements of intent to kill and a direct step, but the two most common defenses are arguing that there was no "direct step" or that there was no intent to kill.  Other defenses include false accusation, mistaken identity, self-defense and more.

Attempted Murder is a felony, and like murder is divided into first and second degree.  Those convicted of first-degree (premeditated) attempted murder are punishable by life in prison.  Second-degree murder is punishable by five to nine years in California State Prison.  There are enhanced penalties for gang-related crimes, use of a weapon, prior convictions and for crimes involving protected victims (e.g. police officers).  Attempted murder is also a "strike" under California's three strike's law.  This means that even less serious crimes will be punished more harshly in the future after a conviction for a strike offense.

Attempt crimes (called "inchoate" crimes), are often punished less harshly than crimes that have been completed.  The primary reason for this is that harm does affect sentencing.  In attempt murder cases, the victim is still alive, a generally accepted better outcome.  Nevertheless, attempted murder is among the most serious crimes on the books in California.  If you or a loved one is charged with attempted murder, aggravated assault, mayhem, shooting at an inhabited dwelling/occupied vehicle, etc.  Contact the Law Offices of Nicholas Loncar now for a free consultation with a San Diego Criminal Defense Attorney.  We can discuss the details of your case, possible charges, your defenses and get started on a plan that protects your rights and freedom.

EXAMPLES OF ATTEMPTED MURDER CHARGES
1. Jim, an professional fighter, gets into a bar fight and seriously injures someone.  The victim ends up in the hospital in critical condition.  Jim is arrested and the officers book him under Attempted Murder charges.  The officers made an error.  Despite Jim's training and abilities, and the seriousness of the victim's injuries, there is not enough evidence of intent to kill.  Therefore attempted murder is not the right charge.  These charges should be reduced to assault or aggravated assault, and may be subject to California's self-defense law.

2.  George and Ron are gang-members seeking to enforce their boundaries against an encroaching gang.  They have machine guns and plan to ride by on their motorcycles to open fire on the group.  George changes his mind and says he will not go through with the plan just as they are about to head over.  Ron rides down the street and opens fire with the machine guns, shooting one of the men in the leg.  Ron rides back to where George is and they are both cornered by San Diego PD officers.  George and Ron are both arrested and charged with attempted murder.  The charges are incorrect because George withdrew before committing a direct step to complete the attempted murder.  Ron did not intend to kill anyone, as evidenced by his decision to aim for his victims' legs.

3.  Leo is arrested because he fits the description of a convenience store armed robbery/shooting suspect.  The suspect shot the store clerk in the chest, and the clerk was transported to a hospital and survived.  Leo was handcuffed outside when the police brought a witness (a customer in the store) by to identify him.  The witness positively identifies Leo as the shooter.  Leo's attorney should argue that the identification was "suggestive" because he was handcuffed and in police custody.  Additionally, the fact that Leo was identified as the perpetrator while being the only option (as opposed to being picked out of a line-up or photo six-pack), makes the identification less reliable, and that is the only evidence tying Leo to the crime.  He did not have a gun on him when arrested.

To discuss your specific case and possible defenses, contact the Law Offices of Nicholas Loncar for a Free Consultation with a San Diego Criminal Defense Attorney.  619-550-4422

There are numerous grounds upon which you may be able to appeal a decision or judgement in a criminal case.  Sometimes judges simply make the wrong determination, not properly applying the law or abusing their discretion.  Sometimes prosecutors engage in misconduct that can be grounds for reversing a conviction, and sometimes defense attorneys fail to provide adequate (effective) representation.  Through appeals, criminal defendants can get a second chance at justice.  It is important to note that an appeal is not a new trial, although the appellate court can order a new trial or reverse a conviction if it finds compelling reasons to do so.  But the appellate court will not hear new evidence or witness testimony, and will mostly act upon the existing record from trial and other proceedings.  Misdemeanor appeals go to the Superior Court's Appellate Division, while felony appeals are heard by the California Courts of Appeals.  Federal appeals in San Diego are made before the Ninth Circuit Court of Appeals. 

