Monthly Archives: October 2018
People very often ask whether it’s possible to get a wet reckless in their DUI case without even knowing what a wet reckless is or what it entails. They do, however, know that it’s something better than a DUI conviction. While they are correct in that it is better than a DUI charge, there are some very important distinctions between a DUI and a wet reckless.
First, it’s important to explain exactly what a wet reckless is.
A prosecutor cannot charge a wet reckless from the outset. It can only be reduced from a DUI charge. If it is offered and the driver accepts, the driver will be pleading guilty or no contest to California Vehicle Code section 23103 pursuant to section 23103.5 which reads, ““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…If the prosecution agrees to a plea of guilty or nolo contendere to a charge of [reckless driving] in satisfaction of, or as a substitute for, an original charge of a violation of [DUI], the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of an alcoholic beverage or ingestion or administration of a drug, or both, by the defendant in connection with the offense. The statement shall set forth the facts that show whether or not there was a consumption of an alcohol beverage or the ingestion or administration of a drug by the defendant in connection with the offense.”
In other words, a driver who takes a wet reckless is pleading guilty (or no contest) to reckless driving involving alcohol.
A wet reckless is one of several reductions to a DUI charge that a prosecutor might offer as incentive to get the driver to take a plea deal. Typically, the wet reckless is only offered if there are issues with the prosecutor’s case that might make it difficult for them to win at trial. For example, a wet reckless might be offered when it is determined that the driver’ blood alcohol content is close to the legal limit of 0.08 percent.
In addition to looking better on paper than a DUI conviction, there are a number of other benefits to the wet reckless.
If a person is convicted of a second-time DUI within 10 years, they face a mandatory minimum of 96 hours in jail. If a person is convicted of a third-time DUI within 10 years, they face a mandatory minimum of 120 days in jail. However, if a person is convicted of only a wet reckless when they’ve suffered prior DUI convictions within a 10-year period, there is no mandatory minimum jail sentence. For example, if a person is convicted of a DUI in 2010 and then a wet reckless conviction in 2018, there is no mandatory minimum jail for the wet reckless.
On the other hand, if a person is convicted of a wet reckless and then suffers a DUI within 10 years of the wet reckless conviction, the wet reckless will be treated as though it was a DUI prior. For example, a person is convicted of a wet reckless in 2010 and then suffers a DUI conviction in 2018, they are facing are facing a mandatory minimum of 96 hours in jail.
Other possible advantages of the wet reckless include a shorter probationary period, lower fines and fees, and a shorter DUI program. I say possible because it depends on what the prosecutor offers as a sentence to the wet reckless reduction.
Lastly, a wet reckless conviction does not trigger the 6-month suspension with the DMV. The license will still be suspended, however, if the driver loses the DMV’s administrative per se action.
What good is the Constitution if we don’t use it?
I find myself asking this more often than I’d like to admit. But unfortunately, courts throughout the country continue to issue decisions that erode the protections guaranteed to all of us by the Constitution. Such was the case earlier this month when the Arizona Court of Appeals ruled that, even though officers illegally coerced a DUI suspect into giving consent to be breathalyzed, the results would stand.
In August of 2015, Arizona officers stopped Angel Soza on suspicion of driving under the influence. The officers told Soza that Arizona law “required” him to submit to and successfully complete tests of breath, blood or other bodily substance to determine alcohol concentration or drug content.
Like California, under Arizona law, drivers are impliedly deemed to have given their consent to a chemical test. However, if a driver refuses to provide breath or blood, officers may obtain a warrant to determine the driver’s blood alcohol content. Without a warrant, the driver must voluntarily agree to the testing. In fact, Arizona Revised Statutes section 28-1321, which is Arizona’s implied consent law, states that “[i]f a person under arrest refuses to submit to the test…[t]he test shall not be given.” The judges in Soza’s case admitted as much.
“The mere fact that the defendant does not resist the test is insufficient under the statute; consent must be express, said Judge Sean Earl Brearcliffe, who wrote for the majority.
Based on the officer’s admonition that he was “required” to submit to a test, Soza consented.
This was admittedly a violation of Arizona’s implied consent statute. In fact, Judge Brearcliffe said, “Here, the officer who arrested Soza read him a coercive admonition telling him he was ‘require[d]’ to submit to testing” and “[B]ecause there was no consent and no warrant, the breath test violated [the implied consent law].”
But, apparently, coercion doesn’t matter.
Notwithstanding its own determination that Soza’s consent was coercively obtained by police, the court went on to justify why the results could still be used against Soza.
“As a general rule, because the legislature is charged with providing remedies for the violations of the laws it enacts, unless a law states that exclusion of evidence is a remedy for its violation, the exclusionary rule is not imposed by the courts,” Judge Brearcliffe wrote. “Because the legislature nowhere in Section 28-1321 prescribed suppression of evidence as the remedy for its violation, were we to do so of our own accord, we would be engrafting on the law a remedy neither provided for by the legislature nor required by the Constitution.”
The exclusionary rule is a canon or American criminal justice where evidence obtained in violation of the Constitution cannot be used against a criminal defendant. In other words, for example, when a confession is illegally coerced by police, the confession cannot be used at trial against the defendant.
Therefore, the court ruled that even though the officers illegally coerced Soza’s consent, the results can stand because the implied consent law specifically does not refer to the exclusionary eule as a remedy.
Chief Judge Peter J. Eckerstrom, who dissented, believed that Soza’s breath results should have been thrown out, and I agree.
“In short, the Arizona Supreme Court has twice sanctioned violations of the implied-consent law by applying the exclusionary rule,” Judge Eckerstrom said. “As a subordinate court, I believe we are compelled to follow those cases and apply the rule to the similar violation here.”
There are many misconceptions about what a person should and shouldn’t do during a DUI stop, not the least of which is whether a person should submit to the breathalyzer test. Unfortunately, the answer, like many things in law, is much more complicated than simply “yes” or “no.”
There are actually two breathalyzer tests that can be taken during a California DUI stop. The first is the roadside breathalyzer, often called a preliminary screening alcohol test or “PAS” test, and the second is the “chemical breath test.”
Under California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”
Like the other field sobriety tests that officers hope will give them reason to believe that the driver is intoxicated, the roadside breath test is optional. Having said that, many people don’t even know that the other field sobriety tests are optional. These tests include the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. All field sobriety tests, including the roadside breathalyzer, are optional. Although the officer might threaten to arrest you, stand your ground and politely refuse all field sobriety tests. They are only meant to give the officer the evidence they need to arrest you.
In fact, the officer must advise the driver that the roadside breath test is optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”
Whether the driver has submitted to the roadside breathalyzer or not, the officer must determine if the person is intoxicated and thus should be arrested.
If the officer has the required probable cause to make an arrest for a DUI, whether through the field sobriety tests, the PAS test, or any other information, California’s Implied Consent Law kicks in. Herein lies the difference between a roadside breath test and a chemical test.
Under California’s Implied Consent law, which is codified in California Vehicle Code section 23612(a)(1)(A), “A 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 purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”
Simply put, if you have a license and you drive in California, you have impliedly consented to submit to the chemical test after you have lawfully been arrested for a DUI, which can either be a breath test or a blood test. If the driver is like me and hates giving blood, then they must provide a breath test. Conversely, if a person opts against the breath test, they must submit to the blood test.
So, to answer the question that is the title of this article, you do not have to (nor do I recommend) submitting to the pre-arrest roadside breath test. However, after someone is arrested, they must do either a breath test or a blood test.