Category Archives: DUI Plea Bargain

I Confessed to a DUI But Want to Retract Confession. I Plead But Want to Withdraw Plea. Can I?

It depends if you want to withdraw a guilty plea or retract statements made to police officers during a DUI traffic stop or after a DUI arrest. The answer is “it depends.” There are situations in which a defendant can recant or withdraw a statement or guilty verdict. The first step is to contact a California DUI defense lawyer to discuss your legal options and rights regarding a drunk driving charge.

Making Statements to Police Before and After a DUI Arrest

The statements you make to police officers can be used against you. You might not be able to retract a confession or statement after it is made. For this reason, it is best not to talk to police officers without an attorney present.

During a DUI stop, you must provide your name and current address. You need to give the police officer your driver’s license, vehicle registration, and proof of automobile insurance. However, you are not required to:

  • Take a breathalyzer test or saliva swab if you have not been arrested
  • Consent to take field sobriety tests (FSTs)
  • Answer questions about where you were before the DUI stop
  • Admit or deny that you have had alcohol or drugs
  • Tell the police officer where you are headed
  • Answer any other questions 

You can respectfully tell the police officer you do not consent to any preliminary assessment tests for DUI and that you are invoking your right to remain silent

After a DUI arrest, refusing a chemical test results in penalties under California’s implied consent law. The California Department of Motor Vehicles suspends your driver’s license for one year. You also face enhanced penalties if the court convicts you for the DUI charges.

However, you still are not required to make statements or answer questions after a DUI arrest. As a result, you may remain silent even though police officers continue to ask questions. 

It is in your best interest not to make statements or talk to the police until you speak with a California DUI attorney. Retracting statements made to the police may only be possible through a motion to suppress evidence.

Filing a Motion to Suppress Evidence to Retract a DUI Confession

Confessions you make before you are arrested or after the police officers read you the Miranda rights can be used against you in court. However, if the police violated your constitutional rights, the confession could be inadmissible. 

Your attorney can review your case to determine whether to file a motion to suppress evidence. If the police did not have probable cause for an arrest, a motion to suppress evidence could result in all evidence collected, including confessions and statements, being thrown out. Without evidence, the prosecution may have no choice but to drop the DUI charges. 

Can I Withdraw a Guilty Plea for a DUI Charge in California?

Yes, you can withdraw a guilty plea or plea of no contest in a DUI case in some cases. California Penal Code §1018 gives a judge the authority to grant a motion to withdraw a plea for “good cause.” The code applies in misdemeanor DUI cases and felony DUI cases. 

The motion to withdraw a guilty plea must be filed with the court before the person is sentenced or within six months of a probation sentence. If the judge finds that good cause exists to withdraw the plea, he grants the motion. After that, the defendant may enter a plea of not guilty to the charges of driving under the influence. 

What is Good Cause for Withdrawing a Guilty Plea for DUI?

Regretting the fact that you plead guilty to drunk driving is not sufficient cause for a judge to allow you to withdraw your guilty plea. You need to show that your guilty plea was the result of:

  • A mistake
  • Incompetence
  • Inattention or oversight
  • Ignorance

Also, the judge may consider other factors that demonstrate overreaching as reasonable cause to withdraw a guilty plea. Examples of reasons why a judge might allow a defendant to withdraw a DUI guilty plea include:

Not Represented by an Attorney

In addition to claiming you plead guilty while representing yourself, you must show that you were not informed you had the right to have legal counsel. The judge must have failed to explain your right to an attorney in his instructions for you to win on this cause.

Your Attorney Was Incompetent

Ineffective legal counsel can be a ground for withdrawing a guilty plea. For example, suppose your attorney did not investigate your case, file appropriate motions, or otherwise provide a vigorous and effective defense. In that case, the judge may allow you to withdraw your guilty plea. 

Proving your attorney was not a competent lawyer can be difficult. The legal representation must have fallen short of the accepted standard. Suppose you can prove that your attorney did not provide reasonable representation, which led you to accept an unfavorable plea deal. In that case, you might win your motion to withdraw a guilty plea.