The first step in a criminal appeal is to file a notice of appeal after a conviction at a jury or bench trial.  In misdemeanor cases, a Notice of Appeal must be filed within 30 days of a conviction.  In felony cases, the time to file is 60 days.  The appellate courts have very strict criteria and rules which must be followed in any appeal.  Pending appeals, it is possible to have a sentence "stayed" or to have the court set bail to allow an appellant to remain free while the issues surrounding the conviction are further worked out by the appellate division or appellate court.

Courts of appeal will hear complex issues surrounding admissibility of evidence, due care by an attorney, legal interpretations made by the court, jury instructions given, mistrials and a host of other issues.  More academic in nature, appeals require attorneys who are highly intelligent, have strong research skills and can make persuasive argument before the appellate justices.  If the court does find that a prejudicial error occurred, it can reverse the conviction/sentence or remand the case back to the trial court for re-sentencing, to correct the error, or to re-try the case.

If you or someone you know has been convicted of a crime, and you believe that there was an error or injustice along the way, it may be possible to reverse a conviction on appeal.  Please keep in mind that not all mistakes are sufficient to reverse a conviction.  In fact, courts frequently find errors "harmless" and deny appellate relief where there may be some abuse of discretion, malicious prosecution or ineffective assistance of counsel.  As with the criminal trial process, there are no guarantees in criminal appeals.  Consult with some attorneys to discuss whether an appeal would be appropriate in your case.

California's unlicensed driver laws can carry severe penalties, especially for repeat offenses.  California makes it a crime to drive without a license (VC 12500), while license is suspended (VC 14601), while license is suspended for DUI conviction (VC 14601.2), while license suspended for DUI arrest(VC 14601.5) and habitual traffic offenders who have been caught driving on a suspended license multiple times (VC 14601.3).  Our office has a great track record of getting these charges dismissed or reduced.  In addition to representing clients in court, our firm helps clients to clear any warrants/holds, as well as satisfy any DMV conditions to get a license reinstated.  Since getting a license is the best way to improve the outcome in a criminal case, we can request additional time in court to allow time to reinstate your driving privilege.  We can typically recall warrants within two days, and clear DMV holds caused by failure to appear in court quickly.  No matter how complex your license suspension, contact a lawyer to discuss your best way to restore your driving privilege to avoid future legal problems and get the best possible result in your pending traffic or criminal case.

DRIVING WITHOUT A LICENSE
Vehicle Code Section 12500 prohibits driving without a license, or driving on an expired license, in California.  This offense can be charged as a misdemeanor in criminal court or as in infraction in traffic court.  Fines for driving without a license can be pretty hefty, and once the penalty assessments are added in, can be in the thousands.

DRIVING ON A SUSPENDED LICENSE (VC 14601.1)
Driving on a suspended license is more serious than driving without a license.  The most common reason that drivers suffer a license suspension is for a failure to appear in court on a traffic ticket or misdemeanor case.  Additionally, a license may be suspended for accumulating too many points for other traffic violations.  Driving on a suspended license convictions are "priorable" and carry two points on your DMV record.  If not handled properly, suspended license issues can become like quicksand, making it more and more difficult to restore your driving privilege, and the costs can become enormous.

DRIVING ON A LICENSE SUSPENDED DUE TO DUI (VC 14601.2 and VC 14601.5)
Driving while your privilege is suspended due to DUI is even more significant, with mandatory jail time.  In addition, being caught driving on a license suspended due to DUI may trigger additional license suspensions or the mandatory installation of an ignition interlock device.  DUI suspensions also frequently go alongside probation, meaning that driving on a suspended license due to DUI is most often accompanied by a probation violation.  With DUI probation in San Diego typically lasting 5 years, it is unlikely that someone convicted of DUI would still have a license suspension without still being on probation.  It is also not uncommon for someone to get a second DUI charge while having a license suspension and being on probation from a prior DUI arrest.  These situations can be messy and lead to jail time.
more about probation violations
more about DUI defense

HABITUAL TRAFFIC OFFENDER (VC 14601.3)
Drivers who have repeatedly been stopped without a license can suffer very serious consequences as a "habitual traffic offender."  VC 14601.3 penalties include a minimum of 180 days in county jail!  If you or a loved one has received repeated driving on a suspended license issues, know that the consequences of continuing to drive can be severe.  Consult with a San Diego Criminal Defense Attorney to discuss your case and how to avoid these harsh punishments.

