DUI Penalties

Dry Reckless & Wet Reckless: What Is The Difference?

November 3, 2011 | The Law Offices of Susan L. Hartman

A dry reckless is defined under California Vehicle Code Section 23103. It states, “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.”

The penalty for a guilty plea or a conviction under this statute is “imprisonment in a county jail for not less than five days nor more than 90 days or by a fine of not less than one hundred forty-five dollars ($145) nor more than one thousand dollars ($1,000), or by both that fine and imprisonment.”

Most often in San Diego County, the prosecutor offers three years of informal probation and a fine of approximately $855 on a dry reckless case. In addition, this is a non-alcohol, non-drug, and a non-injury charge; therefore, it is not a priorable offense. This means that if you are charged with drunk driving in the future, this conviction cannot be used to enhance the punishment of that case.

A wet reckless is a reduced drunk driving charge, California Vehicle Code Section 23103(a) per 23103.5.

The statutory penalty for a guilty plea or a conviction under this statute is the same as a dry reckless, with the addition of an alcohol and drug educational program. However, in San Diego County, the standard offer is three years of informal probation, a fine of approximately $1,036, a first conviction alcohol and drug education program, (either three months or twelve hours depending on the BAC), a one hour MADD (Mother’s Against Drunk Driving) panel class, and a referral to SAAU, (Substance Abuse Assessment Unit).

Unlike the dry reckless, the wet reckless conviction is priorable. So if you plead or are convicted of a wet reckless and you are facing another DUI within ten years, the wet reckless will be looked at as a DUI, thus enhancing the punishment in the new case.

Both a dry and wet reckless are lesser charges in drunk driving cases. Often the prosecutor will offer the reduced charge if the blood-alcohol content, or BAC, is close to the legal limit of a .08 percent or if there are problems with proving the DUI case. An experienced drunk driving attorney may be able to negotiate one of these lesser charges after evaluating the weaknesses in the prosecutor’s case.

The above blog article summarizing dry reckless and wet reckless is by no means all-inclusive and is not legal advice. Each case involves distinct facts which may change the offer given by the prosecution or the sentence imposed by the judge. In addition, laws may have changed since the last update. For the latest information on drunk driving cases, the penalties, and your specific facts and possible defenses, contact a DUI defense attorney in your area.

Is Drunk Driving A Misdemeanor Or Felony In California?

October 28, 2011 | The Law Offices of Susan L. Hartman

The majority of all DUI cases in California are filed as misdemeanors. Some are filed as felonies.

What is the difference between a misdemeanor and a felony? The California Penal Code Section 17 states, “A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.”

There is more of a stigma and the punishment is greater for those accused and convicted of a felony rather than a misdemeanor. Usually felony punishments require a sentence of a year or more in a state prison. Misdemeanor convictions carry the possibility of a year or less in the county jail.

As for drunk driving cases, most often first, second, and third DUI’s are charged as misdemeanors. However, if there are aggravating factors, the charges may be raised to a felony. For instance, if the DUI caused injury or death of another, the defendant has three or more prior DUI’s or wet reckless convictions within ten years, or the defendant has a prior felony DUI conviction, the new case will often be charged as a felony.

If the DUI caused injury or death to another, the driver may be charged with either: 1.) Driving under the influence causing injury under California Vehicle Code Section 23153; 2.) Vehicular manslaughter under California Penal Code Sections 191.5 and 192; or, 3.) Murder under Penal Code Section 187. The charges usually depend on the seriousness of the injury.

If the defendant has been convicted of three or more DUI’s and/or wet reckless offenses, the new case may be charged as a felony. This would include any out-of-state convictions that are equivalent to a California DUI.

If the defendant has a prior felony drunk driving conviction and then picks up another DUI, regardless that it would normally be charged as a misdemeanor, the new case can be charged as a felony.

Cases which may be charged as a misdemeanor or felony are called “wobblers.” The prosecutor has discretion to decide how to charge a particular matter; however, an experienced drunk driving defense attorney may be able to negotiate a plea agreement where the defendant pleads to a reduced misdemeanor charge. If the prosecutor refuses such an offer, a skilled DUI defense attorney may motion the trial court to reduce the felony to a misdemeanor.