Coerced Guilty Pleas

When you plead guilty to DUI, your plea must be voluntary and given without threat or coercion. The threat or coercion to plead guilty can come from any source, including police officers, co-defendants, prosecutors, and others.

You Did Not Understand the Consequences of Your Actions

If you can prove to the judge that you did not understand a significant consequence of pleading guilty, the judge might allow you to withdraw your guilty plea. For example, you were not aware that the state would revoke your professional license for a DUI conviction, or you did not know that you faced a mandatory prison sentence if you plead guilty. 

Seek Legal Counsel Before Pleading Guilty to DUI Charges

Before pleading guilty to DUI charges, talk to a California DUI attorney. There could be one or more DUI defenses that might help you beat the drunk driving charges. If not, a skilled DUI defense lawyer works to obtain the best terms for a DUI plea agreement.

Potential DUI defenses include, but are not limited to:

Lack of Probable Cause

Police officers must have probable cause to make a traffic stop. For example, they witnessed a traffic infraction, such as speeding or running a red light. The police officer might claim that your driving was erratic, which indicated you might be intoxicated. 

An exception would be a DUI checkpoint. California law permits law enforcement agencies to conduct DUI checkpoints as part of their DUI enforcement efforts. However, strict rules govern how DUI checkpoints are set up and operated. Failing to follow those rules could result in an illegal stop.

If a police officer did not have probable cause for the traffic stop or DUI arrest, your attorney files a motion to suppress evidence. The evidence collected from an illegal stop or arrest can be inadmissible. 

You Were Not Under the Influence

California Vehicle Code §23152 states that it is unlawful to:

  • Operate a vehicle under the influence of alcohol
  • Drive a vehicle with a BAC of .08 percent or higher
  • Operate a vehicle under the influence of any drug

If your BAC was not above the legal limit or you did not take a chemical test, the state must prove you were “under the influence” of alcohol or drugs. That means the prosecutor must prove your ability to drive was impaired. Your attorney attacks the statements by police officers to raise a reasonable doubt of your impairment.

Breathalyzer Results Are Inaccurate

A breathalyzer may give a false high for several reasons. Medical conditions could result in a false BAC level, including acid reflux, diabetes, GERD, and hiatal hernia. If the machine is not calibrated correctly or maintained correctly, the results could be inaccurate. 

Your attorney carefully analyzes the process used to take your breath test. Inconsistencies or deviations from procedure could result in the results being thrown out or a jury doubting their validity.

Problems With Chemical Tests

Title 17 of the California Code of Regulations sets the rules for collecting, storing, and analyzing urine and blood samples for DUI chemical tests. Violations of these rules could result in the chemical test results being thrown out. 

Mistakes and errors made by the police or the lab could result in inaccurate results, such as contaminating the sample or using fermented blood for a test. Medical conditions and rising blood levels could also result in higher BAC levels that do not reflect the person’s actual impairment at the time of the DUI arrest.

Inaccurate Field Sobriety Tests

Field sobriety tests can be flawed for many reasons. First, the person may have a medical condition that prevents them from performing the tasks. Second, the police officers might provide incorrect or confusing instructions. Third, environmental conditions might affect the person’s performance, such as uneven surfaces or bright headlights. 

You Are a Bad Driver

Other factors could lead to a DUI stop because of erratic driving. For example, drowsiness or distracted driving could appear similar to drunk driving. The driver panics when the police officer pulls them over. Therefore, they are nervous, which causes them to fumble and stutter. The officer may believe the person is drunk when they have had nothing to drink.

There are many more DUI defenses your attorney may investigate, depending on the facts of your case. The first step in fighting drunk driving charges is to talk with an experienced California DUI lawyer. 

The 1650 Waiver to Attend DUI School Out-of-State

If you live in another state and get a DUI in California, you might find it inconvenient to have to attend an in-person California DUI school as a part of your sentence. Ordinarily, the California Department of Motor Vehicles (DMV) requires people convicted of DUIs to enroll in and complete DUI driving school here in California. 