RECOVERING AN IMPOUNDED VEHICLE
An arrest or citation for driving without a license or driving on a suspended license can lead to a 30 day impound of the vehicle, at the vehicle owner's expense.  The easiest way to recover an impounded vehicle is for the driver (unlicensed at the time of the impound) to appear with a driver's license.  Having an attorney who is experienced with DMV and court suspensions is a good start towards getting the license back and recovering the vehicle.  If the driver cannot obtain a license, but the registered owner needs the vehicle, it may be possible to get the vehicle released based on a hardship request.  Contact an attorney to discuss the best way to get your car back.

COURTHOUSE "STING" OPERATIONS
Since officers cannot determine a driver's license status from simply seeing a vehicle, enforcement can be difficult and is "incidental" in nature; i.e. unlicensed driver citations/arrests just happen to occur during some traffic stops.  Law enforcement agencies have, however, begun to engage in targeted enforcement practices.  Some small law enforcement agencies log vehicles that they have stopped previously with an unlicensed driver.  A new technique police departments are using is to identify defendants in criminal cases who are driving on a suspended license and follow them out of court.  Officers will have the court calendar from the following day and can seek out individuals with the worst driving records.  Upon seeing them leave the courthouse, plain clothes officers will follow suspected habitual traffic offenders out of court and to their vehicles.  Driving without a license is always illegal, but driving to court without a license is especially dangerous.

USE OR POSSESSION OF A COUNTERFEIT DRIVER'S LICENSE
Possessing a fake driver's license can be treated seriously in California.  PC 470 (forgery), PC 472 (forgery of a government seal) and VC 14610 (unlawful acts with a driver's license) can carry serious penalties, including a criminal misdemeanor charge, a one year driver's license suspension, jail time, community labor and probation.  Additionally, a fake driver's license can be a crime involving moral turpitude for immigration purposes. 

Facing charges involving driving without a license, suspended license or possession of a counterfeit license can all be very serious in San Diego.  If you or a loved one has been arrested or charged with one of these driving offenses, contact the Law Offices of Nicholas Loncar now for a Free Consultation with a San Diego Criminal Defense Attorney.   We can discuss the details of your case, as well as determining what defenses apply and get started on your defense.

Two common misdemeanor offenses in San Diego are Drunk in Public/Public Intoxication and Under the Influence of a Controlled Substance.  These laws do not reflect the most serious or dangerous conduct, but are nonetheless convictions you would want to work hard to keep off of your record.  A history of substance abuse on your background check could affect immigration status, employment, professional licensing, child custody and more.  If you or a loved one has been arrested or charged with public intoxication or being under the influence of a controlled substance, consult with a San Diego Criminal Defense Attorney to discuss your defenses and your options for keeping your record clean. 

PENAL CODE SECTION 647(f) - DRUNK IN PUBLIC
Consuming alcohol is legal in California, and is frequently done in a public place.  To be clear, PC 647(f) does not ban consuming alcohol, even to the point of impairment, and then walking around in a public place.  There are much different standards for alcohol impairment in DUI cases, and alcohol impairment regarding Public Intoxication charges.  While an impaired driver will be charged with DUI for being above the legal limit or being to impaired to safely operate a motor vehicle, the standard for public intoxication is MUCH higher.  In order to sustain a conviction for Drunk in Public, a person must be so impaired that they are unable to care for their own safety or the safety of others.  For example, a person walking in the middle of the street, crossing train tracks, or stumbling in a crown and knocking others over.  What is important to note is that simply being under the influence of alcohol in a public place is NOT against the law.  If it were, San Diego Police could round up most of the people walking around Pacific Beach or the Gaslamp at night.  This is not the intention of the law, but police do sometimes make an arrest for public intoxication where it is not justified, yet another reason that having a skilled, aggressive and knowledgeable attorney is so important.

