Facing a 2nd Time DUI? 3 Reasons Why a ‘Wet Reckless’ Is a Fantastic Plea Deal
Many people have successfully moved on from a first-time DUI conviction. After much work and persistence, these folks succeeded in putting all the stress, anxiety, and embarrassment of their DUI behind them. But what happens if they — or you — are unlucky enough to get arrested for a second DUI?
All that hard work can be undone and, if the second DUI occurred within 10 years of the first,[i] you’ll be facing harsher penalties:
- Confinement in jail for up to 1 year,[ii]
- A fine of up to $1,000,[iii]
- The suspension of your driver’s license for 2 years,[iv]
- (Applicable only if your DUI occurred in the counties of Alameda, Los Angeles, Sacramento, or Tulare) Mandatory installation of an interlock ignition device in any vehicle you drive for 1 year.[v]
(To see the consequences for 2nd time, 3rd time, and 4th time DUI, click here.)
But what if there was a way to avoid those penalties? That’s where the plea deal known as a “wet reckless” comes in.
The penalties described above apply only to a person who is convicted of a second DUI — They do not apply to a person convicted of a wet reckless.[vi]
A wet reckless is offered as a plea deal when the evidence against you isn’t ironclad. Pleading to a wet reckless means that you are admitting to a charge of reckless driving — reckless driving that involved drugs and/or alcohol.[vii] A wet reckless won’t let you avoid punishment altogether, but the penalties you will receive will be significantly less than if you had suffered a conviction for a 2nd time DUI.
Here are 3 instances where pleading to a wet reckless will give you a better outcome than accepting a conviction for a 2nd time DUI.
1. A Wet Reckless Can Help You Get Your License Back Sooner
On a 2nd time DUI, a person’s license is mandated by law to be suspended for 2 years.[viii] In addition, to restore his driving privilege, a driver must also complete a DUI class, which may last anywhere from 1 ½ to 2 ½ years, depending on the Court’s discretion.[ix]
With a wet reckless, a person’s license can be suspended — at most — for 1 month.[x] That’s a fraction of the suspension period for a 2nd time DUI. However, if the driver receives probation, then he must complete a 9-month DUI class.[xi]
2. With a Wet Reckless, There’s a Lot Less Jail Time
A 2nd time DUI also brings mandatory jail time. A driver must be sentenced to 4-10 days’ jail, at minimum, if granted probation.[xii] He must be sentenced to 3 months’ jail if probation is denied.[xiii] With or without probation, a driver can be confined to jail for up to a maximum of 1 year.[xiv]
With a wet reckless, a jail sentence is not mandatory, but is instead up to the Court’s discretion.[xv] If jail time is to be imposed, it must be for a minimum of 5 days and for no longer than 3 months.[xvi]
3. No Interlock Ignition Device Required with a Wet Reckless
Depending on the county where the violation occurred, a driver may be required to install an interlock ignition device (“IID”) upon being convicted of DUI. An IID is a device that a driver must blow into before he can drive his vehicle. The device will not permit the vehicle to be driven if it detects a measurable amount of alcohol in the driver’s breath.
Currently, IID installation is required for DUI convictions that occurred in the counties of Alameda, Los Angeles, Tulare, and Sacramento.[xvii] If the driver suffers a 2nd DUI conviction in one of these counties, then the IID must be installed in any vehicle he drives for a period of 1 year.[xviii]
Installing an IID is an additional cost and, to some, may feel unnecessarily burdensome. However, the requirement is imposed only if one suffers a conviction for DUI; even in the affected counties, IID installation is not imposed if one receives a plea deal for wet reckless.[xix]
For reference, here is a chart comparing the penalties for a 2nd DUI with the consequences for a plea to a wet reckless:
| Duration of Probation | License | DUI Class | Fine | Jail | ||
|---|---|---|---|---|---|---|
| If Granted Probation | DUI with 1 Prior Conviction | 3-5 years[xx] | Suspended for 2 years[xxi] | 1.5 years[xxii] OR 2.5 years[xxiii] | Minimum: $390 Maximum: $1,000[xxiv] | Minimum: At least 4 days’ jail Maximum: Up to 1 year jail[xxv] OR Minimum: At least 10 days’ jail Maximum: Up to 1 year jail[xxvi] |
| If Granted Probation | Wet Reckless | Usually 1-2 years | Can be suspended for 1 month[xxvii] | 9 months[xxviii] | Minimum: $145 Maximum: $1,000[xxix] | Minimum: Fine only OR Minimum: At least 5 days’ jail Up to 3 months in jail[xxxi] |
Consequences that Are the Same Whether You’re Convicted of DUI or Wet Reckless
Whether you plead to a DUI or a wet reckless, either conviction is still “priorable.” This means that if you suffer another conviction for DUI in the next 10 years, you will face harsher penalties because you have a prior DUI-related conviction.[xxxii]
Another aspect that a wet reckless won’t change is the adverse impact that a conviction will have on your car insurance. You can expect your insurance premium to rise whether you plead to wet reckless or to DUI. This is because both DUI and reckless driving add two points to your driving record.[xxxiii]
So, How Do I Get a Wet Reckless?
