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. 

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. 4^th 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.4^th 219, 230, 99 Cal.Rptr. 2d 570, 6 P.3d, 228; People v. Lopez (2003) 31 Cal 4^th 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. 4^th 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.  

Whether a driver faces DUI charges in California or any other state, there is one potential consequence that is likely to be of concern to the person: incarceration. There is good reason for such concern: even a few days spent in jail can lead to a reduction in income or job loss. Not only this, but any time that a parent spends away from their child or that a spouse spends away from their partner can cause emotional hardship. All of this is on top of the harm to one’s reputation that might result from serving time for a DUI conviction.

First-Time DUIs Do Not Usually Lead to  Jail Time

A person is unlikely to face jail time for their first DUI conviction. While the maximum sentence   for a first-time DUI includes six months in jail, this outcome is not likely in many cases. Most first-time DUI offers include a period of  three years of informal probation, approximately $2,000 in fines and fees, a 3-month DUI program, the MADD VIP program, and restitution if there was a collision.

Drivers convicted of their first DUI and whose cases involving aggravating factors are more likely to face jail time. Such factors can include:

· Causing injuries

· Excessive speeding

· Reckless driving

· Driving on a suspended license

· Having a blood- or breath-alcohol concentration that is significantly higher than the legal limit.

Thus, drivers convicted of their first DUI may need not worry about having to serve jail time. Instead, they will likely placed on a period of informal probation. If there are aggravating factors involved, however, then the driver faces a greater risk of incarceration

Subsequent DUIs

Once a person is convicted of a subsequent DUI in California within a 10 year period, courts are required to sentence the person to some period of incarceration. Under these circumstances, it becomes even more important to challenge the prosecution’s case. There are several areas where the prosecutor’s case may be vulnerable:

· Lack of evidence of essential elements: The prosecution must be able to prove that the defendant was driving a vehicle. If there are no witnesses who saw the person driving and there is little circumstantial evidence suggesting the person drove a vehicle, the prosecutor may not be able to win their case. 

· Suppressed breath or blood test results: If law enforcement officers did not follow the proper steps in collecting, preserving, and testing a person’s breath or blood sample, then a court may rule that any results obtained from testing of those samples are to be suppressed (kept out of court). Test results may also be suppressed if they were obtained in violation of the person’s constitutional rights. Without being able to present test results showing the driver’s blood or breath alcohol concentration, the prosecutor may lack the evidence they need to show the person was impaired at the time they were driving a vehicle.

· Inaccurate or inconclusive breath or blood test results: There are a number of reasons why a breath testing machine may not give an accurate result, especially if the driver has an underlying medical condition or follows a ketogenic diet. Similarly, a blood sample may not be suitable for testing if the individual who collected the sample did not follow the proper protocol in collecting, storing, or analyzing the sample. 

· No evidence of prior convictions: If the prosecutor is alleging that a person charged with DUI has one or more prior convictions, then the prosecution must be prepared to present evidence of those prior convictions. An erroneous entry on a person’s driving history or criminal record that cannot be substantiated may mean the difference between a second DUI conviction and mandatory jail time and a first DUI conviction and informal probation.

Drivers Charged With A DUI Should Seek Legal Assistance

While a first-time DUI will most likely not lead to incarceration, there are no guarantees. Even a person’s first DUI conviction, when accompanied by a high BAC, a collision involving injury, and/or other aggravating factors, may result in a jail sentence. Motorists with subsequent convictions within a 10 year period will face incarceration. Therefore, any individual who is facing a California DUI charge and who is concerned about incarceration should speak with an experienced California DUI defense lawyer about their case as soon as possible.