HEALTH AND SAFETY CODE SECTION 11550 - UNDER THE INFLUENCE OF A CONTROLLED SUBSTANCE
The Health & Safety Code prohibits the possession of certain drugs, including cocaine, heroin, prescription medications, methamphetamine, MDMA and marijuana.  What many do not know, is that even if not found in possession of these substances, being under the influence can lead to an arrest and criminal charges.  Proving drug impairment can be quite difficult.  Although some police officers receive special training to identify drug impairment, there are not as many studies and resources for them to lean on in such training, as there are with alcohol intoxication.  Police officers will often make an unfounded arrest under HS 11550.  Their lack of expertise and ability to diagnose drug impairment can lead to false arrests, but also make proving actual impairment difficult when a lawful arrest is made.  If you or a loved one has been arrested or charged with being under the influence of a controlled substance, you need a skilled San Diego Defense Attorney on your side.
more drug crimes

DIVERSION PROGRAMS AND EXPUNGEMENTS
Even if the government has a strong case for public intoxication or under the influence of a controlled substance, it may be possible to avoid a conviction through a diversion program, where AA/NA meetings and other steps can substitute for jail time, probation and a misdemeanor conviction.  If you have previously suffered a conviction or an arrest for public intoxication or for being under the influence of a controlled substance, consult with a lawyer about what steps you can take to clean up your record, whether through expungement, a motion to terminate probation early, or a petition to seal and destroy your arrest record.
more about expungements

Being arrested or charged with a crime is scary and stressful.  There is a potential for serious consequences, but there is one step you can take to protect yourself from those consequences - hire an attorney to represent you and fight the charges against you.  Our framers and founders would be devastated to learn that our "Land of the Free" imprisons more of its citizens than any other nation on earth.  When facing criminal charges, it is important to fight this oppressive system and protect your own important rights.

California Vehicle Code Section 23152(b) makes it a crime to drive a motor vehicle with a BAC at or above the legal limit of .08, at the time of driving.  There are many defenses to this charge, but the "Rising BAC" defense is probably the most common.  In addition to challenging the accuracy of the test, a thorough DUI defense will examine whether the BAC, as tested, accurately reflects the driver's BAC at the time of driving.  Most often, driver's arrested for DUI are still in the absorptive phase, meaning that their BAC level will continue to rise.  There are several reasons for this.  Alcohol can take several hours to be fully absorbed into the blood stream.  As such, drivers who recently consumed an alcohol beverage, then drive home immediately, have not yet begun to feel the effects of recent drinks, and may have been below the legal limit at the time of driving, even if they test above the legal limit an hour or two after driving.  Additionally, it is the odor of alcohol which often triggers an arresting officer's suspicion of DUI.  When an officer can smell alcohol on a driver's breath, it is likely the case that they have been drinking recently, and are in the absorptive phase.  Testing is often delayed up to two or three hours, making the tests unreliable.  The alcohol absorption pattern cannot be accurately determined, and with the burden of proving BAC at the time of driving on the government, Rising BAC is a strong defense.

That's right.  Many of the people who are arrested for DUI and give a blood or breath sample above the legal limit, are actually below the legal limit at the time of driving.  If a person drives a short time after drinking, their BAC is likely still on the rise, meaning that as more time passes, the BAC level will continue to go up before it begins to come back down.  By establishing a pattern of drinking with witness testimony or receipts, and calling an expert witness to interpret the timing of the tests, a skilled San Diego DUI Lawyer can help to assert a rising BAC defense in your case.  If you tested above the legal limit, there may be a wide range of defenses, including Rising BAC, Mouth Alcohol, Medical Conditions, Field Sobriety Tests, Driving Pattern, Did Police Follow Proper Procedure?, and Challenging a Bad Traffic Stop.

