Pleading to a “Wet Reckless” charge under California Vehicle Code Section 23103/23103.5
If you are charged with a DUI, you may be able to resolve your criminal case by pleading to a lesser charge of “wet reckless.” California Vehicle Codes Sections 23103 and 23103.5 (“VC 23103/23103.5”) make it possible for prosecutors to offer a plea to this reduced charge when the defendant is charged with DUI.
“Wet reckless” is different from other criminal charges in that it only exists as a charge that can be offered during plea bargaining; the defendant cannot be charged with “wet reckless” outright, at the start of the case. So, when a plea to “wet reckless” is offered, and the defendant accepts it, the prosecutor has to “amend” the criminal complaint so that a charge of “wet reckless” replaces the DUI charges.
This also means that you will never go to “trial” on a charge of “wet reckless.” In situations where “wet reckless” is never offered and the defendant elects to go to trial, it would be a trial on DUI charges, and that defendant will either be found “guilty” or “not guilty” of DUI after the jury hears all of the evidence.
What are the advantages of a “wet reckless” conviction?
Because “wet reckless” only exists during plea bargaining, there is no reason for it to come into play unless the defendant feels that it is in their best interest to accept it. Thus, there are some reasons why a plea to “wet reckless” is “better” than a plea to DUI, especially as a first offense.
- Less jail time
A first-time DUI charge can be punished by a maximum of 6 months in jail, with a minimum of 48 or 96 hours depending on whether probation is included as well. “Wet reckless”, on the other hand, can only be punished by a maximum of 90 days as a first offense, and if probation is included with the sentence, then no jail time at all is required on the minimum end.
- Less probation
First-time DUI offenders can usually expect about 3 years court probation when convicted. Defendants convicted of “wet reckless”, however, can expect less years of probation (usually around 2).
- No “DUI” on your criminal record
Because “wet reckless” is phrased differently as a criminal charge, your record will not show that you have previously been convicted of DUI (though there is an important exception to this; see below). Most importantly, this might be helpful with certain professional licensing boards which specifically impose consequences for DUI, but not “wet reckless.”
- No required ignition interlock device
Ignition interlock (“IID”) is usually required for people convicted of DUI. However, when convicted and sentenced under California’s “wet reckless” law, an IID is not required. This is important because IIDs can prove very costly and burdensome for the defendant who has to install them.
- No automatic license suspension
When convicted of a DUI, the DMV will automatically suspend your driver’s license for a period of time. A conviction for “wet reckless” does not result in an automatic license suspension.
However, the DMV can still suspend your license after a “wet reckless” conviction where all of the charges for DUI have been dismissed as part of the plea deal. At an “administrative per se” hearing after you plead to “wet reckless”, the DMV can still decide to suspend your license anyway, and it very well could decide to do just that. However, it is worth noting that such a suspension is not automatic.
- Less fines
A conviction for DUI usually comes with over $2000 in fines, based on the $1000 maximum fine combined with “penalty assessments” that come with a DUI conviction. “Wet reckless”, however, does not have the same penalty assessments, and so a person pleading to “wet reckless” should expect to pay just under $1000 in fines.
What are the consequences of a “wet reckless” conviction?
Even though a “wet reckless” plea has its advantages, there are still some important “downsides” worth noting.
- Your license can still be suspended
As mentioned above, the DMV still has the power to suspend your driver’s license at an administrative hearing following a plea to “wet reckless”, even though the accompanying DUI charges have been dismissed.
- A conviction for “wet reckless” is still a criminal conviction
Even though apparently less serious to many, and without the words “DUI” attached, a conviction for “wet reckless” is still a criminal conviction that will appear on your record, and you will have to disclose of its existence on job and professional applications.
- A conviction for “wet reckless” still counts as a prior DUI for the purposes of future cases.
Even though a “wet reckless” charge is not literally a “DUI” charge, it will count as a prior DUI for the purposes of later cases. This matters because DUIs carry stiffer mandatory minimum penalties depending on the amount of “prior” DUI offenses that you have. Also, if you have a “prior DUI”, and you drive under the influence again, and cause someone else’s death ,in an accident, you can be charged with murder. A conviction for “wet reckless” counts as a prior DUI for these purposes.
So, for example, if someone is arrested for DUI but pleads to “wet reckless”, and then is arrested for a new, unrelated DUI charge, this person will be treated as a “second” DUI offender.
Please note that there is only a 10-year “look back” period for prior DUIs-DUI and “wet reckless” convictions that are more than 10 years old will not count as “prior DUIs.” However, these older DUI/wet reckless convictions can still trigger a murder charge in cases of driving under the influence where death results.
- DMV driving program still required
Whether you are convicted of DUI or “wet reckless”, you will still be required to participate in a DMV class for DUI offenders. There are different programs of different lengths which will be available depending on the case.
Can I plead to “wet reckless” instead of DUI in my case?
It depends. First of all, it is worth considering whether a plea to “wet reckless” is even in your best interest. You should discuss this thoroughly with your lawyer.
If you feel that a “wet reckless” plea is in your interest, it still might be hard to say whether you will be allowed to plead to this charge. Remember that “wet reckless” is unique in that it is a charge that only comes up during plea bargaining. This means that the prosecutor has to offer it to you in the first place. Your lawyer can certainly approach the prosecutor and try to negotiate a “wet reckless” offer for you, but the prosecutor does not have to make an offer that they do not want to make, and the judge has no ability to force the prosecutor to make any offers.
Generally, however, prosecutors might be more inclined to offer “wet reckless” instead of DUI when any of the following factors might be present:
- Problems in the prosecution’s case (example: when chemical tests show that the defendant’s BAC level is near the 0.08 % limit and there is little circumstantial evidence of poor driving)
- A lack of a criminal record
- Other mitigating factors, such as education, family support, employment, or community service
- The defendant’s willingness to participate in other conditions such as Alcoholics Anonymous meetings
Remember though, that while these factors might help to convince a prosecutor to offer “wet reckless”, they do not require such an offer to be made.