DUI BLOG

People very often ask whether it’s possible to get a wet reckless in their DUI case without even knowing what a wet reckless is or what it entails. They do, however, know that it’s something better than a DUI conviction. While they are correct in that it is better than a DUI charge, there are some very important distinctions between a DUI and a wet reckless.

First, it’s important to explain exactly what a wet reckless is.

A prosecutor cannot charge a wet reckless from the outset. It can only be reduced from a DUI charge. If it is offered and the driver accepts, the driver will be pleading guilty or no contest to California Vehicle Code section 23103 pursuant to section 23103.5 which reads, ““A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving…If the prosecution agrees to a plea of guilty or nolo contendere to a charge of [reckless driving] in satisfaction of, or as a substitute for, an original charge of a violation of [DUI], the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of an alcoholic beverage or ingestion or administration of a drug, or both, by the defendant in connection with the offense. The statement shall set forth the facts that show whether or not there was a consumption of an alcohol beverage or the ingestion or administration of a drug by the defendant in connection with the offense.”

In other words, a driver who takes a wet reckless is pleading guilty (or no contest) to reckless driving involving alcohol.

A wet reckless is one of several reductions to a DUI charge that a prosecutor might offer as incentive to get the driver to take a plea deal. Typically, the wet reckless is only offered if there are issues with the prosecutor’s case that might make it difficult for them to win at trial. For example, a wet reckless might be offered when it is determined that the driver’ blood alcohol content is close to the legal limit of 0.08 percent.

In addition to looking better on paper than a DUI conviction, there are a number of other benefits to the wet reckless.

If a person is convicted of a second-time DUI within 10 years, they face a mandatory minimum of 96 hours in jail. If a person is convicted of a third-time DUI within 10 years, they face a mandatory minimum of 120 days in jail. However, if a person is convicted of only a wet reckless when they’ve suffered prior DUI convictions within a 10-year period, there is no mandatory minimum jail sentence. For example, if a person is convicted of a DUI in 2010 and then a wet reckless conviction in 2018, there is no mandatory minimum jail for the wet reckless.

On the other hand, if a person is convicted of a wet reckless and then suffers a DUI within 10 years of the wet reckless conviction, the wet reckless will be treated as though it was a DUI prior. For example, a person is convicted of a wet reckless in 2010 and then suffers a DUI conviction in 2018, they are facing are facing a mandatory minimum of 96 hours in jail.

Other possible advantages of the wet reckless include a shorter probationary period, lower fines and fees, and a shorter DUI program. I say possible because it depends on what the prosecutor offers as a sentence to the wet reckless reduction.

Lastly, a wet reckless conviction does not trigger the 6-month suspension with the DMV. The license will still be suspended, however, if the driver loses the DMV’s administrative per se action.

What good is the Constitution if we don’t use it?

I find myself asking this more often than I’d like to admit. But unfortunately, courts throughout the country continue to issue decisions that erode the protections guaranteed to all of us by the Constitution. Such was the case earlier this month when the Arizona Court of Appeals ruled that, even though officers illegally coerced a DUI suspect into giving consent to be breathalyzed, the results would stand.

In August of 2015, Arizona officers stopped Angel Soza on suspicion of driving under the influence. The officers told Soza that Arizona law “required” him to submit to and successfully complete tests of breath, blood or other bodily substance to determine alcohol concentration or drug content.

Like California, under Arizona law, drivers are impliedly deemed to have given their consent to a chemical test. However, if a driver refuses to provide breath or blood, officers may obtain a warrant to determine the driver’s blood alcohol content. Without a warrant, the driver must voluntarily agree to the testing. In fact, Arizona Revised Statutes section 28-1321, which is Arizona’s implied consent law, states that “[i]f a person under arrest refuses to submit to the test…[t]he test shall not be given.” The judges in Soza’s case admitted as much.

“The mere fact that the defendant does not resist the test is insufficient under the statute; consent must be express, said Judge Sean Earl Brearcliffe, who wrote for the majority.

Based on the officer’s admonition that he was “required” to submit to a test, Soza consented.

This was admittedly a violation of Arizona’s implied consent statute. In fact, Judge Brearcliffe said, “Here, the officer who arrested Soza read him a coercive admonition telling him he was ‘require[d]’ to submit to testing” and “[B]ecause there was no consent and no warrant, the breath test violated [the implied consent law].”

But, apparently, coercion doesn’t matter.

Notwithstanding its own determination that Soza’s consent was coercively obtained by police, the court went on to justify why the results could still be used against Soza.