The rising BAC defense is most often asserted at trial, used as leverage in plea negotiations with the prosecuting attorneys, or used at a DMV hearing to protect a client's driving privilege.  Most effective with a qualified expert witness, it is important to educate the trier of fact that chemical tests become less accurate to BAC at the time of driving as time passes.  And while many would assume BAC to decrease as time passes, it is important that a jury, judge or hearing officer be fully informed about the process by which alcohol is absorbed into the body.  Alcohol absorption occurs in the lower intestine, and alcohol that is still in the stomach has not yet entered the blood stream, affecting a breath or blood test and a driver's ability to safely operate a motor vehicle.

EXAMPLE OF THE RISING BAC DEFENSE IN PRACTICE:
Jeff, a Mission Valley resident, works in Downtown San Diego.  After work, he and co-workers go to a weekly happy hour, where they have a few drinks and unwind.  After two cocktails, Jeff gets in his car to drive home.  On his way back, he is pulled over by the California Highway Patrol for speeding.  Jeff consumed his second drink approximately 15 minutes prior to being pulled over, and his breath smells like alcohol.  The officer asks Jeff to step out of the vehicle, answer a series of questions and perform a bunch of field sobriety tests.  After the tests, now 45 minutes since the traffic stop, the officer asks Jeff to blow into the preliminary alcohol screening (PAS) device.  Jeff agrees (though this test is voluntary) and blows a .09 BAC.  Jeff is arrested and transported to the station.  At the station, Jeff submits to another breath test, this time yielding a .10 result.

Jeff hires a San Diego DUI lawyer to represent him.  Jeff's lawyer requests a DMV hearing and gets the discovery (police reports, video footage, etc.).  It is immediately apparent to Jeff's attorney that there is a strong Rising BAC defense.  Not only does the rising pattern in the two tests indicate that Jeff's BAC was on the rise, but the smell of alcohol on Jeff's breath supports that notion as well.  Furthermore, Jeff's co-workers are witnesses to when he drank, and can confirm that his second drink was shortly before he drove.  Jeff's lawyer can assert the Rising BAC defense, among other defenses, at both the DMV hearing and in the criminal court case.

OTHER DUI DEFENSES INCLUDE:
MEDICAL CONDITIONS | MOUTH ALCOHOL | PROBABLE CAUSE FOR STOP | TESTING ACCURACY
PROPER TESTING PROCEDURE | DRIVING PATTERN | FIELD SOBRIETY TESTS

TYPES OF DUI CASES WE HANDLE:
FIRST DUI | DUI WITH A PRIOR | DRUG DUI | DMV HEARING | DUI W/ INJURY | FELONY DUI

If you or a loved one has been arrested and charged with Driving Under the Influence (DUI), you need a passionate, aggressive and knowledgeable San Diego DUI Attorney on your side to fight for you and assert your rights.  Contact a San Diego DUI Lawyer now for a Free Consultation and to discuss how the Rising BAC defense, and other defenses might apply to your case.  It is also important to remember in DUI cases, you have only 10 days to request a DMV hearing to protect your driving privilege.

California's "Hit & Run" laws are codified as Vehicle Code Sections 20001 (hit and run causing injury) and VC 20002 (misdemeanor hit and run).  The California Vehicle Code makes it a crime to leave the scene of an accident, where there was some property damage or injury without stopping to identify yourself to the other party or parties involved in the accident.  Hit and run does not require that the fleeing party be at fault in the accident.  Without an injury, hit and run is a misdemeanor pursuant to VC 20002.  In cases where someone is injured, hit and run is a "wobbler" and can be filed as a misdemeanor or felony, per VC 20001.  California's Hit & Run laws can carry serious consequences, including jail, restitution, probation and a license suspension.  If you or a loved one is facing hit and run charges, it is best to have an experienced attorney in your corner from early on in the process.  Contact the Law Offices of Nicholas Loncar for a Free Consultation with a San Diego Criminal Defense Attorney.

CONSEQUENCES OF A HIT AND RUN CONVICTION IN SAN DIEGO
Misdemeanor hit and run is punishable by up to 6 months in county jail.  In reality, someone without a criminal record may be facing up to 30 days in SD County Jail and three to five years of misdemeanor probation.  The fines for a misdemeanor hit and run conviction in San Diego are typically as high as $1500.  In addition, a conviction for hit and run can add two points to your driver's license or, if there is an injury, lead to a suspension.  The alleged victim will also be entitled to recover restitution, compensating the victim for any property damage or medical bills.  In felony hit and run cases (VC 20001), is punishable by up to three years in prison, more if the injury is serious or if someone is killed. 

