A DUI is among the more serious misdemeanor offenses and if the DUI was committed under certain circumstances such as having engaged in speeding and reckless driving, these penalties can be enhanced.
Under California law, if you are arrested for driving under the influence and your speed exceeds the posted limit an enhancement is triggered if:
- You are 20 miles per hour or more over the maximum, posted or prima facie speed limit (25 mph on urban streets) on a street or public roadway; or,
- 30 miles per hour or more over the maximum, posted or prima facie speed limit on a freeway; and
- You were also driving recklessly
Regarding the maximum speed limit, this applies to certain vehicles such as trucks or buses or cars towing other vehicles that are limited to how fast they may travel. The speed limit for tractor-trailers or school buses transporting students on freeways is 55 miles per hour, for instance.
Again, speeding 20 or 30 miles per hour over the legal limit, is not considered by itself to be conduct that is so egregious as to enhance the penalties. You must also have been driving in a reckless manner and have been under the influence1.
But if you include the conduct of speeding over a certain limit and driving recklessly with a DUI, then the likelihood of causing an accident and injuring others increases substantially so as to meet the definition of willful and wanton disregard for the safety of others.
Driving while under the influence of alcohol or drugs or with a BAC is considered hazardous and dangerous conduct that has a high probability of causing injury to the motorist, passenger or other motorists and pedestrians.
California courts, though, have ruled that a DUI by itself does not constitute “willful and wanton disregard” for enhancement purposes3.
In a DUI case involving speeding, the speed enhancement is not a mandatory charge. In cases involving this sentencing enhancement, the prosecutor must prove that a person was speeding while intoxicated and that the person did this while knowing that it was probable that they could cause injury to someone.
If you are arrested for driving 20-30 or more MPH over the maximum — on a highway in California and the results of a breathalyzer test show that your blood-alcohol content is over the legal limit of 0.08%, prosecutors may decide to charge you with an “excessive speed enhancement” in addition to a DUI charge.
The prosecutor would have to prove all elements of the charge:
- That the person was intoxicated:
- That they were driving 20 to 30 mph above the speed limit; and
- That they were driving recklessly
The penalties for enhancement are substantial. If convicted, you face:
- A minimum 60-days in jail that is added to whatever sentence you receive for the DUI charge
- Mandatory participation in DUI classes
Reckless driving is more than just speeding or making a one-time unsafe lane change. It is conduct that shows willful and wanton disregard for the safety of persons or property4. Your conduct must have demonstrated an awareness that your actions presented a substantial and unjustifiable risk of harm and you intentionally ignored that risk. You need not have intended to cause injury or harm5.
- Racing down a freeway, moving across multiple lanes of traffic, and barely missing vehicles as you swerve in and out of traffic
- Running stop signs and red traffic signals
- Tailgating at high rates of speed
- Playing chicken–a game where cars come straight at each other before swerving off to the side
- Driving on the sidewalk or over a curb to get around traffic
- Forcing your car through a crowd of people
- Driving across oncoming traffic
- Speeding down the wrong-way on a one-way street, dodging vehicles along the way
- Evading a police officer6
- Driving erratically, speeding, swerving in an off-street parking facility
Many instances of reckless driving occur out of road rage. A motorist may have cut off another driver, tailgated for too long, or barely slipped in front of a car waiting in a long line to get access to an exit lane. Out of anger, the motorist returns the favor at the first opportunity by getting in front of the offending motorist, purposely slowing and speeding up, or jerking the steering wheel towards the car and coming dangerously close.
An enhancement to a DUI should be reserved only for conduct that is especially hazardous or egregious. While driving 20 or 30 miles per hour over the speed limit while under the influence of alcohol or drugs is hazardous, the legislature intended only that excessive speed be accompanied by other reckless conduct before a court can impose an enhanced sentence.
An experienced defense lawyer can raise any number of defenses to DUI with enhancement based on speed and reckless driving:
The prosecution must still prove that your BAC was at least 0.08% or that you were under the influence. Any number of challenges to the validity of the breath test results can be raised, if applicable, or to the officer’s conclusion that you were under the influence based on your driving conduct, demeanor, and performance on field sobriety tests.
If a speed gun or radar was not used, this can cast doubt on your actual speed. If there was a speed gun, there are various challenges your defense attorney can mount to the accuracy of the results.
If you merely made an illegal U-turn, tried to change lanes but into the path of another car, or went down a one-way street but realized your error and stopped, this may not be considered willful and wanton disregard for the safety of others. The prosecution must prove that you possessed or demonstrated an awareness that your actions presented a substantial and unjustifiable risk of injury or damage.
In addition, if your attorney is able to convince the prosecutor to have you plea to a wet reckless charge7, then the enhancement will not apply since it is not a DUI conviction, at least for this purpose.
Can I get out of having to go to jail in a speed enhancement case?
No, The judge in your case is mandated to give you a jail term if the speed enhancement charge is proven in your case.
What if I don’t think there is enough evidence to prove the speed enhancement charge in my case?
You should consult an experienced DUI attorney. In some speed enhancement cases, an attorney may be able to fight the charge because there was no radar gun used by the police to track the driver’s speed and there is a lack of evidence to prove the speed enhancement charge.
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Additional Resources – Videos & Presentatons
At the Aizman Law Firm, our experienced attorneys can help you if you are facing a speed enhancement charge by proving that you were obeying all other traffic laws and that you were not driving recklessly when you were arrested.
If you need to speak to an attorney about your case or about a speed enhancement charge in your DUI case, please call our office at 818-351-9555 for a free consfidential consultation.
Request A Free Consultation 818-351-9555
- People v. Nowell (1941) 45 Cal.App.2d Supp. 811 813-814 [↩]
- California Vehicle Code § 23582 [↩]
- People v. Clenney (1958) 165 Cal.App.2d 241,248 [↩]
- Vehicle Code § 23102 [↩]
- People v. Schumacher (1961) 194 Cal.App.2d 335, 340 [↩]
- CVC § 2800.1 [↩]
- Vehicle Code § 23103 [↩]