“As a general rule, because the legislature is charged with providing remedies for the violations of the laws it enacts, unless a law states that exclusion of evidence is a remedy for its violation, the exclusionary rule is not imposed by the courts,” Judge Brearcliffe wrote. “Because the legislature nowhere in Section 28-1321 prescribed suppression of evidence as the remedy for its violation, were we to do so of our own accord, we would be engrafting on the law a remedy neither provided for by the legislature nor required by the Constitution.”

The exclusionary rule is a canon or American criminal justice where evidence obtained in violation of the Constitution cannot be used against a criminal defendant. In other words, for example, when a confession is illegally coerced by police, the confession cannot be used at trial against the defendant.

Therefore, the court ruled that even though the officers illegally coerced Soza’s consent, the results can stand because the implied consent law specifically does not refer to the exclusionary eule as a remedy.

Chief Judge Peter J. Eckerstrom, who dissented, believed that Soza’s breath results should have been thrown out, and I agree.

“In short, the Arizona Supreme Court has twice sanctioned violations of the implied-consent law by applying the exclusionary rule,” Judge Eckerstrom said. “As a subordinate court, I believe we are compelled to follow those cases and apply the rule to the similar violation here.”

There are many misconceptions about what a person should and shouldn’t do during a DUI stop, not the least of which is whether a person should submit to the breathalyzer test. Unfortunately, the answer, like many things in law, is much more complicated than simply “yes” or “no.”

There are actually two breathalyzer tests that can be taken during a California DUI stop. The first is the roadside breathalyzer, often called a preliminary screening alcohol test or “PAS” test, and the second is the “chemical breath test.”

Under California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

Like the other field sobriety tests that officers hope will give them reason to believe that the driver is intoxicated, the roadside breath test is optional. Having said that, many people don’t even know that the other field sobriety tests are optional. These tests include the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. All field sobriety tests, including the roadside breathalyzer, are optional. Although the officer might threaten to arrest you, stand your ground and politely refuse all field sobriety tests. They are only meant to give the officer the evidence they need to arrest you.

In fact, the officer must advise the driver that the roadside breath test is optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

Whether the driver has submitted to the roadside breathalyzer or not, the officer must determine if the person is intoxicated and thus should be arrested.

If the officer has the required probable cause to make an arrest for a DUI, whether through the field sobriety tests, the PAS test, or any other information, California’s Implied Consent Law kicks in. Herein lies the difference between a roadside breath test and a chemical test.

Under California’s Implied Consent law, which is codified in California Vehicle Code section 23612(a)(1)(A), “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

Simply put, if you have a license and you drive in California, you have impliedly consented to submit to the chemical test after you have lawfully been arrested for a DUI, which can either be a breath test or a blood test. If the driver is like me and hates giving blood, then they must provide a breath test. Conversely, if a person opts against the breath test, they must submit to the blood test.

So, to answer the question that is the title of this article, you do not have to (nor do I recommend) submitting to the pre-arrest roadside breath test. However, after someone is arrested, they must do either a breath test or a blood test.

I’m sure you’ve seen them around town. First it was the rentable bicycles on sidewalks throughout Southern California. Now it’s electric scooters as an alternative to walking around town for pedestrians in urban areas like downtown Los Angeles or my neck of the woods, Long Beach.

How do they work? Well, like many things today, there’s an app for it. Download the app onto your smartphone for one the scooter companies that offer their services in your area; Bird, Lime, Skip, Scoot, or Spin. Once downloaded, you can access a map that tells you where the nearest scooter is. Find the nearest scooter, enter your credit card number into the app, and scan the bar code on the scooter with your smartphone to unlock the scooter. Ride.

This week, Los Angeles City Attorney Mike Feuer said that his office secured the conviction of Nicholas Kauffroath, 28, for driving a rentable scooter under the influence.

Kauffroath was riding a rentable Bird scooter in West Los Angeles when he collided with a pedestrian and scooted away without rendering help or providing information.

Law enforcement found Kauffroath at a nearby apartment building where they were able to test his blood alcohol content, which registered at 0.279 percent; more than three times the legal limit.

Kauffroath subsequently pleaded no contest to one count of misdemeanor operating a motorized under the influence and one count of misdemeanor hit and run. He was sentenced to three years of informal probation, a $550 fine, a three-month DUI program, and was ordered to stay off scooters while drinking.

“Drinking while operating a vehicle, a bike – or a scooter – is not only illegal, but can lead to serious injury or worse,” Feuer said in a statement. “This conviction demonstrates our office’s continued effort to enforce our drunk driving laws and make our streets and sidewalks safer.”