A non-resident can request a waiver of the California in-person DUI school requirement by filing a 1650 waiver request. If you do not attend and complete an in-person DUI program in California and do not request and receive a waiver, your home state can deny you a driver’s license. Your only option then is to make repeated trips back to California to complete the DUI school.

How to Request a 1650 Waiver

You will have to wait until you are eligible to request that the California DMV terminate your DUI suspension or revocation. If the California DMV grants your request, you would not have to attend driving school in this state, and you will be able to apply for a license in your state of residence.

You must meet all of these conditions to be eligible for a termination of action as a non-resident:

  • Any suspension or revocation of your driving privilege is no longer in effect.
  • If you had any Administrative Per Se restrictions on your driver’s license, all such restrictions are no longer in effect.
  • You are no longer ordered by the court or the California DMV to have an ignition interlock device (IID) or any other court-ordered or DMV-ordered restrictions.
  • You have paid all applicable administrative service fees. 

You can check your driver’s record to verify these factors. You may request this information by telephone, online, or by regular US mail. After verifying that you have met all of the conditions, you will need to file an application for termination of action (DL4006) with the DMV, along with acceptable proof of out-of-state residency, payment of fees, and proof of financial responsibility, if required.

Application for Termination of Action (DL 4006)

The Application for Termination of Action must get sent to the Mandatory Actions Unit of the California Department of Motor Vehicles (DMV), with all the required documents and attachments. Before the termination of action under California Vehicle Code (CVC) section 13353.5 can happen, the Mandatory Actions Unit must verify that the applicant has met all of the conditions and requirements.

The applicant must swear under penalty of perjury that the individual is not a resident of California. Also, the applicant must voluntarily authorize the California DMV to cancel the individual’s California driving privileges if the DMV terminates the suspension or revocation as requested. It usually takes the California DMV a month or two to process the waiver packet.

Documents the DMV Will Accept as Proof of Out-of-State Residency

The DMV provides a list of 18 different kinds of documents they will accept to prove that you do not live in the state of California. You must submit at least one of these papers with your DL 4006 form. 

A few examples of the acceptable out-of-state residency documents for the 1650 waiver form (DL 4006 form) include:

  • A home utility or cell phone bill
  • Official voter registration documents
  • A mortgage bill
  • A rental or lease agreement signed by both the owner/landlord and the tenant/resident
  • An employment document
  • A property tax bill or statement
  • A change of address confirmation by the US Postal Service 

Whichever document or documents you choose to submit to show out-of-state residency must show your current out-of-state address that is the same as you provide on your DL 4006 form. 

What is Proof of Financial Responsibility?

Proof of financial responsibility in the context of driving means that a driver has automobile insurance that will pay the losses of people who get injured or property that gets damaged as a result of the driver. California tries to protect the general public from people exercising the privilege to drive without being financially responsible to people they might harm.

The DMV might require you to provide a California Insurance Proof Certificate (SR 22) from an insurance company authorized to do business in California. If your insurance is from a company not authorized to do business in California, the DMV will only accept that insurance document if you send in a Declaration Regarding Certificate of Insurance for Non-Resident Driver. That declaration is on the DL 300 form, California Proof Requirements for Non-Residents.

Who Needs a 1650 Waiver?

If you were a non-California resident and you got convicted of a “wet” driving offense, like:

  • Driving under the influence, Vehicle Code 23152(a),
  • Driving with a BAC of 0.08% or higher, Vehicle Code 23152(b)
  • Underage DUI with a BAC of 0.05% or higher, Vehicle Code 23140
  • “Wet reckless,” Vehicle Code 23103.5

You will have to enroll in and complete an in-person California DUI driving school unless you get a 1650 waiver of that requirement. A 1650 waiver comes with significant consequences. For starters, once you use a 1650 waiver, you can never get a second waiver in your entire lifetime. 

Also, you will not be allowed to drive in the state of California for three years, even if you become a California resident. If you do move to California, you will have to complete the DUI school before the DMV will issue you a California driver’s license.

