3 Reasons A “Dry Reckless” Is Better Than A DUI

Overview of a Dry Reckless

Depending on certain mitigating facts and circumstances if you are arrested and charged with a DUI, your defense attorney may convince the prosecutor to allow you to plead to something other than a DUI charge as part of a plea bargain. In many instances, an offer may include a “wet reckless” in lieu of a DUI, or better yet, a “dry reckless”1.

What Does Dry Reckless Mean?

→ ” A dry reckless charge is a misdemeanor that is applied in cases where a person is driving in a way that demonstrates flagrant disregard of the safety of people or property.”

When is a Prosecutor Likely to Offer a Dry Reckless Reduction?

Depending on the circumstances, a prosecutor might be willing to offer a defendant a plea to a dry reckless rather than to the DUI charge.

For example, although you can still be charged with DUI with a BAC under 0.08%, or even with no BAC test result, a prosecutor risks losing at trial without the presumption of intoxication that a 0.08% BAC presents2. Should your BAC be at 0.08%, there may have been problems with the testing process wherein the persons administering the testing device may not have followed California Code of Regulations, Title 17.

Title 17 Violation

Although a test result may not be ruled inadmissible if there is a title 17 violation, it goes to the weight of the evidence. A defense lawyer can certainly argue that the purpose of the regulations was to ensure accuracy and that an error in administering the test cannot be relied on3.

This can be enough to show reasonable doubt since a BAC of 0.08% or under 0.10% coupled with an error in testing, even if minimal, has enough potential for error to place a defendant’s BAC as under 0.08%.

Problems with testing that may incline a prosecutor to offer a plea to a dry reckless instead of a DUI charge include:

  • The breathalyzer was not calibrated properly
  • If a blood test, the sample contained an insufficient quantity of preservative
  • There was a break in the evidentiary chain of custody for the blood sample
  • A breath or blood sample was taken more than three hours after the defendant’s arrest
  • There is medical evidence that the defendant suffered from severe GERD and was experiencing it at the time a breath sample was taken
  • Present evidence that the defendant had residual mouth alcohol that was tested
  • The officer did not fully observe the defendant for 15-minutes before testing
  • The technician was unable to obtain 2 breath samples that did not differ more than 0.02 grams per 100 milliliters of blood alcohol
  • The defendant vomited just before taking the breath test
  • The defendant may not have been properly advised of his rights
  • There may be a lack of probable cause to arrest the defendant
  • There is insufficient or sparse evidence that the defendant was under the influence
Prevailing at The DMV Hearing

If you prevailed at the per se hearing before the DMV, then a prosecutor is also more likely to offer you a dry reckless plea deal. The standard of proof at the administrative hearing for the respondent or DMV to meet is by a preponderance of the evidence, a lesser burden to meet than at a criminal trial where the prosecutor must convince a jury of the defendant’s guilt beyond a reasonable guilt.

Advantage of Dry Reckless over a Wet Reckless Disposition

Getting an offer from the prosecutor for a wet reckless plea rather than a DUI is more likely than a dry reckless plea. In effect, this is a substituted plea since a wet reckless is not an actual offense. A wet reckless is actually a conviction for a “dry reckless” under the vehicle code section but is accompanied by the caveat that alcohol or drugs were involved.

A prosecutor is more inclined to offer a wet reckless if the defendant’s BAC was no more than 0.10% and the driving conduct was relatively innocuous such as slightly speeding, rolling through a stop sign or making an illegal U-turn, and no other vehicles or pedestrians were at risk.

The Dry Reckless Plea

A dry reckless plea has a number of advantages over a wet reckless disposition:

1. A wet reckless is a priorable offense; a dry reckless is not.

This means that if you have a second DUI conviction following a wet reckless plea, courts will enhance your sentence accordingly4. If your prior offense was a dry reckless, a DUI conviction is treated as a first offense.