While the Los Angeles City Attorney’s office treated Kauffroath’s case as though it was a standard DUI with a vehicle based on the sentence he received, the law regarding DUI’s on scooters is not necessarily the same as a DUI with a vehicle.

California Vehicle Code section 21221 states in pertinent part, “Every person operating a motorized scooter upon a highway…is subject to all…provisions concerning driving under the influence of alcoholic beverages or drugs.” Under this section, it seems as though Kauffroath’s sentence was not wholly inconsistent with vehicle DUI laws regarding punishment.

However, section 21221.5 states in pertinent part, “[I]t is unlawful for any person to operate a motorized scooter upon a highway while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug…A conviction of a violation of this section shall be punishable by a fine of not more than two hundred and fifty dollars ($250).”

The conundrum here is that in the latter section, the penalty for a DUI on a scooter cannot, under the law, be more than $250. This necessarily means that a DUI on an electric scooter cannot be charged as anything more than an infraction with a penalty of nothing more than the $250 fine.

Of course, I don’t know exactly what discussions and/or negotiations occurred between Kauffroath’s defense attorney and the City Attorney’s office regarding his plea deal. I can say that I recently had one of these cases, which was originally charged as a misdemeanor. If convicted as a misdemeanor, my client was looking at three to five years of probation, an 18-month DUI course, fines and fees, and a probation violation for a previous DUI conviction, which could have very well led to jail time. However, after arguing that the language of the law only allowed for a fine of no more than a $250 fine, the case was dropped to an infraction with that $250 fine.

It should be noted that, before scooter renters are allowed to rent and ride the scooters, they are required to confirm that they will not ride while under the influence of alcohol or drugs.

Prosecutors in the state of Massachusetts have agreed to stop using breathalyzer results dating back to 2011 as a result of improper calibration of the breathalyzers when the machines were first purchased by the state. What’s more, state officials later attempted to hide the machines’ flaw from both defense attorneys as well as prosecutors.

The agreement will be presented this week to Judge Robert Brennan, who has been overseeing the proceedings challenging the reliability of the Draeger 9510 since 2015.

Although prosecutors in Massachusetts had already agreed to stop using results from June 1, 2011 to June 14, 2014, defense attorneys learned that state officials in the Office of Alcohol Testing, which is part of the Massachusetts State Police Crime Lab, had withheld hundreds of documents that a judge had ordered them to overturn. Those documents showed a higher calibration failure rate than state officials had previously reported.

According to defense attorney, about 36,500 test results have been affected by the calibration flaw. This includes nearly every breathalyzer result obtained since 2011.

People who were convicted of a DUI where the breathalyzers results were obtained from within that timeframe can seek a new trial if their conviction was based solely on the breathalyzer results. People convicted of a DUI cannot, however, seek a new trial if their conviction was at least partly based on other evidence of intoxication such as observed poor driving by witnesses or police, video, or field sobriety tests.

According to Jake Wark, a spokesman for the Suffolk County District Attorney’s office, the actual number of affected cases will be “significantly lower” than 36,500 because it will not include cases where a breathalyzer was given to a person before being put into protective custody or where someone was given a breathalyzer to show them how the machine works.

Contrary to the usual adversarial rapport between defense attorneys and prosecutors, defense attorneys are maintaining that prosecutors and law enforcement are not to blame for the monumental blunder.

“It was not the assistant district attorneys who were withholding the material, said Joseph Bernard, an attorney leading the litigation over the machines. “They had nothing to do with this and when they found out, they rose up.”

Prosecutors are, however, still arguing to use the results in DUI cases involving death or severe injury, or in fifth or subsequent DUI cases. Additionally, prosecutors are proposing a cutoff date of August 31, 2017, after which they can begin using the breathalyzer results again.

Defense attorneys are arguing that the use of the breathalyzer results should continue to be halted until the state lab obtains accreditation by a national standards group, ANSI-ASQ National Accreditation Board, which likely wouldn’t happen until 2020.

It shouldn’t come as a surprise to anyone where I fall on this. If the results are faulty, they should not be used in any DUI case, including those that involved death or serious injury and fifth or subsequent DUI’s. The seriousness of the offense does not justify the use of tainted evidence.

Furthermore, those convicted of a DUI should not be barred from re-trial simply because other evidence existed. Just because other evidence exists that tends to show intoxication doesn’t mean that that evidence alone and without the breathalyzer result would have produced the same result.

We’ll have to wait and see how this, as I referred to it earlier, monumental blunder plays out in Massachusetts.