Consequences in Your Home State

Getting an out-of-state DUI conviction does not let you fly under the radar in your home state. The California court will notify a non-resident’s home state of the conviction. Also, the DMV in California will suspend your California non-resident driving privileges.

You can face negative repercussions in both states, California and your home state, after getting convicted of a DUI here. Your state will treat the California conviction as if it happened in your home state. 

Your home state is allowed to impose its own penalties on you, even if they are more severe than the penalties the California court assessed. Typically, your home state will not allow you to drive legally using that state’s driver’s license until you satisfy all of the penalties of the California conviction, which include the DUI program requirements of the DMV. One of the program requirements is the California DUI school.

Can I Attend a California DUI School Online?

Generally, no. A person convicted of a DUI in California must attend a licensed DUI program unless the individual obtains a 1650 non-resident waiver. The Department of Health Care Services (DHCS) evaluates, licenses, and monitors the compliance of all California DUI programs. The Behavioral Health Licensing and Certification Division, Driving-Under-The-Influence (DUI) Section is the specific aspect of the DHCS that performs these tasks.

You cannot simply enroll in any DUI school or program. The DUI school must be California-licensed to satisfy the penalties under your conviction. DUI school hopes to give participants an opportunity to address their problems with using alcohol and drugs, and to reduce the number of second and subsequent DUI offenses by individuals. 

California DUI Programs

There are multiple levels of DHCS licensed DUI programs. For example:

  • If you get convicted of reckless driving and you had a measurable amount of alcohol in your bloodstream, you must complete the “wet reckless program,” which is a 12-hour DUI education program.
  • For a first-offense DUI conviction, the DMV requires the completion of a three-month 30-hour alcohol and drug education and counseling program. If the first offense was for a blood alcohol content of 0.20% or higher, the individual must complete a nine-month 60-hour alcohol and drug education and counseling program.
  • If a person gets a second or subsequent DUI conviction, there is a mandatory 18-month multiple offender program. The program includes 52 hours of group counseling, 12 hours of alcohol and drug education, six hours of community reentry monitoring, and biweekly individual interviews during the 12 months of the program.
  • For a third or subsequent DUI conviction, a county may choose to impose 30-month DUI programs, with 78 hours of group counseling, 12 hours of alcohol and drug education, 120 to 300 hours of community service, and close and regular individual interviews.

The high level of involvement and time required by California DUI programs make it difficult for someone who lives in another state to participate in and complete the program requirements.

COVID-19 FAQs for DUI School

During the COVID-19 pandemic, the state of California enacted measures to reduce exposure to the virus, including suspending or limiting DUI program services. Anyone participating in program services or wanting to enroll in the program could find limitations on the program due to COVID-19 restrictions. The DHCS supported telehealth services for DUI programs to minimize the spread of COVID-19.

Are There Additional Penalties for a DUI Conviction in California?

Yes, and you do not get to avoid these consequences just because you are not a California resident. Also, keep in mind that your home state can impose additional penalties. In California, a first-time DUI conviction could include these penalties:

  • DUI school
  • A six-month driver’s license suspension period
  • Up to six months in county jail
  • Installation of an ignition interlock device (IID) for six months
  • Fines and penalties adding up to as much as $1500 or $2000
  • DUI probation of 3 to 5 years
  • Work release

Getting a DUI conviction can impact your life in many other ways. You will want to work with a California DUI attorney to protect your rights if you get arrested for drunk driving.

What is a Tahl Waiver in California DUI Cases?

Drinking and driving is a serious offense, and facing DUI charges can be complex and intimidating. In some cases, the defendant may have an attorney who is able to help them reach a plea deal with the prosecution or avoid the charges entirely. However, there are some instances where the defendant may feel overwhelmed or just uninformed and might be considering pleading guilty or no-contest by agreeing to a Tahl waiver.

Tahl waivers are meant to be a record of informed consent that the defendant is entering into a plea of guilty or no-contest voluntarily and with full knowledge of the rights, they are waiving. Additionally, they are an informative tool to ensure the defendant is aware of the potential consequences of waiving their rights.

