California DUI Laws: The Difference Between a "Wet Reckless" and a DUI

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In California, a prosecutor can charge a defendant arrested for a DUI with a “wet reckless” as an incentive to get the defendant to enter a plea bargain of guilty or no contest. There is no section of the California Vehicle Code that defines the term wet reckless, but according to California Vehicle Code (VC) Section 23103, the offense of reckless driving refers to the act of driving a vehicle upon a highway or in an off-street parking facility in willful or wanton disregard for the safety of persons or property. A wet reckless is generally understood to be an act of engaging in reckless driving while under the influence of alcohol.

Three Statutes Explain Wet Reckless

Language in VC 23103.5 provides that the prosecution may agree to a plea of guilty or nolo contendere (no contest) to a lesser charge of reckless driving (VC 23103) as a substitute for a DUI charge (VC 23152). When the prosecution makes such an agreement, the prosecutor must state for the record a factual basis of the substitution, including whether the defendant consumed an alcoholic beverage in connection with the offense.

The court must notify the California Department of Motor Vehicles (DMV) of each conviction of VC 23103 required to be a prior offense for the purpose of VC 23540, the statute which relates to what crimes count as prior DUIs within the previous 10 years.

Penalty for a Wet Reckless

VC 23103 provides that a wet reckless is a misdemeanor crime, punishable by imprisonment in a county jail for between five and 90 days, as well as a fine of between $145 and $1,000. A defendant may also be required to complete unsupervised, or informal, probation for one to two years. A judge may require a defendant to participate in an alcohol and drug awareness program as a condition of probation.

A judge can require an individual convicted of a wet reckless to install and maintain an ignition interlock device (IID) in their vehicle. The minimum term for an IID is three months, and the maximum term can be more than several years. The length of the term is related to how many DUIs the individual has been convicted of and the length of time over which the individual has committed these offenses.

Wet Reckless Counts as a Prior DUI

An individual who is convicted of wet reckless driving and who commits a subsequent DUI in the 10 years after the date of the offense for which they take the plea will see the wet reckless conviction treated as a prior DUI. As an example, an individual with no criminal record who commits a wet reckless this year and then commits a DUI five years later will be treated as having committed a second DUI. A second DUI offense has more severe penalties for a repeat offender than a wet reckless or a first-time DUI.

Advantages of a Wet Reckless Charge

An individual convicted of a wet reckless charge will not be subject to the same financial, license, and incarceration penalties as an individual with a DUI conviction. The severity of penalties for a DUI depends on the number of DUIs the defendant has committed within a 10-year period.

For a first DUI charged as a misdemeanor, a typical sentence includes a fine of between $390 and $1,000 plus penalty assessments; between 48 hours and six months in jail; three to five years of unsupervised probation; a driver’s license suspension by the criminal court for six months; a possible requirement to install an ignition interlock device on their vehicle for six months; and completion of a three-, six-, or nine-month DUI school.

What Is a "Dry" Reckless?

There's more than one type of reckless driving charge: A dry reckless is a charge of reckless driving that does not involve alcohol. It is also defined by VC 23103, but does not come with as serious penalties as a wet reckless. When compared with a sentence for a wet reckless, a sentence for a dry reckless could involve a shorter unsupervised probation period; less jail time; a shorter or no alcohol program; a lower fine; no license restriction or impacted driving privileges; and less of an increase in the cost of car insurance premiums. Overall, as a driving offense, a dry reckless is less severe than a wet reckless.

A dry reckless also does not count as a prior DUI if the defendant is arrested within 10 years for a DUI. A prosecutor may also choose to charge a defendant with violation of the offense of being drunk in public or exhibition of speed rather than a wet reckless.

Why Charge a Wet Reckless?

A prosecutor may charge a defendant with a wet reckless if the defendant had a blood alcohol concentration (BAC) below 0.08 percent. If the BAC is very low, such as 0.01 percent for an adult over 21, the prosecutor may charge the defendant with a dry reckless. A prosecutor may charge a wet reckless if the evidence against the defendant has flaws.

For example, if the witnesses for the prosecution were also intoxicated at the time of the incident, the prosecution would not have a strong case. This is because the witnesses’ senses were impaired. Since their powers of observation were decreased, the witnesses might not have been able to tell whether the defendant had bloodshot eyes, was swerving while driving or smelled of alcohol.

Wet Reckless and Testing Issues

A prosecutor may also charge a defendant with wet reckless if law enforcement officers’ testing equipment was faulty. Breathalyzer machines can be poorly calibrated. Some sheriffs and police departments do not perform regular maintenance on their machines. A criminal defense attorney may be able to establish that testing equipment did not work correctly.

Also, a prosecutor can charge a defendant with wet reckless if the testing officer did not follow the mandated protocol for engaging in the BAC testing. Sometimes a criminal defense attorney requests a retesting of their client’s blood. If the second test shows the BAC was lower than 0.08 percent, the prosecutor may offer a dry reckless.

Auto Insurance Increases

According to Insurance.com, a conviction of a wet reckless may remain on an individual’s driving record for 10 years after the date on which they were arrested. When the individual renews their driver’s insurance, the cost of their premium is likely to increase. The individual may be ineligible for a good driver discount for as long as the conviction remains on their driving record. Insurance companies do not rely on points assigned to a driver by the state department of motor vehicles. They usually use their own point system or guidelines set up by a company called Verisk to decide a driver’s rate.