COMMON DEFENSES TO HIT AND RUN
Hit and run charges can be defended in many different ways.  The government has the burden to prove, beyond a reasonable doubt: (1) who was driving when an accident took place, (2) that an accident took place, (3) that there was damage or an injury, and (4) that the defendant did not stop to identify themselves to the other party.  Proving who was driving at the time of an alleged hit and run can be a difficult process for law enforcement.  Because the driver did not stop, there is often little evidence tying a specific person to the criminal act.  In most cases, a police investigation will follow a witness tip identifying the vehicle (by license plate number, for example), but not necessarily the driver.  Other times, when the accident causes serious damage and a vehicle is not drivable, the driver will be gone by the time police arrive, fleeing on foot.  This means that witnesses may have gotten a look at the driver, but may or may not be able to make a positive identification.  Additionally, common defenses include that there was no accident, that there was no damage/injury to another party, that the driver did not realize that there was an accident/damage/injury, that they did provide/attempt to provide information to the other party, or that the flight was caused by a reasonable fear for the driver's safety. 

If you or a loved one is under investigation or has already been arrested or charged with hit and run, it is best to have an attorney involved as early as possible.  By representing the registered owner in a hit and run case, a San Diego Criminal Defense Attorney can usually get a case resolved without criminal charges even being filed.  Additionally, it is possible to work out what is known as a civil compromise.  Penal Code Sections 1378 and PC 1379 allow for a misdemeanor hit and run case (and some other misdemeanors) to be dismissed if the judge is satisfied that the alleged victim has been fully compensated for their loss.

THE HIT & RUN INVESTIGATION STAGE IN SAN DIEGO
Hit and run accidents almost always require additional investigation before an arrest can be made or criminal charges are filed.  Due to the nature of the crime, there is frequently a lot of uncertainty regarding (1) who was driving, (2) whether there was an attempt to flee, (3) whether there was any damage (including pre-existing damage), and more.  Therefore, a detective will usually be assigned to follow up on leads and try to build evidence against the driver.  If the investigating officer has witnesses, they may show the witnesses a photo lineup of different people who fit the description.  The goal here is to get a witness to positively identify the driver.  The police will also interrogate suspects (usually the car's registered owner), and attempt to get a confession or accusation.  This investigative stage is very important for the government's case, and must be handled properly to ensure compliance will DMV and insurance requirements, while also protecting the driver and or registered owner from criminal prosecution.  Having an experienced, knowledgeable criminal defense attorney on your side, handling the investigation is the best way to avoid criminal charges during the investigative stage of a hit and run case.  If you or a loved one is under investigation for DUI, contact the Law Offices of Nicholas Loncar for a Free Consultation with a San Diego Criminal Defense Attorney and DUI Lawyer.

RECOVERING AN IMPOUNDED VEHICLE IN A SAN DIEGO HIT AND RUN CASE
If your vehicle was impounded after an accident, the vehicles registered owner should be able to recover the vehicle from police impound, but be careful, as the vehicle is frequently used as bait by police to incriminate the driver and/or registered owner.  The police may keep a vehicle as evidence for a short time, but that does not mean that the registered owner or driver must give a statement.  Police officers will use the impounded vehicle to trick registered owners into either making a statement incriminating themselves or revealing the actual driver of the vehicle and making an accusation.  When dealing with a California hit and run investigation, particularly one with an impounded vehicle, it is important to have knowledgeable, dedicated representation.  No one is under any obligation to disclose information to the police, and no one may be forced to incriminate themselves during interrogation.

CRIMINAL HIT AND RUN CHARGES IN COURT
In the event that the police do gather enough evidence to justify filing a criminal charge in court, the defendant will have to defend against the charges in Superior Court.  There still may be defenses and holes in the evidence that can lead to a dismissal, trial win, reduced charge or favorable plea negotiation.  Even if the defendant is accused, confessed, is identified by a witness, it is possible to avoid a conviction.  The defenses discussed in this article, other defenses, and the possibility of a civil compromise ("civ. comp." for short) mean that there are many ways to avoid a conviction and avoid jail time.