It is incredibly important that a Tahl waiver be completed properly, signed by the defendant, and submitted in accordance with the requirements of the court, otherwise, it may be deemed defective. This can result in an invalid plea agreement and is why defendants are often questioned extensively by the presiding judge to ensure their understanding and agreement.

What is a Tahl Waiver?

A Tahl waiver is named for the case in which it was established. The California Supreme Court decided in 1969, in the case of In re Tahl that a defendant must “knowingly and voluntarily” waive several of their rights in order for a plea of guilty or no-contest to remain valid. 

Occasionally during criminal proceedings in California, the defendant will make the decision to plead guilty or no-contest to their charge or charges. In this situation, the defendant must acknowledge that they have certain rights guaranteed to them by the constitution and that they are waiving these rights. This waiver is known as a Tahl waiver.

In most cases, the Tahl waiver will be a formal, written document. It will not only detail the individual rights they are waiving, as well as the potential consequences of waiving those rights, but it will also have the defendant’s signature as an acknowledgment and agreement. The waiver is then reviewed by the judge and confirmed with the defendant affirming their decision in open court.

What is the Purpose of Tahl Waivers?

Tahl waivers are crucial during criminal proceedings, for example, charges of murder or driving under the influence, because it is incredibly important that the defendant knows what they are committing to when waiving their rights. 

The waiver is a tool for the presiding judge to ensure that:

  • The accused is aware of their rights
  • The accused understands that they are not being forced or coerced into waiving their rights
  • The accused knows and understands the consequences of the waiver

 

In most cases, the court cannot even accept a plea of guilty or no-contest if there is no valid Tahl waiver in effect. This reaffirms that the defendant is cognizant of the terms of the waiver and that the plea is completely voluntary. California defense attorneys are well-versed in Tahl waivers.

Rights That Are Given Up With a Tahl Waiver

There are three main constitutional rights that a Tahl waiver is created to waive. The defendant is made aware of these rights during the process of creating the Tahl waiver before the jury trial begins, and they must be fully informed on the potential results of waiving these rights. 

The 3 significant constitutional rights waived with a Tahl waiver are:

  • The right against self-incrimination, which is guaranteed by the 5th amendment
  • The right to confront witnesses, ensured by the 6th amendment
  • The right to a jury trial, which is also guaranteed by the 6th amendment.

Additionally, Tahl waivers will also remind and reaffirm with the defendant that they still remain innocent until proven guilty, and that the prosecution still carries the burden of proving beyond a reasonable doubt that the defendant is guilty.

Defective Tahl Waivers and Their Effects

Completing or performing a Tahl waiver is vital to the criminal process, and if the accused has not officially completed one to the satisfaction of the court, any pleas of guilty or no-contest that they enter may not be valid. This also is the case if the Tahl waiver was completed incorrectly or the accused was not made aware of the consequences of waiving their rights. 

To avoid this, the judge presiding over the case will frequently discuss the Tahl waiver with the accused. The judge will generally:

  • Advise the accused orally in open court of their rights, and that the Tahl will waive those rights
  • Confirm that the defendant does understand and wish to waive the rights
  • Confirm that the accused still intends on entering a plea of guilty or no-contest
  • Confirm that the defendant was not coerced, forced, or otherwise placed under duress to enter the plea
  • Confirm that the accused is entering the plea knowingly and of their own free will

How Can a Tahl Waiver Be Submitted?

For cases featuring misdemeanor charges, the Tahl waiver can be created and executed before the court proceedings. The attorney can provide the TAHL waiver to the court and plead without the client present appearance, as long as it is notarized. However, some judges do not allow this.

What if the Defendant Changes Their Mind?

Sometimes, even after going through the process of entering a Tahl waiver and subsequent guilty or no-contest plea, the defendant decides to withdraw their plea. This is permitted under California Penal Code section 1018, provided some prerequisite conditions are met. The accused must show good cause for withdrawing the plea, and they must file a Motion to Withdraw a Plea. 