Drunk Driving And It’s Effects On A Pilot’s License

September 13, 2011 | The Law Offices of Susan L. Hartman

Driving under the influence charges can pose a threat to your livelihood. If your profession, business, or service requires you to have a state license, a criminal conviction may impact obtaining or renewing your license.

If you are a pilot, there are stringent rules and procedures that must be followed if you are arrested for DUI. A conviction or motor vehicle action (MVA) may result in sanctions against you, so you need to seek legal counsel immediately to know and understand your rights and responsibilities.

The Federal Aviation Administration is governed by the Federal Aviation Regulations (FAR) which are found under the Code of Federal Regulations (CFR). 14 CFR Section 61.15 deals with alcohol or drug offenses, not involving the use or operation of an aircraft, and the effects on a pilot’s license.

The pilot has 60 days from the effective date of the administrative action, (driver license suspension, revocation, or cancellation), or conviction to report the MVA to the FAA. Notification must be done in writing and not over the phone. The FAA provides a standard “Notification Letter” on their website.

Each event, conviction, or administrative action must be reported. This means that one incident that leads to an administrative action and a conviction requires two notifications to the FAA. Even though two notification letters are sent, it will be deemed as one alcohol-related event for investigation purposes.

The reporting requirements for a MVA does not include a conviction for reckless, careless, or negligent driving, but it does include any administrative action. However, arrests, administrative actions, and convictions are reportable under the airman application for a medical certificate.

Once a MVA is reported, an investigation will be initiated. Investigators will ensure that the MVA was timely reported and that no other reportable actions were involved. If the MVA is reported after the required 60 days, but before the FAA discovers the MVA, that will be considered a mitigating factor in determining the sanction. Failure to notify the FAA within the 60 days may result in the denial of an application for any certificate, rating, or authorization issued for up to one year after the date of the MVA or a suspension or revocation of any certificate, rating, or authorization issued.

Due to a provision in the “Application for Airmen Medical” form 8500-8, the pilot gives consent for the National Driver Register, or NDR, to release the pilot’s driving record to the FAA. So eventually, the FAA will find out about MVA’s regardless of the pilot reporting it on their own.

If the FAA finds out about the MVA and it was not self reported, a formal investigation will be initiated. The pilot will be given a Letter of Investigation with an opportunity to respond.

DUI Conviction: How Can It Impact Professional Licenses?

September 7, 2011 | The Law Offices of Susan L. Hartman

In California, many professions require a license by the State of California. When applying for or renewing a license, the applicant is usually asked if they have ever been convicted of a crime, this includes the crime of driving under the influence.

These licensing agencies are governed by the California Business and Professions Code (B&P Code). B&P Code Section 480 explains the process by which a board may deny a license to an applicant.

Under B&P Code Section 480(a)(3)(B), “The board may deny a license pursuant to this subdivision only if the crime or act is substantially related to the qualifications, functions, or duties of the business or profession for which application is made.”
When filling out the forms, it is imperative that you are truthful because under B&P Code Section 480(c), “A board may deny a license regulated by this code on the ground that the applicant knowingly made a false statement of fact required to be revealed in the application for the license.”

If the conviction has been expunged under California Penal Code Section 1203.4, you are not relieved from the obligation of disclosing the conviction in response to any direct questions in any questionnaire or application for licensure by any state or local agency. However, you can indicate on the form that the conviction was expunged.

If you already have a license, B&P Code Section 490 provides the criteria for license suspensions and revocations. This is basically the same as B&P Code Section 480, stating: “In addition to any other action that a board is permitted to take against a licensee, a board may suspend or revoke a license on the ground that the licensee has been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued.”

Each agency is required to have guidelines or criteria to reference when considering denying, suspending, or revoking a license. The guidelines are used to determine if the conviction is “substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued.” Therefore, the guidelines of the individual agency, which issued the license or is considering your application, should be reviewed to see if a drunk driving conviction would result in the loss of your professional license or the denial or your application.

Some agencies require licensees, such as doctors and pilots, to self report. Failure to notify the licensing agency within a specified amount of time may result in denial, suspension, or revoking of your license.

