San Diego Wet Reckless Dui Attorney

The California Vehicle Code states that driving under the influence of alcohol is illegal. However, there are two possible conditions to determine driving under the influence of alcohol. The first is a subjective standard under VC 23512(a). This part of the law only states that driving under the influence of alcohol is illegal. The second part of the law under VC 23512(b) states that driving with a blood alcohol content (BAC) of 0.08% or higher is illegal.

The second part of the law is fairly cut and dry. If your BAC tests over 0.08%, then you will likely be charged with a DUI. However, the first part of the law is subjective which means that it is left to the discretion of the arresting officer. While it may be a common assumption that if you are pulled over and can demonstrate that your BAC is under 0.08%, you will not receive a DUI, this is not necessarily the case. If the officer notices that you are drifting out of your lane, driving to slowly, too quickly, or any number of other irregular driving behaviors, they may still cite you with a DUI.

There are two key elements to this law. The first is that you must have been driving. While this is seemingly self-explanatory, under the law the definition of driving is having full control over a vehicle while the vehicle is moving. If the vehicle is not moving, as in parked, stopped somewhere, has a malfunction leading to having no control, or any other number of reasons why a vehicle may not be moving, then you may not be guilty of “driving” under the influence.

The second key element is that you must have been under the influence of alcohol or some other substance while operating a moving vehicle. Again, the vehicle must have been moving and operating under your control. If the vehicle was not moving at the time that you were confronted by the officer, then there may not be clear evidence, even from officer testimony, that you were under the influence of alcohol while the vehicle was moving and being operated by you. Also, the definition of under the influence clearly indicates that you must have been under the effects of alcohol and that your motor skills and decision-making capacity were impaired while operating the vehicle. This is tricky because the influence of alcohol varies for any number of reasons for person to person and one person could feel the effects of alcohol different based on other factors as well. In a minute, we will discuss the variance in BAC tests and sobriety tests and explain how it is possible be found innocent of driving under the influence.

Alcohol has different effects on each individual person based on sex, age, body size, and metabolism. Additionally, the number of drinks and the strength of the drinks need to be taken into account and the time period that the drinks were consumed across can also make a big difference. If you drank two beers, were those beers light beers with an alcohol content of 3% ABV (alcohol by volume) or less or were they heavy stouts at 8% ABV or more? If you had two cocktails were the cocktails single or double jiggers? Were the cocktails 150 proof whiskey or 90 proof rum? Were you drinking on an empty stomach? Were you dehydrated or were you already tired? Were you taking some kind of medication or have a medical condition? All of this is to say that just because someone has had “two drinks”, does not mean that their BAC will read above 0.08% and the same person could have two drinks at two different times and have two different BAC measurements.

To complicate matters even further, traditional BAC tests by breath have been shown to have difficulty with reliability. To demonstrate this effect, you can take a breathalyzer device and place it near the mouth of an open beverage. Blowing gently across the mouth of the beverage into the device will yield impossibly high BAC results. In the same way, certain types of drinks and the recency that which you consumed the drink could have a varying effect on your BAC test. Even a blood test, although far more accurate than a breath test, will only show BAC at the time of the test taken. To demonstrate variance in a blood test, drink one ounce of liquor and take a blood test immediately. You will most likely find that your BAC is 0% or near 0%. If you were to continue drinking and checking your BAC, you will most likely find that you will see a sharp spike in BAC as time goes on. This demonstrates how it is possible for you to be entirely sober when you got into your car and become too intoxicated to drive while driving.

Another factor to consider is that it has been shown that completely sober individuals may have difficulty completing traditional sobriety tests. One of the most commonly referred to sobriety tests involves reciting the alphabet backwards. Many demonstrations of this have shown that this is difficult to do even without consuming alcohol. Similarly, adults may find trouble with walking a line heel to toe if they do not typically have to perform such a task. Additionally, if you are pulled over by an officer after having a drink, it is natural to feel nervous and add even more difficulty to being able to demonstrate your sobriety.

To summarize, DUI cases are difficult because of the subjective nature of the law, and it will always benefit you to consult with an experienced DUI attorney. Consulting with an attorney, like San Diego DUI Attorney and thoroughly divulging the details of your case, will help them build a specific case that works in your favor.

Understanding what may or may not constitute a DUI can be difficult so we will use an example. Henry had a night out downtown and had a few drinks. He is usually cautious when it comes to driving after consuming alcoholic beverages, but as he is headed home, he feels completely sober. As he starts the 30-minute drive home, he starts to feel the effects of the alcohol and he realizes that the drink he finished right before he left is only starting to hit him now. Henry decides to park on the side of the road while he recovers. As he is sitting in the driver’s seat, parked on the side of the road, an officer pulls up behind him and flashes his lights. Henry is honest with the officer and says that he had a few drinks and pulled over because he started to feel the effects of the alcohol. The officer asks him to get out the car to perform a few sobriety tests and afterward cites him with driving under the influence.