Showing “good cause” means that the defendant must demonstrate that the plea they entered into previously was the result of some complication. This is often defined as a factor that demonstrates overreach, such as incompetence, inadvertence, ignorance, or mistake. Depending on the circumstances this can be relatively easy to prove, or it can be incredibly difficult.

Once the accused has shown good cause, they must then have the Motion to Withdraw a Plea filed with the court and entered into the record. The motion must be filed either before the defendant is sentenced or within 6 months of a probationary sentence. The motion cannot be filed once a sentence of incarceration has been handed down.

After the defendant shows good cause and either they or their attorney files the Motion to Withdraw a Plea, the defendant must then be given a formal opportunity to withdraw the plea and plead not guilty, if he pled guilty or no-contest without an attorney. Alternatively, if the accused did create an attorney-client relationship and was represented, they may be given a chance to change their plea, though it is not guaranteed as it would be if the conditions were met while they were not represented.

If You Are Charged With DUI and Considering a Tahl Waiver

If you have been charged with a DUI and may be considering waiving your rights to enter a plea of guilty or no-contest, be sure you reach out to a defense attorney in California before committing to anything. While you may be able to withdraw the plea later, there are no guarantees. Additionally, the criminal trial process can be incredibly complex, stressful, and intimidating, so having someone on your side can help the whole process go smoother.

If you contact an attorney to discuss your case in confidence, and they agree to represent you, you will have gained an invaluable legal resource. Not only will your criminal defense attorney form a solid attorney-client relationship with you, but they will be your source of priceless knowledge and experience with the trial process. When it seems like the whole system may be positioned against you when you’re facing charges, an experienced attorney can be a formidable ally and personal advocate.

Understanding the “Dry Reckless” Plea Bargain

Have you been charged with driving under the influence in California? If so, do not panic or immediately assume you must plead guilty to the DUI charges. You may be able to negotiate a dry reckless plea bargain instead of accepting a DUI conviction. 

A DUI conviction on your record could negatively affect many areas of your life, including your career, family, and social life. However, being arrested for DUI in California does not mean you are guilty. You have the opportunity to defend yourself against DUI charges, including negotiating a favorable plea bargain with the prosecution. 

There are several advantages of pleading guilty to dry reckless, including shorter jail times and lower fines. However, before you plead guilty to a DUI charge, it is wise to seek legal advice so that you understand your legal rights and options for defending a DUI case. 

What is a Dry Reckless Plea Bargain?

The term “dry reckless” is used when a person charged with driving under the influence pleads guilty to reckless driving not involving alcohol or drugs. 

California Vehicle Code §23103 defines the charge of reckless driving. The Code defines reckless driving as operating a vehicle with willful and wanton disregard for the safety of property or persons. Reckless driving is a misdemeanor punishable by a jail sentence of up to 90 days and a minimum fine of $145. The person also receives two points against their driver’s license.

When you agree to a dry reckless plea bargain, the state reduces your charges from driving under the influence or driving above the legal blood alcohol limit to reckless driving. Therefore, instead of a DUI conviction on your record, your driving record shows a conviction for reckless driving.

What Are the Penalties for a Dry Reckless Conviction?

Even though you plead your DUI charges to reckless driving, the judge still imposes criminal penalties. Dry reckless penalties include:

  • A fine of up to $1,000
  • Court costs
  • Up to 90 days in county jail
  • Misdemeanor probation lasting between one to five years

The above penalties are much less severe than the penalties for a first-time DUI conviction. Additionally, there are other advantages of pleading guilty to dry reckless over a drunk driving conviction. 

The advantages of a dry reckless plea bargain include:

You Don’t Pay as Much in Fines

The fines for a DUI conviction can be difficult to pay, especially if you are out of work because of the DUI charges. The minimum fine the court may impose for reckless driving is $145. On the other hand, you could face a minimum fine of $390 for a drunk driving charge. 

In addition to fines, a DUI conviction could also result in penalty assessments of $1,500 to $2,000. These assessments could make a DUI conviction cost up to $3,000, which is far more than the fines imposed for reckless driving. 