2. Your insurer will not treat the conviction as alcohol-related.

Auto insurers treat a wet reckless no differently than a DUI in most cases and will either cancel your insurance or substantially increase your premiums. A dry reckless is treated as a reckless driving offense only. Although your premiums will increase, it will not be as substantial.

3. . No affect on your license

A dry reckless plea is not alcohol-related so your license may not be affected. However, if you were initially charged with a DUI, you must still prevail at the per se or administrative hearing before the DMV.

Benefits of a Dry Reckless vs a DUI

As opposed to a wet reckless charge, which is driving with alcohol in your system, a dry reckless has no such connection to a DUI and therefore, although it is classified as a misdemeanor, a dry reckless is a much less serious charge than a DUI.5

1. No automatic or mandatory sentencing enhancement

A subsequent DUI or wet reckless conviction within 10-years means that your sentence will be enhanced. For instance, for a second DUI, you face a minimum of 90-days in jail. There is no mandatory minimum for a any subsequent dry reckless conviction.

2. Shorter jail sentence.

A dry reckless conviction carries a possible jail sentence of up to 90-days. When convicted, you will placed on probation. If you violate the conditions of your probation, you face only the 90-day maximum. If you are on probation for a DUI and violate your probation, you face up to 6-months if it was a first offense or up to one-year if it was a second or third.

3. Less time on probation.

Following a DUI conviction, the court will typically place you on probation for 3 to 5-years. For a dry reckless, the probation period is 1 to 2-years. You have a much longer period to violate your probation with a DUI, exposing you to significantly enhanced sentences.

4. Lower fines

Fines for a DUI range from $390 to $1000. For a dry reckless, the minimum mandatory fine is $145.

5. No mandatory loss of your driver’s license

Because you are not pleading guilty to a DUI, your license is not automatically suspended. But since you were initially charged with a DUI, you still would have had to contest the suspension of your license at the administrative hearing before the DMV and obtained a ruling that your BAC was either not 0.08% or that you were not driving while under the influence of alcohol or drugs.

6. No mandatory participation at DUI classes

Following a DUI conviction, the court will typically place you on probation for 3 to 5-years. For a dry reckless, the probation period is 1 to 2-years. You have a much longer period to violate your probation with a DUI, exposing you to significantly enhanced sentences.

Effect On Insurance and Commercial Licenses
penalty

Insurance companies are more likely to overlook a dry reckless conviction and they are much less likely to cancel your insurance policy or increase your premiums drastically.  A dry reckless conviction will not invite the same amount of inquiry that a DUI or wet reckless might invite with respect to professional or commercial licenses and certifications because it is in no way associated with driving under the influence of drugs or alcohol.6

Choosing a DUI Attorney

The state of California has implemented some of the nation’s harshest DUI laws with tough penalties.  It is important to have a knowledgeable attorney look at your case and attempt to get the charges dismissed or reduced.

A dry reckless may be a possibility in your case if your BAC was right around 0.08% or there is little evidence to support a charge of DUI.  Considering the fact-specific nature of these issues, it is critical to have the aid of an attorney as soon as possible to offer guidance and advocate for your interests.

Time is essential as evidence used in a potential trial is collected from the moment you are stopped by authorities (even before). Do not wait to secure legal help to ensure that you do not inadvertently hurt your case by acting without guidance from an experienced legal professional. Please call our office at: (818) 351-9555 for a free consultation.

Footnotes

  1. CVC § 23103.5 []
  2. CVC § 23152 (b). []
  3. People v. Williams (2002) 28 Cal.4th 408, 417 []
  4. California Vehicle Code § 23540(a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person’s privilege to operate a motor vehicle shall be suspended by the department pursuant to paragraph (3) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550. []
  5. California Vehicle Code 23103(a) – A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving. California Vehicle Code 23103(b) A person who drives a vehicle in an off-street parking facility, as defined in subdivision (c) of Section 12500, in willful or wanton disregard for the safety of persons or property is guilty of reckless driving. []
  6. Id. []

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