Henry has a reasonably strong defense because the officer was not present to see if he was operating a moving vehicle. The only thing the officer saw was that Henry was at the wheel of his vehicle with the engine on. Henry could plead guilty to the DUI if he was so inclined, he could attempt to bargain for a wet reckless charge, or he could also argue that he is innocent under the definition of the law and fight the charges in court. Each approach is valid and it is up to you to decide with your attorney the route that you would want to go.

VC 23103.5 or a wet reckless charge is technically a plea bargain offered to those who are guilty of driving under the influence under VC 23152(a) or driving with a blood alcohol content of BAC of 0.08% or higher under VC 23152(b). 

There are several advantages to pleading for a wet reckless instead of a DUI. First, there is no court ordered license suspension. Your license may still be suspended by the DMV or you may be required to install an ignition interlock device (IID), which will allow you to start your car if your BAC tests under the legal limit. To compare, a DUI conviction results in a 6-month suspension for the first offense, 2 years for the second offense, or 3 years for the third offense. If you receive a wet reckless plea and you need to keep your license, then it is important that you contact the DMV and request an APS hearing. The hearing will not be triggered without a request and if you want to ensure that you keep your license you must win the hearing.

Second, the jail sentence is typically shorter and carries a minimum of just five days increasing up to 90 at maximum. To contrast, a first time DUI offense can carry up to a 6-month sentence and a second or third offense can have a jail sentence lasting up to a full year. Bargaining for or taking a wet reckless plea could potentially save you several months of jail time.

Third, the fines are typically lower for a wet reckless compared to a DUI. Negotiating for a wet reckless could potentially save you thousands of dollars. A wet reckless fee ranges from $145 to $1000 whereas DUI fees are a minimum of $350 and can be up to $3000.

Fourth, the probationary period following a wet reckless is typically shorter (one to two years) compared to a DUI (three to five years). A probation period may be served in lieu or in addition to a jail sentence and it involves regularly checking in with a probation officer to ensure that you are meeting the requirements of your probation. Typically, a probation means that you are under heavier scrutiny, and any other criminal charge that you are convicted of during your probation period may result in the termination of your probation and instead you may be required to finish your sentence with jail time. Another important factor regarding probation is that your probation must be successfully completed (i.e. served in its entirety with no other charges) to expunge the record of the wet reckless or DUI. Otherwise, the wet reckless or DUI will continue to show up on employer background checks which makes it significantly more difficult to find gainful employment.

Fifth, if you are charged with a DUI you are required to attend a mandatory three-month program. A wet reckless charge will reduce this to 6 weeks. These mandatory programs are aimed at helping those convicted with a wet reckless or DUI rehabilitate so that future charges do not occur.

Although wet reckless plea has many benefits over a traditional DUI charge, a wet reckless charge is still considered to be a prior offense if you are charged with another DUI within 10 years. This is important because a second or third DUI offense carries much heavier penalties.

Another important but often unforeseen factor to consider is that a wet reckless charge will most likely be seen as a DUI by your car insurance. Your insurance company may decide to raise their prices or even cancel your coverage and it may cost you an additional large sum on top of an already hefty fine to obtain valid insurance and continue to drive.

In order to receive a wet reckless plea, both you and the prosecutor must agree on a plea bargain. If the prosecution agrees, then the plea must also be approved by the court. If all parties agree to the plea, then you will have to plead nolo contendere (otherwise known as a no contest or guilty plea) to reckless driving. Your case will be dismissed as a DUI and the DMV will be notified of your wet reckless conviction.

In certain cases, a prosecutor will offer a wet reckless without prompting. If your BAC was close to or even under 0.08% or if you have no history of drug or alcohol related offenses, you are more likely to receive a wet reckless plea from the prosecution. However, it is not necessarily always in your best interest to take a wet reckless plea. Because the first part of the Vehicle Code law for DUI’s is subjective, you may not necessarily be guilty of driving under the influence if your BAC is below 0.08% and in rare cases, you may not be guilty of a DUI even if your BAC was above an 0.08%. You should immediately consult with an experienced attorney who will be able to inform you what your options are based on the details of your case.

To understand how to best fight a wet reckless or DUI charge, first, we will look at what the prosecution may try to do in order to convict you with a DUI. Since a VC 23152(a) is a subjective offense, the main source of evidence that the prosecution will be able to use against you is the testimony of the officer. The officer will likely testify observations about the state of your driving and of your person while talking to you. They will typically talk about if you were swerving or driving erratically. They may also characterize you with slurred speech, an odor of alcohol, red eyes, and being unsteady on your feet. Additionally, if any sobriety tests were conducted during the incident, they may attempt to use that as evidence against you as well.

However, there may be any number of reasons for erratic driving or the various signs of alcohol consumption. Erratic driving may be due to unseen hazards like serving to avoid an animal that the officer failed to see or road conditions like a pothole. Red eyes and slurred speech might have possibly been due to fatigue or illness and despite consuming alcohol, there is no law against being tired from a long day and having a drink. All of these could be utilized as possible defenses in your case and can reduce your DUI to a wet reckless charge or a wet reckless to no charge at all.