No Mandatory Requirement for Increased Penalties for Repeat Offenses

A judge could sentence you more harshly for subsequent convictions of reckless driving. However, unlike a DUI conviction in California, there is no mandatory requirement to enhance the sentence for repeat offenses. Subsequent DUI offenses have mandatory sentence enhancements, which could result in significant jail time and higher fines. 

You Serve Less Time in Jail 

The maximum time you can spend in jail for a dry reckless plea deal is 90 days. However, you could spend up to six months in jail if convicted of drunk driving in California. 

During those six months, you could lose your job and your place to live. An employer or landlord may be willing to work with you when you will be out of jail within 90 days, but doubling that time may be too long of a jail term to hold your job or place to live.

You May Not Lose Your Driving Privileges 

When you are convicted of DUI in California, your driver’s license is suspended for at least six months. Prior DUIs and other factors could lengthen the suspension period. In addition, to drive your vehicle, you might be required to install an ignition interlock device, which could be expensive. On the other hand, there is no mandatory license suspension for a dry reckless conviction. 

However, the decision to suspend your driver’s license is made at a DMV administrative hearing

Therefore, it is crucial that you follow the requirements for challenging the suspension of your driving privileges through a DMV administrative hearing. You must act quickly. You have only a few days to request a hearing. By law, you have the right to legal representation at the hearing, but you must hire a lawyer at your expense instead of being appointed an attorney. 

Your Probation Period is Shorter

The longer you are on probation, the greater chance you could face a probation violation charge. For example, the probation period for dry reckless is one to two years. However, if you are convicted of a DUI offense, you could spend three to five years on probation. 

You May Not Be Required to Attend DUI School

Attending DUI school can be inconvenient and costly. A DUI conviction requires you to complete a mandatory three-month court-approved alcohol education program. If you have prior DUI offenses, you could spend up to 18 months in DUI school. 

A dry reckless conviction does not have a DUI school requirement. However, as part of your plea deal, the judge or prosecutor could require you to attend a six-week alcohol-education program. Even so, a six-week program is much better than three or more months in DUI school.

What is the Difference Between a Dry Reckless Conviction and a Wet Reckless Conviction?

The prosecutor may offer a wet reckless plea bargain as the first option for resolving a DUI charge. If so, you may want to talk to a criminal defense law firm about the chance of negotiating a dry reckless plea bargain instead of pleading guilty to wet reckless. 

When you plead guilty to wet reckless, California Vehicle Code §23103.5 requires that the prosecution state on the record whether alcohol or drugs were involved in connection with the offense. Therefore, your criminal record contains information that drug and/or alcohol use was a factor in your arrest. This information may affect future criminal charges, insurance rates, and licenses. 

Avoid Having a Priorable Offense on Your Record

A dry reckless plea deal is better than a wet reckless plea deal because dry reckless is not a priorable offense. There is no mention of drugs and/or alcohol on your record when you plead guilty to dry reckless. Therefore, if you have subsequent DUI or wet reckless convictions within the following ten years, the penalties for a conviction are not subject to mandatory enhancements. You will be sentenced as a first-time DUI offender. 

On the other hand, if you plead guilty to wet reckless, the penalties for another wet reckless conviction or DUI conviction within ten years increase under California Vehicle Code §23546, including being listed as a Habitual Traffic Offender for three years. 

Avoid Problems with Insurance Coverage and Licenses 

Another reason to negotiate for a dry reckless plea bargain is to minimize the impact on your car insurance rates. Generally, insurance companies will not cancel policies or substantially increase insurance premiums for a dry reckless conviction. Again, that is because the charge does not mention alcohol or drug use.

However, a wet reckless conviction could severely impact your insurance coverage. Your insurance company could cancel your insurance policy. It could increase your insurance rate to an amount that you cannot afford. 

Drivers in California are required to maintain acceptable insurance to operate motor vehicles. If you lose your insurance coverage, it will not matter that your driving privileges were not suspended. You will not be able to drive legally, which could result in job loss and other negative consequences. 