Driving Drunk With Child In Car Leads To Reckless Endangerment Charges

August 23, 2011 | The Law Offices of Susan L. Hartman

child endangerment.jpg Drunk driving charges, or OWI, (operating while intoxicated), as it is called in Illinois, were filed against a 31 year old Illinois man, according to jsonline.com. He was driving 90 mph southbound
on I-94 where the speed limit is 65 mph. Once stopped, a nine month old infant was found in the car.

The preliminary alcohol screening test, PAS, result was a .24, three times the legal limit. The driver was additionally charged with recklessly endangering the safety of a minor and operating a vehicle with a prohibited alcohol content with a child under 16 years old.

In California, if a person is convicted of driving under the influence and it is proven that a minor under the age of 14 was a passenger in the car at the time of the offense, the court will impose a sentencing enhancement under California Vehicle Code section 23572.

In addition to any other punishment imposed under the underlying drunk driving offense, on a first conviction the person will receive an additional 48 continuous hours in the county jail.

On a second DUI, the punishment shall be enhanced by an imprisonment of 10 days in the county jail.

For a third DUI, the punishment shall be enhanced by an imprisonment of 30 days in the county jail.

For a fourth drunk driving conviction, the punishment shall be enhanced by an imprisonment of 90 days in the county jail.

This additional jail time is imposed whether or not probation is granted and no part of it may be stayed.

This enhancement does not apply if the person is also convicted of violating Penal Code section 273(a), child endangerment. Child endangerment is a “wobbler” which means it can be charged as either a misdemeanor or felony. In addition, this code section applies to minors under the age of 18.

Chula Vista Drunk Driving Accident Results In Prison Time

July 29, 2011 | The Law Offices of Susan L. Hartman

Chula Vista resident, Angel Rodrigo Gutierrez, 23, was sentenced July 28th, for the fatal hit and run incident that occurred on Christmas Day, killing Robin Fortson, a 54 year old homeless woman. The defendant plead guilty last month to vehicular manslaughter while intoxicated and leaving the scene of an accident. He was sentenced to six years and four months in state prison, according to 10news.com.

Gutierrez was drinking beer and celebrating Christmas when he decided to drive to get a burrito. Around 8:30 p.m., at the 1200 block of Third Avenue in Chula Vista, he struck and killed Fortson as she crossed the street. He then made a u-turn, driving by the victim, leaving the scene. His car was left in the 200 block of Moss Street and he was found around 2:40 a.m. at his home in the 300 block of Date Street.

His blood alcohol content (BAC) was measured at .29 percent, seven hours after the crash. He was subsequently arrested for drunk driving.

In California, it is illegal to operate a vehicle with a BAC of .08 percent or more under the California Vehicle Code section 23152(b). Built into that code section is a rebuttable presumption that if a chemical test was performed within three hours after driving and the result showed the person’s BAC is .08 or more, the prosecution can assume that the driver’s BAC was .08 or greater at the time of driving. This assumption can be challenged by the defense at trial.

Boating Under The Influence, Can I Get Arrested For DUI?

July 26, 2011 | The Law Offices of Susan L. Hartman

In California, if you operate a motorized boat or any watercraft while under the influence in a lake, river, or the ocean, you can be arrested and charged with a crime.

The Harbors and Navigation Code provides the statutes for boating under the influence, or BUI. The language of the code is very close in the language in the California Vehicle Code for drunk driving, (see California Vehicle Code section 23152).
drinking and boating.jpg Under the Harbors and Navigation Code section 655:

(b) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.

(c) No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.

(d) No person shall operate any vessel other than a recreational vessel if the person has an alcohol concentration of 0.04 percent or more in his or her blood.

The code does not bar the operator of the boat or the passengers from drinking or having open containers inside the vessel. However, it is illegal to operate a motorized vessel or serve as a crew member while under the influence or alcohol, a drug, or the combination of both, (see Harbors and Navigation Code section 655.4(a)).

A BUI is priorable, which means if you are charged with another DUI or BUI within ten years of the first one, you will be subject to the consequences of a second offense, which are more severe than the punishment for the first.

Misdemeanor DUI Arrest For Ditka’s Son, Charge Upgraded To Felony

May 20, 2011 | The Law Offices of Susan L. Hartman

A misdemeanor drunk driving charge was filed against Michael P. Ditka, 49, the son of former Chicago Bears Head Coach Mike Ditka, after an arrest on April 20th. However, that charge was upgraded to a felony because he has two prior DUI arrests, according to Lake County News-Sun.