If you or someone you know is under investigation or has been charged with hit and run, driving on a suspended license, DUI or any other crime in San Diego County, contact a San Diego Criminal Defense Attorney now for a free consultation.  We can discuss your defenses, your goals and get working on your case.  619-550-4422

Breath Alcohol testing devices are designed to take the concentration of alcohol in the alveolar air in a subject's lungs, and use a standard ratio to determine blood alcohol concentration.  This process is flawed in MANY ways, including in its fundamental assumption that a standard ratio between breath and blood even exists.  Further diluting the credibility of breath test devices is the interference of alcohol in the mouth when a breath sample is provided.  Alcohol in the mouth can cause a falsely high BAC reading with preliminary alcohol screening devices, as well as the breathalyzers used at police stations to procure an evidential sample.  Certain conditions may affect testing even more.

DENTAL WORK
Bridges, crowns, caps, braces, implants, dentures and other dental work can trap alcohol in the mouth, leading to falsely high BAC readings when testing breath alcohol.  While a single filling may not help you explain away a .20 BAC, it is important that you discuss any major dental work, periodontal disease (gingivitis) or other dental and medical conditions with your DUI Lawyer.  Paired with other defenses regarding the accuracy of breath test devices, the impact of medical conditions and more, it may be possible to cast doubt in cases where the driver's BAC did test above the legal limit.  In addition to dental work, lip, cheek and tongue piercings may trap alcohol and affect breath test accuracy.

REGURGITATION
Vomiting, burping and even coughing can cause alcohol from the stomach, not yet absorbed into the blood stream, to enter the esophagus and mouth.  While the unabsorbed alcohol in a driver's stomach has not yet begun to affect the driver's impairment, actual blood alcohol concentration or ability to drive, it can affect a breath test for alcohol.  California law requires police officers to continuously monitor a driver for 15 minutes prior to a breath test in order to ensure that the driver does not, among other things, burp or vomit.  The law recognizes the potential for inaccuracy caused my these acts.  What is important to note is that the arresting officer will have a lot to do while also "continuously monitoring" a subject.  It is vital to have an experienced DUI attorney on your side who can point out all of the things that an officer did that makes it impossible that they could have monitored a suspect closely enough to determine whether they belched or vomited.  The arresting officer will frequently look down to take notes, write in their report, demonstrate field sobriety tests, prepare the preliminary alcohol screening device, and much more.  This failure of attention by the officers shows that the officers did not follow proper procedure, but also raise the possibility that mouth alcohol, through regurgitation of unabsorbed alcohol in the stomach,

G.E.R.D. AND OTHER MEDICAL CONDITIONS AFFECTING MOUTH ALCOHOL
Burping, vomiting, gum disease, cavities and more can increase the effect that mouth alcohol can have on a breath alcohol test.  A hiatal hernia can also cause falsely high BAC readings due to mouth alcohol.  As with your dental work, you will want to carefully discuss your medical history and any diagnoses with your attorney to evaluate your defenses.
more on medical condition DUI defenses

NON-DRINKING FALSE POSITIVES
Mouthwash, medicines containing alcohol, mouth sprays, etc. can leave alcohol in the mouth even when no alcohol is actually ingested.  Two minutes after using Listerine, a person's BAC would read as high as .20, or two and a half times the legal limit.  Of course, since the Listerine is not swallowed, the actual BAC would really be .00, and a driver would not be impaired by having rinsed or gargled a mouthwash containing alcohol.  Nonetheless, this alcohol can show up on a breath test and skew results.  There are many other substances that can read falsely as alcohol in breath tests, including soy sauce.

OTHER DUI DEFENSES:
RISING BAC, MEDICAL CONDITIONS, FIELD SOBRIETY TESTS, INACCURACY OF TESTING DEVICES, FOLLOWING PROPER PROCEDURE, UNLAWFUL STOP (NO PROBABLE CAUSE) and more.