Also, it could negatively affect commercial driver’s licenses and professional licenses. On the other hand, with a dry reckless, you are convicted of a misdemeanor without mentioning alcohol or drugs, which may not impact these licenses. 

Am I Eligible for a Dry Reckless Plea Bargain?

It is up to the prosecutor whether they agree to reduce DUI charges to dry reckless. However, if your BAC is below .08 and the prosecution’s case has flaws, the prosecutor may agree to reduce the DUI charges to dry reckless. 

A DUI lawyer may be able to help you negotiate a favorable plea deal for your DUI charges. A prosecutor is more likely to push wet reckless on a defendant who does not have an attorney, even though the prosecutor knows that there are problems with the case. The prosecutor may be more likely to deal favorably with a DUI lawyer who understands California DUI laws, civil rights, and evidence.

Therefore, it is in your best interest to seek legal advice before accepting a plea deal on a DUI charge. Make sure you understand your rights and your options for defending a DUI charge. After you plead guilty to a DUI or wet reckless charge, it is typically too late to seek legal counsel. 

DUI DIVERSION

Prosecutors say no but the plain language of the new misdemeanor judicial diversion statute PC 1001.95 clearly states that it applies to all misdemeanors except those specifically excluded. DUI offenses are not specifically excluded in the language of the statute.

The Legislative intent of a statute as determined by the plain language of the statute is discussed in detail in Burden v. Snowden, (1992) 2 Cal. 4th 556:

The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. (Kimmel v. Goland (1990) 51 Cal.3d 202, 208 [271 Cal.Rptr. 191, 793 P.2d 524]; California Teachers Assn. v. San Diego Community College Dist., supra, 28 Cal.3d at p. 698.) “In determining intent, we look first to the language of the statute, giving effect to its ‘plain meaning.’ ” (Emphasis added.) (Kimmel, supra, 51 Cal.3d at pp. 208-209, citing Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 218-219 [188 Cal.Rptr. 115, 655 P.2d 317]; California Teachers Assn., supra, 28 Cal.3d at p. 698.) Although we may properly rely on extrinsic aids, we should first turn to the words of the statute to determine the intent of the Legislature. (California Teachers Assn., supra, 28 Cal.3d at p. 698.)  See also People v. Lawrence (2000) 24 Cal.4th 219, 230, 99 Cal.Rptr. 2d 570, 6 P.3d, 228; People v. Lopez (2003) 31 Cal 4th 1051, 1056, 6 Cal.Rptr. 3d 432, 79 P.3d 548.  

The Court in Khajavj v. Feather River Anesthesia Medical Group, (2000) 84 Cal. App. 4th 32 , 34 further explained that:

the most powerful safeguard for the courts’ adherence to their constitutional role of construing, rather than writing, statutes is to rely on the statute’s plain language.  

Furthermore, although the direct issue in question in Tellez v. Superior Court of Riverside was mental health diversion, the court discussed PC 1001.95 Misdemeanor Diversion in anticipation of the question as to DUI eligibility for the newly enacted PC 1001.95.  That court stated in pertinent part:

“…Misdemeanor diversion already exists.  In 1982, the Legislature enacted two sets of statutes providing for misdemeanor diversion programs.  (Pen. Code, §§ 1001-1001.9, 1001.50-1001.55; Davis v. Municipal Court(1988) 46 Cal.3d 64, 75.)  When the Legislature did so, it expressly excluded DUI offenses from eligibility.  (Pen. Code, §§1001.2, subd. (a), 1001.51, subds. (b), (c)(6).)  In view of that history, the Legislature’s failure to expressly exclude DUI offenses this time around is a good indicator that it intended DUI offenses to be eligible for the new misdemeanor program.(Emphasis Added).  (Tellez v. Superior Court of Riverside, Filed Oct. 23, 2020, from the Fourth Appellate District, Division Two, Case No. E074244, Superior Ct. No. INF1800977).

 Despite opposition from California prosecutors, PC 1001.95 misdemeanor judicial diversion applies to misdemeanor DUI offenses.