Ditka was arrested in Highwood, Illinois, in 2004, and he was placed on probation. He was arrested again in Deerfield, Illinois, in 2008, and he was placed on probation after pleading guilty to reckless driving.

If convicted he faces a maximum of seven years in prison. He is currently free on bond.

If this drunk driving arrest was made in California, and the defendant only had two prior DUI convictions in the past ten years, this third DUI would only be charged as a misdemeanor, as long as it did not involve an injury accident and the driver did not commit another illegal act while driving under the influence.

Under California Vehicle Code Section 23550, if a person is convicted of drunk driving and the offense occurred within ten years of three or more separate DUI violations that resulted in convictions, that person shall be punished by imprisonment in the state prison, or in a county jail for not less than 180 days nor more than one year, and by a fine of not less than $390 nor more than $1,000.

Forced Blood Draws In DUI Cases, Courts Deciding On The Legality

April 22, 2011 | The Law Offices of Susan L. Hartman

forced blood draw.jpg The Florida Fifth District Court of Appeal heard arguments this week on whether law enforcement can forcibly draw blood from certain DUI suspects. Currently, Florida law allows forced blood draws without a search warrant in suspected drunk driving cases involving death or serious injury.

In this case, no injury or death was involved when the defendant was charged with driving under the influence. The defendant failed to keep his car in a single lane so he was stopped by Melbourne police. Law enforcement did obtain a search warrant for the blood sample.

Circuit Judge Maxwell did not allow the blood evidence into court; thereby prompting this appeal by the state. This issue has not come before any appeal court in Florida before and the ruling will impact 13 counties and become a benchmark for other judicial circuit courts in Florida.

In California, there is an implied consent law for chemical testing, Vehicle Code Section 23612. Under this statute, “any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purposes of determining the alcoholic content of his or her blood if lawfully arrested for an alleged DUI.”

Once arrested for drunk driving, the person has a choice between a blood or breath test. If a person refuses to give either sample, and they are eventually convicted of drunk driving, their penalty will be increased according to Vehicle Code Section 23577.

Can an officer force you to take a blood test if you refused to give a sample? Yes, if the following conditions are met (People v. Sugarman): 1.) The circumstances require prompt testing; 2.) The arresting officer has reasonable cause to believe the arrestee is intoxicated; and, 3.) The test is conducted in a medically approved manner incident to a lawful arrest.

So how do you defend a drunk driving case that involves a refusal? You can challenge the lawfulness of the arrest itself. The officer must have had probable cause to stop and arrest you. Also, the prosecution must prove you were the driver of the car and you were in fact under the influence. Further, the officer may not have told you that you are obligated to submit to a chemical test or the admonition was confusing.

Your drunk driving charges may be dismissed if any of the defenses above fit your case. (Note, this is not an exhaustive list of defenses.) Contact an exclusively DUI defense firm if you want more information on how to defend you matter.

San Diego Drunk Driving Crash Results in 6 Year Prison Term

March 14, 2011 | The Law Offices of Susan L. Hartman

DUI and gross vehicular manslaughter while intoxicated convictions resulted in a six year prison sentence for San Diego resident, Anthony Guarino, on March 11th, according to 10news.com. He was convicted of these drunk driving charges in January 2011, after his lawyers unsuccessfully argued that the accident that killed Marc Durham was actually caused by a “microsleep” episode due to his severe sleep apnea, not drunk driving.

Gross vehicular manslaughter while intoxicated is punishable by imprisonment in state prison for four, six, or ten years, under California Penal Code (PC) 191.5(a). If the defendant has a prior PC 191.5 conviction, or two or more prior DUI convictions, the sentencing range is fifteen years-to-life in prison. The sentence imposed depends on the specific facts of the case.

The maximum sentence for all the charges in this drunk driving case was 13 years in state prison. However, the judge considered the fact that Guarino had no prior criminal record, served 20 years in the Marine Corps, was a good family man, and had good standing in the community in giving the defendant the middle term of six years instead of the maximum penalty allowed under the law.