TYPES OF DUI CASES WE HANDLE:
FIRST DUI | DUI WITH A PRIOR | DRUG DUI | DMV HEARING | DUI W/ INJURY | FELONY DUI |

If you or a loved one has been arrested and charged with DUI, contact us now for a Free Consultation with a San Diego DUI Lawyer.  We can discuss your case in detail and evaluate the strengths of your various defenses.  In DUI cases involving breath tests (either at the scene and at the station), your San Diego DUI Lawyer may be able to raise some doubt about the results by asserting the "mouth alcohol" defense on your behalf.  During a consultation, you should discuss any dental work, oral piercings, medical conditions or any burping or vomiting.  619-550-4422

After an arrest for DUI, California drivers will typically have their driver's license taken away from them at the scene of the arrest, and be issued a temporary 30 day license.  This pink sheet of paper serves as a driver's license until an automatic, administrative suspension kicks in.  A first DUI carries a 4 month administrative suspension, regardless of whether there is ever a criminal court conviction.  The DMV's Administrative Per Se ("APS") suspension process is separate from any action that the court may take against your license.  APS suspensions with a prior DUI conviction, or if there is a chemical test refusal are for one year. 

HOW DO I GET A DMV HEARING?
You have only 10 days from the date of arrest to request an APS hearing.  You must call your local Driver Safety Office or have your attorney do so, to preserve your right to a hearing.  Winning DMV hearings is a tough task, even for most attorneys.  It is highly recommended that if you wish to keep your license, you have an attorney handle both your DMV hearing and

WHAT HAPPENS AT A DMV HEARING
In order to sustain an administrative license suspension, the Department of Motor Vehicles must show that there was probable cause for arrest, that the petitioner was in fact driving, that the driver had a BAC above .08 or that the driver refused to submit to a chemical test.  Additionally, prior convictions will be proven using an H-6 printout, the driver's DMV driving history.  Both sides, the hearing officer and your lawyer can call witnesses with opportunity for cross-examination by the other side.  It may also be to your benefit to have an expert witness testify at the hearing to assert certain defenses.

HOW CAN I WIN MY DMV HEARING
Winning a DMV Administrative Per Se Hearing is very difficult.  Not only is the burden of proof lower at a DMV hearing than it is in court, but the DMV hearing officer plays the role of both "prosecutor" and "judge" at the hearing, tasked both with putting on the department's case, and with deciding whether the case has been made.  To make matters worse, hearing officers do not have a legal education or background.  Still, there are defenses you can assert, including:

-No Driving                                                           -Failure to follow proper testing procedures
-Bad Traffic Stop                                                  -Did Not refuse a chemical test
-Not above .08 BAC                                             -Rising BAC (was below .08 at the time of driving)
-Admissibility of Evidence                                    -Reliability of testimony and test results

If you or a loved one has been arrested for DUI, note that there are two distinct processes to protect your rights and your driving privilege.  Waiting until your court date to deal with the consequences of your DUI arrest will likely result in the automatic suspension of your license.  Contact the Law Offices of Nicholas Loncar for a free consultation and to discuss your DUI case.  Our office has handled a wide range of DUI cases, both in court and with the DMV

UNDER 21?
California drivers under 21 are subject to a zero tolerance policy, and are not governed by the .08 standard applied to drivers 21 and over.  There is still a right to a DMV hearing, and many of the same defenses apply.  Your San Diego DUI Lawyer can still challenge the stop, challenge the arrest, challenge driving, and contest the admissibility of any evidence against you.  The stakes are high in Under 21 APS hearings, with a one year suspension being upheld with a loss.  Additionally, it is not possible to obtain a restricted license during this period.  Drivers under 21 may only apply for a Critical Needs Restriction, but must show extreme hardship in order to restore a driving privilege.

ADDITIONAL FACTS
APS suspensions generally do not apply to Driving Under the Influence of Drugs (VC 23152(e)) arrests.
The DMV can act to suspend your license for medical reasons, even for drug use.  A medical suspension lasts until the driver can prove that they can safely operate a motor vehicle.