You’ll have to convince the prosecutor to accept your offer to plead to a wet reckless[xxxiv] by highlighting the weaknesses in the evidence against you, weaknesses such as:
- A blood alcohol level of less than .08
- A benign driving pattern (no swerving or weaving)
- Good performance on your field sobriety tests
- Physical symptoms consistent with sobriety rather than intoxication
- A clean driving and/or criminal record
Doing so may help the prosecutor realize that accepting a plea to a wet reckless charge would be preferable to addressing each of the case’ deficiencies at trial, in front of a jury.
Conclusion
The consequences for a 2nd time DUI are substantial. With the help of a skilled criminal defense attorney, you may be able to persuade the prosecutor to offer a wet reckless plea deal and help soften the penalties you will experience.
[i] Vehicle Code §§23540(a), 23546(a), 23550(a). Note: The 10-year period is measured from the date of violation (read: not the date of conviction) from the prior conviction to the date of violation of the instant offense. Vehicle Code §§23540(a), 23546(a), 23550(a). Also, out-of-state DUI convictions count as DUI priors in California. Vehicle Code §23626.
[ii] Vehicle Code §23540(a).
[iii] Vehicle Code §23540(a).
[iv] Vehicle Code §§23540(a), 13352(a)(3). Note: When Defendant has a prior DUI conviction, Court has discretion to disallow issuance of a restricted license. Vehicle Code §23540(b).
[v] Vehicle Code §23700(a), (a)(7)(A)(ii), Note: This requirement will be repealed on January 1, 2019, unless new legislation extending it is passed. Vehicle Code §23702.
[vi] See Vehicle Code §§ 23540(a). 23546(a). [“If a person is convicted of a violation of Section 23152 …” Note that the statutes regarding punishment for 2nd time DUI do not impose punishment for an instant plea to a wet reckless pursuant to Vehicle Code §23103.5.]
[vii] Vehicle Code §§23103, 23103.5(a).
[viii] Vehicle Code §§23542(a)(2), 23540(a), 13352(a)(3). Note: When Defendant has a prior DUI conviction, Court has discretion to disallow issuance of a restricted license. Vehicle Code §§23542(d).
[ix] Vehicle Code §§23542(b)(1), (b)(2); 13352(a)(3).
[x] Vehicle Code §13200. Note: If the person has a prior reckless driving conviction, then the period of suspension will be longer: 2 months for 1 such prior, and up to 6 months for 2 or more priors.
[xi] Vehicle Code §23103.5(f)(1).
[xii] Vehicle Code §23542(a)(1)(A), (B).
[xiii] Vehicle Code §§23540(a); 23542(a)(1)(A), (B).
[xiv] Vehicle Code §23540(a).
[xv] Vehicle Code §23103(c).
[xvi] Vehicle Code §23103(c).
[xvii] Vehicle Code §23700(a)(7)(A)(ii). Note: This requirement will be repealed on January 1, 2019, unless new legislation extending it is passed. Vehicle Code §23702.
[xviii] Vehicle Code §23700(a). Note: This requirement will be repealed on January 1, 2019, unless new legislation extending it is passed. Vehicle Code §23702.
[xix] “A person convicted of a violation of Section 23152 shall be required to install an ignition interlock device[.]” Vehicle Code §23700(a)(7)(a).
[xx] Vehicle Code §§ 23542(a)(1), 23600(b)(1).
[xxi] Vehicle Code §§23542(a)(2), 13352(a)(3). Note: When Defendant has a prior DUI conviction, Court has discretion to disallow issuance of a restricted license. Vehicle Code §23542(d).
[xxii] Vehicle Code §23542(b)(1). The DUI class the person must take will be left to the Court’s discretion.
[xxiii] Vehicle Code §23542(b)(2). The DUI class the person must take will be left to the Court’s discretion.
[xxiv] Vehicle Code §§23542(a)(1)(A), (B).
[xxv] Vehicle Code §23542(a)(1)(B). If a person is sentenced to 4 days’ jail, then he must serve his time in two, 2-day increments (for instance, on weekends). The 2-day increments can be served non-consecutively. Vehicle Code §23542(a)(1)(B).
[xxvi] Vehicle Code §23542(a)(1)(A).
[xxvii] Vehicle Code §13200. Note: If the person has a prior reckless driving conviction, then the period of suspension will be longer: 2 months for 1 such prior, and up to 6 months for 2 or more priors.
[xxviii] Vehicle Code §23103.5(f)(1).
[xxix] Vehicle Code §23103(c).
[xxx] Vehicle Code §23103(c).
[xxxi] Vehicle Code §23103(c).
[xxxii] Vehicle Code §§23103.5(c), (d); 23540(a); 23542(a), (b). Note, however, that if you suffer a second wet reckless conviction — and not a DUI conviction — in the next 10 years, you will not be subject to harsher penalties because of your prior. See Vehicle Code §§23540(a), 23103, 23103.5.
[xxxiii] Vehicle Code §§12810(b), (c). An added benefit of a wet reckless is that it will appear on your public driving record for only 7 years; a DUI conviction will remain on your public driving record for 10 years. Vehicle Code §§1808(a), (b). This means that employers and insurers should not be able to find a wet reckless conviction older than 7 years. However, there is an exception for law enforcement: law enforcement can view wet reckless convictions that occurred up to 10 years ago. Vehicle Code §1808(f).
[xxxiv] Vehicle Code §23103.5(a). Before the plea deal can be accepted, the prosecutor is required to state, on the record, the facts that have caused the prosecutor to offer a wet reckless offer. Vehicle Code §23103.5(a).
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
